EXHIBIT 10.23.3
AMENDMENT NO. 2 TO THE
CREDIT AGREEMENT
Dated as of June 1, 2001
AMENDMENT NO. 2 TO THE CREDIT AGREEMENT among ITC/\DeltaCom,
Inc., a Delaware corporation (the "Parent"), Interstate FiberNet, Inc., a
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Delaware corporation (the "Borrower"), ITC/\Deltacom Communications, Inc., an
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Alabama corporation, DeltaCom Information Systems, Inc., an Alabama corporation
(collectively, the "Subsidiary Guarantors"), the banks, financial institutions
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and other institutional lenders parties to the Credit Agreement referred to
below (collectively, the "Lenders") and Xxxxxx Xxxxxxx Senior Funding, Inc., as
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administrative agent (the "Administrative Agent") for the Lenders.
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PRELIMINARY STATEMENTS:
(1) The Borrower, the Parent, the Subsidiary Guarantors, the
Lenders and the Administrative Agent have entered into a Credit Agreement dated
as of April 5, 2000 (as amended, supplemented or otherwise modified through the
date hereof, the "Credit Agreement"). Capitalized terms not otherwise defined in
this Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrower, the Parent, the Subsidiary Guarantors and
the Required Lenders have agreed to amend the Credit Agreement as hereinafter
set forth.
(3) The Required Lenders are, on the terms and conditions
stated below, willing to grant the request of the Borrower and the Borrower, the
Parent, the Subsidiary Guarantors and the Required Lenders have agreed to amend
the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit
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Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 2, hereby amended as follows:
(a) Section 1.01 is amended to add the following definitions:
"Investment Agreement" means the Investment Agreement,
dated as of February 27, 2001 and amended as of May 29, 2001, as the
amended from time to time in accordance with its terms, among Parent,
ITC Holding Company, Inc., SCANA Corporation and HBK Master Fund L.P.
"PIK Dividends" means the shares of Series B Preferred
Stock paid or payable as dividends on shares of Series B Preferred
Stock in accordance with the applicable certificate of designation with
respect thereto.
"Series B Preferred Stock" means the shares of any series
of the Parent's cumulative convertible preferred stock which is
designated as "Series B-__ Cumulative Convertible Preferred Stock" and
issued pursuant to the Investment Agreement and the
certificate of designation for such series of cumulative convertible
preferred stock, including, without limitation, PIK Dividends.
(b) The second paragraph of Section 5.02(b) is amended by
deleting the word "and" where it appears immediately before clause
(vii) and inserting the following immediately after clause (vii):
"; and
(viii) with respect to the Parent, the Series B Preferred
Stock."
SECTION 2. Conditions of Effectiveness. This Amendment shall
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become effective as of the date first above written when, and only when, the
Administrative Agent shall have received counterparts of this Amendment executed
by the Borrower, the Parent, the Subsidiary Guarantors and the Required Lenders
or, as to any of the Lenders, advice satisfactory to the Administrative Agent
that such Lender has executed this Amendment. This Amendment is subject to the
provisions of Section 9.01 of the Credit Agreement.
SECTION 3. Representations and Warranties of the Borrower. The
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Borrower represents and warrants that:
(a) the representations and warranties contained in each
Loan Document are correct in all material respects on and as of the
date hereof, before and after giving effect to this Amendment, other
than any such representations and warranties that, by their terms,
refer to a specific date other than the date hereof, in which case as
of such specific date; and
(b) no Default has occurred and is continuing, or would result
from this Amendment.
SECTION 4. Consent of the Borrower, the Parent and the
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Subsidiary Guarantors. The Parent and the Subsidiary Guarantors, as Guarantors
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under the Credit Agreement, and the Borrower, the Parent and the Subsidiary
Guarantors, as Grantors under the Security Agreement, hereby consent to this
Amendment and hereby confirm and agree that (a) they have received a copy of and
reviewed to their satisfaction this Amendment, (b) notwithstanding the
effectiveness of this Amendment, each of the Guaranties, the Security Agreement
and the other Loan Documents are, and shall continue to be, in full force and
effect and are hereby ratified and confirmed in all respects, except that, on
and after the effectiveness of this Amendment, each reference in the Loan
Documents to the "Credit Agreement," "thereunder," "thereof," or words of like
import shall mean and be a reference to the Credit Agreement, as amended by this
Amendment, and (c) the Loan Documents to which the Borrower, the Parent or any
Subsidiary Guarantor is a party and all of the Collateral described therein do,
and shall continue to, secure the payment of all of the Secured Obligations.
SECTION 5. Reference to and Effect on the Credit. (a) On and
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after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," or words of like import
referring to the Credit Agreement, and each reference in the Notes to "the
Credit Agreement," "thereunder," "thereof," or words of like
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import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement and the other Loan Documents as
specifically amended by this Amendment are and shall continue to be in
full force and effect and are hereby in all respects ratified and
confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any Lender or the
Administrative Agent under any of the Loan Documents, nor constitute a
waiver of any provision of any of the Loan Documents.
SECTION 6. Costs; Expenses. The Borrower agrees to pay on
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demand all costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery and administration, modification and amendment
of this Amendment and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent) in accordance with the terms of Section
9.04 of the Credit Agreement.
SECTION 7. Execution in Counterparts. This Amendment may be
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executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by,
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and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
ITC/\DELTACOM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President-CFO
INTERSTATE FIBERNET, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President-CFO
ITC/\DELTACOM COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President-CFO
DELTACOM INFORMATION SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President-CFO
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XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Administrative Agent and as Lender
By: /s/ Xxxx X. Xxxxxxxxx
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Title: Managing Director
XXXXXX XXXXXXX & CO. INCORPORATED,
as Collateral Agent
By: /s/ Xxxx X. Xxxxxxxxx
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Title: Managing Director
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As Lenders
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Lender: Suffield CLO, Ltd.
By: X.X. Xxxxxx & Co. Inc. as
Collateral Manager
By: /s/ Xxxxxx X. Xxxx
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Title: Counsel
As Lenders
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Lender: Fidelity and Guaranty Life
By: Xxxxxx Asset Management
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President
As Lenders
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Lender: Maplewood (Cayman) Limited
By: Massachusetts Mutual Life
Insurance Company,
as Investment Manager
By: /s/ Xxxxxx X. Xxxx
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Title: Second Vice President
As Lenders
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Lender: P W Willows Fund L.L.C.
By: Bond Street Capital, L.L.C.,
its advisor
By: /s/ Xxx X. Xxx
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Title: Managing Member
As Lenders
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Lender: Excel Bank
By: /s/
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Title: Vice President
As Lenders
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Lender: IBM Credit Corporation
By: /s/
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Title: Manager of Credit
As Lenders
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Lender: ELC (Cayman) Ltd. 2000-1
By: /s/
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Title: Director
As Lenders
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Lender: XXXXX CLO Ltd. 2000-1
By: /s/
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Title: Director
As Lenders
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Lender: Bank of America, NA
By: /s/
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Title: AVP
As Lenders
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Lender: Sankaty High Yield Partners
II, L.P.
By: /s/ Xxxxx X. Xxxxx
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Title: Managing Director
Portfolio Manager
As Lenders
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Lender: Sankaty High Yield Partners
III, L.P.
By: /s/ Xxxxx X. Xxxxx
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Title: Managing Director
Portfolio Manager
As Lenders
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Lender: Sankaty Advisors, LLC as Collateral
Manager for Great Point CLO 1999-1
Ltd. as Term Lender
By: /s/ Xxxxx X. Xxxxx
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Title: Managing Director
Portfolio Manager
As Lenders
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Lender: Sankaty Advisors, LLC as Collateral
Manager for Xxxxx Xxxxx XX XXX 0000-0
Ltd. as Term Lender
By: /s/ Xxxxx X. Xxxxx
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Title: Managing Director
Portfolio Manager
As Lenders
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Lender: PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset Management
as its Investment Advisor
By: /s/ Xxx Xxxxxxx
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Title: Vice President
As Lenders
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Lender: Xxxxxxx Bank
By: /s/ Xxxxxxxxx X. Xxxxx
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Title: Vice President
As Lenders
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Lender: WESTPAC BANKING CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
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Title: Vice President
As Lenders
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Lender: PROMETHEUS INVESTMENT
FUNDING NO. 1 LTD.
By: CPF Asset Advisory, L.L.C., as
Investment Manager
By: /s/ Xxxxxx X. Xxxxx
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Title: Associate Director
By: /s/ Xxxxxxxxx X. Talimadge
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Title: Managing Director
Chief Investment Officer