Exhibit 10.6
AMENDMENT NO. 1 TO THE
FINANCIAL COVENANTS AND REPORTING REQUIREMENTS ANNEX
AMENDMENT NO. 1 TO THE FINANCIAL COVENANTS AND REPORTING
REQUIREMENTS ANNEX (this "Amendment") dated as of June 18, 2001 among Interstate
FiberNet, Inc. ("FiberNet") and ITC/\DeltaCom Communications, Inc., each as a
lessee (each a "Lessee"), and NTFC Capital Corporation, as lessor ("Lessor").
PRELIMINARY STATEMENTS:
(1) Each Lessee and Lessor have entered into (A) a Master
Lease Agreement dated December 29, 2000 (as amended, supplemented or otherwise
modified immediately prior to the date hereof, the "Lease") and (B) a Financial
Covenants and Reporting Requirements Annex dated December 29, 2000 (as amended,
supplemented or otherwise modified immediately prior to the date hereof, the
"Covenants Annex"). Capitalized terms not otherwise defined in this Amendment
have the same meanings as specified in the Lease.
(2) Each Lessee and Lessor have agreed to amend the Covenants
Annex as hereinafter set forth.
SECTION 1. Amendment to the Covenants Annex. The Covenants
Annex is, effective as of the date hereof and subject to the satisfaction of the
condition precedent set forth in Section 2, hereby amended as follows:
Section 5.02(b)(iii)(x) of the Senior Credit Agreement (as
defined in the Covenants Annex), incorporated by reference in Section 1 of the
Covenants Annex and attached to the Covenants Annex, is amended by deleting the
figure "$50,000,000" and substituting for such figure the figure "$70,000,000."
SECTION 2. Condition to Effectiveness. This Amendment shall
become effective as of the date first above written when, and only when, Lessor
shall have received counterparts of this Amendment executed by each Lessee and
Guarantor.
SECTION 3. Representations and Warranties of Each Lessee. Each
Lessee represents and warrants that:
(a) the representations and warranties of such Lessee
contained in each Lease 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; (b) the representations and warranties set out in Sections 13(b), (c), (d)
and (e) are incorporated and set out in full herein with references therein to
"this Agreement" or "Lease Documents" in whatever form being replaced by "this
Amendment";
(c) no Event of Default has occurred and is continuing, or would
result from this Amendment;
(d) the First Amendment to the Senior Credit Agreement among the
parties to the Senior Credit Agreement and dated as of June 1, 2001 is in full
force and effect.
SECTION 4. Reference to and Effect on the Annexes. (a) On and after
the effectiveness of this Amendment, each reference in the Covenants Annex to
"this Annex," "hereunder," "hereof" or words of like import referring to the
Covenants Annex, shall mean and be a reference to the Covenants Annex, as
amended by this Amendment, and each reference in the Lease Documents to the
"Financial Covenants and Reporting Requirements Annex," "thereunder," "thereof"
or words of like import shall mean and be a reference to the Covenants Annex, as
amended by this Amendment.
(b) The Covenants Annex, as amended by this Amendment, is and shall
continue to be in full force and effect and hereby is 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 Lessor under any of the Lease Documents, nor constitute a
waiver of any provision of any of the Lease Documents.
SECTION 5. Consent of FiberNet. FiberNet, as Guarantor under the
Guaranty, hereby consents to this Amendment and hereby confirms and agrees that
(a) it has received a copy of and reviewed to its satisfaction this Amendment
and, (b) notwithstanding the effectiveness of this Amendment, the Guaranty is,
and shall continue to be, in full force and effect and hereby is ratified and
confirmed in all respects.
SECTION 6. Execution in Counterparts. This Amendment may be executed
by one or more of the parties on any number of separate counterparts (which may
be originals or copies sent by facsimile transmission), each of which
counterparts shall be an original.
SECTION 7. Governing Law. This Amendment shall be governed by the
laws of the State of New York. All parties waive all rights to a jury trial to
the extent permitted by law.
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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.
As Lessee and, solely for purposes of
Section 5 of this Amendment, as Guarantor:
INTERSTATE FIBERNET, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-CFO
As Lessee:
ITC/\DELTACOM COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-CFO
As Lessor:
NTFC CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
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