Exhibit 10.8
CONSENT AND FIRST
AMENDMENT
TO
INTERCREDITOR AND SUBORDINATION
AGREEMENT
CONSENT AND FIRST AMENDMENT TO
INTERCREDITOR AND SUBORDINATION AGREEMENT, dated as of March 29,
2005 (this “ Amendment ”) by and among
the First Lien Agent, the First Lien Lenders party hereto, the
Second Lien Agent, the Second Lien Lenders and the Loan Parties
(each as defined below);
RECITALS:
WHEREAS, ITC^DeltaCom, Inc., a
Delaware corporation (the “ Parent ”),
Interstate FiberNet, Inc., a Delaware corporation (the “
Borrower ”), certain subsidiary guarantors (the
“ Subsidiary Guarantors ” and together
with the Parent and the Borrower, the “ Loan
Parties ”), Wells Fargo Bank, N.A., as administrative
agent and collateral agent (the “ First Lien
Agent ”), and certain banks, financial institutions
and other institutional lenders (the “ First Lien
Lenders ”) are party to that certain Second Amended
and Restated Credit Agreement dated as of October 6, 2003 (the
“ First Lien Second Amended Credit Agreement
”);
WHEREAS, in connection with the
First Lien Second Amended Credit Agreement, (a) the Parent, the
Borrower, the Subsidiary Guarantors, and the banks and financial
institutions listed on the signature pages thereto as Lenders (the
“ Second Lien Lenders ”) and General
Electric Capital Corporation (the “ Second Lien
Agent ”) entered into a Credit Agreement, dated as of
October 6, 2003 (the “ Second Lien Original Credit
Agreement ”) and (b) the First Lien Agent, the First
Lien Lenders, the Second Lien Agent, the Second Lien Lenders and
the Loan Parties entered into the Intercreditor and Subordination
Agreement, dated as of October 6, 2003 (the “
Intercreditor Agreement ”);
WHEREAS, (a) the parties to the
First Lien Second Amended Credit Agreement have entered into a
Third Amended and Restated Credit Agreement dated as of the date
hereof (the “ First Lien Third Amended Credit
Agreement ”), (b) the parties to the Second Lien
Original Credit Agreement have entered into an Amended and Restated
Credit Agreement, dated as of the date hereof (the “
Second Lien Amended Credit Agreement ”) and (c)
in connection with the foregoing, the First Lien Agent, the First
Lien Lenders, the Second Lien Agent, the Second Lien Lenders and
the Loan Parties have determined to amend the Intercreditor
Agreement on the terms described in this Amendment;
NOW, THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree that the Intercreditor Agreement shall be amended as
follows:
SECTION 1. Definitions; Section
References . Capitalized terms not otherwise defined in this
Amendment have the same meanings as specified in the Intercreditor
Agreement. Unless otherwise specified herein or the context
otherwise indicates, references in this Amendment to any
“Section” are to Sections of the Intercreditor
Agreement.
SECTION 2. Amendments to
Intercreditor Agreement . Effective as of the Amendment
Effective Date (as such term is defined in Section 3 of this
Amendment), the Intercreditor Agreement is amended as
follows:
(a) The definitions of
“Existing First Lien Loan Agreement,” “First Lien
Debt,” “First Lien Security Agreement,”
“First Lien Term Loans,” and “Guarantors,”
in Section 1.1 are hereby amended and restated in their entirety to
read as follows:
“ Existing First Lien
Loan Agreement ” shall mean the Third Amended and Restated Credit
Agreement, dated as of March 29, 2005, by and among the Loan
Parties and the First Lien Lender Parties, as the same may be
amended in accordance with the terms hereof.
“ First Lien Debt
” shall mean any
and all obligations, liabilities and indebtedness of every kind,
nature and description owing by any Loan Party to any of the First
Lien Lender Parties evidenced by, or arising under, the First Lien
Debt Documents, whether direct or indirect, absolute or contingent,
joint or several, due or not due, primary or secondary, liquidated
or unliquidated, including principal, interest, charges, fees,
costs, indemnities, expenses and any amounts previously paid and
avoided and recovered by the Loan Parties in connection with any
Proceeding, however evidenced, whether as principal, surety,
endorser, guarantor or otherwise, whether now existing or hereafter
arising, whether arising during or after the initial or any renewal
term of the First Lien Loan Agreement or after the commencement of
any Proceeding with respect to such Loan Party. First Lien Debt
shall be considered to be outstanding whenever any loan commitment
under the First Lien Debt Documents is outstanding; provided,
however, the principal amount of indebtedness under the First Lien
Loan Agreement shall not constitute First Lien Debt to the extent
it exceeds (a) $208,000,000 minus (b) the sum of (i)
scheduled principal payments and (ii) prepayments (whether optional
or mandatory), in each case, actually made on the First Lien Debt
after the date hereof.
“ First Lien Security
Agreement ” shall mean the Third Amended and Restated
Security Agreement, dated as of March 29, 2005, by and among the
Loan Parties and the First Lien Agent, and any security agreement
or similar agreement executed and delivered in connection with any
Acceptable Refinancing Debt, as the same may be amended, modified,
supplemented, extended, renewed or restated, to the extent
permitted pursuant to the terms hereof.
“ First Lien Term
Loans ” shall
mean the Tranche 1 Term B Advance, the New Tranche 1 Term B
Advance, the Tranche 2 Term B Advance, the New Tranche 2 Term B
Advance, the Tranche 3 Term B Advance, the Tranche 4 Term B Advance
and the Special Term B Advances, as such terms are defined in the
First Lien Loan Agreement.
“ Guarantors
” shall mean the
Parent and the Subsidiary Guarantors (as such term is defined under
the First Lien Loan Agreement and the Second Lien Loan Agreement),
as well as any other Person that becomes a Guarantor under the
First Lien Loan Agreement and the Second Lien Loan Agreement after
the date hereof, whether by acquisition or otherwise and any other
Person (other than the Borrower) liable on or in
respect of any First Lien Debt or
the Second Lien Debt and their respective successors and assigns,
including, without limitation, any receiver, trustee or
debtor-in-possession on behalf of any such Person or on behalf of
any such successor or assign.
(b) Section 3 is hereby amended and
restated in its entirety to read as follows:
Agent for Purposes of
Perfection . The
First Lien Agent and the Second Lien Agent each hereby appoints the
other as agent for the purpose of perfecting the appointing
agent’s Liens on any of the Collateral in the possession or
control of such other agent and in connection therewith, each of
the First Lien Agent the Second Lien Agent acknowledges and agrees
that it shall hold any collateral in its possession for the benefit
of the other agent, including, without limitation, for purposes of
sections 9-313 and 8-301 of the Uniform Commercial Code; provided,
that the possessing or controlling agent shall not have any duty or
liability to protect or preserve any rights pertaining to any of
such Collateral and, except for gross negligence or willful
misconduct as determined pursuant to a final non-appealable order
of a court of competent jurisdiction, the non-possessing or
non-controlling agent hereby waives and releases the possessing or
controlling agent from all claims and liabilities arising pursuant
to the possessing or controlling agent’s role as possessing
or controlling agent with respect to such Collateral, so long as
the possessing or controlling agent shall use the same degree of
care with respect thereto as the possessing or controlling agent
uses for similar property pledged to the possessing or
controll
