EXHIBIT 10.9
EXECUTION
AMENDMENT NO. 8 AND EXTENSION OF LIMITED WAIVER
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 8 AND EXTENSION OF LIMITED WAIVER TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT (this "Amendment"), dated as of March 28,
2002, is among KMC TELECOM LLC, a Delaware limited liability company (f/k/a KMC
TELECOM INC., a Delaware corporation) ("KMC"), KMC TELECOM II LLC, a Delaware
limited liability company (f/k/a KMC TELECOM II, INC., a Delaware corporation)
("KMC II"), KMC TELECOM III LLC, a Delaware limited liability company (f/k/a KMC
TELECOM III, INC., a Delaware corporation) ("KMC III"), KMC TELECOM OF VIRGINIA,
INC., a Virginia public service company ("KMC VIRGINIA"), KMC TELECOM LEASING I
LLC, a Delaware limited liability company ("LEASING I"), KMC TELECOM LEASING II
LLC, a Delaware limited liability company ("LEASING II"), KMC TELECOM LEASING
III LLC, a Delaware limited liability company ("LEASING III"), KMC ▇▇▇▇▇▇▇.▇▇▇,
INC., a Delaware corporation ("▇▇▇▇▇▇▇.▇▇▇"), KMC III SERVICES LLC, a Delaware
limited liability company ("SERVICES"; KMC, KMC II, KMC III, KMC Virginia,
Leasing I , Leasing II, Leasing III, ▇▇▇▇▇▇▇.▇▇▇ and Services being hereinafter
collectively referred to as the "Borrowers"), the "Lenders" party hereto, FIRST
UNION NATIONAL BANK, as administrative agent for the Lenders (the "AGENT") and
CIT LENDING SERVICES CORPORATION (f/k/a NEWCOURT COMMERCIAL FINANCE
CORPORATION), as collateral agent for the Lenders (the "COLLATERAL AGENT").
WHEREAS, the Borrowers, the Agent, the Collateral Agent and
the Lenders are parties to that certain Amended and Restated Loan and Security
Agreement dated as of February 15, 2000, as amended by Amendment No. 1 thereto
dated as of March 28, 2000, Amendment No. 2 thereto dated as of July 28, 2000,
Amendment No. 3 and Limited Waiver thereto dated as of February 23, 2001,
Amendment No. 4 and Limited Waiver thereto dated as of April 12, 2001, Amendment
No. 5 and Limited Waiver thereto dated as of July 16, 2001, Amendment No. 6 and
Limited Waiver thereto dated as of January 31, 2002 and Amendment No. 7, Limited
Waiver and Consent thereto dated as of February 20, 2002 (as so amended, the
"LOAN AGREEMENT"; undefined capitalized terms used herein shall have the
meanings assigned thereto in the Loan Agreement), pursuant to which the Lenders
have agreed to make certain "Loans" and other financial accommodations to the
Borrowers;
WHEREAS, the Borrowers have requested that Lenders (i) extend
the Term B Loan Commitment Termination Date to April 15, 2002 and (ii) extend
the January 31, 2002 date set forth in Section 1.3 of that certain Limited
Waiver to the Loan Agreement dated as of December 20, 2001 (the "DECEMBER
WAIVER") to April 15, 2002 (as previously extended to March 31, 2002 pursuant to
the Sixth Amendment); and
WHEREAS, the Agents and Lenders have agreed to such request,
but only on the terms and conditions, and subject to the representations and
warranties, set forth herein.
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
NOW, THEREFORE, in consideration of the premises set forth
above, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers, the Agents and the
Lenders agree as follows:
1. AMENDMENT TO THE LOAN AGREEMENT. Effective as of the date
first above written and subject to the satisfaction of the conditions set forth
in Section 4 below (such date, the "EIGHTH AMENDMENT EFFECTIVE DATE"), SECTION
1.02 of the Loan Agreement is hereby amended by amending and restating the
definition of "Term B Loan Commitment Termination Date" appearing therein as
follows:
""TERM B LOAN COMMITMENT TERMINATION DATE" shall mean April
15, 2002."
2. EXTENSION OF LIMITED WAIVER. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Amendment, the Agents and Requisite Lenders hereby agree to
extend the January 31, 2002 date set forth in Section 1.3 of the December Waiver
to April 15, 2002 (as previously extended to March 31, 2002 pursuant to the
Sixth Amendment).
3. ACKNOWLEDGMENT; RESERVATION OF RIGHTS; RELEASE OF CLAIMS.
3.1 ACKNOWLEDGMENT. Each Borrower acknowledges and agrees that
certain Defaults or Events of Defaults may have occurred and be continuing under
the Loan Agreement. Each Borrower acknowledges and agrees that, from and after
the date hereof, it shall not submit to Agent or Collateral Agent a Notice of
Borrowing requesting a Loan or a notice requesting the issuance of a Letter of
Credit or the provision of Credit Support for a Letter of Credit without the
prior written consent of Requisite Lenders.
3.2 RESERVATION OF RIGHTS. The Agent, on behalf of the Lenders,
has not, as of the date hereof except as set forth herein, exercised its rights
and remedies under the Loan Agreement and the other Loan Documents with respect
to any Default or Event of Default that may now exist; and the Agent, in its
sole discretion, on behalf of the Lenders (and subject only to the right of the
Requisite Lenders or Lenders, as the case may be, to direct the Agent to take or
refrain from taking certain actions as may be set forth in the Loan Documents),
may refrain from making, or continue to make, Loans or issue or renew Letters of
Credit, as the case may be, to the Borrowers under the Loan Agreement. Although
the Agents, on behalf of the Lenders, have not as of the date hereof, except as
provided herein, exercised with respect to any Default or Event of Default that
may now exist any of the rights, remedies, powers and privileges of the Agents
and/or the Lenders under the Loan Agreement and the other Loan Documents, such
non-exercise and any future non-exercise of any rights, remedies, powers and
privileges by any of the Agents or Lenders with respect to any Default or Event
of Default (whether now existing or hereafter occurring), shall not in any
manner be deemed or construed as a waiver thereof. Any waiver of any Default or
Event of Default shall only be effective if executed and delivered in a written
instrument in accordance with the provisions of SECTION 11.02 of the Loan
Agreement. Each of the Agents, on behalf of the Lenders, hereby reserves its
rights to exercise, without further notice to Borrowers or any other Loan Party,
any and all of such rights, remedies, powers or privileges of each such Agent,
on behalf of the Lenders, under the Loan Agreement at any time, and from time to
time, as such Agent deems appropriate in respect of any Defaults or Events of
Default that may now or hereafter exist. The Agents and Lenders hereby reserve
and preserve all of their respective
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
2
rights and remedies under the Loan Agreement, the other Loan Documents and
applicable law, and the Agents' and Lenders' voluntary action or inaction, if
any, from exercising any of such rights or remedies is not intended (and should
not be construed) as a waiver of such Events of Default or a waiver of its
rights and remedies with respect to them.
3.3 RELEASE AND DISCHARGE OF CLAIMS AND ACTIONS. TO INDUCE THE
AGENTS AND THE LENDERS TO ENTER INTO THIS AMENDMENT, EACH BORROWER AND EACH
GUARANTOR ON BEHALF OF ITSELF AND EACH OF ITS SUBSIDIARIES AND AFFILIATES EACH
HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY RELEASES, ACQUITS
AND FOREVER DISCHARGES EACH OF THE AGENTS AND EACH LENDER AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL
LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION OF ANY KIND (IF ANY
THERE BE), WHETHER ABSOLUTE OR CONTINGENT, DUE OR TO BECOME DUE, DISPUTED OR
UNDISPUTED, AT LAW OR IN EQUITY, THAT ANY BORROWER OR ANY GUARANTOR NOW HAVE OR
EVER HAD AGAINST ANY AGENTS OR LENDER ARISING UNDER, BASED UPON OR IN CONNECTION
WITH THE LOAN AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY BY REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER FROM THE
BEGINNING OF THE WORLD TO AND INCLUDING THE EIGHTH AMENDMENT EFFECTIVE DATE.
4. CONDITIONS PRECEDENT. This Amendment shall become effective
as of the date above written, if, and only if, the Agent shall have received
duly executed originals of (i) this Amendment from the Borrowers, the Requisite
Lenders and the Agents, and (ii) a Reaffirmation of Guaranty in the form of
Exhibit A annexed hereto duly executed by KMC Holdings, KMC I Services LLC, KMC
II Services LLC, Data Holdco, KMC Financing, KMC Financial Services, Holdings
IV, KMC IV, KMC IV Services LLC, KMC Telecom Leasing IV LLC and KMC Telecom IV
of Virginia, Inc.
5. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. In order to
induce the Lenders to enter into this Amendment in the manner provided herein,
each Borrower hereby represents and warrants, as to each Borrower or each Loan
Party, as the case may be, that after giving effect to this Amendment:
(a) AUTHORIZATION OF AGREEMENTS; BINDING OBLIGATIONS. The
execution and delivery of this Amendment and the performance of the Loan
Agreement as amended by this Amendment (as so amended, the "AMENDED AGREEMENT")
have been duly authorized by all necessary corporate action on the part of such
Borrower and constitute the legal, valid and binding obligations of such
Borrower, enforceable against such Borrower in accordance with their respective
terms except as may be limited by bankruptcy, insolvency reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
(b) CORPORATE POWER AND AUTHORITY. Such Borrower has all
requisite corporate power and authority to enter into this Amendment, and such
Loan Party has all requisite corporate power and authority to carry out the
transactions contemplated by, and perform its obligations under, the Loan
Agreement, as amended by this Amendment.
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
3
(c) NO CONFLICT. The execution and delivery by such Borrower of
this Amendment and the performance by such Borrower of the Amended Agreement do
not and will not (i) violate any provision of any law or any governmental rule
or regulation applicable such Borrower, the Certificate or Articles of
Incorporation or Bylaws (or comparable organizational documents) of such
Borrower or any order, judgment or decree of any court or other agency or
government binding on such Borrower, (ii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
contractual obligation of such Borrower, (iii) result in or require the creation
or imposition of any Lien upon any of the properties or assets of such Borrower
(other than Liens created under any of the Loan Documents in favor of the
Collateral Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any contractual
obligation of such Borrower.
(d) GOVERNMENT CONSENTS. The execution and delivery by such
Borrower of this Amendment and the performance by such Borrower of the Amended
Agreement do not and will not require any registration with, consent or approval
of or notice to, or other action to, with or by, any multi-national, federal,
provincial, state, municipal, local or other governmental authority or
regulatory body.
(e) REAFFIRMATION. Upon the effectiveness of this Amendment,
such Borrower hereby reaffirms, subject to Section 3.1 hereof, all
representations and warranties made in the Loan Agreement, and to the extent the
same are not amended hereby, agrees that, subject to Section 3.1 hereof, all
such representations and warranties shall be deemed to have been remade as of
the date of delivery of this Amendment, unless and to the extent that any such
representation and warranty is stated to relate solely to an earlier date, in
which case such representation and warranty shall be true and correct as of such
earlier date.
6. REFERENCE TO AND EFFECT ON THE LOAN AGREEMENT.
(a) Upon the effectiveness of Section 1 hereof, on and after
the date hereof, each reference in the Loan Agreement to "this Loan Agreement,"
"this Agreement," "hereunder," "hereof," "herein" or words of like import shall
mean and be a reference to the Loan Agreement as amended hereby, and each
reference to the Loan Agreement in any other document, instrument or agreement
shall mean and be a reference to the Loan Agreement as amended hereby.
(b) The Loan Agreement, as amended hereby, and all other
documents, instruments and agreements executed and/or delivered in connection
therewith, shall remain in full force and effect, and are hereby ratified and
confirmed.
(c) Except as expressly provided herein, the execution,
delivery and effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of the Agents or the Lenders, nor constitute a waiver
of any provision of the Loan Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
7. FEES AND EXPENSES. Each Borrower acknowledges and agrees
that all costs, fees and expenses as described in SECTION 11.04 of the Loan
Agreement incurred by Agents, Lenders and their respective counsel with respect
to this Amendment and the documents and transactions contemplated hereby shall
be for the account of the Borrowers.
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
4
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE OTHER REMAINING TERMS OF THE LOAN AGREEMENT AND
THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAW PROVISIONS) OF THE STATE OF NEW
YORK.
9. PARAGRAPH HEADINGS. The paragraph headings contained in
this Amendment are and shall be without substance, meaning or content of any
kind whatsoever and are not a part of the agreement among the parties thereto.
10. COUNTERPARTS. This Amendment may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
5
IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
THE BORROWERS:
KMC TELECOM LLC (f/k/a KMC TELECOM
INC.)
KMC TELECOM II LLC (f/k/a KMC TELECOM
II, INC.)
KMC TELECOM III LLC (f/k/a KMC TELECOM
III, INC.)
KMC TELECOM OF VIRGINIA, INC.
KMC ▇▇▇▇▇▇▇.▇▇▇, INC.
In each case:
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Treasurer
KMC TELECOM LEASING I LLC
By: KMC TELECOM INC., as its Sole Member
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Treasurer
KMC TELECOM LEASING II LLC
By: KMC TELECOM II, INC., as its Sole
Member
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Treasurer
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
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KMC TELECOM LEASING III LLC
KMC III SERVICES LLC
In each case:
By: KMC TELECOM III, INC., as Sole Member
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Treasurer
FIRST UNION NATIONAL BANK, as the Agent
and as a Lender
By:________________________
Name:
Title:
CIT LENDING SERVICES CORPORATION
(f/k/a NEWCOURT COMMERCIAL FINANCE
CORPORATION), as the Collateral Agent
and as a Lender
By:________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, as a Lender
By:________________________
Name:
Title:
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
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KMC TELECOM LEASING III LLC
KMC III SERVICES LLC
In each case:
By: KMC TELECOM III, INC., as Sole Member
By:________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Treasurer
FIRST UNION NATIONAL BANK, as the Agent
and as a Lender
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
________________________
Name: ▇.▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
CIT LENDING SERVICES CORPORATION
(f/k/a NEWCOURT COMMERCIAL FINANCE
CORPORATION), as the Collateral Agent
and as a Lender
By:________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, as a Lender
By:________________________
Name:
Title:
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
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KMC TELECOM LEASING III LLC
KMC III SERVICES LLC
In each case:
By: KMC TELECOM III, INC., as Sole Member
By:________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Treasurer
FIRST UNION NATIONAL BANK, as the Agent
and as a Lender
By:________________________
Name:
Title:
CIT LENDING SERVICES CORPORATION
(f/k/a NEWCOURT COMMERCIAL FINANCE
CORPORATION), as the Collateral Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
CANADIAN IMPERIAL BANK OF
COMMERCE, as a Lender
By:________________________
Name:
Title:
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
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KMC TELECOM LEASING III LLC
KMC III SERVICES LLC
In each case:
By: KMC TELECOM III, INC., as Sole Member
By:________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Treasurer
FIRST UNION NATIONAL BANK, as the Agent
and as a Lender
By:________________________
Name:
Title:
CIT LENDING SERVICES CORPORATION
(f/k/a NEWCOURT COMMERCIAL FINANCE
CORPORATION), as the Collateral Agent
and as a Lender
By:________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
CIBC Inc., as Agent
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
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GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: MANAGER-OPERATIONS
LT HOLDCO II LLC, as a Lender
By: SFG XVI, Inc., its Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a Lender
By:________________________
Name:
Title:
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By:________________________
Name:
Title:
By:________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as a Lender
By:________________________
Name:
Title:
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
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GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By:________________________
Name:
Title:
LT HOLDCO II LLC, as a Lender
By: SFG XVI, Inc., its Manager
By:________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender
By:________________________
Name:
Title:
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Associate
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as a Lender
By:________________________
Name:
Title:
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PRIME
INCOME TRUST, as a Lender
By:________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By:________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇ & FARNHAM INCORPORATED as
agent for KEYPORT LIFE INSURANCE
COMPANY, as a Lender
By:________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇ FLOATING RATE LIMITED
LIABILITY COMPANY, as a Lender
By:________________________
Name:
Title:
IBM CREDIT CORPORATION, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Treasurer
AMENDMENT NO. 8 TO LOAN AGREEMENT EXECUTION
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