EXHIBIT 10.10
EXECUTION
AMENDMENT NO. 9 AND EXTENSION OF LIMITED WAIVER
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 9 AND EXTENSION OF LIMITED WAIVER TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT (this "AMENDMENT"), dated as of April 15,
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 TELECOM.COM,
INC., a Delaware corporation ("TELECOM.COM"), KMC III SERVICES LLC, a Delaware
limited liability company ("SERVICES"; KMC, KMC II, KMC III, KMC Virginia,
Leasing I , Leasing II, Leasing III, Telecom.com and Services being hereinafter
collectively referred to as the "BORROWERS"), the "Lenders" party hereto,
WACHOVIA BANK, NATIONAL ASSOCIATION (f/k/a 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, Amendment No. 7, Limited
Waiver and Consent thereto dated as of February 20, 2002 and Amendment No. 8 and
Extension of Limited Waiver thereto dated as of March 28, 2002 (the "EIGHTH
AMENDMENT") (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 May 15, 2002, (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 May 15, 2002
(as previously extended to March 31, 2002 pursuant to the Sixth Amendment and to
April 15, 2002 pursuant to the Eighth Amendment) and (iii) extend the April 25,
2002 date set forth in Section 1.1 of that certain Limited Waiver to the Loan
Agreement dated as of April 5, 2002 (the "APRIL WAIVER") to May 15, 2002; and
AMENDMENT NO. 9 TO LOAN AGREEMENT EXECUTION
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.
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 "NINTH 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 May 15, 2002."
2. EXTENSIONS 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:
(a) the January 31, 2002 date set forth in Section 1.3 of the December
Waiver to May 15, 2002 (as previously extended to March 31, 2002 pursuant to the
Sixth Amendment and to April 15, 2002 pursuant to the Eighth Amendment); and
(b) the April 25, 2002 date set forth in Section 1.1 of the April
Waiver to May 15, 2002.
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
AMENDMENT NO. 9 TO LOAN AGREEMENT EXECUTION
2
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 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 NINTH 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,
AMENDMENT NO. 9 TO LOAN AGREEMENT EXECUTION
3
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.
(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
AMENDMENT NO. 9 TO LOAN AGREEMENT EXECUTION
4
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.
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. 9 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 TELECOM.COM, INC.
In each case:
By: /s/ Constance Loosemore
________________________
Name: Constance Loosemore
Title: Vice President, Treasurer
KMC TELECOM LEASING I LLC
By: KMC TELECOM INC., as its Sole Member
By: /s/ Constance Loosemore
________________________
Name: Constance Loosemore
Title: Vice President, Treasurer
KMC TELECOM LEASING II LLC
By: KMC TELECOM II, INC., as its Sole Member
By: /s/ Constance Loosemore
________________________
Name: Constance Loosemore
Title: Vice President, Treasurer
AMENDMENT NO. 9 TO LOAN AGREEMENT EXECUTION
S-1
KMC TELECOM LEASING III LLC
KMC III SERVICES LLC
In each case:
By: KMC TELECOM III, INC., as Sole Member
By: /s/ Constance Loosemore
________________________
Name: Constance Loosemore
Title: Vice President, Treasurer
WACHOVIA BANK, NATIONAL
ASSOCIATION (f/k/a FIRST UNION NATIONAL
BANK), as the Agent and as a Lender
By:________________________
Name:
Title:
CIT LENDING SERVICES CORPORATION
(f/k/a NEWCOURTCOMMERCIAL 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. 9 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: Constance Loosemore
Title: Vice President, Treasurer
WACHOVIA BANK, NATIONAL
ASSOCIATION (f/k/a FIRST UNION NATIONAL
BANK), as the Agent and as a Lender
By: /s/ G.C. Ullrich
________________________
Name: G.C. Ullrich
Title: Senior Vice President
CIT LENDING SERVICES CORPORATION
(f/k/a NEWCOURTCOMMERCIAL 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. 9 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: Constance Loosemore
Title: Vice President, Treasurer
WACHOVIA BANK, NATIONAL
ASSOCIATION (f/k/a FIRST UNION NATIONAL
BANK), as the Agent and as a Lender
By:________________________
Name:
Title:
CIT LENDING SERVICES CORPORATION
(f/k/a NEWCOURTCOMMERCIAL FINANCE
CORPORATION), as the Collateral Agent and as a
Lender
By: /s/ John Tamburro
________________________
Name: John Tamburro
Title: Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE, as a Lender
By:________________________
Name:
Title:
AMENDMENT NO. 9 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: Constance Loosemore
Title: Vice President, Treasurer
WACHOVIA BANK, NATIONAL
ASSOCIATION (f/k/a FIRST UNION NATIONAL
BANK), as the Agent and as a Lender
By:________________________
Name:
Title:
CIT LENDING SERVICES CORPORATION
(f/k/a NEWCOURTCOMMERCIAL FINANCE
CORPORATION), as the Collateral Agent and as a
Lender
By:________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, as a Lender
By: /s/ Jacqueline Stewart
________________________
Name: Jacqueline Stewart
Title: Executive Director
CIBC Inc., as Agent
AMENDMENT NO. 9 TO LOAN AGREEMENT EXECUTION
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GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By: /s/ William Strittmatter
________________________
Name: William Strittmatter
Title: Vice President
LT HOLDCO II LLC, as a Lender
By: SFG XVI, Inc., its Manager
By: /s/ Kevin M. Curtin
________________________
Name: Kevin M. Curtin
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:
MORGAN STANLEY SENIOR FUNDING, INC.,
as a Lender
By:________________________
Name:
Title:
AMENDMENT NO. 9 TO LOAN AGREEMENT EXECUTION
S-3
MORGAN STANLEY DEAN WITTER PRIME
INCOME TRUST, as a Lender
By:________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By:________________________
Name:
Title:
STEIN ROE & FARNHAM INCORPORATED as
agent for KEYPORT LIFE INSURANCE
COMPANY, as a Lender
By: /s/ James R. Fellows
________________________
Name: James R. Fellows
Title: Sr. Vice President & Portfolio Manager
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY, as a Lender
By: /s/ James R. Fellows
________________________
Name: James R. Fellows
Title: Senior Vice President
Stein Roe & Farnham Incorporated,
as Advisor to the Stein Roe Floating Rate
Limited Liability Company
IBM CREDIT CORPORATION, as a Lender
By:________________________
Name:
Title:
AMENDMENT NO. 9 TO LOAN AGREEMENT EXECUTION
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