Exhibit 10.2



 Exhibit 10.2 
  
 AMENDED AND RESTATED CREDIT AGREEMENT 
  
 Dated as of March 29, 2005 
  
 Among 
  
 ITC^DELTACOM, INC. 
  
 as Parent 
  
 INTERSTATE FIBERNET, INC.

  
 as Borrower 
  
 THE SUBSIDIARY GUARANTORS NAMED HEREIN 
  
 as Subsidiary Guarantors 
  
 THE LENDERS NAMED HEREIN 
  
 as Lenders 
  
 GENERAL ELECTRIC CAPITAL CORPORATION 
  
 as Administrative Agent and 
  
 Collateral Agent 







  
 TABLE OF CONTENTS

  

					
	 	  	 	  	Page


	 ARTICLE I
	  	 DEFINITIONS AND ACCOUNTING TERMS
	  	2
			
	 Section 1.01.
	  	 Certain Defined Terms
	  	2
			
	 Section 1.02.
	  	 Computation of Time Periods; Other Definitional Provisions
	  	29
			
	 Section 1.03.
	  	 Accounting Terms
	  	29
			
	 ARTICLE II
	  	 AMOUNTS AND TERMS OF THE ADVANCES
	  	30
			
	 Section 2.01.
	  	 Restructuring
	  	30
			
	 Section 2.02.
	  	 Intentionally omitted
	  	30
			
	 Section 2.03.
	  	 Repayment of Advances
	  	30
			
	 Section 2.04.
	  	 Intentionally omitted.
	  	31
			
	 Section 2.05.
	  	 Prepayments
	  	31
			
	 Section 2.06.
	  	 Interest
	  	32
			
	 Section 2.07.
	  	 Fees
	  	33
			
	 Section 2.08.
	  	 Conversion of Advances
	  	33
			
	 Section 2.09.
	  	 Increased Costs, Etc.
	  	34
			
	 Section 2.10.
	  	 Payments and Computations
	  	35
			
	 Section 2.11.
	  	 Taxes
	  	37
			
	 Section 2.12.
	  	 Sharing of Payments, Etc.
	  	39
			
	 Section 2.13.
	  	 Intentionally omitted
	  	40
			
	 Section 2.14.
	  	 Defaulting Lenders
	  	40
			
	 Section 2.15.
	  	 Evidence of Debt; Register
	  	42
			
	 ARTICLE III
	  	 CONDITIONS OF LENDING
	  	43
			
	 Section 3.01.
	  	 Conditions Precedent to the Amendment Effective Date
	  	43
			
	 ARTICLE IV
	  	 REPRESENTATIONS AND WARRANTIES
	  	48
			
	 Section 4.01.
	  	 Representations and Warranties of the Borrower
	  	48
			
	 ARTICLE V
	  	 COVENANTS
	  	55
			
	 Section 5.01.
	  	 Affirmative Covenants
	  	55
			
	 Section 5.02.
	  	 Negative Covenants
	  	63
			
	 Section 5.03.
	  	 Reporting Requirements
	  	76
			
	 ARTICLE VI
	  	 EVENTS OF DEFAULT
	  	80
			
	 Section 6.01.
	  	 Events of Default
	  	80

  

 i 








 TABLE OF CONTENTS 
 (Continued) 
  

					
	 	  	 	  	Page


	 ARTICLE VII
	  	 GUARANTY
	  	83
			
	 Section 7.01.
	  	 Guaranty; Limitation of Liability
	  	83
			
	 Section 7.02.
	  	 Guaranty Absolute
	  	84
			
	 Section 7.03.
	  	 Waivers and Acknowledgments
	  	85
			
	 Section 7.04.
	  	 Subrogation
	  	86
			
	 Section 7.05.
	  	 Guaranty Supplements
	  	86
			
	 Section 7.06.
	  	 Subordination
	  	87
			
	 Section 7.07.
	  	 Continuing Guaranty; Assignments
	  	88
			
	 Section 7.08.
	  	 Release of Guarantor
	  	88
			
	 ARTICLE VIII
	  	 THE AGENT
	  	88
			
	 Section 8.01.
	  	 Authorization and Action
	  	88
			
	 Section 8.02.
	  	 Agents’ Reliance, Etc.
	  	88
			
	 Section 8.03.
	  	 GECC and Affiliates
	  	89
			
	 Section 8.04.
	  	 Lender Credit Decision
	  	89
			
	 Section 8.05.
	  	 Indemnification
	  	89
			
	 Section 8.06.
	  	 Successor Agents
	  	90
			
	 Section 8.07.
	  	 Appointment of Subagents
	  	91
			
	 ARTICLE IX
	  	 MISCELLANEOUS
	  	91
			
	 Section 9.01.
	  	 Amendments, Etc
	  	91
			
	 Section 9.02.
	  	 Notices, Etc
	  	92
			
	 Section 9.03.
	  	 No Waiver; Remedies
	  	92
			
	 Section 9.04.
	  	 Costs and Expenses
	  	92
			
	 Section 9.05.
	  	 Right of Set-off
	  	94
			
	 Section 9.06.
	  	 Binding Effect
	  	94
			
	 Section 9.07.
	  	 Assignments and Participations
	  	95
			
	 Section 9.08.
	  	 Execution in Counterparts
	  	98
			
	 Section 9.09.
	  	 Confidentiality
	  	98
			
	 Section 9.10.
	  	 Release of Collateral
	  	98

  

 ii 








 TABLE OF CONTENTS 
 (Continued) 
  

					
	 	  	 	  	Page


			
	 Section 9.11.
	  	 Jurisdiction, Etc.
	  	98
			
	 Section 9.12.
	  	 Governing Law
	  	99
			
	 Section 9.13.
	  	 Waiver of Jury Trial
	  	99
			
	 Section 9.14.
	  	 Waiver and Consent
	  	99
			
	 Section 9.15.
	  	 Release of the Agents and the Lenders
	  	99

  

 iii 








 SCHEDULES 
  

					
	 Schedule I
	  	-	  	 Applicable Lending Offices

	 Schedule II
	  	-	  	 Subsidiary Guarantors

	 Schedule III
	  	-	  	 Competitors

	 Schedule IV
	  	-	  	 Subsidiaries to be Dissolved

	 Schedule 4.01(a)(ii)
	  	-	  	 Pending Good Standing

	 Schedule 4.01(a)(iii)
	  	-	  	 Pending Licenses, Permits and Other Approvals

	 Schedule 4.01(b)
	  	-	  	 Subsidiaries

	 Schedule 4.01(d)
	  	-	  	 Authorizations, Approvals, Actions, Notices and Filings

	 Schedule 4.01(f)
	  	-	  	 Disclosed Litigation

	 Schedule 4.01(p)
	  	-	  	 Plans, Multiemployer Plans and Welfare Plans

	 Schedule 4.01(r)
	  	-	  	 Open Years; Unpaid Tax Liabilities; Adjusted Tax Bases

	 Schedule 4.01(u)
	  	-	  	 Surviving Debt

	 Schedule 4.01(v)
	  	-	  	 Liens

	 Schedule 4.01(w)
	  	-	  	 Owned Real Property

	 Schedule 4.01(x)
	  	-	  	 Leased Real Property

	 Schedule 4.01(y)
	  	-	  	 Investments

	 Schedule 4.01(z)
	  	-	  	 Intellectual Property

	 Schedule 4.01(aa)
	  	-	  	 Material Contracts

	 Schedule 9.14
	  	-	  	 Waived Events of Default


  
 EXHIBITS 
  

					
	 Exhibit A
	  	-	  	 Form of Term Note

	 Exhibit B
	  	-	  	 Form of Capital Lease Assignments

	 Exhibit C
	  	-	  	 Form of Assignment and Acceptance

	 Exhibit D
	  	-	  	 Form of Security Agreement

	 Exhibit E-1
	  	-	  	 Form of Second Lien Intercreditor and Subordination Agreement

	 Exhibit E-2
	  	-	  	 Form of Third Lien Intercreditor and Subordination Agreement

	 Exhibit F
	  	-	  	 Intentionally Omitted

	 Exhibit G
	  	-	  	 Form of Opinion of Counsel to the Loan Parties

	 Exhibit H
	  	-	  	 Intentionally Omitted

	 Exhibit I
	  	-	  	 Form of Guaranty Supplement


  

 iv 








 AMENDED AND RESTATED CREDIT AGREEMENT 
  
 AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 29, 2005 (this “Agreement”), among
ITC^DeltaCom, Inc., a Delaware corporation (the “Parent”), Interstate FiberNet, Inc., a Delaware corporation (the “Borrower”), the subsidiary guarantors listed on the signature page hereof, the banks,
financial institutions and other institutional lenders listed on the signature pages hereof (the “Lenders”), General Electric Capital Corporation, as administrative agent (together with any successor administrative agent
appointed pursuant to Article VIII, the “Administrative Agent”) for the Lenders and as collateral agent (together with any successor collateral agent appointed pursuant to Article VIII, the “Collateral
Agent” and, together with the Administrative Agent, the “Agents”). 
  
 RECITALS: 
  
 WHEREAS, the Parent, the Borrower, the Subsidiary Guarantors, the Lenders and the Agents are party to the Credit Agreement, dated as of October 6, 2003, as amended (the “Original Second Lien Credit Agreement”);

  
 WHEREAS, pursuant to the Credit Agreement, dated as of April
5, 2000, (the “Original ITCD Credit Agreement”), among the Borrower, the Parent, the subsidiary guarantors listed on the signature pages thereof, and the banks, financial institutions and other institutional lenders from time
to time parties thereto as lenders or agents, such lenders made available to the Borrower $160,000,000, consisting of $100,000,000 under the Tranche 1 Term B Facility, as defined in the Original ITCD Agreement, and $60,000,000 under the Tranche 2
Term B Facility, as defined in the Original ITCD Agreement in order to finance (a) working capital and certain capital expenditures (including the build-out of the collocation and data services businesses) and other general corporate purposes and
(b) the purchase of certain equipment, respectively; 
  
 WHEREAS,
(a) the Borrower, ITC^DeltaCom Communications, Inc. (“Communications” and together with the Borrower, the “Lessees”) and NTFC Capital Corporation (“NTFC”) are party to that
certain Master Lease Agreement, dated December 29, 2000, and the schedules, annexes and security documents related thereto (as amended through the date hereof, the “NTFC Capital Lease”), and (b) Communications and General
Electric Capital Corporation (“GE Lessor”) are party to that certain Master Lease Agreement, dated December 31, 2001, and the schedules, annexes and security documents related thereto (as amended through the date hereof, the
“GECC Capital Lease”); 
  
 WHEREAS, the
Parent, the Borrower, the subsidiary guarantors listed on the signature pages thereof, and the banks, financial institutions and other institutional lenders from time to time parties thereto as lenders or agents, entered into (a) an amendment and
restatement, dated as of October 29, 2002, of the Original ITCD Credit Agreement (the “First Amended ITCD Credit Agreement”) and (b) a second amendment and restatement, dated as of October 6, 2003, of the
First Amended ITCD Credit Agreement (the “Second Amended ITCD Credit Agreement”); 
  









 WHEREAS, the Loan Parties (as defined below) have requested (a) that certain First Lien Lenders (as
defined below) make additional term loans available to the Borrower under the terms and conditions described in the First Lien Credit Agreement (as defined below), (b) that the First Lien Lenders and the Lenders consent to the incurrence by the
Borrower of subordinated secured indebtedness pursuant to that certain Credit Agreement, dated as of March 29, 2005, by and among the Borrower, the lenders signatory thereto and WCAS, as administrative agent and collateral agent (the
“Third Lien Credit Agreement”), (c) that the First Lien Lenders, NTFC and the GE Lessor consent to a restructuring of the indebtedness owing under the Second Amended ITCD Credit Agreement, the NTFC Capital Lease and the GECC
Capital Lease, and (d) in connection with the foregoing, that the Lenders agree to amend and restate the terms of the Second Lien Credit Agreement pursuant to the terms of this Agreement; and 
  
 WHEREAS, it is the intention of the parties that this Agreement not novate,
extinguish or replace the indebtedness governed by the Original Second Lien Credit Agreement, but that, from and after the Amendment Effective Date, the Original Second Lien Credit Agreement and the aggregate outstanding amount of the obligations
owing by the Loan Parties thereunder shall be assumed, restructured, combined, converted and consolidated pursuant to the terms of this Agreement; 
  
 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, as of the Amendment Effective Date, the Original Second Lien Credit Agreement shall be amended and restated in its entirety as follows: 
  
 ARTICLE I 
  
 DEFINITIONS AND ACCOUNTING TERMS 
  
 SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined): 
  
 “Accepted Budget” means, collectively, the items set forth in clauses (i), (ii) and (iii) of Section 5.03(e), in each case, in form and substance as approved by the Administrative Agent. 
  
 “Additional Guarantor” has the
meaning specified in Section 7.05. 
  
 “Administrative Agent” has the meaning specified in the preamble of this Agreement. 
  
 “Administrative Agent’s Account” means the account of the Administrative Agent as the Administrative Agent
shall specify in writing to the Lenders. 
  
 “Advance” means a Term Advance.  
  

 2 








 “Affiliate” means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term “control” (including the terms “controlling”,
“controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to vote 10% or more of the Voting Interests of such Person or to direct or cause the direction of the management
and policies of such Person, whether through the ownership of Voting Interests, by contract or otherwise. 
  
 “Agents” has the meaning specified in the preamble of this Agreement. 
  
 “Agreement” means this Amended and
Restated Credit Agreement, dated as of March 29, 2005, among the Parent, the Borrower, the Subsidiary Guarantors, the Lenders and the Agents, as amended, amended and restated, supplemented or otherwise modified from time to time. 
  
 “Agreement Value” means, for each
Hedge Agreement, on any date of determination, an amount determined by the Administrative Agent equal to: (a) in the case of a Hedge Agreement documented pursuant to the Master Agreement (Multicurrency-Cross Border) published by the International
Swap and Derivatives Association, Inc. (the “Master Agreement”), the amount, if any, that would be payable by any Loan Party or any of its Subsidiaries to its counterparty to such Hedge Agreement, as if (i) such Hedge
Agreement was being terminated early on such date of determination, (ii) such Loan Party or Subsidiary was the sole “Affected Party,” and (iii) the Administrative Agent was the sole party determining such payment amount (with the
Administrative Agent making such determination pursuant to the provisions of the form of Master Agreement); or (b) in the case of a Hedge Agreement traded on an exchange, the mark-to-market value of such Hedge Agreement, which will be the unrealized
loss on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party to such Hedge Agreement determined by the Administrative Agent based on the settlement price of such Hedge Agreement on such date of determination; or (c) in all other
cases, the mark-to-market value of such Hedge Agreement, which will be the unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party to such Hedge Agreement determined by the Administrative Agent as the amount, if any,
by which (i) the present value of the future cash flows to be paid by such Loan Party or Subsidiary exceeds (ii) the present value of the future cash flows to be received by such Loan Party or Subsidiary pursuant to such Hedge Agreement; capitalized
terms used and not otherwise defined in this definition shall have the respective meanings set forth in the above described Master Agreement. 
  
 “Amendment Effective Date” means the first date on which the conditions set forth in Section 3.01 shall have been
satisfied. 
  
 “Applicable Base Rate
Margin” means the Applicable Eurodollar Rate Margin then in effect, less 1.00%. 
  

 3 








 “Applicable Eurodollar Rate Margin” means the applicable rates
set forth below, subject to adjustment each fiscal quarter based upon the Senior Debt Ratio as measured on the last day of each fiscal quarter for the period of the four consecutive fiscal quarters then ended, commencing December 31, 2004, and as
certified by the Borrower to the Agents and the Lenders in the Financial Covenants Certificate: 
  

			
	 Senior Debt Ratio

	  	 Applicable Eurodollar Rate Margin


	 34.00x
	  	8.00%
	 3
3.50x
	  	7.50%
	 3
3.25x
	  	7.00%
	 3
3.00x
	  	6.75%
	 32.50x
	  	6.50%
	 < 2.50x
	  	6.25%

  
 “Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar Lending Office in the case of a
Eurodollar Rate Advance. 
  
 “Appropriate Lender” means, at any time, with respect to the Term Facility, a Lender that has a Commitment with respect to the Term Facility at such time. 
  
 “Approved Fund” means, with respect
to any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is advised or managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor. 
  
 “Assignment and Acceptance” means an
assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in accordance with Section 9.07 and in substantially the form of Exhibit C hereto. 
  
 “Assumed BTI Debt” means (a) the
Debt evidenced by the Tranche 3 Term B Advances, (as provided and defined in the First Lien Credit Agreement), (b) the Debt under the Loan Documents, (c) unsecured Debt in the principal amount of $18,525,000 evidenced by the 101⁄2% Senior Notes
due 2007 of BTI and (d) unsecured Debt in the principal amount of $7,100,000 evidenced by the note payable by BTI, Inc. to the order of P&H, Inc.  
  

“Bankruptcy Code” means title 11 of the United States Code, as amended. 
  
 “Base Rate” means a fluctuating
interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the higher of: 
  
 (a) the rate listed in the “Money Rates” section of The Wall Street Journal as the “prime rate”; and

  

 4 








 (b) 1/2 of 1% per annum above the Federal Funds Rate. 
  
 “Base Rate Advance” means an Advance
that bears interest as provided in Section 2.06(a)(i). 
  
 “Benefit Plan Exchange Offer” means any transaction in which the Parent acquires and/or retires Equity Plan Securities in exchange for other Equity Plan Securities. 
  
 “Board Designees” means individuals
whose nomination for election, appointment or election as directors of the Parent is effectuated pursuant to (a) the Governance Agreement or (b) the Series A Certificate of Designation or the Series B Certificate of Designation. 
  
 “Borrower” has the meaning specified
in the preamble of this Agreement. 
  
 “Borrowing” means a Term Borrowing. 
  
 “Business Day” means a day of the year on which banks are not required or authorized by law to close in New York City and, if the applicable Business Day relates to any Eurodollar Rate
Advances, on which dealings are carried on in the London interbank market. 
  
 “BTI” means BTI Telecom Corp., a North Carolina corporation. 
  
 “BTI, Inc.” means Business Telecom, Inc. 
  
 “Capital Expenditures” means, for
any Person for any period, the sum of, without duplication, (a) all expenditures made, directly or indirectly, by such Person or any of its Subsidiaries during such period for equipment, fixed assets, real property or improvements, or for
replacements or substitutions therefor or additions thereto, that have been or should be, in accordance with GAAP, reflected as additions to property, plant or equipment on a Consolidated balance sheet of such Person or have a useful life of more
than one year plus (b) the aggregate principal amount of all Debt (including Obligations under Capitalized Leases) assumed or Incurred in connection with any such expenditures. For purposes of this definition, the purchase price of equipment that is
purchased simultaneously with the trade-in of existing equipment or with insurance proceeds shall be included in Capital Expenditures only to the extent of the gross amount of such purchase price less the credit granted by the seller of such
equipment for the equipment being traded in at such time or the amount of such proceeds, as the case may be. 
  
 “Capital Lease Assignments” means those certain UCC-3 financing statements
authenticated by GE Lessor and NTFC, respectively, pursuant to which GE Lessor and NTFC will assign to the First Lien Agents and the Agents their respective security interests in the assets subject to the GECC Capital Lease and the NTFC Capital
Lease, respectively. 
  

 5 








 “Capitalized Leases” means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases. 
  
 “Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) in equity of such
Person, whether outstanding on the date of this Agreement or issued thereafter, including, without limitation, all Common Stock and Preferred Stock. 
  
 “Cash Equivalents” means any of the following, to the extent owned by the Parent or any of its Subsidiaries free
and clear of all Liens other than Liens created under the Collateral Documents and having a maturity of not greater than 360 days from the date of issuance thereof: (a) readily marketable direct obligations of the Government of the United States or
any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the Government of the United States; (b) insured certificates of deposit of or time deposits with any commercial bank that is a Lender or
a member of the Federal Reserve System, issues (or the parent of which issues) commercial paper rated as described in clause (c) below, is organized under the laws of the United States or any State thereof and has combined capital and surplus of at
least $1 billion; (c) commercial paper in an aggregate amount of no more than $160,000,000 per issuer outstanding at any time, issued by any corporation organized under the laws of any State of the United States and rated at least “P-1”
(or the then equivalent grade) by Moody’s Investors Service, Inc. or “A-1” (or the then equivalent grade) by Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.; or (d) obligations issued by any state of the
United States of America or any municipality or other political subdivision of any such state or any public instrumentality thereof having, at the time of acquisition, the highest rating obtainable from any of Standard & Poor’s, a division
of The McGraw-Hill Companies, Inc., Moody’s Investors Service, Inc. or Fitch Ratings, Inc., including, without limitation, auction rate certificates. 
  
 “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from
time to time. 
  
 “CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency. 
  
 “Change of Control” means the
occurrence on any date after the Amendment Effective Date of any of the following: (a) a “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the “beneficial owner” (within
the meaning of Rule 13d-3 of the SEC under the Exchange Act) of more than 35% of the total voting power of the Voting Stock of the Parent on a Fully Diluted Basis and such ownership represents a greater percentage of the total voting power of the
Voting Stock of the Parent, on a Fully Diluted Basis, than the percentage of the total voting power of the Voting Stock of the Parent, on a Fully Diluted Basis, beneficially owned (within the meaning of Rule 13d-3 of the SEC under the Exchange Act)
by the Existing Stockholders on such date; or (b) individuals who on the Amendment Effective Date constitute the board of directors of the Parent (together with any new directors 

  

 6 








 
whose appointment by the board of directors of the Parent or whose nomination by the board of directors of the Parent for election by the Parent’s
stockholders was approved by a vote of at least a majority of the members of the board of directors then in office who either were members of the board of directors on the Amendment Effective Date or whose appointment or nomination for election was
previously so approved) cease for any reason to constitute a majority of the members of the board of directors then in office; or (c) the Parent shall cease to own 100% directly of the Equity Interests of the Borrower and 100%, directly or
indirectly, of the Equity Interests of the other Loan Parties. For purposes of clause (b) of this definition, all Board Designees shall be deemed to be members of the board of directors of the Parent whose appointment or nomination for election was
approved in the manner specified in clause (b). 
  
 “Chief Financial Officer” means, with respect to any Loan Party, the officer of such Loan Party designated by such Loan Party as its chief financial officer or, if there is no such officer designation, the officer of
such Loan Party designated by such Loan Party as its principal accounting officer. 
  
 “Collateral” means all “Collateral” referred to in the Collateral Documents and all other property that
is or is intended to be subject to any Lien in favor of the Collateral Agent for the benefit of the Secured Parties. 
  
 “Collateral Account” has the meaning specified in the Security Agreement. 
  
 “Collateral Agent” has the meaning
specified in the preamble of this Agreement. 
  
 “Collateral Documents” means the Security Agreement, the Intercreditor and Subordination Agreements, the Mortgages, the Capital Lease Assignments and any other agreement that creates or purports to create a Lien in
favor of the Collateral Agent for the benefit of the Secured Parties. 
  
 “Commitment” means a Term Commitment. 
  
 “Common Stock” means, with respect to any Person, any and all shares, interests, participations or other
equivalents (however designated, whether voting or non-voting) of such Person’s equity, other than Preferred Stock of such Person, whether outstanding on the date of this Agreement or issued thereafter, including, without limitation, all series
and classes of such common stock. 
  
 “Communications” has the meaning specified in the recitals of the parties to this Agreement. 
  
 “Competitor” shall mean any Person identified on Schedule III hereto (or any Affiliate thereof) and any other
Person (or any Affiliate thereof) that engages primarily, or as one of its principal activities, in the business of providing competitive local exchange telecommunications services to business customers. 
  
 “Confidential Information” means
information that any Loan Party furnishes to any Agent or any Lender on a confidential basis, but does not include any such 

  

 7 








 
information that is or becomes generally available to the public or that is or becomes available to such Agent or such Lender from a source other than the
Loan Parties which such Agent or such Lender do not have reason to believe is confidential information. Notwithstanding anything to the contrary set forth in this definition or in this Agreement “Confidential
Information” shall not include information relating to the tax structure or tax treatment of any structure or transaction and all materials of any kind (including opinions and other tax analyses) that are provided to the
party relating to such tax treatment and tax structure, excluding information the confidentiality of which is reasonably necessary to comply with U.S. Federal or state securities laws, it being the intent of the foregoing to cause any structure or
transaction not to be treated as having been offered under conditions of confidentiality for purposes of Section 1.6011-4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of the Internal Revenue Code, and
this definition shall be construed in a manner consistent with such purpose. 
  
 “Consolidated” refers to the consolidation of accounts in accordance with GAAP. 
  
 “Contingent Obligation” means, with respect to any Person, any Obligation or arrangement of such Person to
guarantee or intended to guarantee any Debt, leases, dividends or other payment Obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, including, without limitation, (a) the direct or indirect guarantee, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the
Obligation of a primary obligor, (b) the Obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement or (c) any Obligation of such Person, whether or not contingent, (i)
to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of
the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed
to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to
the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder), as determined by such
Person in good faith. 
  
 “Conversion,” “Convert” and “Converted” each refer to a conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.08 or 2.09.

  
 “Conversion Shares”
means the Common Stock or other securities issued or issuable upon conversion of the Series A Preferred Stock. 
  

 8 








 “Current Assets” of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of a company conducting a business the same as or similar to that of such Person, after deducting adequate reserves in each case in which a reserve is proper in accordance with
GAAP. 
  
 “Current
Liabilities” of any Person means (a) all Debt of such Person that by its terms is payable on demand or matures within one year after the date of determination (excluding any Debt renewable or extendible, at the option of such Person, to
a date more than one year from such date or arising under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date), (b) all amounts of Funded Debt of such
Person required to be paid or prepaid within one year after such date and (c) all other items (including taxes accrued as estimated) that in accordance with GAAP would be classified as current liabilities of such Person. 
  
 “Debt” of any Person means, at any
time without duplication, (a) all indebtedness of such Person for borrowed money, (b) all Obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue by more than 90 days incurred in the
ordinary course of such Person’s business, unless such trade payables overdue by more than 90 days are contested in good faith by such Person), (c) all Obligations of such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all Obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such property), (e) all Obligations of such Person as lessee under Capitalized Leases, (f) all Obligations of such Person under acceptance, letter of credit or similar
facilities, (g) all Obligations of such Person to Redeem any Equity Interests in such Person or in any other Person, or to Redeem options, warrants or other rights to purchase or otherwise acquire such Equity Interests, before the date which is six
months after the Termination Date (provided, that if the exercise of the right to Redeem such Equity Interests or options, warrants or other rights is at the option of such Person under the terms of such Equity Interests or otherwise, the
date of such Person’s exercise, if any, of such right to Redeem shall be the date on which such Person shall first be deemed to have an Obligation to Redeem such Equity Interests or options, warrants or other rights for purposes of this
definition), valued in the case of Preferred Interests at the stated liquidation preference of such Preferred Interests plus accrued and unpaid dividends from time to time, (h) all Obligations of such Person in respect of Hedge Agreements, valued at
the Agreement Value thereof, (i) all Contingent Obligations of such Person and (j) all indebtedness and other payment Obligations referred to in clauses (a) through (i) above of another Person secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such
indebtedness or other payment Obligations. Notwithstanding clause (g) of this definition, the Obligations referred to in such clause (g) as constituting “Debt” shall not include Obligations of such Person to Redeem Equity Interests in such
Person (or to Redeem options, warrants or other rights to purchase or otherwise acquire such Equity 

  

 9 








 
Interests) in exchange for, or out of the proceeds of a substantially concurrent offering of, other Equity Interests (or options, warrants or other rights to
purchase or otherwise acquire such other Equity Interests) in such Person, provided, that any Obligations of such Person to Redeem such other Equity Interests (or to Redeem options, warrants or other rights to purchase or acquire such other
Equity Interests) shall be subject to the provisions of such clause (g). 
  
 “Debt for Borrowed Money” of any Person means all items that, in accordance with GAAP, would be classified as indebtedness on a Consolidated balance sheet of such Person; provided,
however, notwithstanding the foregoing, “Debt for Borrowed Money” shall not include any trade payables, any Preferred Interests (including, without limitation, with respect to the Loan Parties, the Series A Preferred
Stock and the Series B Preferred Stock) or any dividends accrued or paid or payable with respect to Preferred Interests. 
  
 “Default” means any Event of Default or any event that would constitute an Event of Default but for the
requirement that notice be given or time elapse or both. 
  
 “Defaulted Amount” means, with respect to any Lender at any time, any amount required to be paid by such Lender to any Agent or any other Lender hereunder or under any other Loan Document at or
prior to such time that has not been so paid as of such time, including, without limitation, any amount required to be paid by such Lender to (a) any other Lender pursuant to Section 2.12 to purchase any participation in Advances owing to such other
Lender and (b) any Agent pursuant to Section 8.05 to reimburse such Agent for such Lender’s ratable share of any amount required to be paid by the Lenders to such Agent. In the event that a portion of a Defaulted Amount shall be deemed paid
pursuant to Section 2.14(b), the remaining portion of such Defaulted Amount shall be considered a Defaulted Amount originally required to be paid hereunder or under any other Loan Document on the same date as the Defaulted Amount so deemed paid in
part. 
  
 “Defaulting
Lender” means, at any time, any Lender that, at such time, (a) owes a Defaulted Amount or (b) shall take any action or be the subject of any action or proceeding of a type described in Section 6.01(f). 
  
 “Disclosed Litigation” has the
meaning specified in Section 3.01(c). 
  
 “Domestic Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender, as the case may be, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Administrative Agent. 
  
 “EBITDA” means, for any Person for any period, the sum, determined on a Consolidated
basis, of (a) net income (or net loss) after eliminating extraordinary and/or non-recurring items to the extent included in net income (except as provided in this definition), (b) interest expense, (c) income tax expense, (d) depreciation expense,
(e) amortization expense, (f) the aggregate of all non-cash charges deducted in arriving at 

  

 10 








 
net income in clause (a) above that are recognized after March 1, 2005, (g) any restructuring charges that are recognized after March 1, 2005 and (h) asset
impairment charges, in each case determined in accordance with GAAP for such period (including, without limitation, Emerging Issues Task Force Issue 94-3 and Statement of Financial Accounting Standards Nos. 121, 142 and 146). 
  
 “Eligible Assignee” means any
commercial bank or financial institution (including, without limitation, any fund that regularly invests in loans similar to the Advances) as approved (so long as no Default has occurred and is continuing at the time of the relevant assignment
pursuant to Section 9.07) by the Borrower (such approval not to be unreasonably withheld or delayed); provided, however, that neither any Loan Party nor any Affiliate of a Loan Party shall qualify as an Eligible Assignee under this
definition; provided, further, that no Competitor shall qualify as an Eligible Assignee under this definition. 
  
 “Environmental Action” means any action, suit, demand, demand letter, claim, notice of non-compliance or
violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, any Environmental Permit or Hazardous Material or arising from alleged injury or
threat to health, safety or the environment, including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory
authority or third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief. 
  
 “Environmental Law” means any Federal, state, local or foreign statute, law, ordinance, rule, regulation, code,
order, writ, judgment, injunction, decree or judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials. 
  
 “Environmental Permit” means any permit, approval, identification number, license or other authorization required
under any Environmental Law. 
  
 “Equity Interests” means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from
such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein),
whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination. 
  

 11 








 “Equity Plan Securities” means any Equity Interests
awarded, granted, sold or issued pursuant to any stock option, restricted stock, stock incentive, deferred compensation, profit sharing, defined benefit, defined contribution or other benefit plan of any Loan Party or any Subsidiary of any Loan
Party. 
  
 “ERISA” means
the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. 
  
 “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member of the controlled group of
any Loan Party, or under common control with any Loan Party, within the meaning of Section 414 of the Internal Revenue Code. 
  
 “ERISA Event” means (a) (i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA,
with respect to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the application for a minimum funding
waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA), excluding, however, a “standard termination” as defined in Section 4041(a)(2) of ERISA; (d) the cessation of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA; or (h) the institution by
the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to
administer, such Plan. 
  
 “Eurocurrency Liabilities” has the meaning specified in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time. 
  
 “Eurodollar Lending Office” means,
with respect to any Lender, the office of such Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Administrative Agent. 
  

 12 








 “Eurodollar Rate” means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an interest rate per annum equal to the rate per annum obtained by dividing (a) the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page
3750 (or any successor page) as the London interbank offered rate for deposits in U.S. dollars at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period for a period equal to such Interest Period (provided,
that, if for any reason such rate is not available, the term “Eurodollar Rate” shall mean, for any Interest Period for all Eurodollar Rate Advances comprising part of the same Borrowing, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates) by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period. 
  
 “Eurodollar Rate Advance” means an Advance that bears interest as provided in Section 2.06(a)(ii). 
  
 “Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar Rate Advances comprising part of
the same Borrowing means the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Rate Advances is determined) having a term equal to such Interest
Period. 
  
 “Events of
Default” has the meaning specified in Section 6.01. 
  
 “Excess Cash Flow” means, for any period, 
  
 (c) the sum of: 
  
 (i) Consolidated net income (or loss) of the Parent and its Subsidiaries for such period plus 
  
 (ii) the aggregate amount of all non-cash charges deducted
in arriving at such Consolidated net income (or loss) plus 
  
 (iii) if there was a net increase in Consolidated Current Liabilities of the Parent and its Subsidiaries during such period, the amount of such net increase plus 
  

 13 








 (iv) if there was a net decrease in Consolidated Current Assets (excluding cash and Cash
Equivalents) of the Parent and its Subsidiaries during such period, the amount of such net decrease less 
  
 (d) the sum of (without duplication): 
  
 (i) the aggregate amount of all non-cash credits included in arriving at such Consolidated net income (or loss) plus 
  
 (ii) if there was a net decrease in Consolidated Current
Liabilities of the Parent and its Subsidiaries during such period, the amount of such net decrease plus 
  
 (iii) if there was a net increase in Consolidated Current Assets (excluding cash and Cash Equivalents) of the Parent and its Subsidiaries
during such period, the amount of such net increase plus 
  
 (iv) Capital Expenditures of the Parent and its Subsidiaries during such period, provided, however, that such Capital Expenditures are made in the telecommunications industry or ancillary or related
industry and in accordance with this Agreement plus 
  
 (v) all payments made pursuant to Sections 2.03(a) and (b) and 2.05(a) plus 
  
 (vi) all payments of principal under the First Lien Loan Documents and on account of the Assumed BTI Debt. 
  
 “Exchange Act” means the Securities
Exchange Act of 1934, as amended. 
  
 “Existing Debt Refinancing” has the meaning set forth in Section 5.02(b)(vii). 
  
 “Existing Stockholders” means the WCAS Securityholders and their Affiliates. For purposes of this definition,
“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, “control” (including,
with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction
of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. 
  
 “Extraordinary Receipt” means any cash received by or paid to or for the account of any Person not in the ordinary
course of business, including, without limitation, tax refunds, pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings),
condemnation awards (and payments in lieu thereof), indemnity payments, any net proceeds of any Permitted Refinancing (in excess of the amount necessary to pay in full the obligations in respect of the First Lien Loan Documents) and any purchase
price 

  

 14 








 
adjustment received in connection with any purchase agreement; provided, however, that an Extraordinary Receipt shall not include cash receipts,
awards or payments received from proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments to the extent that such proceeds, awards or payments (a) are in respect of loss or damage to fixed assets, real property
or equipment and are applied to replace or repair such fixed assets, real property or equipment in respect of which such proceeds, awards or payments were received in accordance with the terms of the Loan Documents (or to reimburse such Person for
expenditures previously incurred on account of such replacement or repair), provided, that such proceeds, awards or payments (i) are immediately deposited into an account held by the Collateral Agent on behalf of the Lenders, and (ii) are
applied within nine months after the occurrence of such damage or loss, provided, that the Borrower shall have delivered documentation reasonably satisfactory to the Administrative Agent evidencing the cost and proposed use of any equipment
repaired or replaced pursuant thereto, or (b) are received by any Person in respect of any third party claim against such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim and the costs and expenses of such
Person with respect thereto, or (c) are received by any Person by way of reimbursement or indemnification of such Person for costs and expenses incurred by such Person. 
  
 “Facility” means the Term Facility. 
  
 “FCC” means the Federal
Communications Commission, or any governmental agency succeeding to the functions thereof. 
  
 “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such
period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it. 
  
 “Financial Covenants Certificate” means the certificate delivered by the Borrower and certified by the Chief Financial Officer of the Borrower and containing the information specified in the
definition of “Applicable Eurodollar Rate Margin” and Sections 5.03(b)(ii) and (iii) and 5.03(c)(ii) and (iii), as applicable, and demonstrating compliance with the applicable covenants. 
  
 “First Amended ITCD Credit
Agreement” has the meaning specified in the recitals of the parties to this Agreement. 
  
 “First Lien Collateral Agent” means Wells Fargo Bank, N.A. and any successor collateral agent appointed
pursuant to Article VIII of the First Lien Credit Agreement. 
  

 15 








 “First Lien Credit Agreement” means the Third Amended and
Restated Credit Agreement, dated as of even date herewith, among the Parent, the Borrower, the subsidiary guarantors listed on the signature pages thereof, the First Lien Lenders and the other parties thereto. 
  
 “First Lien Facilities” means the
“Facilities” (as provided and defined in the First Lien Credit Agreement). 
  
 “First Lien Lenders” means the “Lenders” (as provided and defined in the First Lien Credit Agreement).

  
 “First Lien Loan
Documents” means the “Loan Documents” (as provided and defined in the First Lien Credit Agreement). 
  
 “First Lien Security Agreement” means the “Security Agreement” (as provided and defined in the First
Lien Credit Agreement). 
  
 “Fiscal
Year” means a Fiscal Year of the Parent and its Consolidated Subsidiaries ending on December 31 in any calendar year. 
  
 “Fully Diluted Basis” means, as of any date of determination, the sum of (a) the number of shares of Voting
Stock outstanding as of such date of determination plus (b) the number of shares of Voting Stock issuable upon the exercise, conversion or exchange of all then-outstanding warrants, options, convertible Capital Stock or indebtedness, exchangeable
Capital Stock or indebtedness, or other rights exercisable for or convertible or exchangeable into, directly or indirectly, shares of Voting Stock, whether at the time of issue or upon the passage of time or upon the occurrence of some future event,
and whether or not in the money as of such date of determination. 
  
 “Funded Debt” of any Person means Debt of such Person that by its terms matures more than one year after the date of its creation or matures within one year from such date but is renewable or
extendible, at the option of such Person, to a date more than one year after such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year after such
date, including, without limitation, all amounts of Funded Debt of such Person required to be paid or prepaid within one year after the date of its creation. 
  

“GAAP” has the meaning specified in Section 1.03. 
  
 “GECC” means General Electric
Capital Corporation solely in its capacity as a Lender or Administrative Agent and Collateral Agent under this Agreement or as a Lender as provided and defined in the First Lien Credit Agreement. 
  
 “GECC Capital Lease” has the meaning
specified in the recitals of the parties to this Agreement. 
  
 “GE Lessor” has the meaning specified in the recitals of the parties to this Agreement. 
  

 16 








 “Governance Agreement” means the Governance Agreement, dated as
of October 6, 2003, as amended, among the Parent, WCAS Capital Partners III, L.P., Welsh, Carson, Anderson & Stowe VIII, L.P., WCAS Information Partners, L.P. and certain individual investors and trusts listed on the signature pages thereto, as
amended by the Amendment No. 1 to Governance Agreement, dated as of March 29, 2005. 
  
 “Guaranteed Obligations” has the meaning specified in Section 7.01(a). 
  
 “Guaranties” means the Parent
Guaranty and the Subsidiary Guaranties. 
  
 “Guarantors” means the Parent and the Subsidiary Guarantors. 
  
 “Guaranty Supplement” has the meaning specified in Section 7.05. 
  
 “Hazardous Materials” means (a)
petroleum or petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon gas and (b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law. 
  
 “Hedge Agreements” means interest rate swap, cap or collar agreements, interest rate future or option contracts,
currency swap agreements, currency future or option contracts and other hedging agreements. 
  
 “Hedge Bank” means any Lender or an Affiliate of a Lender in its capacity as a party to a Secured Hedge Agreement.

  
 “Incur” means, with
respect to any Debt, to incur, create, issue, assume, guarantee or otherwise become liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, such Debt. 
  
 “Indemnified Party” has the meaning
specified in Section 9.04(b). 
  
 “Insufficiency” means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA. 
  
 “Intercreditor and Subordination Agreements” means the Second Lien Intercreditor and
Subordination Agreement and the Third Lien Intercreditor and Subordination Agreement. 
  
 “Interest Coverage Ratio” means, at any date of determination, the ratio of (a) Consolidated EBITDA of the Parent
and its Subsidiaries to (b) the cumulative cash interest paid in respect of all Debt for Borrowed Money, in each case, of or by the Parent and its Subsidiaries (1) for the calendar quarters ending on June 30, 2005 through December 31, 2005, in each
case, during the period commencing March 1, 2005 and terminating on the last day of the applicable calendar quarter; and (2) for the calendar quarter ending March 31, 2006 and thereafter, during the four calendar quarters ending on such date.

  

 17 








 “Interest Period” means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance, and ending on the last day of the period selected by
the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be one, two, three or six months, as the Borrower may, upon notice received by the Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the first day of such Interest Period, select; provided, however, that: 
  
 (a) the Borrower may not select any Interest Period with respect to any Eurodollar Rate Advance under a Facility that ends after any
principal repayment installment date for such Facility unless, after giving effect to such selection, the aggregate principal amount of Base Rate Advances and of Eurodollar Rate Advances having Interest Periods that end on or prior to such principal
repayment installment date for such Facility shall be at least equal to the aggregate principal amount of Advances under such Facility due and payable on or prior to such date; 
  
 (b) Interest Periods commencing on the same date for Eurodollar Rate Advances comprising part of the same
Borrowing shall be of the same duration; 
  
 (c)
whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day; and 
  
 (d) whenever the first day of any Interest Period occurs on
a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest
Period shall end on the last Business Day of such succeeding calendar month. 
  
 “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. 
  
 “Inventory” means all Inventory
referred to in Section 1(b) of the Security Agreement. 
  
 “Investment” in any Person means any loan or advance to such Person, any purchase or other acquisition of any Equity Interests or Debt or the assets comprising a division or business unit or a substantial part or all
of the business of such Person, any capital contribution to such Person or any other direct or indirect investment in such Person, including, without limitation, any acquisition by way of a merger or 

  

 18 








 
consolidation and any arrangement pursuant to which the investor Incurs Debt of the types referred to in clause (i) or (j) of the definition of
“Debt” in respect of such Person. 
  
 “Lenders” means the banks, financial institutions and other institutional lenders listed on the signature pages hereof and each Person that shall become a Lender hereunder pursuant to Section
9.07 for so long as such Lender or Person, as the case may be, shall be a party to this Agreement. 
  
 “Lessees” has the meaning specified in the recitals of the parties to this Agreement. 
  
 “Lien” means any lien, security
interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on
title to real property. 
  
 “Loan
Documents” means (a) for purposes of this Agreement and the Notes and any amendment, supplement or modification hereof or thereof, (i) this Agreement, (ii) the Notes and (iii) the Collateral Documents and (b) for purposes of the
Collateral Documents and for all other purposes other than for purposes of this Agreement and the Notes, (i) this Agreement, (ii) the Notes, (iii) the Collateral Documents and (iv) each Secured Hedge Agreement. 
  
 “Loan Parties” means the Borrower
and the Guarantors. 
  
 “Margin
Stock” has the meaning specified in Regulation U. 
  
 “Material Adverse Change” means any material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of the Parent and its
Subsidiaries, taken as a whole. 
  
 “Material Adverse Effect” means a material adverse effect on (a) the business, condition (financial or otherwise), operations, performance, properties or prospects of the Loan Parties and the Subsidiaries of the Loan
Parties, taken as a whole, (b) the rights and remedies of the Agents or any Lender under any Loan Document or (c) the ability of any Loan Party to perform its Obligations under any Loan Document to which it is or is to be a party. 
  
 “Material Contract” means, with
respect to any Person, each contract to which such Person is a party involving aggregate consideration payable to or by such Person of $10,000,000 or more in any year or otherwise material to the business, condition (financial or otherwise),
operations, performance, properties or prospects of such Person. With respect to the Loan Parties, the Merger Agreement shall be deemed to be a Material Contract. 
  
 “Merger Agreement” means the Agreement and Plan of Merger, dated as of July 2, 2003,
as amended, among BTI, the parties identified on the signature pages thereto as the “WCAS Securityholders”, the Parent and 8DBC1 Corp. 
  

 19 








 “Merger Agreement Common Stock” means (a) the Common Stock of the
Parent issued or issuable pursuant to the Merger Agreement, (b) the Series B Conversion Shares and (c) the Series B Warrant Shares. 
  
 “Mortgage Policies” has the meaning specified in Section 5.01(n)(i)(B). 
  
 “Mortgages” has the meaning
specified in Section 5.01(n)(i). 
  
 “Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make contributions. 
  
 “Multiple Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated. 
  
 “Net Cash Proceeds” means, with respect to any sale, lease, transfer or other disposition of any asset by any
Person (excluding Equity Interests), or any Extraordinary Receipt received by or paid to or for the account of any Person, the aggregate amount of cash received from time to time (whether as initial consideration or through payment or disposition of
deferred consideration) by or on behalf of such Person in connection with such transaction after deducting therefrom only (without duplication) (a) reasonable and customary brokerage commissions, underwriting fees and discounts, legal fees and
expenses, finder’s fees and other similar fees and commissions and out-of-pocket costs and expenses, and (b) the amount of taxes payable in connection with or as a result of such transaction, in each case to the extent, but only to the extent,
that the amounts so deducted are, at the time of receipt of such cash, actually paid to a Person that is not an Affiliate of such Person and are properly attributable to such transaction or to the asset that is the subject thereof; provided,
however, that in the case of taxes that are deductible under clause (b) above but for the fact that, at the time of receipt of such cash, such taxes have not been actually paid or are not then payable, such Loan Party or such Subsidiary may
deduct an amount (the “Reserved Amount”) equal to the amount reserved in accordance with GAAP for such Loan Party’s or such Subsidiary’s reasonable estimate of such taxes, other than taxes for which such Loan Party
or such Subsidiary is indemnified; provided, further, however, that, at the time such taxes are paid, an amount equal to the amount, if any, by which the Reserved Amount for such taxes exceeds the amount of such taxes actually paid shall
constitute “Net Cash Proceeds” of the type for which such taxes were reserved for all purposes hereunder; provided, further, still, that Net Cash Proceeds from Extraordinary Receipts shall not include up to $500,000 of cash proceeds
in the aggregate received in connection with one or more such receipts, to the extent such cash proceeds are applied to replace the asset in respect of which such cash proceeds were received or are otherwise invested in such Person’s business,
so long as application is made within nine months after the occurrence of such receipt. 
  

 20 








 “New Warrants” means warrants issued pursuant to the New Warrant
Documents. 
  
 “New Warrant
Documents” means (a) that certain Warrant Agreement, dated as of March 29, 2005, between the Parent and Mellon Investor Services LLC, as warrant agent, as amended, amended and restated, supplemented or otherwise modified from time to
time, (b) the Amendment No. 1 to Governance Agreement, dated as of March 29, 2005, by and among the Parent, WCAS Capital Partners III, L.P., WCAS, WCAS Information Partners, L.P. and certain individual investors and trusts listed on the signature
pages thereto and (c) each other agreement, certificate, document or instrument delivered in connection with clauses (a) and (b) above. 
  
 “Note” means a Term Note. 
  
 “NPL” means the National Priorities List under CERCLA. 
  
 “NTFC” has the meaning specified in
the recitals of the parties to this Agreement. 
  
 “NTFC Capital Lease” has the meaning specified in the recitals of the parties to this Agreement. 
  
 “Obligation” means, with respect to any Person, any payment, performance or other obligation of such Person of any
kind, including, without limitation, any liability of such Person on any claim, whether or not the right of any creditor to payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed,
undisputed, legal, equitable, secured or unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 6.01(f). Without limiting the generality of the foregoing, the Obligations of any
Loan Party under the Loan Documents include (a) the obligation to pay principal, interest, charges, expenses, fees, attorneys’ fees and disbursements, indemnities and other amounts payable by such Loan Party under any Loan Document, including
Post-Petition Interest and (b) the obligation of such Loan Party to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party. 
  
 “Open Year” has the meaning
specified in Section 4.01(r)(iii). 
  
 “Ordinary Course Obligations” means obligations (exclusive of obligations for the payment of borrowed money) under letters of credit, surety bonds, pledges, deposits or other arrangements made to secure the
performance of tenders, bids, leases, statutory or regulatory obligations, bankers’ acceptances, surety and appeal bonds, government contracts, performance and return-of-money bonds and other obligations of a similar nature incurred in the
ordinary course of business. 
  
 “Original ITCD Credit Agreement” has the meaning specified in the recitals of the parties to this Agreement. 
  

 21 








 “Original Second Lien Credit Agreement” has the meaning specified
in the recitals of the parties to this Agreement. 
  
 “Other Taxes” has the meaning specified in Section 2.11(b). 
  
 “Parent” has the meaning specified in the preamble of this Agreement. 
  
 “Parent Guaranty” means the guaranty
of the Parent set forth in Article VII. 
  
 “PBGC” means the Pension Benefit Guaranty Corporation (or any successor). 
  
 “Permitted Deferred Taxes” has the meaning specified in that certain Limited Waiver to Second Amended and Restated
Credit Agreement, dated as of February 28, 2005, by and among the Wells Fargo Bank, N.A., the lenders specified on the signature pages thereto and the Loan Parties. 
  
 “Permitted Encumbrances” has the meaning specified in the Mortgages. 
  
 “Permitted Liens” means such of the
following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 5.01(b);
(b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a
period of more than 30 days; (c) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations; and (d) Permitted Encumbrances. 
  
 “Permitted Parent Debt” has the
meaning specified in Section 5.02(b)(v). 
  
 “Permitted Refinancing” means a refinancing (satisfying all of the requirements of Section 5.02(b)(viii)) by the Loan Parties of all (but not less or more than all) of the principal amount outstanding under the First
Lien Loan Documents and the termination of all of the First Lien Loan Documents upon the consummation of such refinancing. 
  
 “Person” means an individual, partnership, corporation (including a business trust), limited liability company,
joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof. 
  
 “Plan” means a Single Employer Plan or a Multiple Employer Plan. 
  
 “Plan of Reorganization” means the
Plan of Reorganization of the Parent under Chapter 11 of the Bankruptcy Code in In re ITC^DeltaCom, Inc. (Case No. 02-11848 (MFW)). 
  
 “Pledged Debt” has the meaning specified in the Security Agreement. 
  

 22 








 “Pledged Shares” has the meaning specified in the Security
Agreement. 
  
 “Post-Petition
Interest” means any and all interest and expenses that accrue after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of any one or more of the Loan Parties (or would
accrue but for the operation of applicable bankruptcy or insolvency laws) whether or not such interest is allowed or allowable as a claim in any such proceeding. 
  
 “Pre-Amendment Information” means all of the written information provided by or on
behalf of the Borrower to the Lenders prior to the Amendment Effective Date. 
  
 “Preferred Interests” means, with respect to any Person, Equity Interests issued by such Person that are entitled to a preference or priority over any other Equity Interests issued by such
Person upon any distribution of such Person’s property and assets, whether by dividend or upon liquidation. 
  
 “Preferred Stock” means, with respect to any Person, any and all shares, interests, participations or other
equivalents (however designated, whether voting or non-voting) of such Person’s preferred or preference equity, whether outstanding on the date of this Agreement or issued thereafter, including, without limitation, all series and classes of
such preferred or preference stock. 
  
 “PUC” means any state regulatory agency or body that exercises jurisdiction over the rates or services or the ownership, construction or operation of any network facility or long distance telecommunications systems
or over Persons who own, construct or operate a network facility or long distance telecommunications systems, in each case by reason of the nature or type of the business subject to regulation and not pursuant to laws and regulations of general
applicability to Persons conducting business in such state. 
  
 “Receivables Financing” means a refinancing (satisfying all of the requirements of Section 5.02(b)(ix)) by the Loan Parties of all (but not less or more than all) of the principal amount
outstanding under the First Lien Loan Documents and the termination of all of the First Lien Loan Documents upon the consummation of such refinancing. 
  
 “Redeem” means to purchase, redeem or otherwise retire or acquire for value, provided, however,
that, notwithstanding the foregoing, “Redeem” shall not include (a) the acquisition and/or retirement by the Parent of Equity Interests of the Parent which are surrendered to the Parent as indemnification payments pursuant to
the Merger Agreement, (b) the acquisition and/or retirement by the Parent of Common Stock or other Equity Interests of the Parent tendered by the holder of an Equity Plan Security in payment of an exercise or purchase price specified in such Equity
Plan Security or (c) a Benefit Plan Exchange Offer. 
  
 “Refinanced First Lien Loan Documents” means the loan documents relating to any Permitted Refinancing, any Receivables Financing or any Replacement Financing. 
  
 “Register” has the meaning specified
in Section 2.15(b). 
  

 23 








 “Regulation U” means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time. 
  
 “Reorganization Common Stock” means the Common Stock of the Parent issued or issuable under or in connection with the Plan of Reorganization, including, without limitation, the Conversion
Shares and the Warrant Shares. 
  
 “Reorganization Securities” means (a) the Reorganization Common Stock, (b) the Series A Preferred Stock and (c) the Warrants. 
  

“Replaced Lender” has the meaning specified in Section 2.11(g). 
  
 “Replacement Effective Date” has the
meaning specified in Section 2.11(g). 
  
 “Replacement Financing” means a refinancing (satisfying all of the requirements of Section 5.02(b)(x)) by the Loan Parties of all (but not less than all) of the principal amount outstanding under the First Lien Loan
Documents and the termination of all of the First Lien Loan Documents upon the consummation of such refinancing, in connection with which the Loan Parties may incur additional Debt in excess of the amount necessary to refinance the entire amount of
the First Lien Loan Documents up to the aggregate amount specified in Section 5.02(b)(x). 
  
 “Replacement Lender” has the meaning specified in Section 2.11(g). 
  
 “Required Lenders” means, at any
time, Lenders owed or holding at least a majority of the aggregate principal amount of the Advances outstanding at such time; provided, however, that if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (A) the aggregate principal amount of the Advances owing to such Lender (in its capacity as a Lender) and outstanding at such time and (B) the aggregate unused Commitments of such Lender at such time,
and provided further, however, that in the event one Lender holds in excess of a majority of the aggregate principal amount of the Advances outstanding, at least two Lenders shall be required to be deemed “Required Lenders.”

  
 “Responsible Officer”
means any officer of any Loan Party or any of its Subsidiaries. 
  
 “Restricted Payment” has the meaning specified in Section 5.02(g). 
  
 “SEC” means the United States Securities and Exchange Commission. 
  
 “Second Amended ITCD Credit
Agreement” has the meaning specified in the recitals of the parties to this Agreement. 
  
 “Second Lien Intercreditor and Subordination Agreement” means the Intercreditor and Subordination Agreement, dated
as of October 6, 2003, among the Agents, the Lenders, the Agents as provided and defined in the First Lien Credit Agreement, the Lenders as provided and defined in the Second Lien Credit Agreement, 

  

 24 








 
and the Loan Parties, as amended by that certain Consent and First Amendment to Intercreditor and Subordination Agreement, dated as of the date hereof, in
substantially the form of Exhibit E-1 hereto, and as may be further amended, amended and restated and/or modified from time to time. 
  
 “Secured Hedge Agreement” means any Hedge Agreement required or permitted under Article V that is entered into by
and between the Borrower and any Hedge Bank. 
  
 “Secured Obligations” has the meaning specified in the Security Agreement. 
  
 “Secured Parties” means the Agents, the Lenders and the Hedge Banks. 
  
 “Securities Act” means the
Securities Act of 1933, as amended. 
  
 “Security Agreement” has the meaning specified in Section 3.01(b)(ii). 
  
 “Senior Debt” means, for any period, all Debt of the Loan Parties and their respective Subsidiaries incurred under
the First Lien Credit Agreement and secured by a first priority Lien on real or personal property of the Loan Parties and their respective Subsidiaries. 
  
 “Senior Debt Ratio” means, in respect of any specified period, the ratio of (a) Senior Debt for such period to (b)
Consolidated EBITDA of the Parent and its Subsidiaries for such period. 
  
 “Series A Certificate of Designation” means the Parent’s Certificate of Designation of the Powers, Preferences and Relative, Participating, Optional and other Special Rights of 8%
Series A Convertible Redeemable Preferred Stock and Qualifications, Limitations and Restrictions thereof, as in effect from time to time. 
  
 “Series A PIK Dividends” means the shares of Series A Preferred Stock paid or payable as dividends on outstanding
shares of Series A Preferred Stock. 
  
 “Series A PreferredStock” means the shares of preferred stock of the Parent designated as the 8% Series A Convertible Redeemable Preferred Stock and issued pursuant to
the Series A Certificate of Designation, including, without limitation, Series A PIK Dividends. 
  
 “Series B Certificate of Designation” means the Parent’s Certificate of Designation of the Powers,
Preferences and Relative, Participating, Optional and other Special Rights of 8% Series B Convertible Redeemable Preferred Stock and Qualifications, Limitations and Restrictions thereof, as in effect from time to time. 
  
 “Series B PIK Dividends”
means the shares of Series B Preferred Stock paid or payable as dividends on outstanding shares of Series B Preferred Stock. 
  
 “Series B Preferred Stock” means the shares of preferred stock of the Parent designated as the 8% Series B
Convertible Redeemable Preferred Stock and issued 

  

 25 








 
pursuant to the Series B Certificate of Designation, including, without limitation, Series B PIK Dividends. 
  
 “Single Employer Plan” means a
single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated. 
  
 “Subordinated Debt” means Debt that, by the terms of any agreement or instrument
pursuant to which such Debt is Incurred, is expressly made subordinate in right of payment and priority to the Debt under the Loan Documents and the Debt under the First Lien Loan Documents. 
  
 “Subsidiary” of any Person means any
corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such
partnership, joint venture or limited liability company or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person’s other Subsidiaries. 
  
 “Subsidiary Guarantors” means the Subsidiaries of the Parent listed on Schedule II hereto and each other Subsidiary of the Parent that shall be required to execute and deliver a guaranty pursuant to Section 5.01(j).

  
 “Subsidiary Guaranty”
means the guaranty of the Subsidiary Guarantors set forth in Article VII. 
  
 “Successor Agent Agreement” has the meaning specified in the recitals of the parties to this Agreement. 
  

“Surviving Debt” means Debt of each Loan Party and its Subsidiaries outstanding as of the Amendment Effective
Date. 
  
 “Tax Agreement”
means the Tax Indemnification Agreement, dated as of August 26, 1997, between ITC Holding Company, Inc. and the Parent. 
  
 “Tax Certificate” has the meaning specified in Section 5.03(k). 
  
 “Taxes” has the meaning specified in
Section 2.11(a). 
  

 26 








 “Term Advance” means the single advance that was made by each
Term Lender, according to such Lender’s Term Commitment, upon the closing of the Original Second Lien Credit Agreement. 
  
 “Term Borrowing” means a borrowing consisting of simultaneous Term Advances of the same Type made by the Term
Lenders. 
  
 “Term
Commitment” means, with respect to any Term Lender at any time, the amount set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 2.15(b) as such Lender’s “Term Commitment.”

  
 “Term Facility”
means, at any time, the aggregate amount of the Term Lenders’ Term Commitments at such time. 
  
 “Term Lender” means any Lender that has a Term Commitment. 
  
 “Term Note” means a promissory note
of the Borrower payable to the order of any Term Lender, in substantially the form of Exhibit A hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the Term Advance made by such Lender, as amended. 
  
 “Termination Date” means the earlier
of (a) the date on which the Administrative Agent, by notice to the Borrower, declares the Notes, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents to be forthwith due and payable pursuant to
Section 6.01 and (b) June 30, 2009. 
  
 “Third Lien Credit Agreement” has the meaning specified in the recitals of the parties to this Agreement. 
  
 “Third Lien Intercreditor and Subordination Agreement” means the Intercreditor and Subordination Agreement, dated
as of the date hereof, among each of the Agents, the Lenders, the Agents as provided and defined in the First Lien Credit Agreement, on its behalf and on behalf of the First Lien Lenders, the Agents as provided and defined in the Third Lien Credit
Agreement, the Lenders as provided and defined in the Third Lien Credit Agreement and the Loan Parties, in substantially the form of Exhibit E-2 hereof, as the same may be amended, amended and restated and/or modified from time to time. 

 
 “Third Lien Loan Documents” means
the “Loan Documents” as defined in the Third Lien Credit Agreement. 
  
 “Total Leverage Ratio” means, at any date of determination, the ratio of (x) Consolidated debt to (y) Consolidated EBITDA, in each case, of or by the Parent and its Subsidiaries during the
twelve-month period ending on the last date of the most recently ended calendar month. For purposes of computing Total Leverage Ratio only, the term “debt” as used in clause (x) above means, without duplication, the aggregate of all Debt
of the type described in clauses (a), (b), (c), (d), (e) and (h) of the definition of 

  

 27 








 
“Debt” and Contingent Obligations of the Parent and its Subsidiaries in respect of the foregoing. 
  
 “Transactions” means the
transactions contemplated by the Loan Documents. 
  
 “Type” refers to the distinction between Advances bearing interest at the Base Rate and Advances bearing interest at the Eurodollar Rate. 
  
 “Unencumbered Parcel” means any parcel of real property owned by any Loan Party or
its Subsidiaries that was not previously pledged as Collateral to secure the Obligations of the Loan Parties under the Original Second Lien Credit Agreement, the First Amended ITCD Credit Agreement or the Second Amended ITCD Credit Agreement.

  
 “Voting Interests”
means shares of capital stock issued by a corporation, or equivalent Equity Interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency. 
  
 “Voting Stock” means, with respect to any Person, Capital Stock of any class or kind ordinarily having the power
to vote for the election of directors, managers or other voting members of the governing body of such Person. For purposes of this definition, Common Stock of the Parent shall constitute Voting Stock of the Parent and the Series A Preferred Stock
and the Series B Preferred Stock shall not constitute Voting Stock of the Parent. 
  
 “Warrant Shares” means the Common Stock or other securities issued or issuable upon exercise of the
Warrants. 
  
 “Warrants” means the Common Stock purchase warrants issued by the Parent on the date of the initial issuance of the Series A Preferred Stock and any warrants issued in exchange or substitution therefor or upon
exercise thereof in accordance with the warrant agreement pursuant to which such Common Stock purchase warrants were issued. 
  
 “WCAS” means Welsh, Carson, Anderson & Stowe VIII, L.P. 
  
 “WCAS Securityholders” means,
collectively, (a) WCAS Capital Partners III, L.P., (b) WCAS, (c) WCAS Information Partners, L.P., (d) each of the individual investors and trusts that executed the Governance Agreement as “WCAS Securityholders,” (e) the Affiliates of any
of the Persons referred to in clauses (a), (b), (c) and (d) above, (f) the related Persons of any of the Persons referred to in clauses (a), (b), (c) and (d) above and (g) the WCAS Securityholder Permitted Transferees. For purposes of this
definition, “Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct 

  

 28 








 
or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

  
 “WCAS Securityholder Permitted
Transferees” means the individuals who are the heirs, executors, administrators, testamentary trustees, legatees, beneficiaries, spouses or lineal descendants of any of the WCAS Securityholders who are natural Persons.

  
 “Welfare Plan” means
a welfare plan, as defined in Section 3(1) of ERISA, that is maintained for employees of any Loan Party or in respect of which any Loan Party could have liability. 
  
 “Withdrawal Liability” has the meaning specified in Part I of Subtitle E of Title IV
of ERISA. 
  
 SECTION 1.02. Computation of Time Periods; Other
Definitional Provisions. In this Agreement and the other Loan Documents in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the
words “to” and “until” each mean “to but excluding.” References in the Loan Documents to any agreement or contract “as amended” shall mean and be a reference to such
agreement or contract as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms. 
  
 SECTION 1.03. Accounting Terms. (a) All accounting terms not specifically defined herein, unless otherwise specified herein, shall be construed in
accordance with generally accepted accounting principles in the United States of America as in effect from time to time (“GAAP”) and consistent with those applied in the preparation of the financial statements of the Parent and its
Subsidiaries. 
  
 (b) For purposes of the
computations of Consolidated EBITDA with respect to the Financial Condition Covenants set forth in Section 5.02(q), Consolidated EBITDA for the Parent and its Subsidiaries shall be calculated as follows: 
  
 (i) for the computation of the Senior Debt Ratio in Section
5.02(q)(ii) and the Total Leverage Ratio in Section 5.02(q)(iii), Consolidated EBITDA shall be equal to: (A) for each calendar quarter commencing the calendar quarter ending June 30, 2005 through and including the calendar quarter ending December
31, 2005, the cumulative Consolidated EBITDA, in each case, for the period commencing March 1, 2005 and terminating on the last day of the applicable calendar quarter measured for such Financial Condition Covenant annualized (that is, multiplied by
a fraction, the numerator of which is 12 and the denominator is the number of months elapsed from March 1, 2005 through the last day of the applicable calendar quarter); and (B) the calendar quarter ending March 31, 2006, the cumulative Consolidated
EBITDA for the trailing four calendar quarters; and 
  
 (ii) for the computation of the Interest Coverage Ratio in Section 5.02(q)(iv) and the Minimum Consolidated EBITDA in Section 

  

 29 








 
5.02(q)(vi), Consolidated EBITDA shall be equal to (A) for each calendar quarter commencing the calendar quarter ending June 30, 2005 through and including
the calendar quarter ending December 31, 2005, the cumulative Consolidated EBITDA, in each case, for the period commencing March 1, 2005, and terminating on the last day of the applicable calendar quarter then ending; and (B) the calendar quarter
ending March 31, 2006, the cumulative Consolidated EBITDA for the trailing four calendar quarters. 
  
 ARTICLE II 
  
 AMOUNTS AND TERMS OF THE ADVANCES 
  
 SECTION
2.01. Restructuring. Subject to the terms and conditions hereof, including, without limitation, Section 3.01, the parties hereto agree to, and hereby, assume, restructure, continue and consolidate the aggregate principal amount of the
loans (together with all interest due thereon) advanced to the Borrower, pursuant to the Original Second Lien Credit Agreement. Notwithstanding anything to the contrary contained in this Agreement, the parties understand and agree that, as a result
of the assumption, restructuring, continuation and consolidation contemplated hereby, the Term Facility is fully funded and no additional funding of the Term Facility shall be made hereunder. As of the Amendment Effective Date, the principal amount
outstanding of the Term Facility is $55,715,294, excluding accrued and unpaid interest. This amount represents a valid and binding claim enforceable against the Loan Parties in accordance with the terms of the Loan Documents. 
  
 SECTION 2.02. Intentionally omitted. 
  
 SECTION 2.03. Repayment of Advances. (a) Term Advances. The
Borrower shall repay to the Administrative Agent for the ratable account of the Term Lenders the aggregate outstanding principal amount of the Term Advances on the following dates in the amounts indicated (which amounts shall be reduced as a result
of the application of prepayments in accordance with Section 2.05): 
  

				
	 Date

	  	Amount


	 September 30, 2007
	  	$	3,979,644
	 December 31, 2007
	  	$	3,979,644
	 March 31, 2008
	  	$	3,979,644
	 June 30, 2008
	  	$	13,979,644
	 September 30, 2008
	  	$	646,331
	 December 31, 2008
	  	$	646,331
	 March 31, 2009
	  	$	646,331
	 Termination Date
	  	$	27,857,725
		
	 TOTAL
	  	$	55,715,294

  

 30 








 provided, however, that the final principal installment shall be repaid on the Termination Date and in any event
shall be in an amount equal to the aggregate principal amount of the Term Advances outstanding on such date. Each Lender hereby acknowledges that the receipt of any such payments is subject to the terms of the Second Lien Intercreditor and
Subordination Agreement. 
  
 SECTION 2.04. Intentionally omitted.

  
 SECTION 2.05. Prepayments. (a) Optional. Subject
to the terms of the Second Lien Intercreditor and Subordination Agreement, the Borrower may, upon at least one Business Day’s notice in the case of Base Rate Advances and three Business Days’ notice in the case of Eurodollar Rate Advances,
in each case to the Administrative Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding aggregate principal amount of the Advances in whole or
ratably in part, together with accrued interest to the date of such prepayment on the aggregate principal amount prepaid; provided, however, that (x) each partial prepayment shall be in an aggregate principal amount of $500,000 or an integral
multiple of $500,000 in excess thereof and (y) if any prepayment of a Eurodollar Rate Advance is made on a date other than the last day of an Interest Period for such Advance, the Borrower shall also pay any amounts owing pursuant to Section
9.04(c). Each such prepayment of any Advances shall be applied ratably to each Lender and to the installments thereof on a pro rata basis. 
  
 (b) Mandatory. Subject to the terms of the Second Lien Intercreditor and Subordination Agreement: (i) the Borrower shall (A) on
September 30, 2007, prepay an aggregate principal amount of the Advances in an amount equal to 100% of the amount of Excess Cash Flow for Fiscal Year 2006 and (B) on the 90th day following the end of each Fiscal Year commencing with the 2007 Fiscal
Year, prepay an aggregate principal amount of the Advances in an amount equal to 100% of the amount of Excess Cash Flow for such Fiscal Year. 
  
 (ii) The Borrower shall, within two Business Days after the date of receipt of the Net Cash Proceeds by any Loan Party from (A) the sale,
lease, transfer or other disposition of any assets of any Loan Party or any Subsidiary of a Loan Party (other than leases in the ordinary course of business or any sale, lease, transfer or other disposition of assets pursuant to clause (i), (ii),
(v)(B), (vi) or (vii) of Section 5.02(e)) prepay an aggregate principal amount of the Advances equal to such Net Cash Proceeds in excess, so long as no Default or Event of Default has occurred and is continuing, of $30,000,000; provided, that no
portion of the Net Cash Proceeds retained by the Loan Parties pursuant to this subsection (ii) shall be used by any Loan Party in connection with any merger with any Person or acquisition of assets of any Person (other than assets acquired in the
ordinary course of the Loan Parties’ business); and (B) any Extraordinary Receipt received by, or paid to, or for the account of, any Loan Party or any Subsidiary of a Loan Party and not otherwise included in clause (A) above, prepay an
aggregate principal amount of the Advances in any amount equal to the amount of such Net Cash Proceeds. 
  

 31 








 (iii) The Borrower shall, within two Business Days after the date of receipt, prepay an
aggregate principal amount of the Advances in an amount equal to 100% of the proceeds received on account of (A) Debt incurred by any Loan Party other than (1) Debt incurred pursuant to the Third Lien Loan Documents and (2) the Special Term B
Advances (as defined in the First Lien Loan Agreement), it being understood that the proceeds of any Permitted Refinancing, Receivables Financing or Replacement Financing shall be used to repay the Obligations in respect of the First Lien Facilities
or (B) any offering of any Equity Interests of the Parent or any other Loan Party except for Equity Interests consisting of any (1) Common Stock of the Parent, the proceeds of the issuance and sale of which are applied to refinance the Series A
Preferred Stock or Series B Preferred Stock at not more than 100% of liquidation value plus accrued dividends, (2) Equity Plan Securities, (3) New Warrants, or (4) Reorganization Securities. 
  
 (iv) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal amount prepaid and shall be applied ratably to the Facility and to the installments thereof on a pro rata basis. 
  
 SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum: 
  
 (i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (A) the Base Rate in effect from time to time and (B) the Applicable Base Rate Margin in effect from time to time, payable in cash in arrears quarterly on the last day
of each March, June, September and December during such periods and on the date such Base Rate Advance shall be Converted or paid in full. 
  
 (ii) Eurodollar Rate Advances. During such periods as such Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A) the Eurodollar Rate for such Interest Period for such Advance plus (B) the Applicable Eurodollar Rate Margin in effect on the first day of such Interest Period, payable in arrears
on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full. 
  
 (b) Default Interest. Upon the occurrence and during the continuance of a Default, the Borrower shall pay interest on (i) the unpaid principal amount of each Advance owing to each Lender, payable in arrears on
the dates referred to in clause (a)(i) 

  

 32 








 
or (a)(ii) above and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Advance pursuant
to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any interest, fee or other amount payable under the Loan Documents that is not paid when due, from the date such amount shall be due until such amount
shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid, in the case of interest, on the Type of
Advance on which such interest has accrued pursuant to clause (a)(i) or (a)(ii) above and, in all other cases, on Base Rate Advances pursuant to clause (a)(i) above. 
  
 (c) Notice of Interest Period and Interest Rate. Promptly after receipt of a notice of Conversion
pursuant to Section 2.08 or a notice of selection of an Interest Period pursuant to the terms of the definition of “Interest Period,” the Administrative Agent shall give notice to the Borrower and each Lender of the applicable Interest
Period and the applicable interest rate determined by the Administrative Agent for purposes of clause (a)(i) or (a)(ii) above. 
  
 SECTION 2.07. Fees. (a) Commencing on the Amendment Effective Date and until the Termination Date, the Borrower shall pay to the Agent fees in the
amounts set forth in a letter agreement with the Agent. 
  
 (b) Upon the occurrence of the Amendment Effective Date, the Borrower shall pay to the Administrative Agent for the account of the Lenders a fee in an amount equal to 0.25% of the Term Advances. 
  
 SECTION 2.08. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Section 2.09,
Convert all or any portion of the Advances of one Type comprising the same Borrowing into Advances of the other Type; provided, however, that any Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made only on the last
day of an Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an amount not less than $10,000,000 and in integral multiples of $10,000,000 in excess thereof, no Conversion
of any Advances shall result in more than five separate Borrowings and each Conversion of Advances comprising part of the same Borrowing under any Facility shall be made ratably to each Lender and to the installments thereof on a pro rata basis.
Each such notice of Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Advances to be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances. Each notice of Conversion shall be irrevocable and binding on the Borrower. 
  
 (b) Mandatory. (i) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than $10,000,000, such Advances shall automatically Convert into Base Rate Advances. 
  

 33 








 (ii) If the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01, the Administrative Agent will forthwith so notify the Borrower and the Lenders, whereupon each such Eurodollar
Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance. 
  
 (iii) Upon the occurrence and during the continuance of any Default, (x) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance and (y) the obligation of the Lenders to make, or to Convert Advances into Eurodollar Rate Advances shall be suspended. 
  
 SECTION 2.09. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or increase of reserve requirements included in the Eurodollar Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of funding or maintaining Eurodollar Rate Advances (excluding, for purposes of
this Section 2.09, any such increased costs resulting from (x) Taxes or Other Taxes (as to which Section 2.11 shall govern) and (y) changes in the basis of taxation of overall net income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has its Applicable Lending Office or any political subdivision thereof), then the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost; provided, however, that a Lender claiming additional amounts
under this Section 2.09(a) agrees to use reasonable efforts (consistent with internal policy and legal and regulatory restrictions) to designate a different Applicable Lending Office if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. A certificate as to the amount of such increased cost, submitted to the
Borrower by such Lender, shall be conclusive and binding for all purposes, absent manifest error. 
  
 (b) If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance
with any guideline or request from any central bank or other governmental authority (whether or not having the force of law), there shall be any increase in the amount of capital required or expected to be maintained by any Lender or any corporation
controlling such Lender as a result of or based upon the existence of such Lender’s commitment to lend hereunder and other commitments of such type, then, upon demand by such Lender or such corporation (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for the account of such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender in the light of such circumstances, to
the extent that such Lender reasonably determines such increase in 

  

 34 








 
capital to be allocable to the existence of such Lender’s commitment to lend hereunder. A certificate as to such amounts submitted to the Borrower by
such Lender shall be conclusive and binding for all purposes, absent manifest error. 
  
 (c) If, with respect to any Eurodollar Rate Advances under any Facility, Lenders owed at least a majority of the then aggregate unpaid
principal amount thereof notify the Administrative Agent that the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to such Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the Borrower and the Appropriate Lenders, whereupon (i) each such Eurodollar Rate Advance under such Facility will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the Appropriate Lenders to Convert Advances into Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist. 
  
 (d) Notwithstanding any other provision of this Agreement, if the introduction of or any change in or in the interpretation of any law or regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder, then, on notice
thereof and demand therefor by such Lender to the Borrower through the Administrative Agent, (i) each Eurodollar Rate Advance under each Facility under which such Lender has a Commitment will automatically, upon such demand, Convert into a Base Rate
Advance and (ii) the obligation of the Appropriate Lenders to Convert Advances into Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower that such Lender has determined that the circumstances causing
such suspension no longer exist; provided, however, that, before making any such demand, such Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such Lender or its Eurodollar Lending Office to continue to fund or maintain Eurodollar Rate Advances and would not, in the judgment of such Lenders, be otherwise
disadvantageous to such Lender. 
  
 SECTION 2.10. Payments and
Computations. (a) The Borrower shall make each payment hereunder and under the Notes, irrespective of any right of counterclaim or set-off (except as otherwise provided in Section 2.14), not later than 11:00 A.M. (New York City time) on the day
when due in U.S. dollars to the Administrative Agent at the Administrative Agent’s Account in same day funds, with payments being received by the Administrative Agent after such time being deemed to have been received on the next succeeding
Business Day. The Administrative Agent will promptly thereafter cause like funds to be distributed (i) if such payment by the Borrower is in respect of principal, interest, commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender, to such Lenders for the account of their respective Applicable Lending Offices ratably in accordance with the amounts of such respective Obligations then payable to such Lenders and (ii) if such 

  

 35 








 
payment by the Borrower is in respect of any Obligation then payable hereunder to one Lender, to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 9.07(e), from and after the
effective date of such Assignment and Acceptance, the Administrative Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves. 
  
 (b) The Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or, in the
case of a Lender, under the Note held by such Lender, to charge from time to time against any or all of the Borrower’s accounts with such Lender any amount so due. 
  
 (c) All computations of interest based on the Base Rate and fees shall be made by the Administrative Agent
on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate and of fees shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number
of days (including the first day but excluding the last day) occurring in the period for which such interest, fees or commissions are payable. Each determination by the Administrative Agent of an interest rate, fee or commission hereunder shall be
conclusive and binding for all purposes, absent manifest error. 
  
 (d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment fee, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the
next following calendar month, such payment shall be made on the next preceding Business Day. 
  
 (e) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to any
Lender hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon
such assumption, cause to be distributed to each such Lender on such due date an amount equal to the amount then due such Lender. If and to the extent the Borrower shall not have so made such payment in full to the Administrative Agent, each such
Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the Federal Funds Rate. 
  
 (f) If the Administrative Agent receives funds for application to the Obligations under the Loan Documents under circumstances for which the Loan 

  

 36 








 
Documents do not specify the Advances or the Facility to which, or the manner in which, such funds are to be applied, the Administrative Agent may, but shall
not be obligated to, elect to distribute such funds to each Lender ratably in accordance with such Lender’s proportionate share of the principal amount of all outstanding Advances, in repayment or prepayment of such of the outstanding Advances
or other Obligations owed to such Lender, and for application to such principal installments, as the Administrative Agent shall direct. 
  
 SECTION 2.11. Taxes. (a) Any and all payments by or for the account of any Loan Party hereunder, or in respect of the Notes or any other Loan
Document, shall be made, in accordance with Section 2.10, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and each Agent, taxes that are imposed on its overall net income by the United States and taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the state or
foreign jurisdiction under the laws of which such Lender or such Agent, as the case may be, is organized or any political subdivision thereof and, in the case of each Lender, taxes that are imposed on its overall net income (and franchise taxes
imposed in lieu thereof) by the state or foreign jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being hereinafter referred to as “Taxes”). If a Loan Party shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note or
other Loan Documents to any Lender or any Agent, (i) the sum payable by such Loan Party shall be increased as may be necessary so that after such Loan Party and the Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 2.11) such Lender or such Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make all such
deductions and (iii) such Loan Party shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law. 
  
 (b) In addition, each Loan Party shall pay any present or future stamp, documentary, excise, property or
similar taxes, charges or levies that arise from any payment made hereunder or under the Notes or other Loan Documents or from the execution, delivery or registration of, performance under, or otherwise with respect to, this Agreement, the Notes or
any other Loan Document (hereinafter referred to as “Other Taxes”). 
  
 (c) Each Loan Party shall indemnify each Lender and each Agent for and hold them harmless against the full amount of Taxes and Other
Taxes, and for the full amount of taxes of any kind imposed by any jurisdiction on amounts payable under this Section 2.11, imposed on or paid by such Lender or such Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date such Lender or such Agent (as the case may be) makes written demand therefor. 
  

 37 








 (d) Within 30 days after the date of any payment of Taxes, the relevant Loan Party shall
furnish to the Administrative Agent, at its address referred to in Section 9.02, the original or a certified copy of a receipt evidencing such payment. In the case of any payment hereunder or under the Notes or other Loan Documents by or on behalf
of such Loan Party through an account or branch outside the United States or by or on behalf of such Loan Party by a payor that is not a United States person, if such Loan Party determines that no Taxes are payable in respect thereof, such Loan
Party shall furnish, or shall cause such payor to furnish, to the Administrative Agent, at such address, an opinion of counsel acceptable to the Administrative Agent stating that such payment is exempt from Taxes. For purposes of subsections (d) and
(e) of this Section 2.11, the terms “United States” and “United States person” shall have the meanings specified in Section 7701 of the Internal Revenue Code. 
  
 (e) Each Lender organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender, as the case may be, and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter as requested in writing by the relevant Loan Party (but only so long thereafter as such Lender remains lawfully able to do so), provide each of the Administrative Agent and each Loan
Party with two original Internal Revenue Service forms W-8ECI or W-8 or W-8BEN (and, if applicable to the exemption claimed by a Lender that delivers a form W-8 or W-8BEN, a certificate representing that such Lender is not a “bank” for
purposes of Section 881(c) of the Internal Revenue Code, is not a 10-percent shareholder, within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, of the Loan Party and is not a controlled foreign corporation related to the Loan
Party, within the meaning of Section 864(d)(4) of the Internal Revenue Code), as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this Agreement or the Notes (or, in the case of a Lender providing a form W-8 or W-8BEN, certifying that such Lender is a foreign corporation, partnership, estate or trust). If the forms provided
by a Lender at the time such Lender first becomes a party to this Agreement indicate a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender
provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such forms; provided, however, that if, at the effective
date of the Assignment and Acceptance pursuant to which a Lender becomes a party to this Agreement, the Lender assignor was entitled to payments under subsection (a) of this Section 2.11 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender assignee on such date. If any form or document referred to in this subsection (e) requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service form W-8, W-8BEN or W-8ECI (or the related certificate described above), that the Lender reasonably considers to be confidential, the 

  

 38 








 
Lender shall give notice thereof to the Loan Party and shall not be obligated to include in such form or document such confidential information. 

 
 (f) For any period with respect to which a Lender has
failed to provide the relevant Loan Party with the appropriate form described in subsection (e) above (other than if such failure is due to a change in law occurring after the date on which a form originally was required to be provided or if
such form otherwise is not required under subsection (e) above), such Lender shall not be entitled to indemnification under subsection (a) or (c) of this Section 2.11 with respect to Taxes imposed by reason of such failure; provided, however,
that should a Lender become subject to Taxes because of its failure to deliver a form required hereunder, the relevant Loan Party shall take such steps as such Lender shall reasonably request to assist such Lender to recover such Taxes. 

 
 (g) The Loan Party may replace any Lender that has
requested additional amounts under this Section 2.11, by written notice to such Lender and the Administrative Agent and identifying one or more persons each of which shall be reasonably acceptable to the Administrative Agent (each, a
“Replacement Lender”, and collectively, the “Replacement Lenders”) to replace such Lender (the “Replaced Lender”); provided, that (i) the notice from such Loan
Party to the Replaced Lender and the Administrative Agent provided for herein above shall specify an effective date for such replacement (the “Replacement Effective Date”), which shall be at least five (5) Business Days after
such notice is given and (ii) as of the relevant Replacement Effective Date, each Replacement Lender shall enter into an Assignment and Acceptance with the Replaced Lender pursuant to Section 9.07(a) (but shall not be required to pay the processing
fee otherwise payable to the Administrative Agent pursuant to Section 9.07(a)), pursuant to which such Replacement Lenders collectively shall acquire, in such proportion among them as they may agree with such Loan Party and the Administrative Agent,
all (but not less than all) of the Commitments and outstanding Advances of the Replaced Lender, and, in connection therewith, shall pay to the Replaced Lender, as the purchase price in respect thereof, an amount equal to the sum as of the
Replacement Effective Date, without duplication, of (x) the unpaid principal amount of, and all accrued but unpaid interest on, all outstanding Advances of the Replaced Lender and (y) the Replaced Lender’s ratable share of all accrued but
unpaid fees owing to the Replaced Lender hereunder. 
  
 SECTION
2.12. Sharing of Payments, Etc. If any Lender shall obtain at any time any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise, other than as a result of an assignment pursuant to Section 9.07) (a)
on account of Obligations due and payable to such Lender hereunder and under the Notes at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii)
the aggregate amount of the Obligations due and payable to all Lenders hereunder and under the Notes at such time) of payments on account of the Obligations due and payable to all Lenders hereunder and under the Notes at such time obtained by all
the Lenders at such time or (b) on account of Obligations owing (but not due and payable) to such Lender hereunder and under the Notes at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations
owing to such Lender at such time to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all Lenders hereunder and under the Notes at such time) of payments on 

  

 39 








 
account of the Obligations owing (but not due and payable) to all Lenders hereunder and under the Notes at such time obtained by all of the Lenders at such
time, such Lender shall forthwith purchase from the other Lenders such interests or participating interests in the Obligations due and payable or owing to them, as the case may be, as shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each other Lender shall be rescinded and such other Lender
shall repay to the purchasing Lender the purchase price to the extent of such Lender’s ratable share (according to the proportion of (i) the purchase price paid to such Lender to (ii) the aggregate purchase price paid to all Lenders) of such
recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such other Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered; provided, further, that, so long as the Obligations under the Loan Documents shall not have been accelerated, any excess
payment received by an Appropriate Lender shall be shared on a pro rata basis only with other Appropriate Lenders. The Borrower agrees that any Lender so purchasing an interest or participating interest from another Lender pursuant to this Section
2.12 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such interest or participating interest, as the case may be, as fully as if such Lender were the direct creditor of
the Borrower in the amount of such interest or participating interest, as the case may be. 
  
 SECTION 2.13. Intentionally omitted. 
  
 SECTION 2.14. Defaulting Lenders. (a) Intentionally omitted. 
  
 (b) In the event that, at any one time, (i) any Lender shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to any Agent or any of the other Lenders and (iii) the Borrower shall make
any payment hereunder or under any other Loan Document to the Administrative Agent for the account of such Defaulting Lender, then the Administrative Agent may, on its behalf or on behalf of such other Agents or such other Lenders and to the fullest
extent permitted by applicable law, apply at such time the amount so paid by the Borrower to or for the account of such Defaulting Lender to the payment of each such Defaulted Amount to the extent required to pay such Defaulted Amount. In the event
that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement and the other Loan Documents
payment, to such extent, of such Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Agents or such other
Lenders, ratably in accordance with the respective portions of such Defaulted Amounts payable at such time to the Administrative Agent, such other Agents and such other Lenders and, if the amount of such payment made by the Borrower shall at such
time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent, such other Agents and such other Lenders, in the following order of priority: 
  

 40 








 (i) first, to the Administrative Agent for any Defaulted Amounts then owing to the
Administrative Agent hereunder; and 
  
 (ii)
second, to any other Lenders for any Defaulted Amounts then owing to such other Lenders, ratably in accordance with such respective Defaulted Amounts then owing to such other Lenders. 
  
 Any portion of such amount paid by the Borrower for the account of such Defaulting Lender
remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this subsection (b), shall be applied by the Administrative Agent as specified in subsection (c) of this Section 2.14. 
  
 (c) In the event that, at any one time, (i) any Lender shall
be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Amount and (iii) the Borrower, any Agent or any other Lender shall be required to pay or distribute any amount hereunder or under any other Loan Document to or for the
account of such Defaulting Lender, then the Borrower or such Agent or such other Lender shall pay such amount to the Administrative Agent to be held by the Administrative Agent, to the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable law, hold in escrow such amount otherwise held by it. Any funds held by the Administrative Agent in escrow under this subsection (c) shall be deposited by the Administrative
Agent in a segregated account with DeutscheBank Trust Company Americas, in the name and under the control of the Administrative Agent, but subject to the provisions of this subsection (c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time to time, shall be DeutscheBank Trust Company Americas’ standard terms applicable to escrow accounts maintained with it. Any interest credited to such account from
time to time shall be held by the Administrative Agent in escrow under, and applied by the Administrative Agent from time to time in accordance with the provisions of, this subsection (c). The Administrative Agent shall, to the fullest extent
permitted by applicable law, apply all funds so held in escrow from time to time to the extent necessary to make any Advances required to be made by such Defaulting Lender and to pay any amount payable by such Defaulting Lender hereunder and under
the other Loan Documents to the Administrative Agent or any other Lender, as and when such Advances or amounts are required to be made or paid and, if the amount so held in escrow shall at any time be insufficient to make and pay all such Advances
and amounts required to be made or paid at such time, in the following order of priority: 
  
 (i) first, to the Administrative Agent for any amounts then due and payable by such Defaulting Lender to the Administrative Agent
hereunder; 
  
 (ii) second, to any other
Lenders for any amount then due and payable by such Defaulting Lender to such other Lenders hereunder, ratably in accordance with such respective amounts then due and payable to such other Lenders; and 
  

 41 








 (iii) third, to the Borrower for any Advance then required to be made by such
Defaulting Lender pursuant to a Commitment of such Defaulting Lender. 
  
 In the
event that any Lender that is a Defaulting Lender shall, at any time, cease to be a Defaulting Lender, any funds held by the Administrative Agent in escrow at such time with respect to such Lender shall be distributed by the Administrative Agent to
such Lender and applied by such Lender to the Obligations owing to such Lender at such time under this Agreement and the other Loan Documents ratably in accordance with the respective amounts of such Obligations outstanding at such time. 

 
 (d) The rights and remedies against a Defaulting Lender
under this Section 2.14 are in addition to other rights and remedies that the Borrower may have against such Defaulting Lender and that any Agent or any Lender may have against such Defaulting Lender with respect to any Defaulted Amount. 

 
 SECTION 2.15. Evidence of Debt; Register. (a) Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Advance owing to such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder. The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such notice to the Administrative Agent) to the effect that a promissory note or other evidence of
indebtedness is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to be made by, such Lender, the Borrower shall promptly execute and deliver to such
Lender, with a copy to the Administrative Agent, a Term Note, in substantially the form of Exhibit A, payable to the order of such Lender in a principal amount equal to the Term Advance of such Lender. The Lenders hereby agree that any promissory
notes evidencing the Advances issued by the Borrower to any Lender prior to the date hereof shall be deemed null and void and of no further force or effect for any and all purposes, and each Lender that is a holder of any such note agrees to
surrender such note to the Borrower. All references to Notes in the Loan Documents shall mean Notes, if any, to the extent issued hereunder. 
  
 (b) The Administrative Agent shall maintain at its address referred to in Section 9.02 a register for the recordation of the names and
addresses of the Lenders and the Commitment under each Facility of each Lender from time to time (the “Register”). The Register maintained by the Administrative Agent pursuant to this Section shall also include a control
account, and a subsidiary account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder, and (iv) the
amount of any sum received by the Administrative Agent from the Borrower hereunder and each Lender’s share thereof. 
  

 42 








 (c) Entries made in good faith by the Administrative Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in
the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided, however, that the failure of the Administrative Agent or such Lender to make an entry, or
any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement. 
  
 (d) The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and
the Borrower, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender
at any reasonable time and from time to time upon reasonable prior notice. 
  
 ARTICLE III 
  
 CONDITIONS OF LENDING 
  
 SECTION 3.01.
Conditions Precedent to the Amendment Effective Date. The occurrence of the Amendment Effective Date is subject to the satisfaction of the following conditions precedent: 
  
 (a) The Amendment Effective Date shall occur on or before March 29, 2005. 
  
 (b) The Administrative Agent shall have received the
following, each dated the Amendment Effective Date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: 

 
 (i) The Notes payable to the order of the Lenders, to the
extent requested by any Lender pursuant to Section 2.15(a). 
  
 (ii) An amended and restated security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in
each case as amended, the “Security Agreement”), duly executed by each Loan Party, together with: 
  
 (A) written confirmation of receipt by the First Lien Collateral Agent of certificates representing the Pledged Shares referred to under
the First Lien Security Agreement and the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, to be held by the First Lien Collateral Agent pursuant to the terms of
the First Lien Security Agreement and 

  

 43 








 
otherwise in accordance with the Second Lien Intercreditor and Subordination Agreement, 
  
 (B) acknowledgment copies or stamped receipt copies of proper financing statements (or proper amendments to
any financing statements filed pursuant to the First Amended ITCD Credit Agreement, Second Amended ITCD Credit Agreement or the Original Second Lien Credit Agreement), duly filed on or before the Amendment Effective Date under the Uniform Commercial
Code of all jurisdictions that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral
described in the Security Agreement, subject only to the prior Lien of the First Lien Collateral Agent and Permitted Liens and otherwise in accordance with the Second Lien Intercreditor and Subordination Agreement, 
  
 (C) completed requests for information, dated on or before
the Amendment Effective Date, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with
copies of such other financing statements, 
  
 (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens created
thereby, 
  
 (E) written confirmation of receipt
by the First Lien Collateral Agent of copies of the Assigned Agreements referred to in the Security Agreement, to be held by the First Lien Collateral Agent pursuant to the terms of the First Lien Security Agreement and otherwise in accordance with
the Intercreditor and Subordination Agreements, and 
  
 (F) evidence that all other action that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the liens and security interests created under the Security Agreement has been taken (including,
without limitation, receipt of duly executed payoff letters, UCC-3 termination statements, landlords’ and bailees’ waiver and consent agreements and account control and cash management agreements in form and substance satisfactory to the
Administrative Agent) subject only to the prior Lien of the First Lien Collateral Agent and Permitted Liens and otherwise in accordance with the Second Lien Intercreditor and Subordination Agreement. 
  

 44 








 (iii) The Capital Lease Assignments substantially in the form of Exhibit B hereto.

  
 (iv) The Intercreditor and Subordination
Agreements in substantially the form of Exhibit E hereto, duly executed by each of the parties thereto. 
  
 (v) Certified copies of the resolutions of the Board of Directors of each Loan Party approving the Transactions and each Loan Document to
which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Loan Document to which it is or is to
be a party. 
  
 (vi) A copy of a certificate of
the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the date of the Amendment Effective Date, certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto
on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) to the extent that the Secretary of State of the applicable jurisdiction
of incorporation provides such a certification, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the
jurisdiction of its incorporation. 
  
 (vii) A
copy of a certificate of the Secretary of State in each jurisdiction in which each Loan Party is qualified to do business, dated reasonably near the date of the Amendment Effective Date, stating that such Loan Party is duly qualified and in good
standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate. 
  
 (viii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any
Assistant Secretary, dated the Amendment Effective Date (the statements made in which certificate shall be true on and as of the Amendment Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since
the date of the Secretary of State’s certificate referred to in Section 3.02(b)(vi) (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)(v) were adopted
and on the Amendment Effective Date, (C) the due incorporation and good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation, and the absence of any proceeding for the
dissolution or liquidation of such Loan Party, (D) the 

  

 45 








 
truth of the representations and warranties contained in the Loan Documents as though made on and as of the Amendment Effective Date, (E) the absence of any
event occurring and continuing, or resulting from entering into this Agreement, that constitutes a Default and (F) the absence of any event occurring and continuing that constitutes a Default (as defined in the Original Second Lien Credit Agreement)
under the Original Second Lien Credit Agreement or a statement as to such Default and a reasonably detailed description thereof. 
  
 (ix) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers
of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. 
  

(x) Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable
insurance companies or associations, and in such amounts and covering such risks, as is reasonably satisfactory to the Lenders. 
  
 (xi) Favorable opinions of counsel for the Loan Parties, in substantially the form of Exhibit G hereto and as to such other matters as any
Lender through the Administrative Agent may reasonably request. 
  
 (c) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i)
could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”). 
  
 (d) All governmental and third party consents and approvals necessary in connection with the Transactions
shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lenders) and shall remain in effect (other than any consents and approvals the absence of which, either individually or in the aggregate,
would not have a Material Adverse Effect); all applicable waiting periods in connection with the Transactions shall have expired without any action being taken by any competent authority (other than any action which either individually or in the
aggregate with all such actions would not reasonably be expected to have a Material Adverse Effect), and no law or regulation shall be applicable in the reasonable judgment of the Lenders, in each case that restrains, prevents or imposes materially
adverse conditions upon the Transactions or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. 
  
 (e) All Pre-Amendment Information shall be true, correct and
complete in all material aspects as of the dates specified therein, and no additional information shall have 

  

 46 








 
come to the attention of the Loan Parties that could reasonably be expected to have a Material Adverse Effect. 
  
 (f) The Borrower shall have paid (or made provision therefor
in a manner reasonably satisfactory to the Agents) (i) all accrued and unpaid interest, expenses and fees outstanding with respect to the First Amended ITCD Credit Agreement, (ii) all reasonable and documented costs and expenses of the
Administrative Agent (including the reasonable fees and expenses of legal counsel and financial advisors to the Administrative Agent) and the Lenders, and (iii) the fees set forth in Section 2.07. 
  
 (g) The Lenders shall be reasonably satisfied that (i) the
Parent and its Subsidiaries will be able to meet their respective obligations under all employee and retiree welfare plans, (ii) the employee benefit plans of the Parent and its ERISA Affiliates are, in all material respects, funded in accordance
with the minimum statutory requirements, (iii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) has occurred as to any such employee benefit plan and (iv) no termination of, or
withdrawal from, any such employee benefit plan has occurred or is contemplated that could reasonably be expected to result in a material liability. 
  
 (h) The parties shall have executed and delivered the First Lien Loan Documents which shall be in form and substance reasonable acceptable
to the Lenders. 
  
 (i) The parties shall have
executed and delivered the Third Lien Loan Documents, in form and substance reasonably acceptable to the Lenders, and the Third Lien Lenders shall have advanced to the Loan Parties an aggregate principal amount not less than $20,000,000 pursuant to
the Third Lien Loan Documents. 
  
 (j) The
Lessees shall have paid all accrued and outstanding interest under the NTFC Capital Lease and GECC Capital Lease on or before the Amendment Effective Date. 
  
 (k) The parties shall have executed and delivered the New Warrant Documents, in form and substance reasonably acceptable to the Lenders
and duly executed warrants in definitive form and registered in such names as shall be satisfactory to the Third Lien Lenders. 
  
 (l) The Administrative Agent shall have received drafts of the audited Consolidated balance sheet of the Loan Parties as at December 31,
2004, and drafts of the audited related Consolidated statement of income and Consolidated statement of cash flows of the Loan Parties for the Fiscal Year then ended. 
  

 47 








  
 ARTICLE IV 

 
 REPRESENTATIONS AND WARRANTIES 
  
 SECTION 4.01. Representations and Warranties of the Borrower. The Loan
Parties represent and warrant, jointly and severally, as follows as of the date hereof and the Amendment Effective Date: 
  
 (a) Each Loan Party and each of its respective Subsidiaries (i) is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, (ii) is duly qualified and in good standing as a foreign corporation (except as set forth on Schedule 4.01(a)(ii) hereto) in each other jurisdiction in which it owns or leases property or in
which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate power and
authority (including, without limitation, all governmental licenses, permits and other approvals (except as set forth on Schedule 4.01(a)(iii) hereto)) to own or lease and operate its properties and to carry on its business as now conducted and as
currently proposed to be conducted, except where the failure to have such power or authority would not be reasonably likely to have a Material Adverse Effect. All of the outstanding Equity Interests in the Borrower have been validly issued, are
fully paid and non-assessable and are owned by the Parent free and clear of all Liens, except those created under the Loan Documents. 
  
 (b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party as of the Amendment
Effective Date, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its incorporation, the number of shares of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the
percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof.
All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by such Loan Party or one or more of its Subsidiaries free and clear of all Liens, except those
created under the Loan Documents. 
  
 (c) The
execution, delivery and performance by each Loan Party of each Loan Document to which it is or is to be a party, and the consummation of the Transactions, are within such Loan Party’s corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Loan Party’s charter or bylaws, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any loan agreement, indenture, mortgage, deed of trust, or material contract, lease or other instrument binding on
or affecting any Loan Party, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Loan Documents, the First Lien Loan Documents and the Third Lien Loan Documents, 

  

 48 








 
result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No
Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease
or other instrument, the violation or breach of which could be reasonably likely to have a Material Adverse Effect. 
  
 (d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body
(including, without limitation, the FCC or any applicable PUC) or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party of any Loan Document to which it is or is to be a party, or
for the consummation of the Transactions, (ii) the grant or affirmation by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents
(including the first priority nature thereof subject to Liens securing the First Lien Facility), or (iv) the exercise by any Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect except (A) as set forth in
the Loan Documents or (B) for such authorizations, approvals, actions, notices and filings which would not have a Material Adverse Effect if not so made or obtained. All applicable waiting periods in connection with the Transactions have expired
without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transactions or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose
of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. 
  
 (e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each
Loan Party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party thereto, enforceable against such Loan Party in accordance with its terms. 

 
 (f) There is no action, suit, investigation, litigation
or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to any Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would, alone or when
considered in conjunction with any other actions, suits, investigation, litigation or proceeding affecting any Loan Party, be reasonably likely to have a Material Adverse Effect other than the Disclosed Litigation or (ii) purports to affect the
legality, validity or enforceability of any Loan Document or the consummation of Transactions, and there has been no material adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of or as a result of the
Disclosed Litigation from that described on Schedule 4.01(f) hereto. 
  
 (g) The (i) unaudited Consolidated balance sheet of the Loan Parties as at the nine (9) months ended September 30, 2004, and (ii) the unaudited related Consolidated 

  

 49 








 
statement of income and Consolidated statement of cash flows of the Loan Parties for the nine (9) months then ended, duly certified by the Chief Financial
Officer of the Parent, copies of which have been furnished to the Agents and each Lender, fairly present the Consolidated financial condition of the Loan Parties, as the case may be, as at such date and the Consolidated results of operations of the
Parent and its Subsidiaries for the period ended on such date, all in accordance with GAAP applied on a consistent basis, and since December 31, 2004 there has been no Material Adverse Change. 
  
 (h) Intentionally omitted. 
  
 (i) The Consolidated balance sheets, income statements and
cash flows statements of the Loan Parties delivered to the Lenders pursuant to Section 5.03(e) were or will be, and the unaudited pro forma financial information about the Loan Parties delivered to the Lenders in the ITC^DeltaCom 2005-2006 Business
Plan, dated March 9, 2005, was, prepared in good faith on the basis of the assumptions stated therein, which assumptions were or will be fair in light of the conditions existing at the time of delivery of such information, and represented or will
represent, at the time of delivery, the Loan Parties’ best estimate of the future financial performance of the Loan Parties. 
  
 (j) No information, exhibit or report furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the
negotiation of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading. 
  
 (k) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance have been used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. 

 
 (l) Neither any Loan Party nor any of its Subsidiaries is
an “investment company,” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as
amended. Neither the making of any Advances, nor the application of the proceeds or repayment thereof by the Borrower, nor the consummation of the other Transactions, will violate any provision of such Act or any rule, regulation or order of the SEC
thereunder. 
  
 (m) Intentionally Omitted.

  
 (n) The Collateral Documents create a valid
security interest in the Collateral, securing the payment of the Secured Obligations, and at such time as all filings delivered to the Collateral Agent on or before the Amendment Effective Date have been duly filed in accordance with the provisions
of the Security Agreement, such security interest will be perfected. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the Liens and security interests created or permitted under the Loan
Documents. 
  

 50 








 (o) Intentionally Omitted. 
  
 (p) (i) Set forth on Schedule 4.01(p) hereto is a complete and accurate list of all Plans, Multiemployer
Plans and Welfare Plans. 
  
 (ii) No ERISA Event
(i) has occurred and is outstanding or (ii) to the Loan Parties’ knowledge, is reasonably expected to occur, in each case with respect to any Plan. 
  
 (iii) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been
filed with the Internal Revenue Service and furnished to the Lenders, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding
status. 
  
 (iv) Neither any Loan Party nor any
ERISA Affiliate has incurred or, to the Loan Parties’ knowledge, is reasonably expected to incur any Withdrawal Liability exceeding $1,000,000 to any Multiemployer Plan. 
  
 (v) Neither any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan
that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan, to the Borrower’s knowledge, is reasonably expected to be in reorganization or to be terminated,
within the meaning of Title IV of ERISA. 
  
 (q)
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and
Environmental Permits has been resolved without ongoing obligations or costs, and no circumstances exist that could (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that could
have a Material Adverse Effect or (B) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law. 
  
 (ii) None of the properties currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or, to the best of its knowledge, is adjacent to any such property; there are no and or, to the best of its knowledge, never
have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or, to the best
of its knowledge, operated by any Loan Party or any of its Subsidiaries or, to the best of its knowledge, on 

  

 51 








 
any property formerly owned or operated by any Loan Party or any of its Subsidiaries; there is no asbestos or asbestos-containing material on any property
currently owned or, to the best of its knowledge, operated by any Loan Party or any of its Subsidiaries; and Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries except as specifically permitted under Environmental Laws. 
  
 (iii) Neither any Loan Party nor any of its Subsidiaries is undertaking, or has completed, either individually or together with other
potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or
pursuant to the order of any governmental or regulatory authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly
owned or operated by any Loan Party or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries. 
  
 (r) (i) Except as set forth in Schedule 4.01(r) hereto,
neither any Loan Party nor any of its Subsidiaries is party to any tax sharing agreement. 
  
 (ii) (x) all tax returns and all material statements, reports and forms (including estimated tax or information returns) (collectively,
the “Tax Returns”) required to be filed with any taxing authority by, or with respect to, each Loan Party and its Subsidiaries have been timely filed in accordance with all applicable laws and, as of time of filing, each Tax
Return was accurate and complete and correctly reflected the facts regarding income, business, assets, operations and the status of each Loan Party and its Subsidiaries; (y) each Loan Party and its Subsidiaries has timely paid or made adequate
provision for payment of all taxes (other than the Permitted Deferred Taxes) that are shown as due and payable on Tax Returns that have been so filed or that are otherwise required to be paid, including without limitation, assessments, interest and
penalties (other than taxes which are being contested in good faith and for which adequate reserves are reflected on the financial statements delivered hereunder); and (z) each Loan Party and its Subsidiaries have made adequate provision for all
taxes payable by such Loan Party and its Subsidiaries for which no Tax Return has yet been filed or which are otherwise due. 
  
 (iii) Set forth on Part I of Schedule 4.01(r) hereto is a complete and accurate list, as of the date hereof, of each taxable year of each
Loan Party and each of its Subsidiaries and Affiliates for which Federal income tax returns have been filed and for which the expiration of the applicable 

  

 52 








 
statute of limitations for assessment or collection has not occurred by reason of extension or otherwise (an “Open Year”).

  
 (iv) The aggregate unpaid amount, as of the
date hereof, of adjustments to the Federal income tax liability of each Loan Party and each of its Subsidiaries and Affiliates proposed by the Internal Revenue Service with respect to Open Years does not exceed $35,000. Set forth on Part II of
Schedule 4.01(r) hereto is a complete and accurate description, as of the date hereof, of each such item that separately, for all such Open Years, together with applicable interest and penalties, exceeds $100,000. To the Borrower’s knowledge,
no issues have been raised by the Internal Revenue Service in respect of Open Years that, in the aggregate, could be reasonably likely to have a Material Adverse Effect. 
  
 (v) Except as set forth in Schedule 4.01(r) hereto, the aggregate unpaid amount, as of the date hereof, of
adjustments to the state, local and foreign tax liability of each Loan Party and its Subsidiaries and Affiliates proposed by all state, local and foreign taxing authorities (other than amounts arising from adjustments to Federal income tax returns)
does not exceed $35,000. No issues have been raised by such taxing authorities that, in the aggregate, could be reasonably likely to have a Material Adverse Effect. 
  
 (s) Neither the business nor the properties of any Loan Party or any of its Subsidiaries have been affected
by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that could be reasonably likely to have a
Material Adverse Effect. 
  
 (t) Intentionally
omitted. 
  
 (u) Set forth on Schedule 4.01(u)
hereto is a complete and accurate list of all Surviving Debt, showing as of the date hereof the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor. 
  
 (v) Set forth on Schedule 4.01(v) hereto is a complete and
accurate list of all Liens on the property or assets of any Loan Party or any of its Subsidiaries, showing as of the date hereof the lienholder thereof, the principal amount of the obligations secured thereby and the property or assets of such Loan
Party or such Subsidiary subject thereto. 
  
 (w)
Set forth on Schedule 4.01(w) hereto is a complete and accurate list of all real property owned by any Loan Party or any of its Subsidiaries, showing as of the date hereof the street address, county or other relevant jurisdiction, state, record
owner and gross book and fair value thereof. Each Loan Party or such Subsidiary has good, marketable and insurable fee simple title to such real property, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.

  

 53 








 (x) Set forth on Schedule 4.01(x) hereto is a complete and accurate list of all leases of
real property under which any Loan Party or any of its Subsidiaries is the lessee, showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor, lessee, expiration date and annual rental cost thereof. Each
such lease is the legal, valid and binding obligation of the lessor thereof, enforceable in accordance with its terms. 
  
 (y) Set forth on Schedule 4.01(y) hereto is a complete and accurate list of all Investments held by any Loan Party or any of its
Subsidiaries on the date hereof, showing as of the date hereof the amount, obligor or issuer and maturity, if any, thereof. 
  
 (z) Set forth on Schedule 4.01(z) hereto is a complete and accurate list of all patents, trademarks, trade names, service marks and
copyrights, and all applications therefor and licenses thereof, of each Loan Party or any of its Subsidiaries, showing as of the date hereof the jurisdiction in which registered, the registration number, the date of registration and the expiration
date. 
  
 (aa) Set forth on Schedule 4.01(aa)
hereto is a complete and accurate list of all Material Contracts of each Loan Party and its Subsidiaries involving aggregate consideration payable to or by such Loan Party or its Subsidiaries of $20,000,000 or more in any year. Each such Material
Contract, together with each other Material Contract shows as of the date hereof the parties, subject matter and term thereof. Each such Material Contract has been duly authorized, executed and delivered by all parties thereto, has not been amended
or otherwise modified, is in full force and effect and is binding upon and enforceable against all parties thereto in accordance with its terms, and except as set forth on Schedule 4.01(aa) hereto, there exists no default under any Material Contract
by any party thereto. 
  
 (bb) The New Warrants
have been duly authorized by the Parent and, when issued and delivered in accordance with the terms of this Agreement and the New Warrant Documents, will be validly issued and outstanding, fully paid and nonassessable, and free and clear of any
Liens, other than Liens arising under the Governance Agreement. The shares of Common Stock issuable upon exercise or conversion of the New Warrants will, when issued, be validly issued and outstanding, fully paid and nonassessable, and free and
clear of any Liens, other than Liens arising under the Governance Agreement. The issuance of the New Warrants and the New Warrant Shares will not be subject to preemptive or other similar rights. 
  
 (cc) The New Warrant Documents and the New Warrants
constitute valid and binding agreements of the Parent, in each case enforceable against the Parent in accordance with their respective terms, except as such enforcement is limited by bankruptcy, insolvency and other similar laws affecting the
enforcement of creditors’ rights generally and for limitations imposed by generally principles of equity. 
  
 (dd) Neither the Parent nor any Person acting on its behalf has taken or will take any action (including, without limitation, any offering
of any securities of the Parent under circumstances which would require, under the Securities Act the integration of 

  

 54 








 
such offering with the offering and sale of the New Warrants) which might subject the offering, issuance or sale of the New Warrants to the registration
requirements of Section 5 of the Securities Act. 
  
 (ee) The authorized capital stock of the Parent consists of 350,000,000 shares of Common Stock, par value $0.01 per share, and 10,000,000 shares of preferred stock, par value $0.01 per share. As of March 17, 2005, there were outstanding
55,084,955 shares of Common Stock of the Parent, 179,311 shares of Series A Preferred Stock and 539,078 shares of Series B Preferred Stock. As of March 17, 2005, there were outstanding under the ITC^DeltaCom, Inc. Stock Incentive Plan (i) stock
options to purchase an aggregate of 2,694,886 shares of Common Stock of the Parent, of which stock options to purchase an aggregate of 1,927,635 shares of Common Stock of the Parent were exercisable, and (ii) restricted stock units for 1,653,000
shares of Common Stock of the Parent, of which restricted stock units for 791,165 shares of Common Stock were vested. As of March 17, 2005, there were outstanding, currently exercisable warrants to purchase an aggregate of 4,020,000 shares of Common
Stock of the Parent. All outstanding shares of capital stock of the Parent have been, and all shares of Common Stock of the Parent that may be issued pursuant to the ITC^DeltaCom, Inc. Stock Incentive Plan will be, when issued in accordance with the
terms of such plan, duly authorized and validly issued and fully paid and nonassessable. No Subsidiary of the Parent owns any shares of capital stock of the Parent. 
  
 (ff) The information statement (the “Information Statement”) of the Parent required
to be filed with the SEC pursuant to Regulation 14C under the Exchange Act in connection with the issuance of the New Warrants and New Warrant Shares, and any amendments or supplements thereto, will, when filed, comply as to form in all material
respects with the applicable requirements of the Exchange Act. At the time the Information Statement or any amendment or supplement thereto is first mailed to stockholders of the Parent, the Information Statement, as supplemented or amended, if
applicable, will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The
representations and New Warranties contained in this Section 4.01(ff) will not apply to statements or omissions included in the Information Statement based upon information furnished to the Parent in writing by WCAS specifically for use therein.

  
 ARTICLE V 
  
 COVENANTS 
  
 SECTION 5.01. Affirmative Covenants. So long as any Advance or any other Obligation of any Loan Party under any Loan
Document shall remain unpaid or any Lender shall have any Commitment hereunder, each Loan Party shall: 
  
 (a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include, without limitation, compliance with ERISA, the Racketeer 

  

 55 








 
Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970, the rules and regulations of the FCC and each applicable PUC.

  
 (b) Payment of Taxes, Etc. Subject to
Section 5.01(n)(ii), pay and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all
lawful claims that, if unpaid, might by law become a Lien upon its property; provided, however, that neither the Borrower nor any of its Subsidiaries shall be required to pay or discharge any such tax, assessment, charge, levy or claim that
is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained, unless and until any Lien resulting therefrom attaches to its property and becomes enforceable. 
  
 (c) Compliance with Environmental Laws. Comply, and
cause each of its Subsidiaries and all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew and cause each of its
Subsidiaries to obtain and renew all Environmental Permits necessary for its operations and properties; and conduct, and cause each of its Subsidiaries to conduct, any investigation, study, sampling and testing, and undertake any cleanup, removal,
remedial or other action necessary to remove and clean up all Hazardous Materials from any of its properties, to the extent required by and in accordance with all Environmental Laws; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with
respect to such circumstances. 
  
 (d)
Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies
engaged in similar businesses and owning similar properties in the same general areas in which the Parent or such Subsidiary operates. 
  
 (e) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause each of its Subsidiaries to preserve and maintain,
its existence, legal structure, legal name, rights (charter and statutory), permits, licenses, approvals, privileges and franchises; provided, however, that the Parent and its Subsidiaries may consummate any merger or consolidation permitted
under Section 5.02(d) and provided, further, that neither the Parent nor any of its Subsidiaries shall be required to preserve any right, permit, license, approval, privilege or franchise if the Board of Directors of the Borrower or such
Subsidiary shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Parent or such Subsidiary, as the case may be, and that the loss thereof is not disadvantageous in any material respect to the
Parent, such Subsidiary or the Lenders. 
  
 (f)
Visitation Rights. At any reasonable time upon prior reasonable notice and from time to time, permit any of the Agents or any of the Lenders, or any agents or 

  

 56 








 
representatives thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Parent and
any of its Subsidiaries, and to discuss the affairs, finances and accounts of the Parent and any of its Subsidiaries with any of their officers or directors and with their independent certified public accountants. 
  
 (g) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of the Parent and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time. 
  
 (h) Maintenance of Properties, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its properties that are used or useful in the conduct of its business in good working order and condition,
ordinary wear and tear excepted. 
  
 (i)
Transactions with Affiliates. Conduct, and cause each of its Subsidiaries to conduct, all transactions otherwise permitted under the Loan Documents with any of their Affiliates on terms that are fair and reasonable and no less favorable to
the Parent or such Subsidiary than it would obtain in a comparable arm’s-length transaction with a Person not an Affiliate. 
  
 (j) Covenant to Guarantee Obligations and Give Security. Upon (x) the request of the Collateral Agent, (y) the formation or
acquisition of any new direct or indirect Subsidiaries by any Loan Party or (z) the acquisition of any property acquired for a purchase price in excess of $1,000,000 in any Fiscal Year and $5,000,000 in the aggregate over the term of this Agreement
by any Loan Party, and such property, in the judgment of the Collateral Agent, shall not already be subject to a perfected first priority security interest in favor of the Collateral Agent for the benefit of the Secured Parties (subject to Liens
securing the First Lien Facility), then the Loan Parties shall, in each case at the Loan Parties’ expense: 
  
 (i) in connection with the formation or acquisition of a Subsidiary, within 45 days after such formation or acquisition (or such longer
period as the Administrative Agent may permit), cause each such Subsidiary, and cause each direct and indirect parent of such Subsidiary (if it has not already done so), to duly execute and deliver to the Collateral Agent a guaranty or guaranty
supplement, in form and substance satisfactory to the Collateral Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents, 
  
 (ii) within 30 days after such request, formation or acquisition (or such longer period as the Administrative Agent may permit), furnish
to the Collateral Agent a description of the real and personal properties of the Loan Parties and their respective Subsidiaries in detail satisfactory to the Collateral Agent, 
  

 57 








 (iii) within 45 days after such request, formation or acquisition (or such longer period
as the Administrative Agent may permit), duly execute and deliver, and cause each such Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already done so) to duly execute and deliver, to the Collateral Agent mortgages,
pledges, assignments, security agreement supplements and other security agreements, as specified by and in form and substance satisfactory to the Collateral Agent, securing payment of all the Obligations of the applicable Loan Party, such Subsidiary
or such parent, as the case may be, under the Loan Documents and constituting Liens on all such properties, 
  
 (iv) within 45 days after such request, formation or acquisition (or such longer period as the Administrative Agent may permit), take, and
cause such Subsidiary or such parent to take, whatever action (including, without limitation, the recording of mortgages, the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title
documents) may be necessary or advisable in the opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and subsisting Liens on the properties purported to be subject
to the mortgages, pledges, assignments, security agreement supplements and security agreements delivered pursuant to this Section 5.01(j), enforceable against all third parties in accordance with their terms, 
  
 (v) within 60 days after such request, formation or
acquisition (or such longer period as the Administrative Agent may permit), deliver to the Collateral Agent, upon the request of the Collateral Agent in its sole discretion, a signed copy of a favorable opinion, addressed to the Collateral Agent and
the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Collateral Agent as to the matters contained in clauses (i), (iii) and (iv) above, as to such guaranties, guaranty supplements, mortgages, pledges, assignments,
security agreement supplements and security agreements being legal, valid and binding obligations of each Loan Party thereto enforceable in accordance with their terms, as to the matters contained in clause (iv) above, as to such recordings,
filings, notices, endorsements and other actions being sufficient to create valid perfected Liens on such properties, and as to such other matters as the Collateral Agent may reasonably request, 
  
 (vi) within 60 days after such request, formation or
acquisition (or such longer period as the Administrative Agent may permit), deliver, upon the request of the Collateral Agent in its sole discretion, to the Collateral Agent with respect to each parcel of real property owned by the entity that is
the subject of such request, formation or acquisition such title reports, surveys and engineering, soils and other reports, and environmental assessment reports, as may be prepared in the ordinary course of business by such entity, provided,
however, that to the extent 

  

 58 








 
that any Loan Party or any of its Subsidiaries shall have otherwise received any of the foregoing items with respect to such real property, such items shall,
promptly after the receipt thereof, be delivered to the Collateral Agent, 
  
 (vii) upon the occurrence and during the continuance of a Default, promptly cause to be deposited any and all cash dividends paid or payable to it or any of its Subsidiaries from any of its Subsidiaries from time to
time into the Collateral Account, and with respect to all other dividends paid or payable to it or any of its Subsidiaries from time to time, promptly execute and deliver, or cause such Subsidiary to promptly execute and deliver, as the case may be,
any and all further instruments and take or cause such Subsidiary to take, as the case may be, all such other action as the Collateral Agent may deem necessary or desirable in order to obtain and maintain from and after the time such dividend is
paid or payable a perfected, first priority lien on and security interest in such dividends (subject to Liens securing the First Lien Facility), and 
  
 (viii) at any time and from time to time, promptly execute and deliver any and all further instruments and documents and take all such
other action as the Collateral Agent may deem reasonably necessary or desirable in obtaining the full benefits of, or in perfecting and preserving the Liens of, such guaranties, mortgages, pledges, assignments, security agreement supplements and
security agreements. 
  
 (k) Further
Assurances. (i) Promptly upon request by any Agent, or any Lender through the Administrative Agent, correct, and cause each of its Subsidiaries promptly to correct, any material defect or error that may be discovered in any Loan Document or in
the execution, acknowledgment, filing or recordation thereof, and 
  
 (ii) Promptly upon request by any Agent, or any Lender through the Administrative Agent, do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts,
deeds, conveyances, pledge agreements, mortgages, deeds of trust, trust deeds, assignments, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, assurances and other instruments as
any Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (A) carry out more effectively the purposes of the Loan Documents, (B) to the fullest extent permitted by applicable law, subject any
Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (C) perfect and maintain the validity, effectiveness and priority of
any of the Collateral Documents and any of the Liens intended to be created thereunder and (D) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter
intended to be granted to the 

  

 59 








 
Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its
Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so. Notwithstanding the foregoing, no Loan Party shall be required, solely pursuant to the provisions of this Section 5.01(k), to encumber any assets which were not
otherwise required to be encumbered on the Amendment Effective Date or pursuant to Section 5.01(j). 
  
 (l) Compliance with Terms of Leaseholds. Make all payments and otherwise perform all obligations in respect of all leases of real
property to which the Borrower or any of its Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the
Administrative Agent of any default by any party with respect to such leases and cooperate with the Administrative Agent in all respects to cure any such default, and cause each of its Subsidiaries to do so, except in each of the foregoing cases
where the failure to do so would not have a Material Adverse Effect. 
  
 (m) Performance of Material Contracts. Perform and observe, and cause each of its Subsidiaries to perform and observe, all the terms and provisions of each Material Contract to be performed or observed by it,
maintain each such Material Contract in full force and effect until the cancellation or termination thereof in accordance with its terms, enforce each such Material Contract in accordance with its terms, take all such action to such end as may be
from time to time reasonably requested by the Administrative Agent (or by the Administrative Agent at the request of the Required Lenders) and, upon request of the Administrative Agent, make to each other party to each such Material Contract such
demands and requests for information and reports or for action as any Loan Party or any of its Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries to do so, except in each of the foregoing cases where
the failure to do so would not have a Material Adverse Effect. 
  
 (n) Conditions Subsequent. 
  
 (i) With respect to (A) any newly-acquired Unencumbered Parcel with a gross book value in excess of $1,000,000, or (B) any Unencumbered Parcel owned by any Loan Party as of the Amendment Effective Date in which any
such Loan Party has invested such that the gross book value of the land and any buildings thereon after the investment is completed is greater than $1,000,000, the Loan Parties shall deliver to the Administrative Agent, within 60 days after the
closing of any such acquisition in clause (A) above or of any such investment in clause (B) above with respect to such property, the following, each dated such day (unless otherwise specified) in form and substance satisfactory to the Lenders: deeds
of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in form reasonably satisfactory to the Administrative Agent (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered
pursuant to Section 

  

 60 








 
5.01(j), in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with: 
  
 (A) evidence that counterparts of the Mortgages have been
duly recorded in all filing or recording offices that the Administrative Agent may reasonably deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the
benefit of the Secured Parties subject to Liens securing the First Lien Facility and that all filing and recording taxes and fees have been paid, 
  
 (B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage
Policies”) in form and substance, with endorsements and in amount reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be
valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and Liens
securing the First Lien Facility, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access
reinsurance as the Administrative Agent may reasonably deem necessary or desirable, 
  
 (C) American Land Title Association form surveys, certified to the Administrative Agent and the issuer of the Mortgage Policies in a
manner reasonably satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and
other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such
property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent, 
  
 (D) the Assignments of Leases and Rents referred to in the Mortgages, duly executed by the appropriate Loan Party, 
  
 (E) such consents and agreements of lessors and other third
parties, and such estoppel letters and other confirmations, as the Administrative Agent may reasonably deem necessary or desirable, 
  
 (F) evidence of the insurance required by the terms of the Mortgages, and 
  

 61 








 (G) evidence that all other action that the Administrative Agent may deem reasonably
necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages (subject to Liens securing the First Lien Facility) has been taken. 
  
 (ii) Within thirty (30) days of the Amendment Effective Date, the Borrower shall pay, or cause to be paid,
the Permitted Deferred Taxes in full. 
  
 (iii)
BTI and BTI, Inc. shall use commercially reasonable efforts to enter into an amendment to the promissory note referred to in clause (d) of the definition of “Assumed BTI Debt”, which amendment shall extend the maturity date
of such note from April 30, 2006 to a date which occurs on or after October 31, 2006. 
  
 (iv) Within (A) ten (10) days of the Amendment Effective Date, the Loan Parties shall deliver to the Administrative Agent a certificate of
the Secretary of State in each of the jurisdictions and with respect to each Loan Party described on Schedule 4.01(a)(ii) stating that each Loan Party is duly qualified and in good standing as a foreign corporation in the jurisdictions applicable to
each Loan Party and (B) twenty (20) days of the Amendment Effective Date, each Loan Party shall have obtained all governmental licenses, permits and other approvals described as pending on Schedule 4.01(a)(iii). 
  
 (v) Within thirty (30) days of the Amendment Effective Date,
the Borrower shall dissolve each of the Subsidiaries listed on Schedule IV or shall comply the provisions of Section 5.01(j) as if such Subsidiary were a newly formed Subsidiary. 
  
 (vi) Within thirty (30) days of the Amendment Effective Date, the Loan Parties shall have entered into new
or amended account control agreements, in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may deem necessary or desirable in order to ensure the priority and perfection of the Administrative
Agent’s security interests in the deposit, securities and other bank accounts of the Loan Parties. 
  
 (vii) Within thirty (30) days of the Amendment Effective Date, the Loan Parties shall have entered into amendments to the Mortgages, in
form and substance reasonably acceptable to the Administrative Agent, as the Administrative Agent may deem necessary or desirable in order to ensure the grant of a security interest in the real property Collateral covered thereby in order to secure
the full amount of the Obligations. 
  
 (viii)
Within ten (10) days of the Amendment Effective Date, the Loan Parties shall deliver to the Administrative Agent favorable opinions, 

  

 62 








 
in form and substance satisfactory to the Administrative Agent, of counsel to those Subsidiary Guarantors organized in Alabama, North Carolina and Virginia.

  
 (ix) Within three (3) Business Days of the
Amendment Effective Date, the Borrower shall deliver to the Administrative Agent copies of the audited financial statements of the Loan Parties without any “going-concern” or like qualification to the opinion set forth therein. 

 
 SECTION 5.02. Negative Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid or any Lender shall have any Commitment hereunder, no Loan Party shall at any time: 
  
 (a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to
create, incur, assume or suffer to exist, any Lien on or with respect to any of its properties of any character (including, without limitation, accounts) whether now owned or hereafter acquired, or sign, file or authorize the filing or suffer to
exist, or permit any of its Subsidiaries to sign, file or authorize the filing or suffer to exist, under the Uniform Commercial Code of any jurisdiction, a financing statement that names the Parent or any of its Subsidiaries as debtor, or sign or
suffer to exist, or permit any of its Subsidiaries to sign or suffer to exist, any security agreement authorizing any secured party thereunder to file such financing statement, or assign, or permit any of its Subsidiaries to assign, any accounts or
other right to receive income, except: 
  
 (i)
Liens created under the Loan Documents, the First Lien Loan Documents and the Third Lien Loan Documents; 
  
 (ii) Permitted Liens; 
  
 (iii) Liens existing on the date hereof and described on Schedule 4.01(v) hereto; 
  
 (iv) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(iii); provided, that no such Lien shall extend to or cover any Collateral or assets other than the assets subject to such Capitalized Leases; 
  
 (v) Liens securing Subordinated Debt permitted under Section 5.02(b)(ii) which are subordinated and junior
in priority to the Liens securing the Loan Documents on terms and conditions acceptable to the Agents and the Required Lenders and substantially similar to those set forth in the Third Lien Intercreditor and Subordination Agreement; 
  
 (vi) Liens securing Permitted Refinancings, Receivables
Financings, Replacement Financings and Existing Debt Refinancings to the extent permitted under Section 5.02(b), provided, that if the Debt referred to in clauses (c) and (d) of the definition of “Assumed BTI Debt”


  

 63 








 
is the subject of an Existing Debt Refinancing, such Debt shall not be secured by any Lien; and 
  
 (vii) (A) deposits of cash, checks or Cash Equivalents to
secure Ordinary Course Obligations, (B) letters of credit issued to secure Ordinary Course Obligations or (C) surety, appeal, performance and return-of-money bonds and bonds of a similar nature issued to secure or in respect of Ordinary Course
Obligations, in an aggregate amount not to exceed the amount set forth in Section 5.02(b)(xii). 
  
 (b) Debt. Incur or permit any of its Subsidiaries to Incur any Debt other than:  
  
 (i) Debt under the Loan Documents and the First Lien Loan
Documents; 
  
 (ii) (A) Subordinated Debt of the
Loan Parties under the Third Lien Loan Documents outstanding at any time in an aggregate principal amount not to exceed $20,000,000 (exclusive of paid-in-kind interest thereon in accordance with the Third Lien Loan Documents) and (B) Subordinated
Debt of the Loan Parties outstanding at any time in an aggregate principal amount not to exceed $30,000,000, in each case, on terms and conditions no less favorable to the Lenders and the First Lien Lenders than under the Third Lien Loan Documents,
provided, that (A) the maturity of such Subordinated Debt is at least 91 days following the final maturity date of this Facility, (B) the Administrative Agent and the Required Lenders are reasonably satisfied that the Parent and its
Subsidiaries shall be in compliance with the provisions of the Loan Documents for the period from the Incurrence of such Subordinated Debt through the final maturity date of this Facility, and (C) the Required Lenders have approved the terms of the
subordination relating to such Subordinated Debt; 
  
 (iii) (A) Capitalized Leases (other than Surviving Debt) not to exceed in the aggregate $7,500,000; 
  
 (iv) the Surviving Debt; 
  
 (v) unsecured Debt of the Parent (“Permitted Parent Debt”) that (A) is not subject to any guarantee by any
Subsidiary of the Parent, (B) will not mature prior to the date that is ninety-one (91) days after the Termination Date, (C) has no scheduled amortization or payments of principal, (D) does not permit any payments in cash of interest or other
amounts in respect of the principal thereof for at least five (5) years from the date of the issuance or incurrence thereof, and (E) has mandatory prepayment, repurchase or redemption, covenant, default and remedy provisions customary for senior
discount notes of an issuer that is the parent of a borrower under senior secured credit facilities, taken as a 

  

 64 








 
whole; provided, any such Debt shall constitute Permitted Parent Debt only if (i) both before and after giving effect to the issuance or incurrence thereof,
no Default or Event of Default shall have occurred and be continuing, (ii) the chief financial officer of Parent or the Borrower shall have delivered an officer’s certificate demonstrating pro forma compliance with the covenants set forth in
Section 5.02(q) in form and substance reasonably satisfactory to the Administrative Agent, it being understood that any capitalized or paid-in-kind interest or accreted principal on such Debt shall not constitute an issuance or incurrence of Debt
for purposes of this proviso; 
  
 (vi) Debt of
the Borrower under Hedge Agreements; provided, that such agreements (A) are designed solely to protect the Loan Parties against fluctuations in foreign currency exchange rates or interest rates and (B) do not increase the Debt of the obligor
thereunder outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; 
  
 (vii) Debt Incurred in connection with the refinancing of
any Debt permitted under Section 5.02(b)(i) or (iii) or clause (c) or clause (d) of the definition of Assumed BTI Debt (other than the Debt under the Loan Documents, Permitted Refinancings, Replacement Refinancings or Receivables Refinancings),
provided, that the Debt Incurred in connection with such refinancing (A) has a scheduled maturity date that is on or after the scheduled maturity date of the Debt being refinanced, (B) has a weighted average life to maturity that is equal to
or longer than the remaining weighted average life to maturity of the Debt being refinanced, determined immediately prior to giving effect to such refinancing, (C) does not include any provisions that may require mandatory prepayment of such Debt
prior to its scheduled maturity, other than scheduled prepayments taken into consideration in determining compliance with clause (B) above and other provisions that are not materially more burdensome to the obligor thereunder than any such
provisions included in the Debt being refinanced, (D) is Incurred by the same Person that Incurred the Debt being refinanced and is not Guaranteed or secured by any Lien unless the Debt being refinanced was Guaranteed or secured by a Lien (in which
case such Debt shall not be Guaranteed by any Person that did not Guarantee the Debt being refinanced and shall not be secured by a Lien on any asset that did not secure the Debt being refinanced), (E) if the refinanced Debt was subordinated to the
Debt under the Loan Documents, such Debt is subordinated to the Debt under the Loan Documents on terms no less favorable to the Lenders than the terms on which the Debt being refinanced was so subordinated, and (F) has an aggregate principal amount
which is equal to the Debt being refinanced, provided, that the Debt Incurred in connection with such refinancing may have an aggregate 

  

 65 








 
principal amount which is less than the Debt being refinanced in the case of a refinancing of less than all of the Debt referred to in clause (c) and clause
(d) of the definition of “Assumed BTI Debt” (each refinancing undertaken in accordance with this Section 5.02(b)(vii) shall be referred to herein as an “Existing Debt
Refinancing”); 
  
 (viii) (A) Debt Incurred in connection with a Permitted Refinancing, provided, that (1) the principal amount of such Debt available under the Permitted Refinancing documents shall equal the principal amount outstanding under the
First Lien Facilities at the time of the consummation of such Permitted Refinancing, (2) the maturity date of such Permitted Refinancing is on or after June 30, 2006, and (3) effective as of the consummation of such Permitted Refinancing, the
interest rate and fees under the Loan Documents shall be adjusted upwardly from time to time, if necessary, so that such interest rate and fees exceed the interest rate and fees under the Permitted Refinancing documents by the same amount by which
such interest rate and fees exceeded the interest rate and fees under the First Lien Loan Documents immediately prior to such consummation; 
  
 (B) The Loan Parties shall have the right to cause such Permitted Refinancing to be secured and guaranteed in a manner and on terms that
are identical in all material respects to the manner in which and the terms on which the Debt under the First Lien Loan Documents is secured and guaranteed immediately prior to the consummation of such Permitted Refinancing. Effective as of the
consummation of such Permitted Refinancing, the Permitted Refinancing lenders shall replace the lenders under the First Lien Loan Documents as parties to the Intercreditor and Subordination Agreements, provided, that (1) there shall be no
changes to the provisions of the Intercreditor and Subordination Agreements that would adversely affect the rights and obligations thereunder of the Lenders and (2) the Permitted Refinancing documents shall not modify, or prohibit the Borrower from
complying with, the provisions of this Agreement with respect to the final maturity date of this Facility or any amortization of Advances hereunder; 
  
 (ix) (A) Debt Incurred in connection with a Receivables Financing, provided, that (1) the principal amount of such Debt available
under the Receivables Refinancing documents shall equal the principal amount outstanding under the First Lien Facilities at the time of the consummation of such Receivables Refinancing, (2) the maturity date of such Receivables Refinancing is on or
after June 30, 2006, (3) the requirements of the Right of First Refusal specified below shall have been satisfied, (4) effective as of the consummation of such Receivables Financing, the interest rate and fees under the Loan Documents shall be
adjusted upwardly from time to time, if necessary, so that such interest 

  

 66 








 
rate and fees exceed the interest rate and fees under the Receivables Financing documents by the same amount by which such interest rate and fees exceeded
the interest rate and fees under the First Lien Loan Documents immediately prior to such consummation, and (5) effective as of the consummation of such Receivables Financing, the Liens securing the First Lien Facilities shall be released, and the
Liens under the Loan Documents shall become senior in priority to all other Liens (except with respect to the Receivables, as defined in the First Lien Security Agreement), subject to Permitted Liens; 
  
 (B) The Loan Parties shall have the right to cause such
Receivables Financing to be secured by all Receivables of all of the Loan Parties. Effective as of the consummation of such Receivables Financing, the Lenders shall release all Liens in their favor on all Receivables of all of the Loan Parties, it
being understood that the Receivables Financing shall be secured by a Lien on all such Receivables that is senior in priority to all other Liens thereon (subject to Permitted Liens), and that the Lenders shall not be entitled to any Lien on the
Receivables. Effective as of the consummation of such Receivables Financing, the Receivables Financing lenders, the Lenders and the Third Lien Lenders shall replace the Intercreditor and Subordination Agreements with a mutually acceptable
intercreditor agreement pursuant to which such lenders, the Lenders and the Third Lien Lenders, among other things, acknowledge that the Liens on the Receivables securing the Receivables Financing shall be senior in priority to all other Liens
thereon (subject to Permitted Liens) and that the Liens on all other collateral of the Loan Parties shall be senior in priority to all other Liens thereon (subject to Permitted Liens or as otherwise expressly permitted by the Loan Documents);
provided, that the documents evidencing the Receivables Refinancing shall not modify, or prohibit the Borrower from complying with, the provisions of this Agreement with respect to the final maturity date of this Facility or any amortization
of Advances hereunder or otherwise adversely affect the rights and obligations of the Lenders under the Intercreditor and Subordination Agreements; 
  
 (C) As a condition to the consummation of any Receivables Financing, the Lenders shall have a right of first refusal (the
“Right of First Refusal”) pursuant to the provisions of this paragraph to provide any Receivables Financing permitted under this Section 5.02(b)(ix). If any Loan Party receives an offer (the
“Offer”) from one or more Persons (it being understood that such Person or Persons may be or include one or more of the Lenders (the “Offeror”) for a Receivables Financing that such Loan Party desires
to accept, such Loan Party shall provide a 

  

 67 








 
written copy of such Offer to the Administrative Agent, who shall provide such copy to all of the Lenders. If any one or more of the Lenders shall elect, in
their sole discretion, to provide the Receivables Financing on terms and conditions identical in all material respects to those contained in the Offer, such Lenders shall so notify the Borrower in writing (the “Acceptance”)
no later than 30 days following their receipt of the Offer from the Borrower. The Acceptance shall constitute an commitment of such Lenders to extend such Receivables Financing to the Loan Parties to the same extent as the commitment proposed in the
Offer, subject only to acceptable final documentation (in customary form) evidencing only such terms and conditions as shall be set forth in or otherwise required by the Offer, provided, that if more than one Lender delivers an Acceptance
within such 30-day period, the principal amount of the Receivables Financing commitment of each Lender who so delivers an Acceptance shall equal the aggregate principal amount of such Receivables Financing divided by the number of Lenders who so
deliver an Acceptance. If none of the Lenders delivers the Acceptance to the Loan Parties within such 30-day period or if one or more Lenders delivers an Acceptance, but the parties are unable to agree upon such acceptable final documentation within
60 days after the date of the Acceptance, then the Loan Parties shall have the right to accept the Offer from the Offeror and to consummate the related Receivables Financing on terms and conditions identical in all material respects to those
contained in the Offer, provided, further, that such consummation shall occur within 90 days after such acceptance of the Offer from the Offeror; 
  

(x) (A) Debt Incurred in connection with a Replacement Financing, provided, that (1) effective as of the consummation of such
Replacement Financing, the Liens securing the First Lien Facilities shall be released, and such Replacement Financing and this Facility both shall be secured, on a pro rata basis, by Liens that are senior in priority to all other Liens,
subject to Permitted Liens, (2) effective as of the consummation of such Replacement Financing, the interest rate and fees under the Loan Documents shall be increased, if necessary, to equal any higher rate of interest or amount of fees provided
under the Replacement Financing documents, (3) the maximum aggregate principal amount of the Replacement Financing plus the principal amount of this Facility shall not exceed $250,000,000, (4) the documents evidencing the Replacement
Financing shall not modify, or otherwise prohibit the Borrower from complying with, the provisions of this Agreement with respect to the final maturity date of this Facility or any amortization of Advances hereunder, (5) the terms and provisions of
the Replacement Financing loan documents (including, without limitation, the financial covenants and events of default thereunder) shall be substantially similar in all material 

  

 68 








 
respects to the terms and provisions contained in the First Lien Credit Agreement, and (6) the Borrower shall have submitted to the Administrative Agent
prior to the consummation of such Replacement Financing calculations reasonably demonstrating the Borrower’s pro forma compliance with the financial covenants in Section 5.02(q) of the First Lien Credit Agreement after giving effect to all Debt
to be Incurred thereunder, during the period following the date of such consummation through the final maturity date of this Facility; 
  
 (B) Effective as of the consummation of such Replacement Financing, the Replacement Financing lenders and the Lenders shall replace the
Intercreditor and Subordination Agreements with mutually acceptable intercreditor agreements pursuant to which such lenders, the Lenders and the Third Lien Lenders, among other things, acknowledge that the Liens securing such Replacement Financing
and this Facility shall secure the Debt under such facilities on a pro rata basis and that such Liens shall be senior in priority to all other Liens, subject to Permitted Liens; 
  
 (xi) Intentionally omitted; 
  
 (xii) Debt in respect of Ordinary Course Obligations in an aggregate amount not to exceed $8,000,000 at any
time outstanding; and 
  
 (xiii) Debt of the type
described in clause (j) of the definition of “Debt” which is secured by a Permitted Lien, to the extent that such Debt is Incurred in the ordinary course of business and is not the subject of an enforcement, collection, execution, levy or
foreclosure proceeding and is not duplicative of Debt Incurred pursuant to Section 5.02(b)(xii). 
  
 Notwithstanding any other provision under this Section 5.02(b), (A) the maximum amount of Debt that the Parent or a Subsidiary may Incur
pursuant to this Section 5.02(b) shall not be deemed to be exceeded with respect to any outstanding Debt, and the Loan Parties shall not be deemed to be out of compliance with Section 5.02(q), solely as a result of fluctuations in the exchange rates
of currencies, and (B) any Loan Party may Incur Debt owed to any other Loan Party. 
  
 (c) Change in Nature of Business. Make, or permit any of its Subsidiaries to make, any material change in the nature of its
business as carried on at the date hereof provided, that, the Parent or any of its Subsidiaries may engage in activities that are ancillary or related to its business. 
  
 (d) Mergers, Etc. Merge into or consolidate with any Person or permit any Person to merge into it, or
permit any of its Subsidiaries to do so, except that: 
  
 (i) any Subsidiary of the Borrower may merge into or consolidate with the Borrower or any other Subsidiary of the Borrower, provided, that, in the case of any such merger or consolidation (x) of the Borrower, the Borrower shall


  

 69 








 
be the surviving Person and (y) in the case of a merger among Subsidiaries of the Borrower, the Person formed by such merger or consolidation shall be a
Subsidiary of the Borrower, and if a Subsidiary Guarantor is a party thereto, the Person formed by such merger or consolidation shall be a Subsidiary Guarantor; and 
  
 (ii) in connection with any sale or other disposition permitted under Section 5.02(e) (other than clause
(ii) thereof), any Subsidiary of the Borrower may permit any other Person to merge into or consolidate with it; 
  
 provided, that in each case, immediately after giving effect thereto, no event shall occur and be continuing that constitutes a Default.

  
 (e) Sales, Etc., of Assets. Sell,
lease, transfer or otherwise dispose of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, other than Inventory to
be sold in the ordinary course of its business, except: 
  
 (i) sales and leases of assets, including, without limitation, fiber sales in the ordinary course of its business consistent with prudent business practice for companies engaged in similar businesses, for cash and
fair value; 
  
 (ii) in a transaction authorized
by Section 5.02(d) (other than clause (ii) thereof); 
  
 (iii) sales for cash and for fair value of assets related to the e^deltacom and OSDA businesses; 
  
 (iv) sales of assets as consented to by the Required Lenders, for cash and for fair value; 
  
 (v) sales of obsolete equipment for cash and for fair value
in an aggregate amount not to exceed (A) $2,000,000 and (B) $10,000,000 to the extent the proceeds thereof are used by any Loan Party to purchase replacement equipment that is substantially similar in type and function to the equipment sold;

  
 (vi) any sale, lease, transfer or other
disposition by the Parent or any Subsidiary of the Parent to the Borrower and its Subsidiaries that are Loan Parties; and 
  
 (vii) assignments, sales or other dispositions at fair market value for cash of accounts receivable representing amounts owed to any Loan
Party by any Person that is subject to a proceeding under the Bankruptcy Code; 
  

 70 








 provided, that in the case of sales of assets pursuant to clauses (iii), (iv) and (v)(A) above
which (A) occur prior to the date on which all Obligations under the First Lien Loan Documents or the Refinanced First Lien Loan Documents have been paid in full, the Borrower shall, on the date of receipt by any Loan Party or any of its
Subsidiaries of the Net Cash Proceeds from such sale, prepay the obligations under the First Lien Loan Documents or the Refinanced First Lien Loan Documents pursuant to, and in the amount and order of priority set forth therein, and to the extent
all such obligations have been satisfied, prepay the Advances pursuant to, and in the amount and order of priority set forth in, Section 2.05(b)(ii), as specified therein, and (B) occur after the date on which all Obligations under the First Lien
Loan Documents or the Refinanced First Lien Loan Documents have been paid in full, the Borrower shall, on the date of receipt by any Loan Party or any of its Subsidiaries of the Net Cash Proceeds from such sale, prepay the Advances pursuant to, and
in the amount and order of priority set forth in, Section 2.05(b)(ii), as specified therein to be applied in the order of priority set forth in Section 2.05(b). Nothing in this Section 5.02(e) shall restrict the Parent from issuing, selling,
transferring or otherwise disposing of, for or without consideration and by dividend or otherwise, any Equity Interests in the Parent, or any option, warrant or other right to purchase or otherwise acquire any Equity Interests in the Parent. 

  
 (f) Investments in Other Persons. Make
or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, except: 
  
 (i) equity Investments by the Parent and its Subsidiaries in their Subsidiaries outstanding on the date hereof and other Investments in
Loan Parties, including Persons who become Loan Parties in a transaction permitted by Section 5.02(d); 
  
 (ii) loans and advances to employees in the ordinary course of the business of the Parent and its Subsidiaries in an aggregate principal
amount not to exceed $1,000,000 at any time outstanding; 
  
 (iii) Investments in Cash Equivalents; 
  
 (iv) Investments existing on the date hereof and described on Schedule 4.01(y) hereto; 
  
 (v) extension of trade credit in the ordinary course of business; and 
  
 (vi) Investments permitted pursuant to Section
5.02(d). 
  
 (g) Restricted
Payments. Declare or pay, any dividends, purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Interests now or hereafter outstanding, return any capital to its stockholders, partners or members (or the equivalent
Persons thereof) as such, make any distribution of assets, Equity Interests, obligations or securities to its stockholders, partners or members (or the equivalent Persons thereof) as such (each, a “Restricted Payment”) or permit any of its
Subsidiaries to make a Restricted Payment except (i) Restricted Payments by a Subsidiary of the Borrower or BTI to the 

  

 71 








 
Borrower or BTI, respectively, and to other Subsidiaries of the Borrower and BTI that are its parent, (ii) if no Event of Default has occurred and is
continuing, the Borrower may declare and pay dividends in cash or otherwise make distributions in cash to the Parent, to pay (A) scheduled interest and principal of Surviving Debt and (B) cash in lieu of issuing fractional shares of its Capital
Stock in an aggregate amount not to exceed $250,000, (iii) the declaration or payment of dividends, or distributions solely in Equity Interests of the Parent (including Series A PIK Dividends and Series B PIK Dividends) or (iv) the purchase,
redemption, retirement, defeasance or other acquisition for value of any of the Equity Interests of the Parent (A) in exchange for other Equity Interests of the Parent (including in connection with a Benefit Plan Exchange Offer), (B) upon the
conversion of Preferred Interests of the Parent or the exercise, exchange or conversion of stock options, warrants or similar rights to acquire Equity Interests of the Parent, (C) in connection with any purchase, redemption, retirement, defeasance
or other acquisition for value of Equity Interests of the Parent tendered by the holder of such Equity Interests in payment of withholding or other taxes relating to the exercise, exchange or conversion of stock options, warrants or other similar
rights to acquire Equity Interests of the Parent or (D) tendered in settlement of indemnification or similar claims by the Parent against a holder of the Equity Interests of the Parent. 
  
 (h) Amendments of Constitutive Documents. Amend, or permit any of its Subsidiaries to amend, its
certificate of incorporation or bylaws or other constitutive documents except for any amendment that could not reasonably be expected to have a Material Adverse Effect. 
  
 (i) Accounting Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any
change in (i) accounting policies or reporting practices, except as required by generally accepted accounting principles, or (ii) Fiscal Year. 
  
 (j) Prepayments, Etc., of Debt. (i) Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled amortization or
maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Debt or permit any of its Subsidiaries to do so except (A) the payment or prepayment of any or all of the Obligations under the First Lien Loan
Documents or the Refinanced First Lien Loan Documents in accordance with the terms thereof, (B) subject to the Second Lien Intercreditor and Subordination Agreement, the payment or prepayment of any or all of the Obligations under the Loan
Documents, (C) regularly scheduled or required repayments or redemptions of Surviving Debt and (D) the prepayment of Debt of any Loan Party by the Parent or any Subsidiary of the Parent or (ii) amend, modify or change in any manner any term or
condition of any Surviving Debt or permit any of its Subsidiaries to do so, except for any amendment, modification or change of Surviving Debt that (A) could not reasonably be expected to have a Material Adverse Effect, (B) would not accelerate the
scheduled amortization or final maturity date of such Surviving Debt (C) would not increase the applicable interest rate of such Surviving Debt, or permit any of its Subsidiaries to do any of the foregoing and (D) will not contain mandatory
redemption prepayment covenant or event of default provisions materially more restrictive than the terms of such Surviving Debt prior to the date of such amendment, modification or change; provided, that, notwithstanding the foregoing, the
Parent and its 

  

 72 








 
Subsidiaries may (1) consummate any Permitted Refinancing, Receivables Financing, Replacement Financing or Existing Debt Refinancing (and thereafter make any
regularly scheduled or required repayments or redemptions of Debt incurred in connection with any such Permitted Refinancing, Receivables Financing, Replacement Financing or Existing Debt Refinancing) and (2) refinance the Debt under the Loan
Documents in full or, pursuant to Section 5.02(b)(v) in part. 
  
 (k) Negative Pledge. Enter into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to exist, any agreement prohibiting or conditioning the creation or assumption of any Lien upon any
of its property or assets except (i) in favor of (A) the Lenders under this Agreement, (B) the First Lien Lenders as provided and defined in the First Lien Loan Documents or (C) the Third Lien Lenders under the Third Lien Loan Documents or (ii) in
connection with (A) any Surviving Debt (as such restriction exists on the date hereof) or (B) any Capitalized Lease permitted under Section 5.02(b)(iii) solely to the extent that such Capitalized Lease prohibits a Lien on the property subject
thereto. 
  
 (l) Partnerships, Etc. Become
a general partner in any general or limited partnership or joint venture, or permit any of its Subsidiaries to do so. 
  
 (m) Speculative Transactions. Engage, or permit any of its Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions. 
  
 (n) Formation of Subsidiaries. Organize, or permit any Subsidiary to organize, any new Subsidiary except so long as (i) there exists no Default or Event of Default both before and after giving effect to the
creation of any new wholly owned Subsidiary and the transfer of any assets to such wholly owned Subsidiary, (ii) immediately upon the creation of any new wholly owned Subsidiary, such Subsidiary shall become a Subsidiary Guarantor, (iii) the
applicable Loan Party owning any portions of the stock of any such new wholly owned Subsidiary immediately delivers all shares of stock of the new wholly owned Subsidiary to the First Lien Collateral Agent, subject to the provisions of the Second
Lien Intercreditor and Subordination Agreement, for the benefit of the Lenders, the First Lien Lenders and the Third Lien Lenders, together with stock powers executed in blank, and executes and immediately delivers to the First Lien Collateral Agent
pledge agreements pledging all such stock to secure the Obligations and the Obligations under the First Lien Loan Documents and the Third Lien Loan Documents, in form substantially similar to the applicable Loan Document. 
  
 (o) Payment Restrictions Affecting Subsidiaries.
Directly or indirectly, enter into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to exist, any agreement or arrangement limiting the ability of any of its Subsidiaries to declare or pay dividends or other
distributions in respect of its Equity Interests or repay or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or invest in, any Loan Party or any Subsidiary of a Loan Party (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant or otherwise), except (i) the Loan Documents, (ii) the First Lien Loan Documents, (iii) the Third Lien Loan 

  

 73 








 
Documents and (iv) any agreement or instrument evidencing Surviving Debt (as such restriction exists on the date hereof). 
  
 (p) Amendment, Etc., of Material Contracts. Cancel or
terminate (except in accordance with the terms thereof) any Material Contract, or consent to or accept any cancellation or termination thereof (except in accordance with the terms thereof), amend or otherwise modify any such Material Contract or
give any consent, waiver or approval thereunder, waive any default under or breach of any such Material Contract, agree in any manner to any other amendment, modification or change of any term or condition of any such Material Contract or take any
other action in connection with any such Material Contract that would impair the value of the interest or rights of any Loan Party thereunder or that would impair the interest or rights of any Agent or any Lender, or permit any of its Subsidiaries
to do any of the foregoing, except, in each of the foregoing cases, where to do so would not be reasonably likely to have a Material Adverse Effect. 
  
 (q) Financial Condition Covenants. 
  
 (i) Maximum Capital Expenditures. Make or commit to make, or allow any of its Subsidiaries to make or commit to make, Capital
Expenditures exceeding, in the aggregate for each period set forth below: 
  

				
	 Period (12 months ended unless noted otherwise)

	  	Amount


	 4 months ended June 30, 2005
	  	$	12,200,000
	 7 months ended September 30, 2005
	  	$	22,500,000
	 10 months ended December 31, 2005
	  	$	31,100,000
	 March 31, 2006
	  	$	40,500,000
	 June 30, 2006
	  	$	41,200,000
	 September 30, 2006
	  	$	42,400,000
	 December 31, 2006
	  	$	44,300,000

  
 Capital Expenditures
for the twelve-month period ending March 31, 2007 and each fiscal quarter thereafter shall not exceed, in the aggregate for such period, an amount equal to one hundred and ten percent (110%) of budgeted Capital Expenditures set forth in the Accepted
Budget. 
  
 (ii) Senior Debt Ratio. (A)
Commencing on the last day of the fiscal quarter ending June 30, 2005 and, measured on the last day of each fiscal quarter thereafter until the Termination Date, the Senior Debt Ratio shall not exceed the following: 
  

			
	 Period

	  	Ratio


	 June 30, 2005
	  	3.3:1
	 September 30, 2005
	  	3.5:1
	 December 31, 2005
	  	3.6:1
	 March 31, 2006 and thereafter
	  	3.6:1

  

 74 








 (iii) Total Leverage Ratio. Commencing on the last day of the fiscal quarter
ending June 30, 2005, and measured on the last day of each fiscal quarter thereafter until the Termination Date, the Total Leverage Ratio shall not exceed the ratio set forth below opposite the applicable date: 
  

			
	 Period

	  	Ratio


	 June 30, 2005
	  	5.0:1
	 September 30, 2005
	  	5.3:1
	 December 31, 2005
	  	5.5:1
	 March 31, 2006 and thereafter
	  	5.5:1

  
 (iv)
Interest Coverage Ratio. Commencing on the last day of the fiscal quarter ending June 30, 2005, and measured on the last day of each fiscal quarter thereafter until the Termination Date, the Interest Coverage Ratio shall not be less than the
ratio set forth below opposite the applicable date: 
  

			
	 Period

	  	Ratio


	 June 30, 2005
	  	1.8:1
	 September 30, 2005
	  	1.8:1
	 December 31, 2005
	  	1.8:1
	 March 31, 2006 and thereafter
	  	1.9:1

  
 (v)
Minimum Cash. As of the last day of each month (commencing June 30, 2005), permit the sum of (A) cash-on-hand and (B) Cash Equivalents, in each case not subject to a Lien (other than Liens in favor of the First Lien Collateral Agent pursuant
to the First Lien Loan Documents and Liens in favor of the Collateral Agent pursuant to the Loan Documents) or the use of which is otherwise restricted, to be less than $10,000,000 from the Amendment Effective Date through the Termination Date.

  

 75 








 (vi) Minimum Consolidated EBITDA. Permit the Consolidated EBITDA of Parent and its
Subsidiaries for each fiscal quarter set forth below to be less than the amount set forth opposite such date: 
  

				
	 Period (for the 12 month period ended unless otherwise noted)

	  	Amount


	 4 months ended June 30, 2005
	  	$	20,700,000
	 7 months ended September 30, 2005
	  	$	33,700,000
	 10 months ended December 31, 2005
	  	$	46,800,000
	 12 months ended March 31, 2006
	  	$	56,100,000
	 June 30, 2006
	  	$	56,100,000
	 September 30, 2006
	  	$	59,800,000
	 December 31, 2006
	  	$	64,200,000

  
 Minimum Consolidated
EBITDA for the twelve-month period ended March 31, 2007 and each fiscal quarter thereafter shall not be less than an amount equal to eighty percent (80%) of the budgeted EBITDA set forth in the Accepted Budget. 
  
 SECTION 5.03. Reporting Requirements. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid, the Loan Parties shall furnish to the Agents and the Lenders: 
  
 (a) Default Notice. As soon as possible and in any event within two days after the occurrence of each Default, Event of Default, or
any event, development or occurrence reasonably likely to have a Material Adverse Effect continuing on the date of such statement, a statement of the Chief Financial Officer of the Borrower setting forth details of such Default, Event of Default, or
any such event, development or occurrence and the action that the Borrower has taken and proposes to take with respect thereto. 
  
 (b) Annual Financials. As soon as available and in any event within 90 days after the end of each Fiscal Year, a copy of an annual
report on Form 10-K for such year for the Parent and its Subsidiaries, including therein a Consolidated balance sheet of the Parent and its Subsidiaries as of the end of such Fiscal Year and Consolidated statement of income and a Consolidated
statement of cash flows of the Parent and its Subsidiaries for such Fiscal Year, in each case accompanied by an opinion acceptable to the Required Lenders of BDO Seidman, LLP or other independent public accountants of recognized standing acceptable
to the Required Lenders, together with (i) a certificate of such accounting firm to the Lenders stating that in the course of the regular audit of the business of the Parent and its Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing pursuant to Section 5.02(q) in respect of such Fiscal Year, or if, in the opinion of such accounting
firm, a Default has occurred and is continuing under Section 5.02(q) in respect of such Fiscal Year, a statement as to the nature thereof, (ii) beginning with the Fiscal Year ended December 31, 2005, a Financial Covenants Certificate stating the
Borrower’s calculation of the ratios set forth in Section 5.02(q) for the last quarter of such Fiscal Year, a statement as to the amount of proceeds from any sale of assets, including obsolete equipment, received during such Fiscal Year,
including a reasonably detailed 

  

 76 








 
description of such assets and a statement of the Borrower’s calculation of Excess Cash Flow for such Fiscal Year, each with supporting documentation
and in reasonable detail, and (iii) a Financial Covenants Certificate stating that the representations and warranties in each Loan Document are correct in all material respects on and as of such date, other than any such representations or
warranties that, by their terms, refer to a specific date other than such date, in which case as of such date and that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof
and the action that the Borrower has taken and proposes to take with respect thereto. 
  
 (c) Quarterly Financials. As soon as available and in any event within 45 days after the end of each of the first three quarters of
each Fiscal Year, (i) Consolidated balance sheet of the Parent and its Subsidiaries as of the end of such quarter and Consolidated statement of income and a Consolidated statement of cash flows of the Parent and its Subsidiaries for the period
commencing at the end of the previous fiscal quarter and ending with the end of such fiscal quarter and Consolidated statement of income and a Consolidated statement of cash flows of the Parent and its Subsidiaries for the period commencing at the
end of the previous Fiscal Year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding date or period of the preceding Fiscal Year, (ii) beginning with the fiscal
quarter ended June 30, 2005, a Financial Covenants Certificate stating the Borrower’s calculation of the ratios set forth in Section 5.02(q) for such fiscal quarter with supporting documentation, all in reasonable detail and duly certified
(subject to normal year-end audit adjustments) by the Chief Financial Officer of the Parent as having been prepared in accordance with GAAP (with respect to item (i)), and (iii) a Financial Covenants Certificate stating that the representations and
warranties in each Loan Document are correct in all material respects on and as of such date, other than any such representations or warranties that, by their terms, refer to a specific date other than such date, in which case as of such date and
that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto. 
  
 (d) Monthly Financials. As soon as available and in
any event within 30 days after the end of each month, (i) a Consolidated balance sheet of the Parent and its Subsidiaries as of the end of such month, a Consolidated statement of income and a Consolidated statement of cash flows of the Parent and
its Subsidiaries for the period commencing at the end of the previous month and ending with the end of such month, and a Consolidated statement of income and a Consolidated statement of cash flows of the Parent and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end of such month, setting forth in each case in comparative form the corresponding figures for the preceding month, all in reasonable detail and duly certified by the Chief
Financial Officer of the Parent, and (ii) a condensed receivables aging report, prepared in accordance with the Borrower’s customary practice from time to time, for the Loan Parties for such month with respect to their major lines of business
and any significant specific accounts review necessary to support bad debt allowances, certified by the Chief Financial Officer of the Parent as fairly and accurately reporting the information described therein, and (iii) a certificate of the Chief
Financial 

  

 77 








 
Officer of the Parent setting forth Consolidated EBITDA of the Parent and its Subsidiaries for the last twelve months then ended. 
  
 (e) Forecasts and Budgets. As soon as available and
in any event no later than 45 days after the end of each Fiscal Year, the following prepared by management of the Borrower, in form satisfactory to the Administrative Agent (i) balance sheets, income statements and cash flow statements on a monthly
and annual basis for the current Fiscal Year; (ii) balance sheets, income statements and cash flow statements on an annual basis for each Fiscal Year thereafter until the Termination Date; and (iii) a selling, general and administrative expense
budget and a capital expenditure budget for the Loan Parties for each Fiscal Year in form and substance reasonably satisfactory to the Administrative Agent. 
  
 (f) Litigation. Promptly after the commencement thereof, notice of all actions, suits, investigations, litigation and proceedings
before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting any Loan Party or any of its Subsidiaries of the type described in Section 4.01(f), and promptly after the occurrence
thereof, notice of any adverse change in the status or the financial effect on any Loan Party or any of its Subsidiaries of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. 
  
 (g) Securities Reports. Promptly after the sending or
filing thereof, copies of all proxy statements, financial statements and reports that any Loan Party or any of its Subsidiaries sends to its stockholders, and copies of all regular, periodic and special reports, and all registration statements, that
any Loan Party or any of its Subsidiaries files with the SEC or any governmental authority that may be substituted therefor, or with any national securities exchange. 
  
 (h) Creditor Reports. Promptly after the furnishing thereof, copies of any statement or report
furnished to any holder of Debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to any other
clause of this Section 5.03. 
  
 (i) Agreement
Notices. Promptly upon receipt thereof, copies of all notices, requests and other documents received by any Loan Party or any of its Subsidiaries under or pursuant to any Material Contract or material instrument, indenture, loan or credit or
similar agreement and, from time to time upon request by the Administrative Agent, such information and reports regarding the related documents, the Material Contracts and such instruments, indentures and loan and credit and similar agreements as
the Administrative Agent or any Lender may reasonably request. 
  
 (j) Revenue Agent Reports. Within 10 days after receipt, copies of all Revenue Agent Reports (Internal Revenue Service Form 886), or other written proposals of the Internal Revenue Service, that propose,
determine or otherwise set forth positive adjustments to the Federal income tax liability of the affiliated group (within the meaning 

  

 78 








 
of Section 1504(a)(1) of the Internal Revenue Code) of which the Borrower is a member aggregating $2,000,000 or more. 
  
 (k) Tax Certificates. (x) Promptly, and in any event
within 15 Business Days after the due date (with extensions) for filing the final Federal income tax return in respect of each taxable year, a certificate (a “Tax Certificate”), signed by the President or the Chief
Financial Officer of the Borrower, stating that the Loan Parties have paid to the Internal Revenue Service or other taxing authority, the full amount that the Loan Parties are required to pay in respect of Federal income tax for such year and that
the Loan Parties have received any amounts payable to them, and have not paid amounts in respect of taxes (Federal, state, local or foreign) in excess of the amount they are required to pay, under the Tax Agreement in respect of such taxable year,
and (y) all correspondence between any Loan Party and the Internal Revenue Service or other taxing authority relating to any request for, grant of and compliance with any extensions granted with respect to the filing of any income tax returns.

  
 (l) ERISA. (i) ERISA Events and
ERISA Reports. (A) Promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred, a statement of the Chief Financial Officer of the Borrower describing such
ERISA Event and the action, if any, that such Loan Party or such ERISA Affiliate has taken and proposes to take with respect thereto and (B) on the date any records, documents or other information must be furnished to the PBGC with respect to any
Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information. 
  
 (ii) Plan Terminations. Promptly and in any event within two Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan. 
  
 (iii) Plan Annual Reports. Promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan. 
  
 (iv) Multiemployer Plan Notices. Promptly and in any event within five Business Days after receipt thereof by any Loan Party or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice concerning (A) the imposition of Withdrawal Liability by any such Multiemployer Plan, (B) the reorganization or termination, within the meaning of Title IV of ERISA, of
any such Multiemployer Plan or (C) the amount of liability incurred, or that is reasonably expected to be incurred, by such Loan Party or any ERISA Affiliate in connection with any event described in clause (A) or (B). 
  
 (m) Environmental Conditions. Promptly after the
assertion or occurrence thereof, notice of any Environmental Action against or of any noncompliance by any 

  

 79 








 
Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse
Effect or (ii) cause any property described in the Mortgages to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law. 
  
 (n) Real Property. (i) As soon as available and in any event within 30 days after the end of each
Fiscal Year, a report supplementing Schedules 4.01(w) and 4.01(x) hereto, including an identification of all owned and leased real property disposed of by any Loan Party or any of its Subsidiaries during such Fiscal Year, a list and description
(including the street address, county or other relevant jurisdiction, state, record owner, book value thereof and, in the case of leases of property, lessor, lessee, expiration date and annual rental cost thereof) of all real property acquired or
leased during such Fiscal Year and a description of such other changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete and (ii) promptly inform the Administrative Agent of any
investments in any of the real property listed on Schedule 4.01(w) hereto proposed to be made by any Loan Party or Loan Parties such that thereafter, the value thereof shall exceed $1,000,000 individually. 
  
 (o) Insurance. As soon as available and in any event
within 30 days after the end of each Fiscal Year, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Subsidiaries and containing such additional information as any Agent, or any
Lender through the Administrative Agent, may reasonably specify. 
  
 (p) Intentionally omitted. 
  
 (q) New Accounts. Promptly after opening an account with a bank or other financial institution not subject to an account control agreement notification thereof. 
  
 (r) Other Information. Such other information
respecting the business, condition (financial or otherwise), operations, performance, properties or prospects of any Loan Party or any of its Subsidiaries as any Agent, or any Lender through the Administrative Agent, may from time to time reasonably
request. 
  
 ARTICLE VI 
  
 EVENTS OF DEFAULT 
  
 SECTION 6.01. Events of Default. If any of the following events
(“Events of Default”) shall occur and be continuing: 
  
 (a) (i) the Borrower shall fail to pay any principal of any Advance when the same shall become due and payable or (ii) the Borrower shall fail to pay any interest on any Advance, or any Loan Party shall fail to make
any other payment under any Loan Document, in each case under this clause (ii) within three Business Days after the same becomes due and payable; or 
  

 80 








 (b) any representation or warranty made by any Loan Party (or any of its officers) under
or in connection with any Loan Document shall prove to have been incorrect in any material respect when made; or 
  
 (c) any Loan Party shall fail to perform or observe any term, covenant or agreement contained in Section 2.05(b), 2.13, 5.01(e), (f), (i),
(j), (m) or (n), 5.02 or 5.03; provided, that failure to comply with the covenant set forth in Section 2.05(b) shall not constitute an Event of Default unless and until such failure shall remain unremedied for three Business Days; or

  
 (d) any Loan Party shall fail to perform or
observe any other term, covenant or agreement contained in any Loan Document on its part to be performed or observed if such failure shall remain unremedied for 30 days after the earlier of the date on which (i) a Responsible Officer becomes aware
of such failure or (ii) written notice thereof shall have been given to the Borrower by any Agent or any Lender; or 
  
 (e) any Loan Party or any of its Subsidiaries shall fail to pay any principal of, premium or interest on or any other amount payable in
respect of any Debt that is outstanding in a principal amount (or, in the case of any Hedge Agreement, an Agreement Value) of at least $2,000,000 either individually or in the aggregate (but excluding Debt outstanding hereunder) of such Loan Party
or such Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise); or any other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt or otherwise to cause, or to permit the holder thereof to cause, such Debt to mature; or any
such Debt shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity thereof; or 
  
 (f) any Loan Party or any of its Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any Loan Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it) that is being diligently
contested by it in good faith, either such proceeding shall remain undismissed or unstayed for a period of 60 days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it or any substantial part of its property) shall occur; or any Loan 

  

 81 








 
Party or any of its Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this subsection (f); or 
  
 (g) any judgments or orders for the payment of money
(individually or in the aggregate) in excess of $5,000,000 shall be rendered against any Loan Party or any of its Subsidiaries and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgments or orders or (ii)
there shall be any period of 10 consecutive days during which a stay of enforcement of any such judgments or orders, by reason of a pending appeal or otherwise, shall not be in effect; or 
  
 (h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that could be reasonably likely to have a Material Adverse Effect, and there shall be any period of 10 consecutive days during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or 
  
 (i) any provision of any Loan Document after delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be valid and binding on or enforceable against any Loan Party to it, or any such Loan
Party shall so state in writing; or 
  
 (j) any
Collateral Document after delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority lien on and security interest in the Collateral
purported to be covered thereby (subject to Liens securing the First Lien Facilities); or 
  
 (k) a Change of Control shall occur; or 
  
 (l) any ERISA Event shall have occurred with respect to a Plan and the sum (determined as of the date of occurrence of such ERISA Event)
of the Insufficiency of such Plan and the Insufficiency of any and all other Plans with respect to which an ERISA Event shall have occurred and then exist (or the liability of the Loan Parties and the ERISA Affiliates related to such ERISA Event)
exceeds $2,000,000; or 
  
 (m) any Loan Party or
any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an amount that, when aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined as of the date of such notification), exceeds $2,000,000 or requires payments exceeding $1,000,000 per annum; or 
  
 (n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, and as a result of such reorganization or termination the aggregate annual
contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer Plans that are then in reorganization or being terminated have been or will be increased over the amounts contributed to such Multiemployer Plans for the plan years of
such Multiemployer Plans immediately 

  

 82 








 
preceding the plan year in which such reorganization or termination occurs by an amount exceeding $1,000,000; or 
  
 (o) an “Event of Default” (as defined in any
Mortgage) shall have occurred and be continuing; or 
  
 (p) an “Event of Default” shall have occurred and be continuing under the First Lien Credit Agreement or the Third Lien Credit Agreement; 
  
 then, and in any such event, the Administrative Agent shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the
Notes, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents to be forthwith due and payable, whereupon the Notes, all such interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Bankruptcy Code, the Notes, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the
Borrower. 
  
 ARTICLE VII 
  
 GUARANTY 
  
 SECTION 7.01. Guaranty; Limitation of Liability. (a) Each Guarantor, jointly and severally, hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all Obligations of each other Loan Party now or hereafter
existing under or in respect of the Loan Documents (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct or indirect, absolute or contingent,
and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such obligations being the “Guaranteed Obligations”), and agrees to pay any and all reasonable
expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by the Administrative Agent or any other Secured Party in enforcing any rights under this Agreement or any other Loan Document. Without limiting the
generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan Party. 
  
 (b) Each Guarantor, and by its acceptance of this Agreement, the Administrative Agent and each other Secured
Party, hereby confirms that it is the intention of all such Persons that this Agreement and the Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this 

  

 83 








 
Guaranty and the Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Administrative Agent, the other Lenders and the
Guarantors hereby irrevocably agree that the obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of such Guarantor under this Agreement not constituting a fraudulent
transfer or conveyance. 
  
 (c) Each Guarantor
hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Secured Party under this Agreement or any other guaranty, such Guarantor will contribute, to the maximum extent permitted by law, such
amounts to each other Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Secured Parties under or in respect of the Loan Documents. 
  
 SECTION 7.02. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in
accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Lender with respect thereto. The obligations of each
Guarantor under or in respect of this Agreement are independent of the Guaranteed Obligations or any other obligations of any other Loan Party under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted
against each Guarantor to enforce this Agreement, irrespective of whether any action is brought against the Borrower or any other Loan Party or whether the Borrower or any other Loan Party is joined in any such action or actions. The liability of
each Guarantor under this Agreement shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

  
 (a) any lack of validity or enforceability of
any Loan Document or any agreement or instrument relating thereto; 
  
 (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other obligations of any other Loan Party under or in respect of the Loan Documents,
or any other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or any of its
Subsidiaries or otherwise; 
  
 (c) any taking,
exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations; 
  
 (d) any manner of application of Collateral or any other
collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other obligations of any Loan Party under the Loan
Documents or any other assets of any Loan Party or any of its Subsidiaries; 
  

 84 








 (e) any change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries; 
  
 (f) any failure of any Secured Party to disclose to any Loan Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party now or hereafter known
to such Secured Parties (each Guarantor waiving any duty on the part of the Secured Parties to disclose such information); 
  
 (g) the failure of any other Person to execute or deliver this Agreement, any Guaranty Supplement or any other guaranty or agreement or
the release or reduction of liability of any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or 
  
 (h) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any
representation by any Secured Party that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor or surety. 
  

This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or
must otherwise be returned by the Administrative Agent or any Secured Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party or otherwise, all as though such payment had not been made.

  
 SECTION 7.03. Waivers and Acknowledgments. (a) Each
Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any
of the Guaranteed Obligations and this Agreement and any requirement that any Secured Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Loan Party or any other
Person or any Collateral. 
  
 (a) Each Guarantor
hereby unconditionally and irrevocably waives any right to revoke this Agreement and acknowledges that this Agreement is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future. 
  
 (b) Each Guarantor hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by any Secured Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Loan Parties, any other guarantor or any other Person or any collateral and (ii) any defense based on any right of set-off
or counterclaim against or in respect of the Obligations of such Guarantor hereunder. 
  
 (c) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any Secured Party to disclose to such Guarantor
any matter, fact or thing 

  

 85 








 
relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party or any of its
Subsidiaries now or hereafter known by such Secured Party. 
  
 (d) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waivers set forth in Section 7.02 and this
Section 7.03 are knowingly made in contemplation of such benefits. 
  
 SECTION 7.04. Subrogation. Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower or any other Loan Party or any other inside guarantor
that arise from the existence, payment, performance or enforcement of such Guarantor’s Obligations under or in respect of this Agreement or any other Loan Document, including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Secured Party against the Borrower, any other Loan Party or any other insider guarantor or any Collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Borrower, any other Loan Party or any other insider guarantor, directly or indirectly, in cash or other property or
by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Agreement shall have been paid in full in cash. If any
amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Agreement, and (b) the
Termination Date, such amount shall be received and held in trust for the benefit of the Secured Parties, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Administrative Agent in the
same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Agreement, whether matured or unmatured, in accordance with the terms of the
Loan Documents, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Agreement thereafter arising. If (i) any Guarantor shall make payment to any Secured Party of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Agreement shall have been paid in full in cash, and (iii) the Termination Date shall have occurred, the Secured Parties will, at such Guarantor’s
request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment made by such Guarantor pursuant to this Agreement. 
  
 SECTION 7.05. Guaranty Supplements. Upon the execution and delivery by any Person of a guaranty supplement in substantially the form of Exhibit I hereto (each, a “Guaranty Supplement”),
(a) such Person shall be referred to as an “Additional Guarantor” and shall become and be a Guarantor hereunder, and each reference in this Agreement to a “Guarantor” shall also mean and be a
reference to such Additional Guarantor, and each reference in any other Loan Document to a “Subsidiary Guarantor” shall also mean and be a reference to such Additional Guarantor, and (b) each reference herein to
“this Guaranty,” 

  

 86 








 
“hereunder,” “hereof” or words of like import referring to this Agreement, and each reference in any
other Loan Document to the “Guaranty,” “thereunder,” “thereof” or words of like import referring to this Agreement, shall mean and be a reference to this Agreement as
supplemented by such Guaranty Supplement. 
  
 SECTION 7.06.
Subordination. Each Guarantor hereby subordinates any and all debts, liabilities and other Obligations owed to such Guarantor by each other Loan Party (the “Subordinated Obligations”) to the Guaranteed Obligations to
the extent and in the manner hereinafter set forth in this Section 7.06: 
  
 (a) Prohibited Payments, Etc. Except during the continuance of a Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other Loan Party), each Guarantor
may receive regularly scheduled payments from any other Loan Party on account of the Subordinated Obligations. After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any
bankruptcy law relating to any other Loan Party), however, unless the Required Lenders otherwise agree, no Guarantor shall demand, accept or take any action to collect any payment on account of the Subordinated Obligations. 
  
 (b) Prior Payment of Guaranteed Obligations. In any
proceeding under the Bankruptcy Code (or similar law) relating to any other Loan Party, each Guarantor agrees that the Secured Parties shall be entitled to receive payment in full in cash of all Guaranteed Obligations (including Post-Petition
Interest) before such Guarantor receives payment of any Subordinated Obligations. 
  
 (c) Turn-Over. After the occurrence and during the continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), each Guarantor shall, if the Administrative Agent so requests, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Secured Parties
and deliver such payments to the Administrative Agent on account of the Guaranteed Obligations (including all Post-Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in
any manner the liability of such Guarantor under the other provisions of this Agreement. 
  
 (d) Administrative Agent Authorization. After the occurrence and during the continuance of any Default (including the commencement
and continuation of any proceeding under the Bankruptcy Code (or similar law) relating to any other Loan Party), the Administrative Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of each
Guarantor, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Guaranteed Obligations (including any and all Post-Petition Interest), and (ii) to require each
Guarantor (A) to collect and enforce, and to submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on such obligations to the Administrative Agent for application to the Guaranteed Obligations (including any and
all Post-Petition Interest). 
  

 87 








 SECTION 7.07. Continuing Guaranty; Assignments. This Agreement is a continuing guaranty and shall
(a) remain in full force and effect until the latest of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Agreement and (ii) the Termination Date, (b) be binding upon the Guarantor, its successors
and assigns and (c) inure to the benefit of and be enforceable by the Secured Parties and their successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, subject to Section 9.07, any
Secured Party may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, the Advances owing to it and the Note or Notes held by it) to
any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Secured Party herein or otherwise, in each case as and to the extent provided in Section 9.07. No Guarantor shall have the
right to assign its rights hereunder or any interest herein without the prior written consent of the Secured Parties. 
  
 SECTION 7.08. Release of Guarantor. In the event that all of the capital stock of one or more Guarantors is sold or otherwise disposed of (except
to the Borrower, BTI or any Subsidiary of the Borrower or BTI) or liquidated in compliance with the requirements of this Agreement (or such sale or other disposition or liquidation has been approved in writing by the Required Lenders) and the
proceeds of such sale, disposition or liquidation are applied in accordance with the provisions of this Agreement, to the extent applicable, such Guarantor shall be released from this Agreement and this Agreement shall, as to each such Guarantor or
Guarantors, terminate, and have no further force or effect (it being understood and agreed that the sale of one or more persons that own, directly or indirectly, all of the capital stock or partnership interests of any Guarantor shall be deemed to
be a sale of such Guarantor for the purposes of this Section 7.08). 
  
 ARTICLE VIII 
  
 THE AGENT 
  
 SECTION 8.01. Authorization and Action. Each Lender hereby appoints
and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement or collection of the Notes), no Agent shall be required to exercise any
discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon
all Lenders and all holders of Notes; provided, however, that no Agent shall be required to take any action that exposes such Agent to personal liability or that is contrary to this Agreement or applicable law. Each Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to the terms of this Agreement. 
  
 SECTION 8.02. Agents’ Reliance, Etc. Neither any Agent nor any of their respective directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them under or in connection with the Loan Documents, except for its or their 

  

 88 








 
own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, each Agent: (a) may treat the payee of any Note as the
holder thereof until, in the case of the Administrative Agent, the Administrative Agent receives and accepts an Assignment and Acceptance entered into by the Lender that is the payee of such Note, as assignor, and an Eligible Assignee, as assignee,
or, in the case of any other Agent, such Agent has received notice from the Administrative Agent that it has received and accepted such Assignment and Acceptance, in each case as provided in Section 9.07; (b) may consult with legal counsel
(including counsel for any Loan Party), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with the Loan Documents;
(d) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of any Loan Document on the part of any Loan Party or to inspect the property (including the books and records)
of any Loan Party; (e) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be
created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; and (f) shall incur no liability under or in respect of any Loan Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, telecopy or telex) believed by it to be genuine and signed or sent by the proper party or parties. 
  
 SECTION 8.03. GECC and Affiliates. With respect to any Commitments, any Advances made by it and any Notes issued to it, GECC shall have the same
rights and powers under the Loan Documents as any other Lender and may exercise the same as though it were not an Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include GECC in its
individual capacity. GECC and its affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, any Loan Party, any of its
Subsidiaries and any Person that may do business with or own securities of any Loan Party or any such Subsidiary, all as if GECC was not an Agent and without any duty to account therefor to the Lenders. 
  
 SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon any Agent or any other Lender and based on the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this Agreement. 
  
 SECTION 8.05. Indemnification. (a) Each Lender severally agrees to indemnify each Agent (to the extent not promptly reimbursed by the Borrower) from and against such Lender’s ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any 

  

 89 








 
kind or nature whatsoever that may be imposed on, incurred by, or asserted against such Agent in any way relating to or arising out of the Loan Documents or
any action taken or omitted by such Agent under the Loan Documents; provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent’s gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Lender agrees to reimburse each Agent
promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower under Section 9.04 (other than under Section 9.04(c)), to the extent that such Agent is not
promptly reimbursed for such costs and expenses by the Borrower. 
  
 (a) For purposes of this Section 8.05, the Lenders’ respective ratable shares of any amount shall be determined, at any time, according to the sum of (i) the aggregate principal amount of the Advances outstanding
at such time and owing to the respective Lenders and (ii) the Commitments of the respective Lenders at such time. The failure of any Lender to reimburse any Agent promptly upon demand for its ratable share of any amount required to be paid by the
Lenders to such Agent as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Agent for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse
such Agent for such other Lender’s ratable share of such amount. Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in this Section 8.05 shall survive the
payment in full of principal, interest and all other amounts payable hereunder and under the other Loan Documents. 
  
 SECTION 8.06. Successor Agents. Any Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor Agent. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of resignation or the Required Lenders’ removal of the retiring Agent, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States or of any State thereof and having a combined capital and surplus of at least $250,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent and, in the case of a successor Collateral Agent, upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to continue the perfection of the Liens granted or purported to be granted by the Collateral Documents, such successor Agent shall succeed to
and become vested with all the rights, powers, discretion, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. If within 45 days after written notice is
given of the retiring Agent’s resignation or removal under this Section 8.06 no successor Agent shall have been appointed and shall have accepted such appointment, then on such 45th day (i) the retiring Agent’s resignation or removal shall
become effective, (ii) the retiring Agent shall thereupon be discharged from its duties and obligations under the Loan Documents and (iii) the Required Lenders shall thereafter perform all 

  

 90 








 
duties of the retiring Agent under the Loan Documents until such time, if any, as the Required Lenders appoint a successor Agent as provided above. After any
retiring Agent’s resignation or removal hereunder as Agent shall have become effective, the provisions of this Article VIII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.
It is understood and agreed that no Competitor shall qualify or be appointed as a successor Agent under this Section 8.06. 
  
 SECTION 8.07. Appointment of Subagents. Anything herein to the contrary notwithstanding, the Collateral Agent may from time to time, when the
Collateral Agent deems it to be necessary, appoint one or more subagents or collateral co-agents (each, a “Subagent”) with respect to all or any part of the Collateral. In the event that the Collateral Agent so appoints any
Subagent with respect to any Collateral, (i) the Liens on such Collateral granted pursuant to the applicable Collateral Documents shall be deemed for purposes of this Agreement and the other Loan Documents to have been granted to such Subagent, in
addition to the Collateral Agent, for the benefit of the Secured Parties, (ii) such Subagent shall be automatically vested, in addition to the Collateral Agent, with all rights, powers, privileges, interests and remedies of the Collateral Agent
under the Loan Documents with respect to such Collateral, (iii) the provisions of this Article VIII and of Section 9.04 that refer to each Agent shall be deemed to be references to each Agent and/or each Subagent, as the context may require, and
(iv) the term “Collateral Agent”, when used herein or in any of the applicable Collateral Documents in relation to any rights, powers, privileges, interests and remedies of the Collateral Agent with respect to such Collateral shall include
such Subagent; provided, however, that no such Subagent shall be authorized to take any action with respect to any such Collateral unless and except to the extent expressly authorized in writing by the Collateral Agent. 
  
 ARTICLE IX 
  
 MISCELLANEOUS 
  
 SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed (or, in the case of the Collateral Documents,
consented to) by the Required Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that (a) no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders (other than any Lender that is, at such time, a Defaulting Lender), do any of the following at any time: (i) waive any of the conditions specified in Section 3.01, (ii) change the number of Lenders or the
percentage of (x) the Commitments or (y) the aggregate unpaid principal amount of the Advances that, in each case, shall be required for the Lenders or any of them to take any action hereunder, (iii) reduce or limit the obligations of any Guarantor
under Section 7.01 or release such Guarantor or otherwise limit such Guarantor’s liability with respect to the Obligations owing to the Agents and the Lenders, (iv) release all or substantially all of the Collateral in any transaction or series
of related transactions or permit the creation, incurrence, assumption or existence of any Lien on all or substantially all of the Collateral in any transaction or series of related transactions to secure any Obligations other than Obligations owing
to the Secured Parties under the Loan Documents, or (v) amend Section 2.10 or this Section 9.01, and (b) no amendment, waiver or consent shall, 

  

 91 








 
unless in writing and signed by the Required Lenders and each Lender (other than any Lender that is, at such time, a Defaulting Lender) that has a Commitment
under any of the Facility if such Lender is directly affected by such amendment, waiver or consent, (i) increase the Commitments of such Lender or subject such Lender to any additional obligations, (ii) reduce the principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to such Lender or (iii) postpone any date fixed for any payment of principal of, or interest on, the Notes held by such Lender or any fees or other amounts payable hereunder to
such Lender; and provided, further, that no amendment, waiver or consent shall, unless in writing and signed by an Agent in addition to the Lenders required above to take such action, affect the rights or duties of such Agent under this
Agreement or the other Loan Documents. 
  
 SECTION 9.02.
Notices, Etc. All notices and other communications provided for hereunder shall be in writing (including telegraphic, telecopy or telex communication) and mailed, telegraphed, telecopied, telexed or delivered, if to the Borrower, at its
address at 1791 OG Skinner Drive, West Point, GA 81833, Attention: Chief Financial Officer; if to any Amendment Lender, at its Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assignment and Acceptance pursuant to which it became a Lender; if to the Agent, at its address at General Electric Capital Corporation, 201 Merritt 7, Norwalk, Connecticut 06851, Attention: ITC Account Manager, Christian G.
Donohue, Telecopier No.: (203) 956-4559, Telephone No.: (203) 956-4755 with copies to: Weil, Gotshal & Manges, LLP, 200 Crescent Court, Suite 300, Dallas, TX 75201, Attention: Angela L. Fontana, Esq., Telecopier No.: (214) 746-7777 or, as to any
party, at such other address as shall be designated by such party in a written notice to the other parties. All such notices and communications shall, when mailed, telegraphed, telecopied or telexed, be effective when deposited in the mails,
delivered to the telegraph company, transmitted by telecopier or confirmed by telex answerback, respectively, except that notices and communications to any Agent pursuant to Article II, III or VIII shall not be effective until received by such
Agent. Manual delivery by telecopier of an executed counterpart of any amendment or waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of an original
executed counterpart thereof. 
  
 SECTION 9.03. No Waiver;
Remedies. No failure on the part of any Lender or any Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. 
  
 SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to pay on demand (i) all costs and expenses of each Agent
in connection with the preparation, execution, delivery, administration, modification and amendment of the Loan Documents (including, without limitation, (A) all due diligence, collateral review, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and expenses and (B) the reasonable and documented fees and expenses of counsel and financial advisors for each Agent with respect thereto, with respect to advising such
Agent as to its rights and responsibilities, or the perfection, protection or preservation of rights or interests, under the Loan Documents, with respect to negotiations with any Loan Party or with other creditors of any Loan 

  

 92 








 
Party or any of its Subsidiaries arising out of any Default or any events or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency or other similar proceeding involving creditors’ rights generally and any proceeding ancillary thereto) and (ii) all costs and expenses of each Agent and each
Lender in connection with the enforcement of the Loan Documents, including, without limitation, the negotiation of this Agreement, whether in any action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding affecting
creditors’ rights generally (including, without limitation, the reasonable and documented fees and expenses of counsel for the Administrative Agent and each Lender with respect thereto). 
  
 (a) The Borrower agrees to indemnify and hold harmless each
Agent, each Lender and each of their Affiliates and their respective officers, directors, employees, agents and advisors (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable and documented fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) any claims by third parties involving (i) the Facility, the actual or proposed use of the proceeds of
the Advances, the Loan Documents or any of the transactions contemplated thereby, or (ii) the actual or alleged presence of Hazardous Materials on any property of any Loan Party or any of its Subsidiaries or any Environmental Action relating in any
way to any Loan Party or any of its Subsidiaries, except to the extent such claim, damage, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 9.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, shareholders or creditors or an
Indemnified Party or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated by the Loan Documents are consummated. Each of the parties hereto also agrees not to assert any claim against any other party
hereto or any of their respective Affiliates, or any of their respective officers, directors, employees, attorneys and agents, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating
to the Facility, the actual or proposed use of the proceeds of the Advances, the Loan Documents or any of the transactions contemplated by the Loan Documents. 
  

(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.05, 2.08(b)(i) or 2.09(d), acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other
reason, or if the Borrower fails to make any payment or prepayment of an Advance for which a notice of prepayment has been given or that is otherwise required to be made, whether pursuant to Section 2.03, 2.05 or 6.01 or otherwise, the Borrower
shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses
that it may reasonably incur as a result of such payment or Conversion or 

  

 93 








 
such failure to pay or prepay, as the case may be, including, without limitation, any loss (including loss of any interest that, but for such failure, such
Lender would have earned with respect to such principal amount, reduced if such Lender is able to redeposit or reinvest such principal amount, by interest earned by such Lender as a result of such redeposit or reinvestment), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance. For the purpose of calculating amounts payable to any Lender under this Section 9.04(c), each Lender shall be deemed to
have actually funded its Eurodollar Rate Advance through the purchase of a deposit-bearing interest at the Eurodollar Rate in an amount equal to the amount of that Eurodollar Rate Advance and having a maturity comparable to the applicable Interest
Period; provided, that each Lender may fund each Eurodollar Rate Advance in any manner it deems appropriate, and the foregoing assumption shall be utilized only for the calculation of amounts payable under this Section 9.04(c). 
  
 (c) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including, without limitation, fees and expenses of counsel and indemnities, such amount may be paid on behalf of such Loan Party by the Administrative Agent or any Lender, in its sole
discretion. 
  
 (d) Without prejudice to the
survival of any other agreement of any Loan Party hereunder or under any other Loan Document, the agreements and obligations of the Borrower contained in Sections 2.09 and 2.11 and this Section 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under any of the other Loan Documents. 
  
 SECTION 9.05. Right of Set-off. Upon (a)the occurrence and during the continuance of any Event of Default and (b) the making of the request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the provisions of Section 6.01, each Agent and each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and otherwise apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Agent, such Lender or such Affiliate to or for
the credit or the account of any Loan Party against any and all of the Obligations of the Borrower now or hereafter existing under the Loan Documents, irrespective of whether such Agent or such Lender shall have made any demand under this Agreement
or such Note or Notes and although such obligations may be unmatured. Each Agent and each Lender agrees promptly to notify the Borrower after any such set-off and application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Agent and each Lender and their respective Affiliates under this Section 9.05 are in addition to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender and their respective Affiliates may have. 
  
 SECTION 9.06. Binding Effect. This Agreement shall become effective when it has been executed by the Borrower and each Agent, and the Administrative Agent has been notified by the Required Lenders that each
such Required Lender has executed it, and 

  

 94 








 
thereafter this Agreement shall be binding upon and inure to the benefit of the Borrower, each Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders. 
  
 SECTION 9.07. Assignments and Participations. 
  
 (a) (i) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a portion of its Commitment or Commitments, the Advances owing to it and the Note or Notes held by it); provided, however, that (i) except in the case of an assignment to
a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the
Commitments being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $1,000,000 (or such lesser amount as shall
be approved by the Administrative Agent and, so long as no Event of Default shall have occurred and be continuing at the time of effectiveness of such assignment, the Borrower, such approval, in the case of the Borrower, not to be unreasonably
withheld), (ii) each such assignment shall be to an Eligible Assignee, and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note or Notes subject to such assignment. No processing and recordation fee shall be due. 
  
 (ii) The Borrower may replace any Lender that becomes a “Non-Consenting Lender” (as defined below in this Section 9.07(a)(ii)),
upon ten Business Days’ prior written notice to the Administrative Agent and such Lender, and such Lender shall be obligated to assign pursuant to Section 9.07 all of its rights and obligations under this Agreement to a Replacement Lender for a
purchase price equal to the outstanding principal amount of the Replaced Lender’s principal debt and all accrued interest and fees and other amounts payable hereunder, provided that (A) neither the Administrative Agent nor any Lender shall have
any obligation to the Borrower to find a Replacement Lender and (B) in no event shall the Replaced Lender be required to pay or surrender to such Replacement Lender any of the fees paid to such Replaced Lender prior to the effectiveness of such
assignment. In the case of a Replacement Lender to which the Borrower becomes obligated to pay additional amounts to such Lender prior to such Lender being replaced and the payment of such additional amounts shall be a condition to the replacement
of such Lender. In the event that (x) the Borrower or the Administrative Agent has requested the Lenders to consent to a departure or waiver of any provisions of the Loan Documents or to agree to any amendment thereto, (y) the consent, waiver or
amendment in question requires the agreement of all Lenders in accordance with the terms of Section 9.01 or all the Lenders with respect to a certain class of the Loans and (z) the Required 

  

 95 








 
Lenders have agreed to such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a
“Non-Consenting Lender” 
  
 (b) Upon
such execution, delivery, consent, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.09, 2.11 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). 
  
 (c) By executing and delivering an Assignment and
Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such
assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any
other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers
and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender, as the
case may be. 
  
 (d) The Administrative Agent
shall maintain at its address referred to in Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it. 
  

 96 








 (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and
an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under
each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A hereto. 
  
 (f) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates or a Competitor) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitments) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower,
the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right
to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or release all or substantially all of the Collateral. 
  
 (g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Loan Parties furnished to such Lender by or on behalf of the Loan Parties; provided, however, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender. 
  

 97 








 (h) Notwithstanding any other provision set forth in this Agreement, any Lender may at
any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System. 
  
 SECTION 9.08. Execution in Counterparts. This Agreement may be 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 one and the same agreement. Manual delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of an original executed counterpart of this Agreement.

  
 SECTION 9.09. Confidentiality. Neither any Agent nor
any Lender shall disclose any Confidential Information to any Person without the consent of the Borrower, other than (a) to such Agent’s or such Lender’s Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective Eligible Assignees and participants, and then only on a confidential basis, (b) as required by any law, rule or regulation or judicial process, (c) as requested or required by any state, Federal or foreign authority or examiner
regulating such Lender, (d) to any rating agency when required by it, provided, that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Confidential Information relating to the Loan
Parties received by it from such Lender and (e) to any direct or indirect contractual counterparty in swap agreements or such contractual counterparty’s professional advisor, provided, that prior to such disclosure, such contractual
counterparty or professional advisor to such contractual counterparty shall undertake to preserve the confidentiality of any Confidential Information relating to the Loan Parties received by it from such Agent or Lender. 
  
 SECTION 9.10. Release of Collateral. Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party (including, without limitation, as a result of the sale, in accordance with the terms of the Loan Documents, of the Loan Party that owns such Collateral) in accordance with the terms of
the Loan Documents, the Collateral Agent will, at the Borrower’s expense, execute and deliver to such Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and
security interest granted under the Collateral Documents in accordance with the terms of the Loan Documents. 
  
 SECTION 9.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or
any of the other Loan Documents to which it is a party, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may
be heard and determined in any such New York State court or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the 

  

 98 








 
judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the courts of any jurisdiction. Notwithstanding the foregoing, no party that is a sovereign entity shall be deemed to have waived any immunity against pre-judgment
attachment of any of its assets or properties. 
  
 (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any of the other Loan Documents to which it is a party in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court. 
  
 SECTION 9.12. Governing Law. This Agreement and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York. 
  
 SECTION 9.13. Waiver of Jury Trial. Each of the Loan Parties, the Borrower, the Agents and the Lenders irrevocably
waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to any of the Loan Documents, the Advances or the actions of any Agent or any Lender in the
negotiation, administration, performance or enforcement thereof. 
  
 SECTION 9.14. Waiver and Consent. The Administrative Agent and the Lenders hereby irrevocably waive any and all Defaults and Events of Default set forth in Schedule 9.14 that may exist and be continuing as of the Amendment Effective
Date under and as defined in the Original Second Lien Credit Agreement and any other Loan Document as provided and defined in the Original Second Lien Credit Agreement and irrevocably waive any and all remedies and other rights they may have under
the Original Second Lien Credit Agreement, any other Loan Document as provided and defined in the Original Second Lien Credit Agreement, this Agreement or any other Loan Document or otherwise only in respect of such Defaults and Events of Defaults.

  
 SECTION 9.15. Release of the Agents and the Lenders.
Effective as of the date hereof, the Loan Parties on behalf of themselves and their respective officers, directors and employees (the “Releasors”) hereby release each Agent and Lender and each such Agent’s and
Lender’s respective direct and indirect stockholders and other affiliates, officers, employees, directors and agents (collectively, the “Releasees”) from any and all claims, demands, liabilities, responsibilities,
disputes, causes of action (whether at law or in equity) and obligations of every nature whatsoever, whether liquidated or unliquidated, known or unknown, matured or unmatured, fixed or contingent that any of the Releasors may have against any
Releasee, arising from or relating to any action or inactions of any Releasee on or prior to the date hereof with respect to this Agreement, any other Loan Document, the Obligations, the Collateral or any other property securing the Obligations. For
purposes of the release contained in this paragraph, the term “Loan Party” shall also include the Borrower’s successors and assigns, including, without limitation, any trustee, receiver or other representative acting on behalf of the
Borrower. 
  

 99 








 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective
officers thereunto duly authorized, as of the date first above written. 
  
 PARENT: 
  

					
	 ITC^DELTACOM, INC.

		
	By:	 	/s/    RICHARD E.
FISH        
	 	 	 Name:
	 	Richard E. Fish
	 	 	 Title:
	 	Chief Administrative Officer


  
 BORROWER: 
  

					
	 INTERSTATE FIBERNET, INC.

		
	By:	 	/s/    RICHARD E.
FISH        
	 	 	 Name:
	 	Richard E. Fish
	 	 	 Title:
	 	Chief Administrative Officer


  
 SUBSIDIARY GUARANTORS:


					
	 ITC^DELTACOM COMMUNICATIONS, INC.

		
	By:	 	/s/    RICHARD E.
FISH        
	 	 	 Name:
	 	Richard E. Fish
	 	 	 Title:
	 	Chief Administrative Officer
	
	 DELTACOM INFORMATION SYSTEMS, INC.

		
	By:	 	/s/    RICHARD E.
FISH        
	 	 	 Name:
	 	Richard E. Fish
	 	 	 Title:
	 	Chief Administrative Officer


  










					
	 BUSINESS TELECOM, INC.

		
	 By: 
	 	/s/    RICHARD E.
FISH        
	 	 	 Name:
	 	Richard E. Fish
	 	 	 Title:
	 	Chief Administrative Officer
	
	 BTI TELECOM CORP.

		
	 By: 
	 	/s/    RICHARD E.
FISH        
	 	 	 Name:
	 	Richard E. Fish
	 	 	 Title:
	 	Chief Administrative Officer
	
	 BUSINESS TELECOM OF VIRGINIA, INC.

		
	 By: 
	 	/s/    RICHARD E.
FISH        
	 	 	 Name:
	 	Richard E. Fish
	 	 	 Title:
	 	Chief Administrative Officer


  









 ADMINISTRATIVE AGENT 
 AND COLLATERAL AGENT: 
  

					
	 GENERAL ELECTRIC CAPITAL CORPORATION

		
	 By:
	 	/s/    KARL
KIEFFER        
	 	 	 Name:
	 	Karl Kieffer
	 	 	 Title:
	 	Duly Authorized Signatory


  









 LENDERS: 
  

					
	 GENERAL ELECTRIC CAPITAL CORPORATION

		
	 By:
	 	/s/    KARL
KIEFFER        
	 	 	 Name:
	 	Karl Kieffer
	 	 	 Title:
	 	Duly Authorized Signatory


  










					
	BANC OF AMERICA STRATEGIC SOLUTIONS, INC.
		
	 By:
	 	/s/    JOHN W. WOODIEL
III        
	 	 	 Name:
	 	John W. Woodiel III
	 	 	 Title:
	 	Senior Vice President


  










							
	 EXPORT DEVELOPMENT CANADA (f/k/a Export
 Development Corporation)

			
	 By:
	 	/s/    R. HODGES        	 	 /s/    KEVIN SKILLITER        

	 	 	 Name:
	 	R. Hodges	 	/Kevin Skilliter
	 	 	 Title:
	 	Manager, Special Risks	 	/Loan Asset Manager