Exhibit 10.1



 Exhibit 10.1 
  
 THIRD 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 
  
 WELLS FARGO BANK, N.A. 
  
 as Administrative Agent and 
  
 Collateral Agent 







 TABLE OF CONTENTS 
  

							
	 ARTICLE I    DEFINITIONS AND ACCOUNTING TERMS
	  	3
	 SECTION 1.01.
	 	 	  	 Certain Defined Terms
	  	3
	 SECTION 1.02.
	 	 	  	 Computation of Time Periods; Other Definitional Provisions
	  	33
	 SECTION 1.03.
	 	 	  	 Accounting Terms
	  	33
		
	 ARTICLE II    AMOUNTS AND TERMS OF THE ADVANCES
	  	34
				
	 SECTION 2.01.
	 	 	  	 Restructuring
	  	34
	 SECTION 2.02.
	 	 	  	 Special Term B Advances
	  	35
	 SECTION 2.03.
	 	 	  	 Repayment of Advances; Application of Moneys by Administrative Agent
	  	37
	 SECTION 2.04.
	 	 	  	 Intentionally omitted
	  	38
	 SECTION 2.05.
	 	 	  	 Prepayments
	  	38
	 SECTION 2.06.
	 	 	  	 Interest
	  	40
	 SECTION 2.07.
	 	 	  	 Fees
	  	41
	 SECTION 2.08.
	 	 	  	 Conversion of Advances
	  	41
	 SECTION 2.09.
	 	 	  	 Increased Costs, Etc.
	  	42
	 SECTION 2.10.
	 	 	  	 Payments and Computations
	  	43
	 SECTION 2.11.
	 	 	  	 Taxes
	  	44
	 SECTION 2.12.
	 	 	  	 Sharing of Payments, Etc.
	  	47
	 SECTION 2.13.
	 	 	  	 Use of Proceeds
	  	48
	 SECTION 2.14.
	 	 	  	 Defaulting Lenders
	  	48
	 SECTION 2.15.
	 	 	  	 Evidence of Debt; Register
	  	49
		
	 ARTICLE III    CONDITIONS OF LENDING
	  	51
				
	 SECTION 3.02.
	 	 	  	 Conditions Precedent to the Third Amendment Effective Date
	  	51
	 SECTION 3.02.
	 	 	  	 Conditions Precedent to Special Term B Borrowings
	  	55
		
	 ARTICLE IV    REPRESENTATIONS AND WARRANTIES
	  	55
				
	 SECTION 4.01.
	 	 	  	 Representations and Warranties of the Borrower
	  	55
		
	 ARTICLE V    COVENANTS
	  	63
				
	 SECTION 5.01.
	 	 	  	 Affirmative Covenants
	  	63
	 SECTION 5.02.
	 	 	  	 Negative Covenants
	  	70
	 SECTION 5.03.
	 	 	  	 Reporting Requirements
	  	79
		
	 ARTICLE VI    EVENTS OF DEFAULT
	  	83
				
	 SECTION 6.01.
	 	 	  	 Events of Default
	  	83
		
	 ARTICLE VII    GUARANTY
	  	86
				
	 SECTION 7.01.
	 	 	  	 Guaranty; Limitation of Liability
	  	86
	 SECTION 7.02.
	 	 	  	 Guaranty Absolute
	  	87
	 SECTION 7.03.
	 	 	  	 Waivers and Acknowledgments
	  	88
	 SECTION 7.04.
	 	 	  	 Subrogation
	  	88

  

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	 SECTION 7.05.
	 	 	  	 Guaranty Supplements
	  	89
	 SECTION 7.06.
	 	 	  	 Subordination
	  	90
	 SECTION 7.07.
	 	 	  	 Continuing Guaranty; Assignments
	  	90
	 SECTION 7.08.
	 	 	  	 Release of Guarantor
	  	91
		
	 ARTICLE VIII    THE AGENT
	  	91
				
	 SECTION 8.01.
	 	 	  	 Authorization and Action
	  	91
	 SECTION 8.02.
	 	 	  	 Agents’ Reliance, Etc.
	  	91
	 SECTION 8.03.
	 	 	  	 Wells Fargo and Affiliates
	  	92
	 SECTION 8.04.
	 	 	  	 Lender Credit Decision
	  	92
	 SECTION 8.05.
	 	 	  	 Indemnification
	  	92
	 SECTION 8.06.
	 	 	  	 Successor Agents
	  	93
	 SECTION 8.07.
	 	 	  	 Appointment of Subagents
	  	94
		
	 ARTICLE IX    MISCELLANEOUS
	  	94
				
	 SECTION 9.01.
	 	 	  	 Amendments, Etc.
	  	94
	 SECTION 9.02.
	 	 	  	 Notices, Etc.
	  	95
	 SECTION 9.03.
	 	 	  	 No Waiver; Remedies
	  	95
	 SECTION 9.04.
	 	 	  	 Costs and Expenses
	  	95
	 SECTION 9.05.
	 	 	  	 Right of Set-off
	  	97
	 SECTION 9.06.
	 	 	  	 Binding Effect
	  	97
	 SECTION 9.07.
	 	 	  	 Assignments and Participations
	  	98
	 SECTION 9.08.
	 	 	  	 Execution in Counterparts
	  	100
	 SECTION 9.09.
	 	 	  	 Confidentiality
	  	100
	 SECTION 9.10.
	 	 	  	 Release of Collateral
	  	101
	 SECTION 9.11.
	 	 	  	 Jurisdiction, Etc.
	  	101
	 SECTION 9.12.
	 	 	  	 Governing Law
	  	102
	 SECTION 9.13.
	 	 	  	 Waiver of Jury Trial
	  	102
	 SECTION 9.14.
	 	 	  	 Waiver and Consent
	  	102
	 SECTION 9.15.
	 	 	  	 Release of the Agent and the Lenders
	  	102
	 SECTION 9.16.
	 	 	  	 Authorization for Intercreditor and Subordination Agreements
	  	102

  
 SCHEDULES 
  

					
	 Schedule I
	  	-	  	 Applicable Lending Offices

	 Schedule II
	  	-	  	 Subsidiary Guarantors

	 Schedule III
	  	-	  	 Consenting Lenders

	 Schedule IV
	  	-	  	 Competitors

	 Schedule V
	  	-	  	 Subsidiaries to be Dissolved

	 Schedule VI
	  	-	  	 Facilities

	 Schedule 2.03(a)
	  	-	  	 Tranche 1 Term B Scheduled Payments

	 Schedule 2.03(b)
	  	-	  	 Tranche 2 Term B Scheduled Payments

	 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


  

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	 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-1
	  	-	  	 Form of Tranche 1 Term B Note

	 Exhibit A-2
	  	-	  	 Form of New Tranche 1 Term B Note

	 Exhibit A-3
	  	-	  	 Form of Tranche 2 Term B Note

	 Exhibit A-4
	  	-	  	 Form of New Tranche 2 Term B Note

	 Exhibit A-5
	  	-	  	 Form of Tranche 3 Term B Note

	 Exhibit A-6
	  	-	  	 Form of Tranche 4 Term B Note

	 Exhibit A-7
	  	-	  	 Form of Special Term B Note

	 Exhibit B
	  	-	  	 Form of Capital Lease Assignments

	 Exhibit C
	  	-	  	 Form of Assignment and Acceptance

	 Exhibit D
	  	-	  	 Form of Security Agreement

	 Exhibit E-1
	  	-	  	 Second Lien Intercreditor and Subordination Agreement

	 Exhibit E-2
	  	-	  	 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


  

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 THIRD AMENDED AND RESTATED CREDIT AGREEMENT 
  
 THIRD 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”), Wells Fargo Bank, N.A. (“Wells Fargo”), 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, pursuant to the Credit Agreement, dated as of April 5, 2000, as amended (the “Original ITCD Credit Agreement”), the
Lenders lent to the Borrower $160,000,000 consisting of $100,000,000 under the Tranche 1 Term B Facility (as hereinafter defined) and $60,000,000 under the Tranche 2 Term B Facility (as hereinafter defined) 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 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 (the “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, the Lenders named on the signature pages thereof, Morgan Stanley Senior Funding, Inc., as administrative agent, and Morgan Stanley & Co., Incorporated, as collateral agent, entered into an amendment and restatement, dated
as of October 29, 2002, of the Original ITCD Credit Agreement (the “First Amended ITCD Credit Agreement”); 
  
 WHEREAS, pursuant to a letter, dated April 15, 2003, Morgan Stanley Senior Funding, Inc. resigned as administrative agent and Morgan Stanley & Co.,
Incorporated resigned as collateral agent under the First Amended ITCD Credit Facility, and pursuant to the Successor Agent Agreement, dated as of September 2, 2003, among Wells Fargo, Morgan Stanley Senior Funding, Inc., Morgan Stanley & Co.,
Incorporated and the Lenders (the “Successor Agent Agreement”), the Lenders appointed Wells Fargo to act as administrative agent and collateral agent under the First Amended ITCD Credit Agreement; 
  









 WHEREAS, the Parent, the Borrower, the Subsidiary Guarantors, the Second Amendment Lenders (as
hereinafter defined) from time to time party thereto and the Agents entered into an amendment and restatement, dated as of October 6, 2003, of the First Amended ITCD Credit Agreement (the “Second Amended ITCD Credit
Agreement”); 
  
 WHEREAS, in connection with the
Second Amended ITCD Credit Agreement, the Parent, the Borrower, the Subsidiary Guarantors, and the banks and financial institutions listed on the signature pages thereof as Lenders (the “Second Lien Lenders”) and GECC (solely
in its capacity as administrative and collateral agent for the Second Lien Lenders) entered into a Credit Agreement, dated as of October 6, 2003 (the “Original Second Lien Credit Agreement”); 
  
 WHEREAS, the Loan Parties (as hereinafter defined) have requested (a) the
consent of the Lenders to incur subordinated secured indebtedness pursuant to that certain Credit Agreement, dated as of March 29, 2005, by and among the Borrower, the lenders signatory thereto (the “Third Lien Lenders”) and
WCAS, as administrative agent and collateral agent (the “Third Lien Credit Agreement”), (b) that the Lenders, NTFC and the GE Lessor consent to a restructuring of the indebtedness owing by the Loan Parties under the Second
Amended ITCD Credit Agreement, the NTFC Capital Lease and the GECC Capital Lease, (c) that certain Lenders make additional term loans available to the Borrower under the terms and conditions described herein and (d), in connection with the
foregoing, that the Second Lien Lenders agree to amend and restate the terms of the Original Second Lien Credit Agreement pursuant to that certain Amended and Restated Credit Agreement, dated as of the date hereof, by and among the Parent, the
Borrower, the Subsidiary Guarantors, the Second Lien Lenders and the “Agent” under, and as defined, therein (the “Second Lien Agent”) (the “First Amended Second Lien Credit Agreement”);

  
 WHEREAS, the parties hereto desire that (a) an amount equal to
the aggregate outstanding principal amount of the loans advanced to the Borrower by the Lenders pursuant to the Original ITCD Credit Agreement, the First Amended ITCD Credit Agreement and the Second Amended ITCD Credit Agreement and an amount equal
to the aggregate outstanding amount of the obligations owing by the Lessees under the NTFC Capital Lease and Communications under the GECC Capital Lease (which amount shall be deemed to be a Tranche 4 Term B Borrowing for all purposes hereunder) and
all interest due thereon as of the Third Amendment Effective Date (as hereinafter defined) shall be restructured, continued, converted and consolidated, subject to the terms and conditions contained herein and (b) a maximum amount equal to the
Special Term B Facility (as hereinafter defined) in the form of Special Term B Advances (as hereinafter defined) be made available to the Borrower by the Special Term B Lenders (as hereinafter defined); and 
  
 WHEREAS, it is the intention of the parties that this Agreement not novate,
extinguish or replace the indebtedness governed by the Original ITCD Credit Agreement, the First Amended ITCD Credit Agreement, the Second Amended ITCD Credit Agreement, the NTFC Capital Lease or the GECC Capital Lease, but that, from and after the
Third Amendment Effective Date, the Second Amended ITCD Credit Agreement and the aggregate outstanding amount of the obligations owing by the Lessees under the NTFC Capital Lease and the GECC 

  

 2 








 
Capital Lease shall be assumed, restructured, combined 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 Third Amendment Effective Date, the Second Amended ITCD Credit Agreement shall be amended and restated in its entirety, and all
of the rights, duties and obligations of the Lessees, NTFC and GECC under each of the NTFC Capital Lease and the GECC Capital Lease shall be set forth in their 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): 
  
 “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 Tranche 1 Term B Advance, a Tranche 2 Term B Advance, a Tranche 3 Term B Advance, a Tranche 4
Term B Advance, a New Tranche 1 Term B Advance, a New Tranche 2 Term B Advance or a Special Term B Advance. 
  
 “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 Third Amended and Restated Credit Agreement, dated as of March 29, 2005, among the Parent,
the Borrower, the Lenders, the Subsidiary Guarantors and the Administrative Agent, as amended, amended and restated, supplemented or otherwise modified from time to time. 
  

 3 








 “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. 
  
 “Applicable Base Rate Margin” means the Applicable Eurodollar Rate Margin then in effect, less 1.00%. 

 
 “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: 
  
 (a) in respect of the Tranche 1 Term B Facility and the Tranche 2 Term B Facility: 
  

			
	 Senior Debt Ratio

	  	Applicable Eurodollar Rate Margin


	 3
4.00x
	  	5.25%
	 3
3.50x
	  	4.75%
	 3
3.25x
	  	4.25%
	 3
3.00x
	  	4.00%
	 3
2.50x
	  	3.75%
	 < 2.50x
	  	3.50%

  

 4 








 and (b) in respect of the New Tranche 1 Term B Facility, the New Tranche 2 Term B Facility, the Tranche 3 Term B
Facility, the Tranche 4 Term B Facility and the Special Term B Loan Facility: 
  

			
	 Senior Debt Ratio

	  	Applicable Eurodollar Rate Margin


	 3
4.00x
	  	7.75%
	 3
3.50x
	  	7.25%
	 3
3.25x
	  	6.75%
	 3
3.00x
	  	6.50%
	 3
2.50x
	  	6.25%
	 < 2.50x
	  	6.00%

  
 “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 any of the Tranche 1 Term B Facility, the Tranche 2 Term B Facility, the Tranche 3 Term B Facility, the Tranche 4 Term B Facility, the New Tranche 1 Term B
Facility, the New Tranche 2 Term B Facility or the Special Term B Facility, a Lender that has a Commitment or Loans outstanding with respect to such 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, (b) the Debt under the Second
Lien 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 Business Telecom,
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 
  

 5 








 (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. 
  
 “Borrower’s Account” means the account of the Borrower as the Borrower shall specify in writing to the Administrative Agent. 
  
 “Borrowing” means a Tranche 1 Term B Borrowing, a Tranche 2 Term B Borrowing, a
Tranche 3 Term B Borrowing, a Tranche 4 Term B Borrowing, a New Tranche 1 Term B Borrowing, a New Tranche 2 Term B Borrowing or a Special Term B 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. 
  
 “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. 
  

 6 








 “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 Agents and the Second Lien Agent their respective security interests in the assets subject to the GECC Capital Lease and the NTFC
Capital Lease, respectively. 
  
 “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 Third 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 

  

 7 








 
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 Third Amendment Effective Date constitute the board of directors of the Parent (together with any new directors 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 Third 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 Tranche 1 Term B Commitment, a Tranche 2 Term B Commitment, a
Tranche 3 Term B Commitment, a Tranche 4 Term B Commitment, a New Tranche 1 Term B Commitment, a New Tranche 2 Term B Commitment or a Special Term B 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. 
  

 8 








 “Communications” has the meaning specified in the recitals of the
parties to this Agreement. 
  
 “Competitor” shall mean any Person identified on Schedule IV hereto (or any Affiliate thereof) or 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 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. 
  
 “Consenting
Lenders” means the Lenders that have executed this Agreement on or before March 31, 2005 as listed on Schedule III. 
  
 “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 

  

 9 








 
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. 
  
 “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 

  

 10 








 
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 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. 
  

 11 








 “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 3.02(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 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 

  

 12 








 
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. 
  
 “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 

  

 13 








 
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.

  
 “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 

  

 14 








 
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, 
  
 (a) 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 
  
 (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 
  
 (b) 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 on account of Assumed BTI
Debt. 
  
 “Exchange Act”
means the Securities Exchange Act of 1934, as amended. 
  

 15 








 “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, and any purchase price 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
Tranche 1 Term B Facility, the Tranche 2 Term B Facility, the Tranche 3 Term B Facility, the Tranche 4 Term B Facility, the New Tranche 1 Term B Facility, the New Tranche 2 Term B Facility or the Special Term B Facility, as applicable, and
“Facilities” means, collectively, the Tranche 1 Term B Facility, the Tranche 2 Term B Facility, the Tranche 3 Term B Facility, the Tranche 4 Term B Facility, the New Tranche 1 Term B Facility, the New Tranche 2 Term B
Facility and the Special Term B 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 

  

 16 








 
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 parties to this Agreement. 
  
 “First Amended Second Lien Credit Agreement” has the meaning specified in the
recitals of the parties to this 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 under this Agreement or as a Lender or Administrative Agent and Collateral Agent as provided and defined in the First Amended Second Lien Credit Agreement. 
  

 17 








 “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. 
  
 “Governance Agreement” means the Governance Agreement, dated as of October 6, 2003, as amended, 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, 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. 
  

 18 








 “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. 
  
 “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. 
  

 19 








 “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 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” has the meaning set forth in the preamble to this Agreement and includes 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. 
  

 20 








 “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. 
  
 “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 

  

 21 








 
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. 
  
 “New Tranche 1 Term B Advance” means the Tranche 1 Term B Advance held by a Consenting Lender from and after the
Third Amendment Effective Date. 
  
 “New Tranche 1 Term B Borrowing” means the Tranche 1 Term B Borrowing made by a Consenting Lender as of the Third Amendment Effective Date. 
  
 “New Tranche 1 Term B Commitment” means, with respect to any New Tranche 1 Term B
Lender at any time, the amount set forth for such Lender on the Register maintained by the Administrative Agent pursuant to Section 2.15(b) as such Lender’s “New Tranche 1 Term B Commitment.” 
  
 “New Tranche 1 Term B Facility”
means, at any time, the aggregate amount of New Tranche 1 Term B Advances outstanding at such time. 
  
 “New Tranche 1 Term B Lender” means any Lender that has a New Tranche 1 Term B Commitment. 
  
 “New Tranche 1 Term B Note” means an
amended and restated promissory note of the Borrower payable to the order of any New Tranche 1 Term B Lender, in substantially the form of Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the New Tranche
1 Term B Advance made by such Lender, as amended. 
  
 “New Tranche 2 Term B Advance” means the Tranche 2 Term B Advance held by a Consenting Lender as of the Third Amendment Effective Date. 
  
 “New Tranche 2 Term B Borrowing” means the Tranche 2 Term B Borrowing made by a
Consenting Lender as of the Third Amendment Effective Date. 
  
 “New Tranche 2 Term B Commitment” means, with respect to any New Tranche 2 Term B Lender at any time, the amount set forth for such Lender on the Register maintained by the Administrative Agent
pursuant to Section 2.15(b) as such Lender’s “New Tranche 2 Term B Commitment.” 
  

 22 








 “New Tranche 2 Term B Facility” means, at any time, the aggregate
amount of New Tranche 2 Term B Advances outstanding at such time. 
  
 “New Tranche 2 Term B Lender” means any Lender that has a New Tranche 2 Term B Commitment. 
  
 “New Tranche 2 Term B Note” means an amended and restated promissory note of the Borrower payable to the order of
any New Tranche 2 Term B Lender, in substantially the form of Exhibit A-4 hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the New Tranche 2 Term B Advance made by such Lender, as amended. 
  
 “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 Tranche 1 Term B Note, a Tranche 2 Term B Note, a Tranche 3 Term B
Note, a Tranche 4 Term B Note, a New Tranche 1 Term B Note, a New Tranche 2 Term B Note or a Special Term B Note. 
  
 “Notice of Borrowing” has the meaning specified in Section 2.02(b). 
  
 “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 

  

 23 








 
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 parties to this Agreement.

  
 “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 Agent, 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). 
  

 24 








 “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. 
  
 “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 Third 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. 
  
 “Pro Rata Percentage” has the meaning specified in Section 2.03(g). 
  
 “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. 

 
 “Redeem” means to purchase,
redeem or otherwise retire or acquire for value, provided, however, that, notwithstanding the foregoing, “Redeem” shall not include (a) 

  

 25 








 
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. 
  
 “Register” has the meaning specified in Section 2.15(b). 
  
 “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 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. 
  
 “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 Amendment
Lenders” means the lenders signatory to the Second Amended ITCD Credit Agreement. 
  

 26 








 “Second Lien Agent” 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 Second Lien Agent, the Second Lien Lenders
and the Loan Parties, as amended by that certain Consent and First Amendment to Intercreditor and Subordination Agreement, dated as of the date hereof, and as may be further amended, amended and restated and/or modified from time to time.

  
 “Second Lien Lenders”
has the meaning specified in the recitals of the parties to this Agreement. 
  
 “Second Lien Loan Documents” means the “Loan Documents” as defined in the First Amended Second Lien Credit Agreement. 
  
 “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 this 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 Preferred Stock” 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. 
  

 27 








 “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 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. 
  
 “Special Term B Advance” means any advance made from time to time in accordance with
Section 2.02 by each Special Term B Lender, according to such Lender’s Special Term B Commitment, on or after the date hereof. 
  
 “Special Term B Borrowing” means a borrowing consisting of simultaneous Special Term B Advances of the same Type
made by the Special Term B Lenders. 
  
 “Special Term B Commitment” means, with respect to any Special Term B 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 “Special Term B Commitment”. 
  
 “Special Term B Facility” means, at any time, the aggregate amount of the Special Term B Lenders’ Special Term B Commitment or the Special Term B Advances outstanding at such time;
provided, that the aggregate amount of the Special Term B Facility shall not exceed the amount set forth on Schedule VI. 
  
 “Special Term B Lender” means any Lender that has a Special Term B Commitment. 
  
 “Special Term B Note” means a
promissory note of the Borrower payable to the order of any Special Term B Lender, in substantially the form of Exhibit A-7 hereto, evidencing the indebtedness of the Borrower to such Lender resulting from any Special Term B Advance made by such
Lender, as amended. 
  
 “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 

  

 28 








 
right of payment and priority to the Debt under the Loan Documents and the Debt under the Second 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 parties to this Agreement. 
  
 “Surviving Debt” means Debt of each Loan Party and its Subsidiaries outstanding as of the Third 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). 
  
 “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, 2006. 
  
 “Third Amendment Effective Date” means the first date on which the conditions set forth in Section 3.02 shall have been satisfied. 
  
 “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 

  

 29 








 
the Agents on its behalf and on behalf of the Lenders, the Second Lien Agents, the Second Lien Lenders, the Agents as provided and defined in the Third Lien
Credit Agreement, the Third Lien Lenders, and the Loan Parties, as the same may be amended, amended and restated and/or modified from time to time. 
  
 “Third Lien Lenders” has the meaning specified in the recitals of the parties to this Agreement. 
  
 “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 “Debt” and Contingent Obligations of the Parent and its Subsidiaries in respect of the foregoing. 
  
 “Tranche 1 Term B Advance” means the
single advance that was made by each Tranche 1 Term B Lender, according to such Lender’s Tranche 1 Term B Commitment, upon the closing of the Original ITCD Credit Agreement. 
  
 “Tranche 1 Term B Borrowing” means a borrowing consisting of simultaneous Tranche 1
Term B Advances of the same Type made by the Tranche 1 Term B Lenders. 
  
 “Tranche 1 Term B Commitment” means, with respect to any Tranche 1 Term B 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 “Tranche 1 Term B Commitment.” 
  
 “Tranche 1 Term B Facility” means, at any time, the aggregate amount of the Tranche 1 Term B Lenders’ Tranche
1 Term B Commitments or Tranche 1 Term B Advances outstanding at such time. 
  
 “Tranche 1 Term B Lender” means any Lender that has a Tranche 1 Term B Commitment. 
  
 “Tranche 1 Term B Note” means an amended and restated promissory note of the Borrower payable to the order of any
Tranche 1 Term B Lender, in substantially the form of Exhibit A-1 hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the Tranche 1 Term B Advance made by such Lender, as amended. 
  
 “Tranche 2 Term B Advance” means the
single advance that was made by each Tranche 2 Term B Lender, according to such Lender’s Tranche 2 Term B Commitment, upon the closing of the Original ITCD Credit Agreement. 
  

 30 








 “Tranche 2 Term B Borrowing” means a borrowing consisting of
simultaneous Tranche 2 Term B Advances of the same Type made by the Tranche 2 Term B Lenders. 
  
 “Tranche 2 Term B Commitment” means, with respect to any Tranche 2 Term B 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 “Tranche 2 Term B Commitment.” 
  
 “Tranche 2 Term B Facility” means, at any time, the aggregate amount of the Tranche
2 Term B Lenders’ Tranche 2 Term B Commitments or Tranche 2 Term B Advances outstanding at such time. 
  
 “Tranche 2 Term B Lender” means any Lender that has a Tranche 2 Term B Commitment. 
  
 “Tranche 2 Term B Note” means an
amended and restated promissory note of the Borrower payable to the order of any Tranche 2 Term B Lender, in substantially the form of Exhibit A-3 hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the Tranche 2 Term B
Advance made by such Lender, as amended. 
  
 “Tranche 3 Term B Advance” means the single advance that was made or deemed made by each Tranche 3 Term B Lender, according to such Lender’s Tranche 3 Term B Commitment, upon the closing of the Second Amended
ITCD Credit Agreement. 
  
 “Tranche 3
Term B Borrowing” means a borrowing consisting of simultaneous Tranche 3 Term B Advances of the same Type made by the Tranche 3 Term B Lenders. 
  
 “Tranche 3 Term B Commitment” means, with respect to any Tranche 3 Term B 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 “Tranche 3 Term B Commitment.” 
  
 “Tranche 3 Term B Facility” means, at any time, the aggregate amount of the Tranche
3 Term B Lenders’ Tranche 3 Term B Commitments or the Tranche 3 Term B Borrowings at such time. 
  
 “Tranche 3 Term B Lender” means any Lender that has a Tranche 3 Term B Commitment. 
  
 “Tranche 3 Term B Note” means an
amended and restated promissory note of the Borrower payable to the order of any Tranche 3 Term B Lender, in substantially the form of Exhibit A-5 hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the Tranche 3 Term B
Advance made by such Lender. 
  
 “Tranche 4 Term B Advance” means the single advance that was made or deemed made by each Tranche 4 Term B Lender, upon the consolidation of the obligations under the GECC Capital Lease and the NTFC Capital Lease into
and under 

  

 31 








 
this Agreement, according to such Lender’s Tranche 4 Term B Commitment, upon the closing of Third Amendment Effective Date. 
  
 “Tranche 4 Term B Borrowing” means a
borrowing consisting of simultaneous Tranche 4 Term B Advances of the same Type made by the Tranche 4 Term B Lenders. 
  
 “Tranche 4 Term B Commitment” means, with respect to any Tranche 4 Term B 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 “Tranche 4 Term B Commitment.” 
  
 “Tranche 4 Term B Facility” means, at any time, the aggregate amount of the Tranche
4 Term B Lenders’ Tranche 4 Term B Commitments or the Trance 4 Term B Advances outstanding at such time. 
  
 “Tranche 4 Term B Lender” means any Lender that has a Tranche 4 Term B Commitment. 
  
 “Tranche 4 Term B Note” means a
promissory note of the Borrower payable to the order of any Tranche 4 Term B Lender, in substantially the form of Exhibit A-6 hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the Tranche 4 Term B Advance made by such
Lender, as amended. 
  
 “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. 
  

 32 








 “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 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. 
  
 “Wells Fargo” has the meaning specified in the preamble of this Agreement. 
  
 “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 

  

 33 








 
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 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. (a) Subject to the terms and
conditions hereof, including without limitation, Section 3.01, the parties hereto agree to, and hereby, restructure, continue, and consolidate the loans made pursuant to the Second Amended ITCD Credit Agreement, and the obligations of the Lessees
under the GECC Capital Lease and the NTFC Capital Lease, and assume all of the obligations therein. Notwithstanding anything to the contrary contained in this Agreement, the parties understand and agree that, as a result of the restructuring,
continuation and consolidation contemplated hereby, the Tranche 1 Term B Facility, the New Tranche 1 Term B Facility, the Tranche 2 Term B Facility, the New Tranche 2 Term B Facility, the Tranche 3 Term B Facility and the Tranche 4 Term B Facility
are fully funded and no additional funding of the Tranche 1 Term B Facility, the New Tranche 1 Term B 

  

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Facility, the Tranche 2 Term B Facility, the New Tranche 2 Term B Facility, the Tranche 3 Term B Facility or the Tranche 4 Term B Facility shall be made
hereunder. 
  
 (b) Upon the occurrence of the Third Amendment
Effective Date, the Tranche 1 Term B Advances of the Consenting Lenders and the Tranche 2 Term B Advances of the Consenting Lenders shall, in each case, be converted into, and constitute New Tranche 1 Term B Advances and New Tranche 2 Term B
Advances, respectively, and shall be entitled to all of the applicable rights and benefits to such Facilities hereunder. Upon the occurrence of the Third Amendment Effective Date, the obligations of the Lessees under the NTFC Capital Lease and the
obligations of Communications under the GECC Capital Lease shall be restructured, continued and consolidated as the Tranche 4 Term B Facility, and all of the rights, duties and obligations of each party thereto under each of the NTFC Capital Lease
and the GECC Capital Lease shall henceforth be governed solely by the terms of this Agreement and the other Loan Documents. As of the Third Amendment Effective Date, the principal amount outstanding of the Tranche 1 Term B Facility, the New Tranche
1 Term B Facility, the Tranche 2 Term B Facility, the New Tranche 2 Term B Facility, the Tranche 3 Term B Facility, and the Tranche 4 Term B Facility are as set forth on Schedule VI hereto, in each case excluding accrued and unpaid interest. These
amounts represent valid and binding claims enforceable against the Loan Parties in accordance with the terms of the Loan Documents. 
  
 SECTION 2.02. Special Term B Advances. 
  
 (a) Each Special Term B Lender severally agrees, on the terms and conditions hereinafter set forth, to make advances (each a “Special Term B
Advance”) to the Borrower from time to time as the Borrower may request in accordance with Section 2.02(b), in an aggregate amount not to exceed such Special Term B Lender’s Special Term B Commitment at such time. Amounts borrowed
under this Section 2.02(a) and repaid or prepaid may not be reborrowed. 
  
 (b) Each Special Term B Borrowing shall be made on notice, given not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Special Term B Borrowing in the case of a Special Term B Borrowing
consisting of Eurodollar Rate Advances, or the first Business Day prior to the date of the proposed Special Term B Borrowing in the case of a Special Term B Borrowing consisting of Base Rate Advances, by the Borrower to the Administrative Agent,
which shall give to each Appropriate Lender prompt notice thereof by telex or telecopier. Each such notice of a Special Term B Borrowing (a “Notice of Borrowing”) shall (i) be delivered no earlier than five (5) Business Days
prior to the next immediate due date of a scheduled amortization payment as set forth in Sections 2.03(a) and (b) and (ii) request an amount not greater than the aggregate amounts immediately due and payable on the such scheduled payment date. Each
such notice shall be by telephone, confirmed promptly in writing, or telex or telecopier, in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Special Term B Borrowing, (ii) aggregate amount of such
Special Term B Borrowing and (iii) in the case of a Special Term B Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for each such Advance. Each Special Term B Lender shall, before 11:00 A.M. (New York City time) on the date
of such Special Term B Borrowing, make available for the account of its Applicable 

  

 35 








 
Lending Office to the Administrative Agent at the Administrative Agent’s Account, in same day funds, such Special Term B Lender’s ratable portion
of such Special Term B Borrowing in accordance with the respective Special Term B Commitments of such Special Term B Lender and the other Special Term B Lenders. After the Administrative Agent’s receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower by crediting the Borrower’s Account. 
  
 (c) Anything in subsection (b) above to the contrary notwithstanding, (i) the Borrower may not select Eurodollar Rate
Advances for any Special Term B Borrowing if the aggregate amount of such Special Term B Borrowing is less than $1,000,000 or if the obligation of the Special Term B Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.08 or 2.09 and (ii) the Advances may not be outstanding as part of more than 5 separate Special Term B Borrowings. 
  
 (d) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of any Special Term B Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Special Term B Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Special Term B Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of any interest that, but for such failure, such Special Term B
Lender would have earned with respect to such principal amount, reduced, if such Special Term B Lender is able to redeposit or reinvest such principal amount, by interest earned by such Special Term B 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 such Special Term B Lender to fund the Special Term B Advance to be made by such Special Term B Lender as part of such
Special Term B Borrowing when such Special Term B Advance, as a result of such failure, is not made on such date. 
  
 (e) Unless the Administrative Agent shall have received notice from a Special Term B Lender prior to the date of any Special Term B Borrowing that such
Special Term B Lender will not make available to the Administrative Agent such Special Term B Lender’s ratable portion of such Special Term B Borrowing, the Administrative Agent may assume that such Special Term B Lender has made such portion
available to the Administrative Agent on the date of such Special Term B Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date
a corresponding amount. If and to the extent that such Special Term B Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount and to pay interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid or paid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at such time under Section 2.07 to Advances comprising such Special Term B Borrowing and (ii) in the case of such Special Term B Lender, the Federal Funds Rate. If such Special Term B Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall 

  

 36 








 
constitute such Special Term B Lender’s Special Term B Advance as part of such Special Term B Borrowing for all purposes. 
  
 (f) The failure of any Special Term B Lender to make the Special Term B
Advance to be made by it as part of any Special Term B Borrowing shall not relieve any other Special Term B Lender of its obligation, if any, hereunder to make its Special Term B Advance on the date of such Special Term B Borrowing, but no Special
Term B Lender shall be responsible for the failure of any other Special Term B Lender to make the Special Term B Advance to be made by such other Special Term B Lender on the date of any Special Term B Borrowing. 
  
 SECTION 2.03. Repayment of Advances. 
  
 (a) Tranche 1 Term B Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Tranche 1 Term B Lenders the aggregate outstanding principal amount of the Tranche 1 Term B Advances on the dates and in the amounts indicated on Schedule 2.03(a) (which amounts shall be reduced as
a result of the application of prepayments in accordance with Section 2.05); 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 Tranche 1 Term B Advances outstanding on such date. 
  
 (b) Tranche 2 Term B Advances. The Borrower shall repay to the Administrative Agent for the ratable account of the Tranche 2 Term B Lenders the aggregate outstanding principal amount of the Tranche 2 Term B
Advances on the dates and in the amounts indicated on Schedule 2.03(b) (which amounts shall be reduced as a result of the application of prepayments in accordance with Section 2.05); 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 Tranche 2 Term B Advances outstanding on such date. 
  
 (c) Tranche 3 Term B Advances. The Borrower shall repay to the Administrative Agent for the ratable account of the
Tranche 3 Term B Lenders the aggregate outstanding principal amount of the Tranche 3 Term B Advances on the Termination Date. 
  
 (d) Tranche 4 Term B Advances. The Borrower shall repay to the Administrative Agent for the ratable account of the Tranche 4 Term B Lenders the
aggregate outstanding principal amount of the Tranche 4 Term B Advances on the Termination Date. 
  
 (e) Special Term B Advances. The Borrower shall repay to the Administrative Agent for the ratable account of the Special Term B Lenders the
aggregate outstanding principal amount of the Special Term B Advances on the Termination Date. 
  
 (f) Additional Provisions. Without limitation of any remedies set forth in this Agreement, in the event that the Borrower shall fail to repay, in full, all scheduled principal amounts for each of the Tranche 1
Term B Facility or the Tranche 2 Term B Facility on any scheduled payment date pursuant to Section 2.03(a) or (b), the total amount of any principal payments made by the Borrower on or after such date and prior to the Termination Date shall be


  

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applied ratably (i) to each of the Tranche 1 Term B Facility or the Tranche 2 Term B Facility, and (ii) to each Lender under each such Facility based upon
the outstanding principal amount of Advances payable to such Lenders thereunder and to the installments thereof on a pro rata basis. 
  
 (g) Application of Payments. All payments (or proceeds) received by the Administrative Agent under the Loan Documents shall, promptly upon receipt,
be applied as follows: 
  
 (i) First: to
the fees, costs and expenses payable to the Agents under the Loan Documents (including, without limitation, reasonable and documented attorneys’ fees and expenses); 
  
 (ii) Second: to any fees and expenses incurred by the Lenders and reimbursable under the Loan
Documents; 
  
 (iii) Third: to all amounts
of interest then due and owing on the Advances, until the same shall be paid in full; 
  
 (iv) Fourth: ratably to all amounts of principal then due and owing on the Obligations constituting Tranche 1 Term B Advances, New
Tranche 1 Term B Advances, Tranche 2 Term B Advances, New Tranche 2 Term B Advances, Tranche 3 Term B Advances and Special Term B Advances, until the same shall be paid in full; 
  
 (v) Fifth: to all amounts of principal then due and owing in respect of the Tranche 4 Term B
Advances, until the same shall be paid in full. Notwithstanding the foregoing, it is understood and agreed that all such payments of interest on and principal of Advances shall, in the event that any such payment in respect of such interest on or
principal of the Advances of any Facility shall be insufficient to pay in full the amounts of such interest or principal, as the case may be, so due and unpaid, be made pro rata to the Lenders holding Obligations of the applicable Facility, with
each such Lender receiving an amount equal to the product of the amount of such payment of interest or principal multiplied by a fraction, the numerator of which equals the portion of the Secured Debt of such Facility held by such Lender, and the
denominator of which equals the total outstanding amount of the Secured Debt of such Facility (such Lender’s “Pro Rata Percentage”) with respect to such Facility. 
  
 SECTION 2.04. Intentionally omitted. 
  
 SECTION 2.05. Prepayments. (a) Optional. 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 

  

 38 








 
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 (i) to each Facility and (ii) to each Lender thereunder and to the installments of the Tranche 1 Term B Facility and the Tranche 2 Term B Facility. 
  
 (b) Mandatory. (i) Intentionally omitted. 
  
 (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. 
  
 (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 Debt incurred by any Loan Party other than Debt incurred pursuant to the Loan Documents or the Third Lien Loan Documents or any offering of any Equity Interests
of the Parent or any other Loan Party except for Equity Interests consisting of any (A) 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, (B) Equity Plan Securities, (C) New Warrants or (D) 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 (A)(x) in the case of prepayments under clauses (i), (ii)(B), (iii) or (iv), each Facility and (y) in the case of prepayments under clause (ii)(A) to each Facility (other than the Tranche 4 Term B
Facility) until such Facilities are paid in full and upon payment in full of the Facilities other than the Tranche 4 Term B Facility, to the Tranche 4 Term B Facility and (B) to each Lender under each such relevant Facility based upon the
outstanding principal 

  

 39 








 
amount of Advances payable to such Lenders thereunder and to the installments of the Tranche 1 Term B Facility and the Tranche 2 Term B Facility 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) 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. 
  

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 SECTION 2.07. Fees. (a) Commencing on the Third Amendment Effective Date and until the Termination
Date, the Borrower shall pay to the Administrative Agent all fees, including, without limitation, administration and transition fees, in the amounts set forth in Schedule VI to the Successor Agent Agreement, plus a fee in the amount of $50,000.

  
 (b) Upon the occurrence of the Third Amendment Effective Date,
the Borrower shall pay to the Administrative Agent for the account of the Consenting Lenders a fee in the amount equal to 0.25% of each of the New Tranche 1 Term B Advances, the New Tranche 2 Term B Advances, the Tranche 3 Term B Advances and the
Tranche 4 Term B Advances. 
  
 (c) Upon the occurrence of the
Third Amendment Effective Date, the Borrower agrees to pay the Special Term B Lenders a fee in the amount of $150,000. 
  
 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 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 (i) to each Facility and (ii) to each Lender under each such Facility based upon the respective Commitments of the Lenders thereunder 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. 
  
 (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 

  

 41 








 
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 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, 

  

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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 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 

  

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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 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 

  

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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. 
  
 (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 

  

 45 








 
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 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 

  

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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 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 

  

 47 








 
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: 
  
 (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 

  

 48 








 
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 the Administrative Agent, 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 the Administrative Agent’s 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 
  
 (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 

  

 49 








 
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 Tranche 1 Term B Note, a New Tranche 1 Term B Note, a Tranche 2 Term B Note, a New Tranche 2
Term B Note, a Tranche 3 Term B Note, a Tranche 4 Term B Note and a Special Term B Note, as applicable, in substantially the form of Exhibits A-1, A-2, A-3, A-4, A-5, A-6 and A-7 hereto, respectively, payable to the order of such Lender in a
principal amount equal to the Tranche 1 Term B Advances, the New Tranche 1 Term B Advances, the Tranche 2 Term B Advances, the New Tranche 2 Term B Advances, the Tranche 3 Term B Advances, the Tranche 4 Term B Advances and the Special Term B
Advances, respectively, payable to 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. 
  
 (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. 
  

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 ARTICLE III

  
 CONDITIONS OF LENDING 
  
 SECTION 3.01. Intentionally Omitted. 
  
 SECTION 3.02. Conditions Precedent to the Third Amendment Effective
Date. The occurrence of the Third Amendment Effective Date is subject to the satisfaction of the following conditions precedent: 
  
 (a) The Third Amendment Effective Date shall occur on or before March 29, 2005. 
  
 (b) The Administrative Agent shall have received the
following, each dated the Third 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) A third 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) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and
instruments evidencing the Pledged Debt indorsed in blank, 
  
 (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 or Second Amended ITCD
Credit Agreement), duly filed on or before the Third 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, 
  
 (C) completed requests for information, dated on or before the Third 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, 
  

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 (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) copies of the Assigned Agreements referred to in the Security Agreement, and 
  
 (F) evidence that all other action that the Administrative
Agent may deem reasonably necessary or desirable in order to perfect and protect the first priority 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). 
  
 (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 Third 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 Third 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. 
  

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 (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 Third Amendment Effective Date (the statements made in which certificate shall be true on and as of the Third 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 3.02(b)(v) were adopted and on the Third 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 truth of the representations and warranties contained in the Loan Documents as though made on and as of the Third
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 Second Amended ITCD Credit Agreement) under the Second Amended ITCD 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 

  

 53 








 
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 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 Administrative Agent) (i) all accrued fees and out-of-pocket expenses of the Consenting Lenders and the Agents and (ii) the fees set forth in Section 2.07 (including the accrued
reasonable and documented fees and expenses of legal counsel and financial advisors, including FTI Consulting, Inc., Goodwin Procter LLP and Weil, Gotshal & Manges LLP). 
  
 (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 Second Lien Lenders shall have approved the First Amended Second Lien Credit Agreement which shall be in form and substance
reasonably acceptable to the Consenting Lenders. 
  
 (i) The parties shall have executed and delivered the Third Lien Loan Documents, in form and substance reasonably acceptable to the Consenting Lenders, and the Third Lien Lenders shall have advanced to the Loan Parties an aggregate
principal amount of not less than $20,000,000 pursuant to the Third Lien Loan Documents. 
  
 (j) Intentionally omitted. 
  
 (k) The Lessees shall have paid all accrued and outstanding interest under the NTFC Capital Lease and GECC Capital Lease on or before the
Third Amendment Effective Date. 
  
 (l) The
parties shall have executed and delivered the New Warrant Documents, in form and substance reasonably acceptable to the Consenting Lenders, and 

  

 54 








 
duly executed warrants in definitive form and registered in such names as shall be satisfactory to the Third Lien Lenders. 
  
 (m) 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.

  
 SECTION 3.03. Conditions Precedent to Special Term B
Borrowings. 
  
 The obligation of each Special Term B Lender
to make a Special Term B Advance on the occasion of each Special Term B Borrowing shall be subject to the further conditions precedent that on the date of such Special Term B Borrowing (a) the following statements shall be true (and the giving of
the Notice of Borrowing and acceptance by the Borrower of the proceeds of such Special Term B Borrowing shall constitute a representation and warranty by the Borrower that both on the date of such notice and on the date of such Borrowing such
statements are true) unless waived by the Special Term B Lenders: 
  
 (i) the representations and warranties contained in each Loan Document are true and correct in all material respects on and as of such date, before and after giving effect to such Special Term B Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date, other than any such representations or warranties that, by their terms, refer to a specific date other than the date of such Special Term B Borrowing or issuance, in which
case as of such specific date; 
  
 (ii) no
Default has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom; and 
  
 (iii) there shall have been no Material Adverse Change since December 31, 2004, it being understood that the Defaults or Events of Default
set forth on Schedule 9.14 shall not be deemed to have been a Material Adverse Change. 
  
 and (b) the Special Term B Lenders and the Administrative Agent shall have received such other approvals, opinions or documents as any of them may reasonably request. 
  
 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 Third 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 

  

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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 Third 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 Second Lien Loan Documents and the Third Lien Loan Documents,
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. 
  

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 (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), 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 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 Consenting 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. 
  

 57 








 (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 or shall be 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 first priority 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 Third Amendment Effective Date have been
duly filed in accordance with the provisions of the Security Agreement, such first priority 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. 
  
 (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. 
  

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 (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 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. 
  

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 (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 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 

  

 60 








 
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. 
  
 (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. 
  

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 (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 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 

  

 62 








 
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 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 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 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 

  

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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 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 

  

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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, 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, 
  
 (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, 
  

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 (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 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 

  

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payable a perfected, first priority lien on and security interest in such dividends, 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 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 Third 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. 
  

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 (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 Third 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 30 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 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 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 providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such 

  

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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 
  
 (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 has been taken. 
  
 (ii) Within thirty (30) days of the Third Amendment
Effective Date, the Borrower shall pay, or cause to be paid, the Permitted Deferred Taxes in full. 
  
 (iii) BTI and Business Telecom, 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 Third 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 Third 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). 
  

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 (v) Within thirty (30) days of the Third 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 Third 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 Third 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 Third Amendment Effective Date, the Loan Parties shall deliver to the Administrative Agent favorable opinions, 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 Third 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. 
  
 (o) Use of Proceeds of Special Term B Loans. The Borrower may use the proceeds of the Special Term B Loans solely to make the
payments set forth in Sections 2.03(a) and (b) hereunder and for no other purpose. 
  
 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 Second Lien Loan Documents and the Third Lien Loan Documents; 
  

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 (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 and the Second Lien 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; and 
  
 (vi) (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)(viii). 
  
 (b) Debt. Incur or permit any of its Subsidiaries to Incur any Debt other than 
  
 (i) Debt under the Loan Documents and the Second 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 Second Lien Lenders than under the Third Lien Loan Documents;
provided, that (A) the maturity of such Subordinated Debt is at least twelve months following the final maturity date of the Facilities and 91 days following the final maturity date under the First Amended Second Lien Credit Agreement, (B)
the Administrative Agent and the Required Lenders, and the Second Lien Agent and the Required Lenders under the Second Lien Loan Documents, are reasonably satisfied that the Parent and its Subsidiaries shall be in compliance with the provisions of
the Loan Documents and the Second Lien Loan Documents, respectively, for the period from the Incurrence of such Subordinated Debt through the final maturity date of the Facilities and the final maturity date under the First Amended Second Lien
Credit Agreement, and (C) the Required 

  

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Lenders, and the Required Lenders under the Second Lien Loan Documents, have approved the terms of the subordination relating to such Subordinated Debt, and
provided, further, that, for purposes of this clause (ii), Subordinated Debt shall not include Debt under the Second Lien Loan Documents; 
  
 (iii) 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 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 repayment or refinancing of the Debt under the Loan Documents in full or, if the Debt under the
Loan Documents is not repaid or refinanced in full, in such other amount and on such terms and conditions as is approved by the Required Lenders; 
  
 (viii) Debt in respect of Ordinary Course Obligations in an aggregate amount not to exceed $8,000,000 at any time outstanding; and

  
 (ix) 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, 

  

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collection, execution, levy or foreclosure proceeding and is not duplicative of Debt Incurred pursuant to Section 5.02(b)(viii). 
  
 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 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); 
  

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 (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; 
  
 provided, that in the case of sales of assets pursuant to clauses
(iii), (iv) and (v)(A) above, 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 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(g). 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 
  

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 (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 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 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 (x) the payment or prepayment of any or all of the Obligations under the Loan Documents, (y)
regularly scheduled or required repayments or redemptions of Surviving Debt, and (z) 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 

  

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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. 
  
 (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 Second Lien Agent and the Second Lien Lenders under the Second 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 Collateral Agent, subject to the provisions of the Intercreditor and Subordination Agreements, for the benefit of the Lenders, the Second Lien Lenders and the Third Lien Lenders, together with stock powers
executed in blank, and executes and immediately delivers to the Collateral Agent pledge agreements pledging all such stock to secure the Obligations and the Obligations under the Second 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 a Subsidiary of a
Loan Party (whether through a covenant restricting 

  

 76 








 
dividends, loans, asset transfers or investments, a financial covenant or otherwise), except (i) the Loan Documents, (ii) the Second Lien Loan Documents,
(iii) the Third Lien Loan 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

	  	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
	 12 months ended March 31, 2006
	  	$	40,500,000
	 12 months ended June 30, 2006
	  	$	41,200,000

  
 (ii)
Senior Debt 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 Senior Debt Ratio shall not exceed the following:

  

			
	 Period

	  	Ratio


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

  

 77 








 (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
	  	5.0x
	 September 30, 2005
	  	5.3x
	 December 31, 2005
	  	5.5x
	 March 31, 2006 and thereafter
	  	5.5x

  
 (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

	  	Amount


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

  
 (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 Collateral Agent pursuant to the Loan
Documents and Liens in favor of the Collateral Agent pursuant to the Second Lien Loan Documents) or the use of which is otherwise restricted, to be less than $10,000,000 from the Third Amendment Effective Date through the Termination Date.

  
 (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

	  	Amount


	 June 30, 2005 (four months ended)
	  	$	20,700,000
	 September 30, 2005 (seven months ended)
	  	$	33,700,000
	 December 31, 2005 (ten months ended)
	  	$	46,800,000
	 March 31, 2006 (twelve months ended)
	  	$	56,100,000

  

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 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 under 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 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 

  

 79 








 
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 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 such 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 

  

 80 








 
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 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. 
  

 81 








 (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 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) 

  

 82 








 
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 
  
 (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 

  

 83 








 
(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 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 

  

 84 








 
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; 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 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 Amended Second 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 

  

 85 








 
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 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. 
  

 86 








 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; 

 
 (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 
  

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 (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. 
  
 (b) 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. 
  
 (c) 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. 
  
 (d) 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 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.

  
 (e) 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, 

  

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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,” “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. 
  

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 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). 
  
 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 

  

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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 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 

  

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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. Wells Fargo and Affiliates. With respect to any Commitments, any Advances made by it and any Notes issued to it, Wells Fargo 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 Wells Fargo in its individual capacity. Wells Fargo 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 Wells Fargo 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 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 

  

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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. 
  
 (b) 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 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 

  

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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 8 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, unless in writing and signed by the Required Lenders and each Lender (other than any Lender 

  

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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 Wells Fargo Bank, N.A., Corporate Trust Services, N9303-120, Sixth Street & Marquette Avenue, Minneapolis, MN 55479, T: (612) 667-0337, F: (612) 667-9825, Attention:
Jeffery T. Rose; 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 (including FTI
Consulting, Inc.) 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 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 

  

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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). 
  
 (b) 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 Facilities, 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 Facilities, the actual or proposed use of the proceeds of the Advances, the Loan Documents or any of the transactions contemplated by the Loan Documents. 
  
 (c) 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 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


  

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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). 
  
 (d) 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. 
  
 (e) 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 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. 
  

 97 








 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 (A) any Lender that is not a Consenting Lender (or a successor or assignee thereof) or (B) 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 (1) neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a Replacement Lender and (2) 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 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 

  

 98 








 
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. 
  
 (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 and the fee payable in connection with such assignment and acceptance pursuant to the Successor Agent Agreement, 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 

  

 99 








 
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-1, A-2, A-3, A-4, A-5, A-6 or A-7 hereto, as the case may be. 
  
 (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. 
  
 (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, 

  

 100 








 
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 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. 
  

 101 








 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 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 Third Amendment Effective Date under and as defined in the Second Amended ITCD Credit Agreement and any other Loan Document as provided and defined in the Second Amended ITCD Credit
Agreement and irrevocably waive any and all remedies and other rights they may have under the Second Amended ITCD Credit Agreement, any other Loan Document as provided and defined in the Second Amended ITCD 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 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. 
  
 SECTION 9.16. Authorization for Intercreditor and Subordination Agreements. Each of the Lenders party hereto authorizes and directs the Agents to
execute on their behalf the Intercreditor and Subordination Agreements. 
  

 102 








 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. 
  
 [signature pages follow] 
  









 ADMINISTRATIVE AGENT 
 AND COLLATERAL AGENT: 
  

			
	WELLS FARGO BANK, N.A., (as successor by consolidation to Wells Fargo Bank Minnesota, National Association)
		
	By:	 	/s/    JEFFERY T. ROSE        
	 	 	Duly Authorized Signatory
	 Name:
	 	Jeffery T. Rose
	 Title:
	 	Corporate Trust Officer


  










					
	MUZINICH CASHFLOW CBO II LTD.
		
	By:	 	/s/    MICHAEL
LUDWIG        
	 	 	 Name:
	 	Michael Ludwig
	 	 	 Title:
	 	 Chief Financial Officer,
 Muzinich & Co., Inc. as Investment Manager

	
	MUZINICH CASHFLOW CBO LTD.
		
	By:	 	/s/    MICHAEL
LUDWIG        
	 	 	 Name:
	 	Michael Ludwig
	 	 	 Title:
	 	Chief Financial Officer, as Investment Manager


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	SANKATY ADVISORS, LLC, as Collateral Manager for Brant Point II CBO 2000-1 LTD., as Term Lender
			
	 By:
	 	 	 	/s/    DIANE J. EXTER        
	 	 	 Name:
	 	Diane J. Exter
	 	 	 Title:
	 	Managing Director
	 	 	 	 	Portfolio Manager
	
	SANKATY ADVISORS, LLC, as Collateral Manager for Avery Point CLO Limited, as Term Lender
			
	 By:
	 	 	 	/s/    DIANE J. EXTER        
	 	 	 Name:
	 	Diane J. Exter
	 	 	 Title:
	 	Managing Director
	 	 	 	 	Portfolio Manager
	
	SANKATY HIGH YIELD PARTNERS III, L.P.,
			
	 By:
	 	 	 	/s/    DIANE J. EXTER        
	 	 	 Name:
	 	Diane J. Exter
	 	 	 Title:
	 	Managing Director
	 	 	 	 	Portfolio Manager
	
	SANKATY HIGH YIELD PARTNERS II, L.P.
			
	 By:
	 	 	 	/s/    DIANE J. EXTER        
	 	 	 Name:
	 	Diane J. Exter
	 	 	 Title:
	 	Managing Director
	 	 	 	 	Portfolio Manager
	
	SANKATY HIGH ASSET PARTNERS, L.P.
			
	 By:
	 	 	 	/s/    DIANE J. EXTER        
	 	 	 Name:
	 	Diane J. Exter
	 	 	 Title:
	 	Managing Director
	 	 	 	 	Portfolio Manager


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	SANKATY CREDIT OPPORTUNITIES, L.P.
			
	 By:
	 	 	 	/s/    DIANE J. EXTER        
	 	 	 Name:
	 	Diane J. Exter
	 	 	 Title:
	 	Managing Director
	 	 	 	 	Portfolio Manager
	
	SANKATY ADVISORS, LLC, as Collateral Manager RACE POINT II CLO, LTD., as Term Lender
			
	 By:
	 	 	 	/s/    DIANE J. EXTER        
	 	 	 Name:
	 	Diane J. Exter
	 	 	 Title:
	 	Managing Director
	 	 	 	 	Portfolio Manager
	
	SANKATY ADVISORS, LLC, as Collateral Manager for PROSPECT FUNDING I, LLC, as Term Lender
			
	 By:
	 	 	 	/s/    DIANE J. EXTER        
	 	 	 Name:
	 	Diane J. Exter
	 	 	 Title:
	 	Managing Director
	 	 	 	 	Portfolio Manager


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	Alliance Capital Management L.P., as Manager on behalf of ALLIANCE CAPITAL FUNDING LLC.
	By: Alliance Capital Management Corporation, General Partner of Alliance Capital Management L.P.
			
	 By:
	 	 	 	/s/    SCOTT VAN DER
BOSEL        
	 	 	 Name:
	 	Scott Van der Bosel
	 	 	 Title:
	 	Vice President


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









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


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	BANK OF AMERICA, N.A.
			
	 By:
	 	 	 	/s/    (illegible)        
	 	 	 Name:
	 	(illegible)
	 	 	 Title:
	 	Associate


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









							
	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


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	GAIA OFFSHORE MASTER FUND
	By Promethean Asset Management LLC, its Investment Manager
			
	By:	 	 	 	/s/    GREGORY MOLLER        
	 	 	 Name:
	 	Gregory Moller
	 	 	 Title:
	 	Trader


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	SUFFIELD CLO, LIMITED
	By: Babson Capital Management LLC as Collateral Manager
			
	By:	 	 	 	/s/    MARY ANN
SPENCER        
	 	 	 Name:
	 	Mary Ann Spencer
	 	 	 Title:
	 	Managing Director
	
	TRYON CLO, LTD. 2000-I
	By: Babson Capital Management LLC as Collateral Manager
			
	By:	 	 	 	/s/    MARY ANN
SPENCER        
	 	 	 Name:
	 	Mary Ann Spencer
	 	 	 Title:
	 	Managing Director
	
	MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
	By: Babson Capital Management LLC as Investment Adviser
			
	By:	 	 	 	/s/    MARY ANN
SPENCER        
	 	 	 Name:
	 	Mary Ann Spencer
	 	 	 Title:
	 	Managing Director


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	PACIFICA CDO III, LTD.
			
	By:	 	 	 	/s/    AN PHAM,
JR.        
	 	 	 Name:
	 	An Pham, Jr.
	 	 	 Title:
	 	Authorized Signatory
	
	 PACIFICA CDO IV, LTD.

			
	By:	 	 	 	/s/    AN PHAM,
JR.        
	 	 	 Name:
	 	An Pham, Jr.
	 	 	 Title:
	 	Authorized Signatory
	
	AVL LOAN FUNDING LLC
			
	By:	 	 	 	/s/    DOMINIC BLEA        
	 	 	 Name:
	 	Dominic Blea
	 	 	 Title:
	 	As Attorney-in-Fact


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	AVENUE SPECIAL SITUATIONS FUND III, L.P.
		
	By:	 	Avenue Capital Partners III, LLC, its General Partner
		
	By:	 	GL Partners III, LLC, its Managing Member
			
	By:	 	 	 	/s/    SONIA GARDNER        
	 	 	 Name:
	 	Sonia Gardner
	 	 	 Title:
	 	Member


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	SUNRISE PARTNERS LIMITED PARTNERSHIP
			
	By:	 	 	 	/s/    MICHAEL J. BEMER        
	 	 	 Name:
	 	Michael J. Bemer
	 	 	 Title:
	 	Vice President
	 	 	 	 	 Dawn General Partner Corp.
 General Partner



  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	UBS AG STAMFORD BRANCH
			
	By:	 	 	 	/s/    WILFRED V. SAINT        
	 	 	 Name:
	 	Wilfred V. Saint
	 	 	 Title:
	 	Director
	 	 	 	 	 Banking Products
 Services, US

			
	By:	 	 	 	/s/    TOBA LUMBANTOBING        
	 	 	 Name:
	 	Toba Lumbantobing
	 	 	 Title:
	 	Associate Director
	 	 	 	 	 Banking Products
 Services, US



  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	BEAR STEARNS INVESTMENT PRODUCTS INC.
			
	By:	 	 	 	/s/    RICHARD BRAM
SMITH        
	 	 	 Name:
	 	Richard Bram Smith,
	 	 	 Title:
	 	Vice President


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	LONG LANE MASTER TRUST IV
			
	By:	 	 	 	/s/    ANN E. MORRIS        
	 	 	 Name:
	 	Ann E. Morris
	 	 	 Title:
	 	Authorized Agent


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	MORGAN STANLEY SENIOR FUNDING INC.
			
	By:	 	 	 	/s/    EUGENE F. MARTIN        
	 	 	 Name:
	 	Eugene F. Martin
	 	 	 Title:
	 	Vice President
	 	 	 	 	Morgan Stanley Senior Funding, Inc.


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	FIELD POINT I LTD.
		
	By:	 	/s/    JEFFREY A.
GELFAND        
	 	 	 Name:
	 	Jeffrey A. Gelfand
	 	 	 Title:
	 	Authorized Signatory
	
	FIELD POINT II LTD.
		
	By:	 	/s/    JEFFREY A.
GELFAND        
	 	 	 Name:
	 	Jeffrey A. Gelfand
	 	 	 Title:
	 	Authorized Signatory


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	GENERAL ELECTRIC CAPITAL CORPORATION
		
	By:	 	/s/    KARL
KIEFFER        
	 	 	 Name:
	 	Karl Kieffer        
	 	 	 Title:
	 	Duly Authorized Signatory        


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	NTFC CAPITAL CORPORATION
		
	By:	 	/s/    MARK R.
O’LEARY        
	 	 	 Name:
	 	Mark R. O’Leary            
	 	 	 Title:
	 	Vice President            


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









					
	INTERSTATE FIBERNET INC., as Borrower
		
	By:	 	/s/    RICHARD E.
FISH        
	 	 	 Name:
	 	Richard E. Fish            
	 	 	 Title:
	 	Chief Administrative Officer            
	
	ITC^DELTACOM, INC., as Guarantor
		
	By:	 	/s/    RICHARD E.
FISH        
	 	 	 Name:
	 	Richard E. Fish            
	 	 	 Title:
	 	Chief Administrative Officer            
	
	ITC^DELTACOM COMMUNICATIONS, INC., as Guarantor
		
	By:	 	/s/    RICHARD E.
FISH        
	 	 	 Name:
	 	Richard E. Fish            
	 	 	 Title:
	 	Chief Administrative Officer            
	
	DELTACOM INFORMATION SYSTEMS, INC., as Guarantor
		
	By:	 	/s/    RICHARD E.
FISH        
	 	 	 Name:
	 	Richard E. Fish            
	 	 	 Title:
	 	Chief Administrative Officer            


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 









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


  

 Signature Pages to Third 
 Amended and Restated Credit Agreement 








 SCHEDULE III 
  
 CONSENTING LENDERS 
  
 AVL LOAN FUNDING LLC 
 PACIFICA CDO III LTD 
 PACIFICA CDO IV LTD 
 ALLIANCE CAPITAL FUNDING LLC 
 AVENUE SPECIAL SITUATION FUND III LP 
 BANC OF AMERICA STRATEGIC SOLUTIONS INC

 BANK OF AMERICA, NA 
 BEAR STEARNS & CO INC. 
 MASSACHUSETTS MUTUAL LIFE INS CO 
 SUFFIELD CLO LTD 
 TRYON CLO LTD 
 EXPORT DEVELOPMENT CANADA 
 GAIA OFFSHORE MASTER FUND 
 GENERAL ELECTRIC CAPITAL CORPORATION 

LONG LANE MASTER TRUST IV 
 MERRILL LYNCH CREDIT PRODUCTS LLC 

MORGAN STANLEY SENIOR FUNDING INC 
 MUZINICH CASHFLOW CBO II LTD

 MUZINICH CASHFLOW CBO LTD 
 AVERY POINT CLO LIMITED 

BRANDT POINT II CBO 2000-1 LTD 
 PROSPECT FUNDING LLC 
 RACE POINT II CLO LTD 
 SANKATY CREDIT OPPORTUNITIES LP 
 SANKATY HIGH YIELD PARTNERS II LP 
 SANKATY HIGH YIELD PARTNERS III LP

 SANKATY HIGH YIELD ASSET PARTNERS LP 
 FIELD POINT I LTD

 FIELD POINT II LTD 
 SUNRISE PARTNERS LTD PARTNERSHIP

 UBS AG STAMFORD BRANCH 
  









 SCHEDULE VI 
  
 FACILITIES 
  

				
	 Facility

	  	Amount


	 Tranche 1 Term B Facility
	  	$	22,131,621.78
	 New Tranche 1 Term B Facility
	  	$	73,118,378.27
	 Tranche 2 Term B Facility
	  	$	14,451,280.66
	 New Tranche 2 Term B Facility
	  	$	42,698,719.42
	 Tranche 3 Term B Facility
	  	$	29,610,390.00
	 Tranche 4 Term B Facility
	  	$	22,015,947.45
	 Special Term B Facility
	  	$	3,792,715.61
	 	  	
	

	 Total
	  	$	207,819,053.19
	 	  	
	


  









 SCHEDULE 2.03(a) 
  
 TRANCHE 1 TERM B SCHEDULED PAYMENTS 
  

				
	 Date

	  	Amount


	 March 31, 2005
	  	$	58,088.25
	 June 30, 2005
	  	$	58,088.25
	 September 30, 2005
	  	$	726,103.08
	 December 31, 2005
	  	$	726,103.08
	 March 31, 2006
	  	$	726,103.08
	 Termination Date
	  	$	19,837,136.05

  









 SCHEDULE 2.03(b) 
  
 TRANCHE 2 TERM B SCHEDULED PAYMENTS 
  

				
	 Date

	  	Amount


	 March 31, 2005
	  	$	37,929.87
	 June 30, 2005
	  	$	37,929.87
	 September 30, 2005
	  	$	474,123.38
	 December 31, 2005
	  	$	474,123.38
	 March 31, 2006
	  	$	474,123.38
	 Termination Date
	  	$	12,953,050.78