EXHIBIT 10.95
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of October 30, 2001 (the "Amendment")
to the Amended and Restated Credit Agreement dated as of September 8, 1999 (as
amended, the "Credit Agreement"), among Xxxxxxxx Communications, LLC, as
Borrower (the "Borrower"), Xxxxxxxx Communications Group, Inc., as Guarantor
("Holdings"), the lenders party thereto (the "Lenders"), Bank of America, N.A.,
as Administrative Agent for the Lenders (in such capacity, the "Administrative
Agent"), The Chase Manhattan Bank, as Syndication Agent, Xxxxxxx Xxxxx Xxxxxx
Inc. and Xxxxxx Brothers, Inc., as Joint Lead Arrangers and Joint Bookrunners
with respect to the Incremental Facility referred to therein, and Xxxxxxx Xxxxx
Xxxxxx Inc., Xxxxxx Brothers, Inc. and Xxxxxxx Xxxxx & Co., Inc., as
Co-Documentation Agents.
INTRODUCTORY STATEMENT
All capitalized terms not otherwise defined in this Amendment
are used herein as defined in the Credit Agreement.
The Borrower and Holdings have requested that the Lenders
agree to extend the date by which the Borrower and/or Holdings is required to
raise net cash proceeds from Qualifying Issuances, as set forth in Section 5.18
of the Credit Agreement.
Subject to the terms and conditions hereof, the Lenders are
willing to grant such extension, but only upon the terms and conditions set
forth herein.
In consideration of the mutual agreements contained herein and
other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the Credit Agreement.
(A) The definition of "Qualifying Issuances" appearing in
Article 1 of the Credit Agreement is hereby amended as of the Amendment No. 6
Effective Date (as such term is defined in Section 4 below) in its entirety to
read as follows:
"'Qualifying Issuances' means (i) any issuance of Qualifying
Equity Interests of Holdings, (ii) any issuance of unsecured
Indebtedness described in clauses (a) or (b) of the definition
thereof of Holdings or the Borrower, and (iii) any Sale and
Leaseback Transaction by the Borrower or a Restricted
Subsidiary the subject property of which is the building under
construction as of the Amendment No. 4 Effective Date and
adjacent to the One Xxxxxxxx Center, together with the parking
garage adjacent thereto, or any one or more of three corporate
jets identified by the Borrower to the Lenders prior to the
Amendment No. 4 Effective Date; provided that the terms and
conditions of any such Indebtedness or Sale and Leaseback
Transaction shall have been approved by all the Incremental
Facility Arrangers (if any) and the Administrative Agent prior
to the issuance thereof; and provided, further, that in order
to be a "Qualifying Issuance" hereunder, any such issuance or
Sale Leaseback Transaction (or any part thereof) occurring on
or after
October 19, 2001 shall not have been consummated or otherwise
effected by the Borrower and/or Holdings (as applicable),
directly or indirectly, through or with any of their
Subsidiaries (it being understood that, in the case of an
Unrestricted Subsidiary, any such transaction would be deemed
to be effected indirectly for purposes of this definition) or
other Affiliates unless, in the case of an Affiliate, such
Affiliate utilizes its own funds, which funds shall not have
been received in any manner whatsoever, directly or
indirectly, from Holdings, the Borrower or any Subsidiary."
(B) Section 5.18 of the Credit Agreement is hereby amended by
deleting the date "December 31, 2001" appearing therein and inserting the phrase
"July 1, 2003 or such earlier date as may be agreed upon by the Borrower and
Holdings, on the one hand, and the Required Lenders, on the other hand,"
SECTION 2. Representations and Warranties. Each of the Loan
Parties represents and warrants to the Administrative Agent and the Lenders
that:
(A) the execution, delivery and performance by the Loan
Parties of this Amendment and the Side Letter (such term being used herein as
defined in Section 4(A) below) and in the case of the Borrower and Holdings, the
performance by each of them of the Credit Agreement as modified by this
Amendment (i) have been duly authorized by all requisite corporate, partnership
or limited liability company action (as applicable) on the part of each such
Loan Party; and (ii) will not violate (a) any provision of any statute, rule or
regulation, or the Certificate of Incorporation or By-laws (or similar governing
documents) of any of the Loan Parties, (b) any applicable order of any court or
any rule, regulation or order of any other agency of government or (c) any
indenture, agreement or other instrument to which any of the Loan Parties is a
party or by which any of the Loan Parties or any of their respective properties
is bound, or be in conflict with, result in a breach of, or constitute (with
notice or lapse of time or both) a default under, any such indenture, agreement,
or other instrument; and
(B) upon the occurrence of the Amendment No. 6 Effective Date
(as defined in Section 4 below), this Amendment will constitute the legal, valid
and binding obligation of the Loan Parties, enforceable in accordance with its
terms, except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by general equitable principles (regardless of
whether the issue of enforceability is considered in a proceeding in equity or
at law).
SECTION 3. Consents and Agreements.
(A) The Lenders hereby acknowledge and agree to the provisions
set forth in the Side Letter and consent to the execution thereof by the Agents
and the Issuing Bank.
(B) Each of the Loan Parties, the Agents and the Lenders
hereby agree that Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel to the
Administrative Agent ("Xxxxxxxx Chance"), shall, on behalf of the Administrative
Agent and the Lenders, retain PricewaterhouseCoopers LLP ("PWC") as financial
advisor by no later than October 31, 2001, and that PWC shall, among other
things, be engaged to review, analyze and conduct due diligence regarding the
business operations of Holdings, the Borrower and the Subsidiaries and the
preliminary budget dated October 1, 2001 (together with any related sensitivity
analyses). Holdings and the Borrower hereby agree to cooperate fully with PWC
and provide support to PWC in the performance of its engagement, which
cooperation and performance shall not unreasonably interfere with the normal
conduct of the Borrower's business.
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(C) Each of the Loan Parties, the Agents and the Lenders
hereby agree that it shall negotiate in good faith to facilitate and consummate
a long term amendment to the Credit Agreement (the "Seventh Amendment") prior to
January 15, 2002.
SECTION 4. Effective Date. This Amendment shall not become
effective until the date (the "Amendment No. 6 Effective Date") on which all of
the following conditions precedent shall have been satisfied:
(A) The Administrative Agent shall have received fully
executed counterparts of (i) this Amendment executed by the Loan Parties, the
Administrative Agent, and Lenders representing the Required Lenders, and (ii)
the letter agreement of even date herewith between the Loan Parties, on the one
hand, and the Agents and the Issuing Bank, on the other hand (the "Side
Letter"), executed by all of the parties thereto.
(B) All cash, cash equivalents, investments (other than
investments in the High Yield Notes and the shares of capital stock held by
Unrestricted Subsidiaries on October 19, 2001), and proceeds of investments held
by the Unrestricted Subsidiaries in excess of an aggregate amount equal to $30
million (including, without limitation, proceeds of loans from Holdings and/or
the Borrower to Unrestricted Subsidiaries in the approximate amount of $195
million and any interest payments made by Holdings and/or the Borrower to
Unrestricted Subsidiaries that have purchased or otherwise hold indebtedness
issued by Holdings and/or the Borrower) shall be remitted to the Borrower and
deposited by the Borrower in one or more Controlled Deposit Accounts (as such
term is defined in the Security Agreement).
(C) The Loan Parties shall have obtained all consents and
waivers from any Persons necessary for the execution, delivery and performance
of this Amendment, the Side Letter and any other transaction contemplated hereby
or thereby.
(D) The Agents and their counsel shall have received such
approvals, information, materials and documentation as any of the Agents or
their counsel may reasonably request, which approvals, information, materials
and documentation shall be satisfactory in form and substance to the Agents and
their counsel.
(E) PWC and Xxxxxxxx Chance shall each have received a
retainer in the amount of $150,000 in accordance with the terms of the
applicable engagement or retainer letters.
(F) All reasonable fees and other charges presently due and
payable to the Administrative Agent or any Lender pursuant to any Loan Document,
and all out-of-pocket expenses incurred by the Administrative Agent and invoiced
by October 30, 2001 in connection with the Credit Agreement, this Amendment, the
Side Letter, any other Loan Document or the transactions contemplated by any of
the foregoing (including, without limitation, the reasonable fees and
disbursements of Xxxxx Xxxx & Xxxxxxxx, Xxxxxxxx Chance and PWC), shall have
been paid by the Borrower. Any invoice provided to the Borrower shall include a
summary of the services provided, which summary shall preserve any attorney
client or other applicable privilege.
(G) All legal matters incident to this Amendment, the Side
Letter and the effects hereof or thereof or any of the Loan Documents shall be
reasonably satisfactory to the Agents and their counsel.
SECTION 5. Confirmation and Acknowledgement of the
Obligations; Release. The Borrower hereby (i) confirms and acknowledges to the
Administrative Agent and the Lenders that it is
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validly and justly indebted to the Administrative Agent and the Lenders for the
payment of all Obligations without offset, defense, cause of action or
counterclaim of any kind or nature whatsoever and (ii) reaffirms and admits the
validity and enforceability of the Credit Agreement and the Loan Documents and
the Liens in the Collateral which were granted pursuant to any of the Loan
Documents or otherwise. Each of the Loan Parties, on its own behalf and on
behalf of its successors and assigns, hereby waives, releases and discharges
each Agent and each Lender and all of the affiliates of each Agent and each
Lender, and all of the directors, officers, employees, attorneys, agents,
successors and assigns of each Agent, each Lender and such affiliates, from any
and all claims, demands, actions or causes of action (known and unknown) arising
out of or in any way relating to any of the Loan Documents and any documents,
agreements, dealings or other matters connected with any of the Loan Documents,
in each case to the extent arising (x) on or prior to the date hereof or (y) out
of, or relating to, actions, dealings or matters occurring on or prior to the
date hereof.
SECTION 6. Acknowledgement and Consent by Holdings and the
Subsidiary Loan Parties.
(A) Holdings and each Subsidiary Loan Party hereby
acknowledges that it has read this Amendment and consents to the terms hereof
and further confirms and agrees that, notwithstanding the effectiveness of this
Amendment, (i) its obligations pursuant to the Credit Agreement or its
Subsidiary Guarantee (as applicable) shall not be impaired or affected and (ii)
its Guarantee pursuant to the Credit Agreement or Subsidiary Guarantee (as
applicable) is, and shall continue to be, in full force and effect and is hereby
confirmed and ratified in all respects.
(B) Holdings and each Subsidiary Loan Party hereby confirms
and acknowledges that it is validly and justly indebted to the Administrative
Agent and the Lenders for the payment of all of the Obligations which it has
guaranteed, without offset, defense, cause of action or counterclaim of any kind
of nature whatsoever.
(C) Holdings and each Subsidiary Loan Party hereby reaffirms
and admits the validity and enforceability of the Credit Agreement and the Loan
Documents to which it is a party and the Liens in the Collateral which were
granted by it pursuant to any of the Loan Documents or otherwise.
SECTION 7. Costs and Expenses. The Borrower acknowledges and
agrees that its obligations set forth in Section 10.03 of the Credit Agreement
include the preparation, execution and delivery of this Amendment, the Side
Letter and any other documentation contemplated hereby or thereby (whether or
not this Amendment becomes effective or the transactions contemplated hereby are
consummated), including, but not limited to, the reasonable fees and
disbursements of Xxxxxxxx Chance and PWC.
SECTION 8. Limited Waiver or Modification; Ratification of
Credit Agreement.
(A) Except to the extent hereby waived or modified, the Credit
Agreement and each of the Loan Documents remain in full force and effect and are
hereby ratified and confirmed.
(B) This Amendment shall be limited precisely as written and
shall not be deemed (i) to be a consent granted pursuant to, or a waiver or
modification of, any other term or condition of the Credit Agreement or any of
the instruments or agreements referred to therein or a waiver of any Default or
Event of Default under the Credit Agreement, whether or not known to the Agents
or the Lenders or (ii) to prejudice any right or rights which the Administrative
Agent or the Lenders may now have or have in the future under or in connection
with any Loan Document or any of the instruments or agreements referred to in a
Loan Document. The Administrative Agent, the other Agents and the Lenders hereby
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expressly reserve all of the Administrative Agent's, the other Agent's and the
Lenders' (as applicable) respective rights and remedies under the Credit
Agreement and each of the other Loan Documents, as well as under applicable law.
Except to the extent hereby waived or modified and subject to the terms and
provisions of the Side Letter, the Credit Agreement and each of the Loan
Documents shall continue in full force and effect in accordance with the
provisions thereof on the date hereof and the Credit Agreement as heretofore
amended or modified and as modified by this Amendment are hereby ratified and
confirmed. As used in the Credit Agreement, the terms "Credit Agreement," "this
Agreement," "herein," "hereafter," "hereto," "hereof," and words of similar
import, shall, unless the context otherwise requires, mean the Credit Agreement
as modified by this Amendment. Reference to the terms "Agreement" or "Credit
Agreement" appearing in the Exhibits or Schedules to the Credit Agreement or in
the other Loan Documents shall, unless the context otherwise requires, mean the
Credit Agreement as modified by this Amendment. This Amendment shall be deemed
to have been jointly drafted, and no provision of it shall be interpreted or
construed for or against any party hereto because such party purportedly
prepared or requested such provision, any other provision, or this Amendment as
a whole.
SECTION 9. Counterparts. This Amendment may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed signature page to this Amendment by
facsimile shall be as effective as delivery of a manually executed counterpart
of this Amendment.
SECTION 10. Loan Document. This Amendment is a Loan Document
pursuant to the Credit Agreement and shall (unless expressly indicated herein or
therein) be construed, administered, and applied, in accordance with all of the
terms and provisions of the Credit Agreement.
SECTION 11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WHICH
ARE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF
NEW YORK.
SECTION 12. Successors and Assigns. The provisions of this
Amendment shall be binding upon, and inure to the benefit of, the parties hereto
and their respective successors and assigns.
SECTION 13. Headings. The headings of this Amendment are for
the purposes of reference only and shall not affect the construction of, or be
taken into consideration in interpreting, this Amendment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and the year first above written.
BORROWER:
XXXXXXXX COMMUNICATIONS, LLC
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
XXXXXXXX COMMUNICATIONS GROUP, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
AGENTS AND LENDERS:
BANK OF AMERICA, N.A., individually and as
Administrative Agent and as Issuing Bank
By: /s/ XXXX X. XXXXXXX III
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Name: Xxxx X. Xxxxxxx III
Title: Managing Director
THE CHASE MANHATTAN BANK, individually and as
Syndication Agent and as Issuing Bank
By: /s/ XXXXXXXXX X. XXXXXXX
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
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XXXXXXX XXXXX XXXXXX INC., as Joint Lead
Arranger and Joint Bookrunner with respect to
the Incremental Facility and as
Co-Documentation Agent
By: /s/ XXXX X. JUDGE
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Name: Xxxx X. Judge
Title: Vice President & Director
CITICORP USA, INC.
By: /s/ XXXX X. JUDGE
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Name: Xxxx X. Judge
Title: Vice President & Director
XXXXXX BROTHERS, INC., as Joint Lead Arranger
and Joint Bookrunner with respect to the
Incremental Facility and as Co-Documentation
Agent
By: /s/ G. XXXXXX XXXXX
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Name: G. Xxxxxx Xxxxx
Title: SVP
XXXXXX COMMERCIAL PAPER INC.
By: /s/ G. XXXXXX XXXXX
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Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
XXXXXXX XXXXX & CO., INC., individually and as
Co-Documentation Agent
By:
------------------------------------------
Name:
Title:
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ABN AMRO BANK N.V.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Group Vice President
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Group Senior Vice President
BANK OF MONTREAL
By:
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
------------------------------------------
Name:
Title:
BANK OF OKLAHOMA N.A.
By:
------------------------------------------
Name:
Title:
BANK ONE, N.A.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President
CIBC INC.
By:
------------------------------------------
Name:
Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
------------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ XXXX X'XXXX
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Name: Xxxx X'Xxxx
Title: Vice President
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By:
------------------------------------------
Name:
Title:
By:
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Name:
Title:
FIRST UNION NATIONAL BANK
By: /s/ XXXX X. XXXX
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Name: Xxxx X. Xxxx
Title: Senior Vice President
FLEET NATIONAL BANK
By:
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Name:
Title:
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THE FUJI BANK, LIMITED
By:
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Name:
Title:
BAYERISCHE HYPOVEREINS BANK, NEW YORK BRANCH
By: /s/ XXXX X. XXXXXXXXX
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Name: Xxxx X. Xxxxxxxxx
Title: Director
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Associate
IBM CREDIT CORPORATION
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Manager, Special Handling
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
By:
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Name:
Title:
KBC BANK, N.V.
By: /s/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
Title: First Vice President
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: Vice President
SCOTIABANC INC.
By: /s/ [ILLEGIBLE]
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Name: [ILLEGIBLE]
Title: [ILLEGIBLE]
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XXXXXXXXX ARBITRAGE CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
------------------------------------------
Name:
Title:
XXXXXXXXX CLO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
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Name:
Title:
XXXXXXXXX/RMF TRANSATLANTIC CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
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Name:
Title:
WINDSOR LOAN FUNDING, LIMITED
By: Xxxxxxxxx Capital Partners LLC
as its Investment Manager
By:
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Name:
Title:
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ACCEPTED AND AGREED TO:
SUBSIDIARY LOAN PARTIES:
CRITICAL CONNECTIONS, INC.
WCS COMMUNICATIONS SYSTEMS, INC.
WCS, INC.
XXXXXXXX COMMUNICATIONS OF VIRGINIA, INC.
XXXXXXXX COMMUNICATIONS PROCUREMENT, L.L.C.
XXXXXXXX COMMUNICATIONS PROCUREMENT, XX
XXXXXXXX GLOBAL COMMUNICATIONS
HOLDINGS, INC.
XXXXXXXX INTERNATIONAL VENTURES COMPANY
XXXXXXXX LEARNING NETWORK, INC.
XXXXXXXX LOCAL NETWORK, LLC
XXXXXXXX TECHNOLOGY CENTER, LLC
XXXXXXXX COMMUNICATIONS AIRCRAFT, LLC
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
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XXXXXXX XXXXX CAPITAL CORPORATION
By:
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Name:
Title:
