EXHIBIT 10.103
Amendment No. 3 to Side Letter
Dated as of February 28, 2002
Reference is hereby made to the following:
(i) that certain letter agreement dated as of October 30,
2001, as amended (the "Side Letter") between Xxxxxxxx Communications,
LLC (the "Borrower") and Xxxxxxxx Communications Group, Inc.
("Holdings"), on the one hand, and Bank of America, N.A., as
Administrative Agent and as Issuing Bank, XX Xxxxxx Xxxxx Bank
(formerly The Chase Manhattan Bank), as Syndication Agent and as
Issuing Bank, Xxxxxxx Xxxxx Xxxxxx Inc., as Co-Documentation Agent,
Xxxxxx Brothers, Inc., as Co-Documentation Agent and Xxxxxxx Xxxxx &
Co., as Co-Documentation Agent, on the other hand; and
(ii) that certain Amended and Restated Credit Agreement dated
as of September 8, 1999 (as amended, the "Credit Agreement"), among the
Borrower, Holdings, the lenders party thereto (the "Lenders"), Bank of
America, N.A., as Administrative Agent for the Lenders (in such
capacity, the "Administrative Agent"), XX Xxxxxx Chase Bank (formerly
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., as Co-Documentation Agents.
Capitalized terms not otherwise defined herein are used herein as
defined in the Side Letter or the Credit Agreement, as applicable.
The Borrower and Holdings have requested, and the Agents, the Issuing
Bank and the Required Lenders have agreed, to amend the Side Letter (subject to
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:
1. The Side Letter is hereby amended as of the Amendment Effective Date (as such
term is defined in Section 2 below) as follows:
(a) Clause (i) of the first paragraph of Section 1 of the Side Letter
is hereby amended by deleting the date "February 28, 2002" appearing therein and
inserting the date "March 27, 2002" in lieu thereof.
(b) Clause (i) of the proviso appearing in the second sentence of
Section 1 of the Side Letter is hereby amended by inserting the words "and not
otherwise prohibited by this letter agreement" at the end thereof, immediately
after the words "Credit Agreement", but immediately before the semicolon.
(c) Section 2 of the Side Letter is hereby amended in its entirety to
read as follows:
"2. During the Negotiation Period, the Borrower, Holdings and
their subsidiaries shall, subject to the restrictions and
other provisions of this letter agreement, fund their business
and operations in accordance with the business plan dated
January 11, 2002, as modified by (a) the cash flow projections
delivered weekly by the Loan Parties pursuant to Section 9 of
this letter agreement, and (b) the business plan delivered by
the Loan Parties pursuant to Section 10 of this letter
agreement, provided that such business plan is reasonably
satisfactory in form and substance to the Administrative Agent
and PWC."
(d) Section 3(c) of the Side Letter is hereby amended in its entirety
to read as follows:
"(c) shall not permit any Unrestricted Subsidiary to purchase,
acquire or otherwise hold any Investment, other than existing
Investments listed on Schedule 1 hereto and Investments in
cash and cash equivalents, subject to and in accordance with
the terms of this letter agreement; and shall not permit any
Unrestricted Subsidiary to incur, create, assume or suffer to
exist any Indebtedness, other than existing Indebtedness
listed on Schedule 1 hereto, and"
(e) Section 3(d) of the Side Letter is hereby amended in its entirety
to read as follows:
"(d) shall not permit the Unrestricted Subsidiaries to hold at
any time an aggregate amount in excess of $5,000,000 of cash
and cash equivalents (the "Permitted Basket"); it being
understood that (w) there shall not be a default under this
provision so long as any amounts in excess of such $5,000,000
limit are remitted to the Borrower in compliance with the
provisions of paragraph 4 below; (x) the Permitted Basket
shall not include any additional investment in any
Unrestricted Subsidiary by Holdings, the Borrower or any other
Loan Party; (y) nothing herein shall prevent the Unrestricted
Subsidiaries from liquidating any existing Investments held by
them, and any net loss from the liquidation of such
Investments shall be charged against the Permitted Basket; and
(z) the Permitted Basket is to be used by the Unrestricted
Subsidiaries for their operations and any cash, cash
equivalents and proceeds of investments received after the
date hereof shall be remitted to the Borrower pursuant to
paragraph 4 below."
(f) The two (2) provisos appearing at the end of Section 3 of the Side
Letter are hereby deleted in their entirety.
(g) Section 4 of the Side Letter is hereby amended in its entirety to
read as follows:
"4. During the Extended Period, in the event that either (a)
the aggregate amount of cash and cash equivalents held by the
Unrestricted Subsidiaries exceeds $5,000,000 minus the amount
of any net loss charged against the Permitted Basket pursuant
to paragraph 3(d) above, or (b) any interest payment is made
by Holdings and/or the Borrower to an Unrestricted Subsidiary
that has purchased or otherwise holds indebtedness issued by
Holdings and/or the Borrower, or (c) any amount is required to
be remitted to the Borrower pursuant to paragraph 3 above,
then Holdings and/or the Borrower (as applicable) shall,
within two (2) Business Days of any such event (x) cause
Unrestricted Subsidiaries to remit to the Borrower cash in the
amount necessary so that the aggregate amount of cash and cash
equivalents held by the Unrestricted Subsidiaries does not
exceed $5,000,000 minus the amount of any net loss charged
against the Permitted Basket pursuant to paragraph 3(d) above
and/or (y) cause the applicable
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Unrestricted Subsidiary to remit to the Borrower any such
interest payment received by such Unrestricted Subsidiary or
other amount required to be remitted to the Borrower. All cash
received by the Borrower pursuant to the immediately preceding
sentence shall be deposited by the Borrower in one or more
Controlled Deposit Accounts (such term being used herein as
defined in the Security Agreement)."
(h) Section 5 of the Side Letter is hereby amended by deleting the
words "any investments or any other" and inserting the word "all" in lieu
thereof.
(i) The second sentence of Section 7 of the Side Letter is hereby
deleted in its entirety.
(j) The Side Letter is hereby amended to include the following new
Sections 8, 9, 10, 11, 12 and 13:
"8. The Borrower and each of the Restricted Subsidiaries
hereby agree that during the remainder of the Negotiation
Period, it shall not declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment to, or for the
benefit of, Holdings, or enter into any transaction the
economic effect of which is substantially similar to a
Restricted Payment to, or for the benefit of, Holdings.
9. The Loan Parties hereby agree to deliver to the Agents and
PricewaterhouseCoopers LLP ("PWC"), no later than the fourth
Business Day of each calendar week: (a) a 13-week cash flow
projection commencing with the calendar week in which such
projection is delivered, and (b) a comparison of actual cash
flows to the projected cash flows and a variance analysis for
the calendar week ended immediately prior to the most recently
completed calendar week, in each case in form and substance
reasonably satisfactory to the Administrative Agent and PWC.
The Loan Parties hereby further agree that the initial
delivery of the foregoing information to the Agents and PWC
shall be made on March 26, 2002, and shall commence with the
calendar week of March 25, 2002.
10. The Loan Parties hereby agree to deliver to the Agents and
PWC, on or prior to March 11, 2002, a detailed comprehensive
business plan updating the business plan dated January 11,
2002.
11. The Loan Parties hereby represent and warrant that
attached hereto as Schedule 2 is a true and complete list of
all Deposit Accounts and Securities Accounts (such terms are
being used herein as defined in the Security Agreement) held
by any Loan Party. The Loan Parties hereby agree that, during
the Negotiation Period, they will not establish, or take any
action to establish, any new Deposit Account or Security
Account without the prior written consent of the
Administrative Agent, which consent may be withheld by the
Administrative Agent in its sole discretion.
12. The Loan Parties hereby represent and warrant that
attached hereto as Schedule 3 is a true and complete list of
all obligations and liabilities (contingent or otherwise) owed
by a Loan Party or any other Subsidiary to The Xxxxxxxx
Companies, Inc. ("TWC").
13. Holdings has advised the Agents that TWC has agreed,
pursuant to that certain letter agreement dated as of February
23, 2002 between Holdings and TWC (a true and complete copy of
which has been delivered by Holdings to the Administrative
Agent) (the "TWC Letter"), to make all required interest
payments for the period from February 23, 2002 through and
including September 30, 2002, with respect to the 8.25% Senior
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Reset Notes due 2008 of Holdings (the "Reset Notes") issued
pursuant to that certain Indenture dated as of March 28, 0000
xxxxxxx Xxxxxxxx xxx Xxxxxx Xxxxxx Trust Company of New York
as Trustee. Holdings hereby covenants and agrees as follows:
(i) in the event that TWC fails to perform its
obligations under the TWC Letter, prior to
making any payments with respect to the
Reset Notes, Holdings shall (x) promptly
exercise and diligently prosecute and
pursue, at least until (but not including)
the last Business Day preceding the
expiration of any grace period applicable to
such payment, all rights and remedies
Holdings may have against TWC under or
pursuant to the TWC Letter, applicable law
or otherwise, and (y) shall avail itself of
and exhaust all time available up to (but
not including) the last Business Day
preceding the expiration of any grace period
applicable to such payment;
(ii) Holdings shall not permit any other Loan
Party to make, and no other Loan Party is
obligated to make, any payment on behalf of
Holdings in respect of the Reset Notes
during the Negotiation Period;
(iii) neither Holdings nor any other Loan Party is
obligated to make, nor shall make, any
payments during the Negotiation Period with
respect to the 8.25% Senior Secured Notes
due 2004 of WCG Note Trust, as Issuer and
WCG Note Corp., Inc., as Co-Issuer (the
"8.25% Senior Secured Notes") issued
pursuant to that certain Indenture dated as
of March 28, 2001 among WCG Note Trust, WCG
Note Corp., Inc. and United States Trust
Company of New York as Indenture Trustee and
Securities Intermediary;
(iv) during the Negotiation Period, Holdings will
not agree to any amendment or other
modification of Section 6 of the TWC Letter
without the prior written consent of the
Administrative Agent; and
(v) Holdings shall deliver to the Administrative
Agent prior written notice (at the address
set forth below the Administrative Agent's
name on the signature pages hereto) at least
5 Business Days before Holdings or any other
Loan Party makes any payment with respect to
the Reset Notes, the 8.25% Senior Secured
Notes, or any of the transactions related
to, or contemplated by, the Structured Note
Financing (and Holdings hereby represents
and warrants that no such payments are due
and payable by Holdings or the other Loan
Parties during the Negotiation Period, other
than the scheduled interest payment on the
Reset Notes).
Holdings hereby represents and warrants that the grace period
with respect to interest payments on the Reset Notes is a
period of 30 days.
(k) The Side Letter is hereby amended by adding the Schedules 1, 2 and
3 attached hereto at the end of the Side Letter, immediately after the signature
pages.
2. This Amendment shall not become effective until the date on which the
following conditions precedent shall have been satisfied, or waived by the
Issuing Bank, the Agents and the Required Lenders in writing (such date being
referred to herein as the "Amendment Effective Date"):
(a) the Administrative Agent shall have received fully executed
counterparts of this Amendment executed by the Loan Parties,
the Issuing Bank and all of the Agents, together with the
consent of the Required Lenders to this Amendment as set forth
hereinbelow;
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(b) The Xxxxxxxx Companies, Inc. ("TWC") shall have agreed,
unconditionally and in writing, to defer until September 15,
2002 or later, the payment by Holdings of all principal and
interest in respect of the $100 million receivable scheduled
for payment to TWC in March 2002; and the Administrative Agent
shall have received a fully executed copy of such deferral
agreement;
(c) the Administrative Agent shall have received a certificate
from a Financial Officer of Holdings on behalf of Holdings,
setting forth (i) a schedule (in a form reasonably
satisfactory to the Administrative Agent) of the aggregate
cash balances on December 31, 2001 and on February 22, 2002 of
(X) the Loan Parties and (Y) the Unrestricted Subsidiaries,
and (ii) the uses of cash by Holdings and its Subsidiaries on
a consolidated basis during the period from January 1, 2002 to
February 22, 2002;
(d) all cash and cash equivalents held by Unrestricted
Subsidiaries in excess of an aggregate amount equal to
$5,000,000 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);
(e) all fees and other charges presently due and payable to the
Administrative Agent or any Lender pursuant to any Loan
Document shall have been paid by the Borrower;
(f) all out-of-pocket expenses incurred by the Agents and invoiced
by February 28, 2002 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 Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, Xxxxx
Xxxx & Xxxxxxxx, Xxxxxxxx & Sterling, Xxxxxxx Xxxxxxx &
Xxxxxxxx and PricewaterhouseCoopers LLP ("PWC")), shall have
been paid by the Borrower;
(g) Shearman & Sterling and Xxxxxxx Xxxxxxx & Xxxxxxxx shall each
have received a retainer in the amount of $100,000 in
accordance with the terms of any applicable engagement or
retainer letters; and
(h) all legal matters incident to this Amendment and the effects
hereof or any of the Loan Documents shall be reasonably
satisfactory to the Agents and their counsel.
3. Each of the Loan Parties represents and warrants to the Agents and the
Lenders that (X) the execution, delivery and performance by the Loan Parties of
this Amendment and the performance by each of them of the Side Letter 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 or (b) any
applicable order of any court or any rule, regulation or order of any other
agency of government; and (Y) upon the occurrence of the Amendment Effective
Date, 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).
4. The Loan Parties hereby agree that in the event any Loan Party or
Unrestricted Subsidiary shall fail to observe or perform any agreement set forth
in the Side Letter as amended by this Amendment, such event shall be an
immediate Event of Default under the Credit Agreement not requiring any notice,
lapse
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of time or other action on the part of any of the Agents or the Lenders; and the
Administrative Agent and/or the Required Lenders may exercise any and all
remedies it or they may have pursuant to any of the Loan Documents or other
applicable law.
5. THE BORROWER HEREBY (A) CONFIRMS AND ACKNOWLEDGES TO THE ADMINISTRATIVE AGENT
AND THE LENDERS THAT IT IS VALIDLY AND JUSTLY INDEBTED TO THE ADMINISTRATIVE
AGENT AND THE LENDERS FOR THE PAYMENT OF ALL OBLIGATIONS (AS DEFINED IN THE
CREDIT AGREEMENT) WITHOUT OFFSET, DEFENSE, CAUSE OF ACTION OR COUNTERCLAIM OF
ANY KIND OR NATURE WHATSOEVER AND (B) 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.
6. HOLDINGS AND EACH SUBSIDIARY LOAN PARTY HEREBY (A) CONFIRMS AND AGREES THAT
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) 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; AND
(C) 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.
7. 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, and any other documentation contemplated hereby,
including, but not limited to, the reasonable fees and disbursements of Xxxxxxxx
Chance Xxxxxx & Xxxxx LLP, counsel to the Administrative Agent, Xxxxxxx Xxxxxxx
& Xxxxxxxx, counsel to the Syndication Agent, Shearman and Sterling, counsel to
the Co-Documentation Agents, and PWC.
8. 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 Side Letter 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
6
Document. The Administrative Agent (on behalf of itself and the Lenders) and the
other Agents hereby expressly reserve all of the Administrative Agent's, the
other Agents' 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. No failure to exercise, delay in exercising or any
singular or partial exercise, by the Administrative Agent, the Agents or any of
the Lenders, of any right, power or remedy hereunder or any of the other Loan
Documents shall operate as a waiver thereof, nor shall any of the Loan Documents
(including, without limitation, the Side Letter) be construed as a standstill or
a forbearance by any of the Agents or the Lenders of their rights and remedies
thereunder. Except to the extent hereby modified, the Side Letter shall continue
in full force and effect in accordance with the provisions thereof on the date
hereof and the Side Letter as modified by this Amendment is hereby ratified and
confirmed. As used in the Side Letter, the terms "Side Letter," "this
Agreement," "herein," "hereafter," "hereto," "hereof," and words of similar
import, shall, unless the context otherwise requires, mean the Side Letter as
modified by this Amendment. Reference to the terms "Side Letter" appearing in
the other Loan Documents shall, unless the context otherwise requires, mean the
Side Letter 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.
9. 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.
10. Any provision of this Amendment which is invalid, illegal or unenforceable
under the applicable law of any jurisdiction, shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without invalidating the remaining provisions hereof, and any such invalidity,
illegality or unenforceability in any jurisdiction shall not invalidate such
provision in any other jurisdiction.
11. No failure on the part of the Administrative Agent, the Issuing Bank or any
Lender to exercise, and no delay in exercising, any right, power or remedy under
this Amendment shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy
whether provided in any Loan Document or otherwise. All remedies hereunder are
cumulative and are not exclusive of any other remedies under any other Loan
Document or provided by applicable law.
12. All references herein to any of the parties to this Amendment shall be
deemed to include the successors and assigns of such party; provided, however,
that none of the Loan Parties may assign any of its rights or obligations
hereunder or under the Side Letter without the prior written consent of the
Agents, the Issuing Bank and all of the Lenders, and all covenants, promises and
agreements by or on behalf of any of the Loan Parties which are contained herein
shall inure to the benefit of each of the Lenders and to the successors and
assigns of any of the Agents, the Issuing Bank and any of the Lenders.
13. 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.
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14. 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.
15. The provisions of this Amendment shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the day and the year first above written.
BORROWER:
XXXXXXXX COMMUNICATIONS, LLC
[STAMP] By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
HOLDINGS:
XXXXXXXX COMMUNICATIONS GROUP, INC.
[STAMP] By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
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
XXXXXXXX COMMUNICATIONS MANAGED
SERVICES, LLC
[STAMP] By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
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[AMENDMENT NO. 3 TO SIDE LETTER]
ISSUING BANK AND AGENTS:
BANK OF AMERICA, N.A., as Administrative
Agent and as Issuing Bank
By: /s/ XXXXXXX HONEY
----------------------------------------
Name: Xxxxxxx Honey
Title: VICE PRESIDENT
Address: Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
Fax No.: (000) 000-0000
XX XXXXXX CHASE BANK
(formerly The Chase Manhattan Bank), as
Syndication Agent and as Issuing Bank
By: /s/ HOUSTON X. XXXXXXXX
----------------------------------------
Name: Houston X. Xxxxxxxx
Title: MANAGING DIRECTOR
XXXXXXX XXXXX XXXXXX INC.,
as Co-Documentation Agent
By: /s/ XXXX XXXXXX
----------------------------------------
Name: Xxxx Xxxxxx
Title:
XXXXXX BROTHERS, INC.,
as Co-Documentation Agent
By: /s/ G. XXXXXX XXXXX
----------------------------------------
Name: G. Xxxxxx Xxxxx
Title: AUTHORIZED SIGNATORY
XXXXXXX XXXXX & CO.
as Co-Documentation Agent
By: /s/ XXXXX X.X. XXXXXX
----------------------------------------
Name: Xxxxx X.X. Xxxxxx
Title: DIRECTOR
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[AMENDMENT NO. 3 TO SIDE LETTER]
BY SIGNING IN THE APPROPRIATE SPACE BELOW, THE UNDERSIGNED HEREBY
CONSENT TO THE FOREGOING AMENDMENT NO. 3 TO THE SIDE LETTER AND TO THE EXECUTION
THEREOF BY THE AGENTS AND THE ISSUING BANK.
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ XXXXXXX HONEY
----------------------------------------
Name: Xxxxxxx Honey
Title: Vice President
XX XXXXXX CHASE BANK
(formerly The Chase Manhattan Bank)
By: /s/ HOUSTON X. XXXXXXXX
----------------------------------------
Name: Houston X. Xxxxxxxx
Title: Managing Director
CITICORP USA, INC.
By: /s/ XXXX XXXXXX
----------------------------------------
Name: Xxxx Xxxxxx
Title: [ILLEGIBLE]
XXXXXX COMMERCIAL PAPER INC.
By: /s/ G. XXXXXX XXXXX
----------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
XXXXXXX XXXXX CAPITAL CORPORATION
By: /s/ XXXXX X.X. XXXXXX
----------------------------------------
Name: Xxxxx X.X. Xxxxxx
Title: Vice President
11
[AMENDMENT NO. 3 TO SIDE LETTER]
ABN AMRO BANK N.V.
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
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/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: SENIOR VICE PRESIDENT
12
[AMENDMENT NO. 3 TO SIDE LETTER]
BAYERISCHE HYPOVEREINS BANK, NEW YORK
BRANCH (formerly Bank Austria Creditanstalt
Corporate Finance, Inc.)
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
CIBC INC.
By:
----------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ XXXXXX XXXX
----------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
13
[AMENDMENT NO. 3 TO SIDE LETTER]
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By: /s/ XXX XXXXXXX
----------------------------------------
Name: Xxx Xxxxxxx
Title: DIRECTOR
FLEET NATIONAL BANK
By:
----------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By:
----------------------------------------
Name:
Title:
IBM CREDIT CORPORATION
By: /s/ XXXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: MANAGER, GLOBAL SPECIAL HANDLING
14
[AMENDMENT NO. 3 TO SIDE LETTER]
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
By:
----------------------------------------
Name:
Title:
KBC BANK, N.V.
By: /s/ XXXXXX XXXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: FIRST VICE PRESIDENT
By: /s/ XXXX XXXXXX
----------------------------------------
Name: Xxxx Xxxxxx
Title: VICE PRESIDENT
SCOTIABANC INC.
By:
----------------------------------------
Name:
Title:
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:
----------------------------------------
Name:
Title:
15
[AMENDMENT NO. 3 TO SIDE LETTER]
XXXXXXXXX/RMF TRANSATLANTIC CDO, LTD
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------
Name:
Title:
WINDSOR LOAN FUNDING, LIMITED
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------
Name:
Title:
ARK II CLO 2001-I, LIMITED
By: Patriarch Partners II, LLC,
its Collateral Manager
By: /s/ XXXX XXXXXX
----------------------------------------
Name: Xxxx Xxxxxx
Title: AUTHORIZED SIGNATORY
XXXXXXXX CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------
Name:
Title:
CONTRARIAN FUNDS, LLC
By: Contrarian Capital Management, LLC
as Manager
By:
----------------------------------------
Name:
Title:
16
[AMENDMENT NO. 3 TO SIDE LETTER]
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset Management
as Investment Manager
By:
----------------------------------------
Name:
Title:
SANKATY HIGH YIELD ASSET PARTNERS
By:
----------------------------------------
Name:
Title:
SANKATY HIGH YIELD PARTNERS II LP
By:
----------------------------------------
Name:
Title:
PEQUOD INVESTEMENTS L.P.
By:
----------------------------------------
Name:
Title:
CERBERUS PARTNERS, L.P.
By: Cerberus Associates, L.L.C.
its General Partner
By:
----------------------------------------
Name:
Title:
17
[AMENDMENT NO. 3 TO SIDE LETTER]
