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EXHIBIT 4(c)
AMENDMENT
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF
JULY 23, 1997
DATED AS OF JANUARY 26, 1999
THIS AMENDMENT (herein called this "Amendment") is made and entered
into this 26th day of January, 1999, by and among the Borrowers, the Agent and
the Banks. In consideration of the mutual covenants and agreements contained
herein, the Borrowers, the Agent and the Banks hereby agree as set forth herein.
WITNESSETH:
WHEREAS, the Borrowers, the Agent and certain of the Banks are parties
to the Second Amended and Restated Credit Agreement dated as of July 23, 1997
(the "1997 Credit Agreement"); and
WHEREAS, the Borrowers have requested that the 1997 Credit Agreement be
further amended, and the parties hereto have agreed to do so on the terms and
conditions set forth herein; and
WHEREAS, Xxxxxxxx Communications Group, Inc. ("WCG") intends to become
a Borrower pursuant to the 1997 Credit Agreement and the Banks have agreed to
the inclusion of WCG in such capacity subject to the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers, the Agent and the
Banks agree as follows:
1. Unless the context otherwise requires or unless otherwise expressly
defined herein, the terms defined in the 1997 Credit Agreement shall have the
same meanings whenever used in this Amendment.
2. The definition of "Applicable Margin" as listed in ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS is hereby amended as follows:
(a) Clause (i) of the definition of "Applicable Margin" is hereby
amended and restated in its entirety to read as follows:
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(i) as to any Eurodollar Rate Advance to any Borrower (other than (x)
WilTel during such times as WilTel is Unrated and (y) WCG at any time),
the rate per annum set forth in Schedule XI under the heading
"Applicable Margin" for the relevant Rating Category applicable to such
Borrower from time to time;
(b) Clause (iii) of the definition of "Applicable Margin" is hereby
amended and restated in its entirety to read as follows:
(iii) for each day during such times as WilTel is Unrated, as to any
Eurodollar Rate Advance to WilTel at such times subsequent to January
26, 1999, the rate per annum set forth in the following table for the
relevant Applicable WilTel Debt to EBITDA Ratio for such day:
Applicable Margin
Applicable If 50% or less If more than 50%
WilTel Debt to of Commitment of Commitment
EBITDA Ratio drawn drawn
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Less than or equal to 1.0 .375% .500%
Greater than 1.0 and less .500% .625%
than or equal to 1.75
Greater than 1.75 and less .625% .750%
than or equal to 2.5
Greater than 2.5 and less .750% .875%
than or equal to 3.5
Greater than 3.5 and less 1.00% 1.125%
than or equal to 4.5
Greater than 4.5 and less 1.25% 1.50%
than or equal to 5.5
Greater than 5.5 1.50% 2.00%
(c) The following clause (iv) is added to the definition of "Applicable
Margin" immediately following clause (iii) of such definition:
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and (iv) as to any Eurodollar Rate Advance to WCG as Borrower, the
Applicable Margin in effect with respect to WHD on such date, as
determined pursuant to clause (i) of this definition.
3. The definition of "WilTel" as listed in ARTICLE I DEFINITIONS AND
ACCOUNTING TERMS is hereby deleted and replaced with the following:
"WilTel" means Xxxxxxxx Communications Solutions, LLC, a Delaware
limited liability company.
4. The definition of "Borrowers" as listed in ARTICLE I DEFINITIONS AND
ACCOUNTING TERMS is hereby amended to delete WPL and to add "WCG".
5. ARTICLE I DEFINITIONS AND ACCOUNTING TERMS is hereby amended to add
the following terms:
"Guaranty" means that certain guaranty dated January 26, 1999 duly
executed and delivered to the Agent by WHD in substantially the form of
Exhibit I.
"Permitted WCG Liens" means Liens specifically described on
Schedule IX-A.
"WCG" means Xxxxxxxx Communications Group, Inc., a Delaware
corporation.
6. Section 3.02 Additional Conditions Precedent to Each A Borrowing is
hereby amended to add the following subpart (a)(iv):
(a)(iv) The Guaranty has been executed and delivered by WHD and
remains in full force and effect.
7. Section 3.03 Conditions Precedent to Each B Borrowing is hereby
amended to add the following subpart (iii)(a)(5):
(iii)(a)(5) The Guaranty has been executed and delivered by WHD and
remains in full force and effect.
8. Section 4.1 Representations and Warranties is hereby amended by
adding thereto the following additional clause (n):
(n) The Borrower has (i) reviewed the areas within its business and
operations and those of its Subsidiaries which could be adversely
affected by failure to become "Year 2000 Compliant" (that is, that
computer applications, imbedded microchips and other systems
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used by any of the Borrower or its Subsidiaries or their material
vendors, will be able properly to recognize and perform date-sensitive
functions involving certain dates prior to and any date after December
31, 1999); (ii) developed a detailed plan and timetable to become Year
2000 Compliant in a timely manner; and (iii) committed adequate
resources to support its plan to become Year 2000 Compliant in a timely
manner. Based on such review and plan the Borrower reasonably believes
that it and its Subsidiaries will become Year 2000 Compliant on a
timely basis except to the extent that a failure to do so would not
reasonably be expected to have a material adverse effect on the
business, assets or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or on the ability of the Borrower to
perform its obligations hereunder.
9. Section 5.02 Negative Covenants, is hereby amended as follows:
(a) By adding to clause (a) Liens, Etc. thereof the following
additional subclause:
(viii) WCG and its Non-Borrowing Subsidiaries may create, incur, assume
or suffer to exist Permitted WCG Liens
(b) By deleting subparts (b) Debt, (i) and (ii) and replacing them
with the following:
(b) Debt. (i) in the case of TWC, permit the ratio of (A) the
aggregate amount of all Debt of TWC and its Subsidiaries on a
Consolidated basis to (B) the sum of the Consolidated Net Worth of TWC
plus the aggregate amount of all Debt of TWC and its Subsidiaries on a
Consolidated basis to exceed (1) 0.7 to 1.0 at any time during the
period beginning on January 1, 1999 through December 31, 2000, (2)
0.675 to 1.0 at any time during the period beginning on January 1, 2001
through December 31, 2001, or (3) 0.65 to 1.0 at any time during the
period beginning on January 1, 2002 through the term of this Agreement;
(ii) in the case of WHD, permit the ratio of (A) the aggregate
amount of all Debt of WHD and its Subsidiaries on a Consolidated basis
to (B) the sum of the Consolidated Net Worth of WHD plus the aggregate
amount of all Debt of WHD and its Subsidiaries on a consolidated basis
to exceed (1) 0.6 to 1.0 at any time during the period beginning on
January 1, 1999 through December 31, 2000, (2) 0.575 to 1.0 at any time
during the period beginning on January 1, 2001 through December 31,
2001, or (3) 0.55 to 1.0 at any time during the period beginning on
January 1, 2002 through the term of this Agreement; and
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(c) By adding in clause (f) Maintenance of Ownership of Certain
Subsidiaries immediately after the reference to "WilTel" in phrases (1)
and (2) of such clause (f) a reference to WCG.
(d) By amending and restating subpart (vii) of clause (j) Sale and
Lease-Back Transactions to read as follows:
(vii) paragraph (x) of Schedule IX in the case of WilTel and its
Subsidiaries or Schedule IX-A in the case of WCG and its Subsidiaries.
10. Section 6.01 Events of Default is hereby amended by adding the word
"or" after the semi-colon ending clause (i) thereof and adding the following
clause (j) to such Section 6.01:
(j) As to WCG as Borrower, the Guaranty shall (except in accordance
with its terms), in whole or in part, terminate, cease to be effective
or cease to be the legally valid, binding and enforceable obligation of
WHD as guarantor thereunder; any Borrower or any Subsidiary or
Affiliate of a Borrower shall, directly or indirectly, contest in any
manner such effectiveness, validity, binding nature or enforceability;
11. Schedule II "Borrower Information" is hereby amended by adding
thereto the following information: Xxxxxxxx Communications Group, Xxx Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxxx 00000, Attention:
Xxxxx X. Xxxxx, Telecopier: (000) 000-0000.
12. Schedule IX-A "Permitted WCG Liens" is hereby added to the 1997
Credit Agreement in the form of Schedule IX-A attached hereto.
13. The total Commitments of the Banks to WCG shall be in the aggregate
amount of $400,000,000 and each Bank?s Commitment to WCG as of the date hereof
shall be forty percent (40%) of its Commitment to WHD pursuant to the 1997
Credit Agreement as hereby amended. Schedule X of the 1997 Credit Agreement is
hereby deemed to be amended to add such Commitment of each Bank to WCG thereto
and to delete the Commitment of each Bank to WPL.
14. Schedule XI "Rating Categories" is hereby deleted in its entirety
and replaced with the Schedule XI attached to this Amendment.
15. Exhibit I "Form of Guaranty", attached to this Amendment, is hereby
added to the Agreement as Exhibit I.
16. To induce the Banks, the Co-Agents and the Agent to enter into this
Amendment, each of the Borrowers hereby reaffirms and WCG makes with respect to
itself, as of the date
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hereof, those representations and warranties contained in Article IV of the 1997
Credit Agreement (except to the extent such representations and warranties
relate solely to an earlier date) and additionally each Borrower represents and
warrants as follows:
(a) The execution, delivery and performance by WCG of this Amendment
and its Notes and the consummation of the transactions contemplated by this
Amendment are within WCG?s corporate powers, have been duly authorized by all
necessary corporate action, do not contravene (i) WCG?s charter or by-laws, or
(ii) law or any contractual restriction binding on or affecting WCG and will not
result in or require the creation or imposition of any Lien prohibited by the
1997 Credit Agreement, as amended hereby. At the time of each borrowing of any
Advance by WCG, such borrowing and the use of the proceeds of such Advance will
be within WCG?s corporate xxxxxx, xxxx have been duly authorized by all
necessary corporate action, will not contravene (i) WCG?s charter or by-laws, or
(ii) law or any contractual restriction binding on or affecting WCG and will not
result in or require the creation or imposition of any Lien prohibited by the
1997 Credit Agreement, as amended hereby.
(b) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by WCG of this Amendment or its
Notes, or the performance of the 1997 Credit Agreement as amended hereby or the
consummation of the transactions contemplated by this Amendment and the 1997
Credit Agreement as hereby amended. At the time of each borrowing of any Advance
by WCG, no authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body will be required for
such borrowing or the use of the proceeds of such Advance.
(c) This Amendment has been duly executed and delivered by WCG. This
Amendment and the 1997 Credit Agreement, as amended hereby, are the legal, valid
and binding obligations of WCG enforceable against WCG in accordance with their
terms, except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors? rights generally and by general principles of equity. The A Notes of
WCG are, and when executed the B Notes of WCG will be, the legal, valid and
binding obligations of WCG enforceable against WCG in accordance with their
respective terms, except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors? rights generally and by general principles of equity.
(d) The execution, delivery and performance by WHD of its Guaranty and
the consummation of the transactions contemplated by this Amendment and such
Guaranty are within WHD?s corporate powers, have been duly authorized by all
necessary corporate action, do not contravene (i) WHD?s charter or by-laws, or
(ii) law or any contractual restriction binding on
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or affecting WHD and will not result in or require the creation or imposition of
any Lien prohibited by the 1997 Credit Agreement, as amended hereby.
(e) The Guaranty and this Amendment have each been duly executed and
delivered by WHD and each constitutes the legal, valid and binding obligations
of WHD enforceable against WHD in accordance with its respective terms, except
as such enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors? rights generally
and by general principles of equity.
(f) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by WHD of this Amendment or its
Guaranty or the consummation of the transactions contemplated by this Amendment
or its Guaranty.
(g) The execution, delivery and performance by each Borrower other than
WCG (such Borrowers the "Existing Borrowers") of this Amendment and the
consummation of the transactions contemplated by this Amendment are within such
Existing Borrower?s corporate or limited liability company powers, have been
duly authorized by all necessary corporate or limited liability company action,
do not contravene (i) such Existing Borrower?s charter, by-laws, or formation
agreement, or (ii) law or any contractual restriction binding on or affecting
such Existing Borrower and will not result in or require the creation or
imposition of any Lien prohibited by the 1997 Credit Agreement, as amended
hereby.
(h) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by any Existing Borrower of this
Amendment or the consummation of the transactions contemplated by this
Amendment.
(i) This Amendment has been duly executed and delivered by each
Existing Borrower. This Amendment is the legal, valid and binding obligation of
each Existing Borrower enforceable against each Existing Borrower in accordance
with its terms, except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors? rights generally and by general principles of equity.
17. The obligation of each Bank to make its initial Advance to WCG on
or after the date hereof is conditioned on the receipt by the Agent on or before
the date of such Advance of the following:
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(a) A certificate of the Secretary or an Assistant Secretary of WCG as
to (i) its by-laws and all changes which have been made, if any, to its
Certificate of Incorporation since the date of certification of such Certificate
delivered pursuant to item (b) below, (ii) resolutions of the Board of Directors
or the Executive Committee thereof then in full force and effect authorizing the
borrowing in an amount equal to or greater than $400,000,000 and the execution,
delivery and performance of such documents, certificates and notes and all other
actions necessary to effect such and (iii) the incumbency and signatures of
those of its officers authorized to act with respect to this Amendment;
(b) A copy of the Certificate of Incorporation of WCG, certified by the
Secretary of State of Delaware and attesting to its existence and good standing;
(c) A certificate of the Secretary or an Assistant Secretary of WHD as
to (i) its by-laws, (ii) resolutions of the Board of Directors or Executive
Committee thereof then in full force and effect authorizing the execution,
delivery and performance of the Guaranty, and (iii) the incumbency and
signatures of those of its officers authorized to act with respect to this
Amendment and the Guaranty;
(d) The A Notes of WCG, duly executed to the order of each of the
respective Banks, substantially in the form of Exhibit A-1 to the 1997 Credit
Agreement in the aggregate principal amount of $400,000,000;
(e) The Guaranty, duly executed by WHD; and
(f) An opinion of Xxxxxxx X. xxx Xxxxx, General Counsel of TWC,
delivered on behalf of WCG and WHD substantially in the form of Exhibit A
attached hereto.
18. The 1997 Credit Agreement as hereby amended is hereby ratified and
confirmed in all respects. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Agent or the Banks under the 1997 Credit
Agreement. All references to the Credit Agreement in any other document,
instrument, agreement or writing shall hereafter be deemed to refer to the 1997
Credit Agreement as amended hereby.
19. The provisions of the 1997 Credit Agreement not specifically
amended herein will be interpreted so as to be consistent with this Amendment;
if, however, any discrepancy exists between such provisions in the 1997 Credit
Agreement and this Amendment, such discrepancy shall be resolved in favor of
this Amendment.
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20. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, IN ALL
RESPECTS, INCLUDING CONSTRUCTION, VALIDITY AND PERFORMANCE.
21. This Amendment shall be effective as of January 26, 1999 and shall
be binding upon the parties hereto and upon their respective successors, heirs
and permitted assigns.
22. This Amendment may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument, and any
party hereto may execute this Amendment by signing one or more counterparts.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
THE XXXXXXXX COMPANIES, INC. TEXAS GAS TRANSMISSION
CORPORATION
By: By:
------------------------------ --------------------------------
Name: Name:
---------------------------- ------------------------------
Title: Title:
--------------------------- -----------------------------
TRANSCONTINENTAL GAS PIPE LINE XXXXXXXX COMMUNICATIONS
CORPORATION GROUP, INC.
By: By:
------------------------------ --------------------------------
Name: Name:
---------------------------- ------------------------------
Title: Title:
--------------------------- -----------------------------
XXXXXXXX HOLDINGS OF DELAWARE, XXXXXXXX COMMUNICATIONS
INC. SOLUTIONS, L.L.C.
By: By:
------------------------------ --------------------------------
Name: Name:
---------------------------- ------------------------------
Title: Title:
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NORTHWEST PIPELINE CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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AGENT:
CITIBANK, N.A., as Agent
By:
------------------------------
Title:
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BANKS:
CITIBANK, N.A. CREDIT LYONNAIS NEW YORK BRANCH
By: By:
------------------------------ ------------------------------
Title: Title:
--------------------------- ---------------------------
BANK OF AMERICA NATIONAL TRUST THE FIRST NATIONAL BANK OF
AND SAVINGS ASSOCIATION CHICAGO
By: By:
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Title: Title:
--------------------------- ---------------------------
THE CHASE MANHATTAN BANK BANK OF MONTREAL
By: By:
------------------------------ ------------------------------
Title: Title:
--------------------------- ---------------------------
CIBC INC. THE BANK OF NEW YORK
By: By:
------------------------------ ------------------------------
Title: Title:
--------------------------- ---------------------------
THE BANK OF NOVA SCOTIA
By:
------------------------------
Title:
---------------------------
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BARCLAYS BANK PLC SOCIETE GENERALE, SOUTHWEST AGENCY
By: By:
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Title: Title:
--------------------------- ---------------------------
BANKBOSTON, X.X. XXXXX FARGO BANK, N.A.
By: By:
------------------------------ ------------------------------
Title: Title:
--------------------------- ---------------------------
THE FUJI BANK, LIMITED, HOUSTON BANK OF OKLAHOMA, N.A.
AGENCY
By: By:
------------------------------ ------------------------------
Title: Title:
--------------------------- ---------------------------
MELLON BANK, N.A. COMMERCE BANK, N.A.
By: By:
------------------------------ ------------------------------
Title: Title:
--------------------------- ---------------------------
XXXXXX GUARANTY TRUST CREDIT AGRICOLE INDOSUEZ
COMPANY OF NEW YORK
By: By:
------------------------------ ------------------------------
Title: Title:
--------------------------- ---------------------------
ROYAL BANK OF CANADA SUNTRUST BANK, ATLANTA
By: By:
------------------------------ ------------------------------
Title: Title:
--------------------------- ---------------------------
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INDUSTRIAL BANK OF JAPAN TRUST
COMPANY
By:
------------------------------
Title:
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THE SAKURA BANK, LIMITED
By:
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Title:
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THE BANK OF TOKYO-MITSUBISHI, LTD.
By:
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Title:
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UBS AG, STAMFORD BRANCH
By:
------------------------------
Title:
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NATIONS BANK N.A.
By:
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Title:
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