EXHIBIT 99.1
WILTEL COMMUNICATIONS, LLC
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of September 2, 2005 and entered into by and
among WILTEL COMMUNICATIONS, LLC (the "Company"), WILTEL COMMUNICATIONS GROUP,
LLC (formerly known as WilTel Communications Group, Inc.) ("Holdings"), the
Subsidiary Guarantors (as defined in Credit Agreement referred to below), the
Lenders (as defined in the Credit Agreement) listed on the signature pages
hereof or that have consented to the terms hereof, CREDIT SUISSE, CAYMAN ISLANDS
BRANCH ("CS"), as first lien administrative agent for the First Lien Facility
Lenders (as defined in the Credit Agreement) (in such capacity, the "First Lien
Administrative Agent"), second lien administrative agent for the Second Lien
Facility Lenders (as defined in the Credit Agreement) (in such capacity, the
"Second Lien Administrative Agent"), and administrative agent for the Lenders
(in such capacity, the "Administrative Agent"), and is made with reference to
that certain Third Amended and Restated Credit Agreement, dated as of September
24, 2004 (the "Credit Agreement"; capitalized terms used but not defined in this
Amendment shall have the meanings assigned thereto in the Credit Agreement), by
and among the Company, the Guarantors party thereto, the Lenders party thereto,
the First Lien Administrative Agent, the Second Lien Administrative Agent and
the Administrative Agent.
RECITALS
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto wish to amend the Credit Agreement as herein provided;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
A. Section 1.1 of the Credit Agreement is hereby amended by modifying
the definition of "Consolidated Cash EBIDTA" by adding immediately before the
second reference to "plus" thereof the following parenthetical:
"(exclusive of reimbursements or amounts paid in advance with
respect to Reimbursed Capital Expenditures)".
B. Section 1.1 of the Credit Agreement is hereby further amended by
adding thereto the following definitions, which shall be inserted in proper
alphabetical order:
"First Amendment Effective Date": means September 2, 2005.
"Reimbursed Capital Expenditures": Consolidated Capital
Expenditures (a)(i) for which a Loan Party has been reimbursed by a customer or
third party in the fiscal year in which such expenditure is made, in an
aggregate amount not to exceed $50,000,000 in any fiscal year or (ii) for which
the entire amount of such Consolidated Capital Expenditure is paid in advance by
a customer or third party, and (b) identified to the Administrative Agent at the
time or within thirty (30) days after the relevant transaction is entered into
with the applicable customer or third party or identified to the Administrative
Agent on the First Amendment Effective Date.
"SBC Settlement Agreement": the Termination, Mutual Release and
Settlement Agreement, dated as of June 15, 2005, by and among SBC Communications
Inc., SBC Operations, Inc. and SBC Long Distance, LLC, Holdings, the Borrower
and Leucadia.
"Special SBC Payments": any payments made by or on behalf of SBC
Communications Inc., SBC Operations, Inc., SBC Long Distance, LLC or any of
their respective affiliates under Section III.B of the SBC Settlement Agreement.
C. Section 1.1 of the Credit Agreement is hereby further amended by
modifying the definition of "Loan Documents" by adding "the WCA Joinder
Agreement," immediately after "Security Documents," therein.
D. Section 1.1 of the Credit Agreement is hereby further amended by
adding thereto the following definitions, which shall be inserted in proper
alphabetical order:
"WCA": WilTel Communications Acquisition, LLC, a Delaware limited
liability company organized solely for the purpose of merging with the Borrower.
"WCA Joinder Agreement": the Joinder Agreement by and among WCA
and the Agents in connection with the merger permitted under Sections 8.4 and
9.4.
E. Section 2.9 of the Credit Agreement is hereby amended by adding
immediately after the last sentence thereof the following:
"Notwithstanding the foregoing, upon the termination or
expiration of any outstanding Letters of Credit, the Revolving Commitments shall
automatically be reduced in an amount equal to the stated amount of such Letter
of Credit, without further notice by the Borrower or otherwise."
F. Section 2.12 of the Credit Agreement is hereby amended by adding
immediately after clause (j) the following new clause (k):
"(k) No later than ten (10) days after the end of each fiscal
quarter of the Borrower, the Borrower shall make a prepayment of the Loans in an
amount equal to 100% of the Special SBC Payments made in such fiscal quarter.
Such prepayment shall be applied as set forth in Section 2.12(e)."
G. Section 2.12(e) of the Credit Agreement is hereby amended by:
(i) replacing each reference to "Section 2.12(a), (b), (c) and
(d)" therein with "Section 2.12(a), (b), (c), (d) and (k)"; and
(ii) replacing each reference to "Section 2.12(a), (b), (c) or
(d)" therein with "Section 2.12(a), (b), (c), (d) or (k)".
H. Section 8 of the Credit Agreement is hereby amended by adding the
following new Section 8.18:
"8.18 Amendments to SBC Settlement Agreement. Amend, supplement
or otherwise modify, or waive or fail to enforce any rights under, the SBC
Settlement Agreement in a manner which would result in any reduction in any
Special SBC Payments or result in any delay in the payment of any Special SBC
Payments, in each case, pursuant to the SBC Settlement Agreement as in effect as
of the First Amendment Effective Date."
I. Section 8.1 of the Credit Agreement is hereby amended by adding
the following new clause (d) immediately after clause (c) thereof:
(d) Minimum Cash Balance. Permit the aggregate amount of cash and
Cash Equivalents held by the Loan Parties in an account or accounts subject
solely to perfected Liens pursuant to the Security Documents to be less than
$150,000,000 at the end of any fiscal quarter.
J. Section 8.2 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (m) thereof, (ii) adding "and" at
the end of clause (n) thereof and (iii) adding immediately after clause (n) the
following new clause (o):
"(o) Indebtedness in respect of letters of credit in an aggregate
principal amount not to exceed $15,000,000 at any one time outstanding."
K. Section 8.3 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (m) thereof, (ii) adding "and" at
the end of clause (n) thereof and (iii) adding immediately after clause (n) the
following new clause (o):
"(o) Liens on cash or Cash Equivalents securing Indebtedness in
respect of letters of credit permitted under Section 8.2(o); provided such cash
or Cash Equivalents shall not exceed 105% of the face amount of such letters of
credit."
L. Section 8.4 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (b) thereof, (ii) adding "and" at
the end of clause (c) thereof and (iii) adding immediately after clause (c)
thereof the following new clause (d):
"(d) the Borrower may be merged with and into WCA, with WCA being
the surviving entity; provided, that (i) WCA shall not conduct any business or
operations, or have any obligations or liabilities, prior to such merger and
(ii) immediately following the consummation of such merger, WCA shall change its
name to "WilTel Communications, LLC."
M. Section 8.7 of the Credit Agreement is hereby amended by adding
the following parenthetical immediately after the phrase "Consolidated Capital
Expenditures" the first time such phase appears therein:
"(other than Reimbursed Capital Expenditures)".
N. Section 8.14 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (d) thereof, (ii) adding "and" at
the end of clause (e) thereof and (iii) adding immediately after such clause (e)
the following new clause (f):
"(f) any agreements governing Liens permitted by Section 8.3(o)
(in which case, any prohibition or limitation shall only be effective against
the collateral subject to such Liens)".
O. Section 8.15 of the Credit Agreement is hereby amended by (x)
deleting the word "and" at the end of clause (iv) thereof, (y) adding "and" at
the end of clause (v) thereof and (z) adding immediately after such clause (e)
the following new clause (vi):
"(vi) restrictions on Indebtedness constituting letters of credit
permitted under Section 8.2(o), to the extent prohibiting transfers of the
collateral securing such Indebtedness".
P. Section 9 of the Credit Agreement is hereby amended by adding the
following new Section 9.18:
"9.18 Amendments to SBC Settlement Agreement. Amend, supplement
or otherwise modify, or waive or fail to enforce any rights under, the SBC
Settlement Agreement in a manner which would result in any reduction in any
Special SBC Payments or result in any delay in the payment of any Special SBC
Payments, in each case, pursuant to the SBC Settlement Agreement as in effect as
of the First Amendment Effective Date."
Q. Section 9.1 of the Credit Agreement is hereby amended by adding
the following new clause (c) immediately after clause (b) thereof:
(d) Minimum Cash Balance. Permit the aggregate amount of cash and
Cash Equivalents held by the Loan Parties in an account or accounts subject
solely to perfected Liens pursuant to the Security Documents to be less than
$150,000,000 at the end of any fiscal quarter.
R. Section 9.2 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (m) thereof, (ii) adding "and" at
the end of clause (n) thereof and (iii) adding immediately after clause (n) the
following new clause (o):
"(o) Indebtedness in respect of letters of credit in an aggregate
principal amount not to exceed $15,000,000 at any one time outstanding."
S. Section 9.3 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (m) thereof, (ii) adding "and" at
the end of clause (n) thereof and (iii) adding immediately after clause (n) the
following new clause (o):
"(o) Liens on cash or Cash Equivalents securing Indebtedness in
respect of letters of credit permitted under Section 9.2(o); provided such cash
or Cash Equivalents shall not exceed 105% of the face amount of such letters of
credit."
T. Section 9.4 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (b) thereof, (ii) adding "and" at
the end of clause (c) thereof and (iii) adding immediately after clause (c)
thereof the following new clause (d):
"(d) the Borrower may be merged with and into WCA, with WCA being
the surviving entity; provided, that (i) WCA shall not have conducted any
business or operations, or have any obligations or liabilities, prior to such
merger and (ii) immediately following the consummation of such merger, WCA shall
change its name to "WilTel Communications, LLC."
U. Section 9.7 of the Credit Agreement is hereby amended by adding
the following parenthetical immediately after the phrase "Consolidated Capital
Expenditures" the first time such phase appears therein:
"(other than Reimbursed Capital Expenditures)".
V. Section 9.14 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (d) thereof, (ii) adding "and" at
the end of clause (e) thereof and (iii) adding immediately after such clause (e)
the following new clause (f):
"(f) any agreements governing Liens permitted by Section 9.3(o)
(in which case, any prohibition or limitation shall only be effective against
the collateral subject to such Liens)".
W. Section 9.15 of the Credit Agreement is hereby amended by (x)
deleting the word "and" at the end of clause (iv) thereof, (y) adding "and" at
the end of clause (v) thereof and (z) adding immediately after such clause (e)
the following new clause (vi):
"(vi) restrictions on Indebtedness constituting letters of credit
permitted under Section 9.2(o), to the extent prohibiting transfers of the
collateral securing such Indebtedness".
SECTION 2. WAIVER RELATING TO INVESTMENT ACCOUNTS
The Administrative Agent, the First Lien Administrative Agent, the
Second Lien Administrative Agent and the Lenders hereby acknowledge and agree
that Investment Accounts (as defined in the Security Agreement) created solely
for purposes of securing obligations with respect to letters of credit permitted
by Sections 8.2(o) and 9.2(o) of the Amended Agreement (as hereinafter defined)
and containing amounts not in excess of 105% of the face amount of such letters
of credit shall not be subject to Sections 5.8 and 6.8 of the Security
Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agents to enter into this
Amendment, each Loan Party represents and warrants to each Lender and each Agent
that the following statements are true, correct and complete as of the Amendment
Effective Date (as hereinafter defined) and the Joinder Effective Date (as
hereinafter defined): (i) such Loan Party has all requisite power and authority
to enter into this Amendment and to carry out the transactions contemplated by,
and perform its obligations under, the Credit Agreement as amended by this
Amendment (the "Amended Agreement");
(ii) the execution and delivery of this Amendment and the
performance of the Amended Agreement have been duly authorized by all necessary
organizational action on the part of such Loan Party;
(iii) the execution and delivery by such Loan Party of this
Amendment and the performance by such Loan Party of the Amended Agreement do not
and will not violate any Requirement of Law or any material Contractual
Obligation of any Loan Party or binding upon any Loan Party and will not result
or require, the creation or imposition of any Lien on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security Documents);
(iv) this Amendment has been duly executed and delivered by such
Loan Party and this Amendment and the Amended Agreement are legally valid and
binding obligations of such Loan Party, enforceable against such Loan Party in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability;
(v) the representations and warranties contained in Section 4 of
the Credit Agreement (other than Section 4.2 of the Credit Agreement solely to
the extent affected by the matters referenced in Leucadia's Form 8-Ks dated
February 1, 2005 and June 16, 2005, respectively) and contained in the other
Loan Documents are and will be true, correct and complete in all material
respects on and as of the date hereof and the Amendment Effective Date to the
same extent as though made on and as of such dates, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date; and
(vi) no event has occurred and is continuing or will result from
the consummation of the transactions contemplated by this Amendment that would
constitute a Default or an Event of Default.
SECTION 4. CONDITIONS TO EFFECTIVENESS
A. Sections 1A, B, E, F, G, H, I, J, K, M, N, O, P, R, Q, S, U, V, W
and Section 2 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Amendment
Effective Date"):
(i) On or before the Amendment Effective Date, the Company and
Holdings shall have delivered to the Administrative Agent copies of resolutions
of its Board of Directors, Board of Managers or other authorizing body or Person
approving and authorizing the execution, delivery and performance of this
Amendment, certified as of the Amendment Effective Date by its secretary or an
assistant secretary as being in full force and effect without modification or
amendment and all documents evidencing other necessary organizational action and
governmental and other material third party approvals and consents, if any (or a
certification that none are required) with respect to this Amendment and the
matters and transactions contemplated hereby.
(ii) The Administrative Agent shall have received counterparts of
this Amendment executed by the Loan Parties and the Agents, and the Required
Lenders shall have executed counterparts of this Amendment or otherwise
consented to the terms hereof; and
(iii) The Company shall have delivered an irrevocable notice to
the Administrative Agent to reduce the amount of the Revolving Commitments to
$6,000,000 in accordance with Section 2.9 of the Credit Agreement.
B. Sections 1C, D, L and T of this Amendment shall become effective
("Joinder Effective Date") on the date that the conditions set forth in Section
4A have been satisfied and upon the satisfaction of the following additional
conditions precedent:
(i) The Administrative Agent shall have received counterparts of
a joinder agreement substantially in the form of Exhibit A attached hereto (the
"Joinder Agreement") executed by WilTel Communications, LLC (formerly known as
WilTel Communications Acquisition, LLC) (the "New Borrower") and the
Administrative Agent, the First Lien Administrative Agent and the Second Lien
Administrative Agent;
(ii) The Administrative Agent shall have received the results of
a recent lien search in Delaware, and such search shall reveal no liens on any
of the assets of WilTel Communications Acquisition, LLC;
(iii) The Administrative Agent shall have received (i) a
certificate of the New Borrower, dated the Joinder Effective Date, substantially
in the form of Exhibit C to the Credit Agreement, with appropriate insertions
and attachments, including, without limitation, (a) the certificate of formation
of the New Borrower, certified by the Secretary of State of the State of
Delaware and (b) resolutions of the New Borrower's Board of Directors, Board of
Managers or other authorizing body or Person approving and authorizing the
execution, delivery and performance of the Joinder Agreement, certified as of
the Joinder Effective Date by its secretary or an assistant secretary as being
in full force and effect without modification or amendment and all documents
evidencing other necessary organizational action and governmental and other
material third party approvals and consents, if any (or a certification that
none are required) with respect to the Joinder Agreement and the matters and
transactions contemplated thereby, and (ii) a long form good standing
certificate for the New Borrower from the Secretary of State of the State of
Delaware; and
(iv) The Administrative Agent shall have received the legal
opinion of Xxxx Xxxxxxx & Xxxxxx LLP, counsel for the New Borrower, addressed to
each Agent and each Lender, in form and substance reasonably satisfactory to the
Administrative Agent.
SECTION 5. ACKNOWLEDGEMENT AND CONSENT
A. Each Guarantor acknowledges that it has read this Amendment and
consents to the terms hereof and further hereby confirms and agrees that,
notwithstanding the effectiveness of this Amendment, the obligations of such
Guarantor under each of the Loan Documents to which such Guarantor is a party
shall not be impaired and each of the Loan Documents to which such Guarantor is
a party are, and shall continue to be, in full force and effect and are hereby
confirmed and ratified in all respects.
B. Each Guarantor acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in this Amendment, such Guarantor is
not required by the terms of the Credit Agreement or any other Loan Document to
consent to the amendments effected pursuant to this Amendment and (ii) nothing
in the Credit Agreement, this Amendment or any other Loan Document shall be
deemed to require the consent of such Guarantor to any future amendments to the
Credit Agreement.
SECTION 6. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
(i) On and after the effective date of this Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement and each
reference in the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement shall mean
and be a reference to the Credit Agreement as amended hereby.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver or amendment
of any provision of, or operate as a waiver of any right, power or remedy of any
Agent or any Lender under the Credit Agreement or any of the other Loan
Documents.
B. Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
C. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
D. Payment of Expenses. The Company shall pay all reasonable expenses
incurred by the Administrative Agent (including fees and expenses of counsel),
in connection with the Amendment and for services related to the Credit
Agreement and the other Loan Documents in accordance with Section 15.5 of the
Credit Agreement.
E. Counterparts. This Amendment may be executed in any number of
counterpart copies and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. Delivery of an executed counterpart of a signature page of
this Amendment by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Amendment.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
WILTEL COMMUNICATIONS, LLC
By:
----------------------------------------
Name:
Title:
WILTEL COMMUNICATIONS GROUP, LLC
By:
----------------------------------------
Name:
Title:
CG AUSTRIA, INC.
By:
----------------------------------------
Name:
Title:
CRITICAL CONNECTIONS, INC.
VYVX, LLC
WCS COMMUNICATIONS SYSTEMS, INC.
WILTEL COMMUNICATIONS MANAGED SERVICES OF
CALIFORNIA, INC.
WILTEL COMMUNICATIONS OF VIRGINIA, INC.
WILTEL COMMUNICATIONS PROCUREMENT, L.L.C.
WILTEL LOCAL NETWORK, LLC
By:
----------------------------------------
Name:
Title:
WILTEL COMMUNICATIONS PROCUREMENT, LP
By: WilTel Communications, LLC, as General
Partner
By:
----------------------------------------
Name:
Title:
WILTEL TECHNOLOGY CENTER, LLC
By: WilTel Communications, LLC, as Sole
Member
By:
----------------------------------------
Name:
Title:
FTV COMMUNICATIONS LLC
By: WilTel Communications, LLC, as Sole
Member
By:
----------------------------------------
Name:
Title:
CREDIT SUISSE, Cayman Islands branch,
as Administrative Agent
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
CREDIT SUISSE, Cayman Islands branch,
as First Lien Administrative
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
CREDIT SUISSE, Cayman Islands branch,
as Second Lien Administrative Agent
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
Consented to by:
_____________________, as a Lender
By:
----------------------------------------
Name:
Title:
