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EXHIBIT 10.72
AMENDMENT NO. 4 TO CREDIT AGREEMENT
AMENDMENT dated as of March 14, 2001 to the Amended and Restated Credit
Agreement dated as of September 8, 1999 (as heretofore amended, the "CREDIT
AGREEMENT") among XXXXXXXX COMMUNICATIONS, LLC (formerly known as Xxxxxxxx
Communications, Inc., the "BORROWER"), XXXXXXXX COMMUNICATIONS GROUP, INC.
("HOLDINGS"), the LENDERS party thereto (the "LENDERS"), BANK OF AMERICA, N.A.,
as Administrative Agent (the "ADMINISTRATIVE AGENT") and THE CHASE MANHATTAN
BANK, as Syndication Agent ("SYNDICATION AGENT").
WITNESSETH:
WHEREAS, the parties hereto desire to amend the Credit Agreement to,
among other things, (i) increase the maximum permitted amount of aggregate
Incremental Commitments, (ii) provide the Administrative Agent, for the benefit
of the Lenders, with a security interest in certain assets of the Borrower,
Holdings and the Restricted Subsidiaries, as specified in the Credit Agreement
as amended hereby, (iii) update the financial covenants and certain other
covenants, and (iv) revise the margins applicable to fees and the Loans;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement and each other Loan Document shall, from and
after the Amendment No. 4 Effective Date (as defined in Section 31 below), refer
to the Credit Agreement as amended hereby.
SECTION 2. Increase in Pricing. (a) The definition of "Applicable
Margin" in Section 1.01 of the Credit Agreement is amended by deleting the chart
set forth therein (the rates per annum set forth in such chart, the "Existing
Margins") and replacing it with the chart set forth below (the rates per annum
set forth in the chart below, the "New Margins"):
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FACILITIES RATING EURODOLLAR SPREAD ABR SPREAD LEVERAGE PREMIUM
----------------- ----------------- ---------- ----------------
LEVEL I BBB- and Baa3 or 1.50% 0.50% 0.25%
higher
LEVEL II BB+ and Ba1 1.875% 0.875% 0.25%
LEVEL III BB and Ba2 2.25% 1.25% 0.25%
LEVEL IV BB- and Ba3 2.50% 1.50% 0.25%
LEVEL V Lower than BB-
or lower than Ba3 2.75% 1.75% 0.25%
(b) The parties hereto agree that the "Applicable Margin" on any date
prior to the Amendment No. 4 Effective Date shall be determined by reference to
the Existing Margins and on any date on or after the Amendment No. 4 Effective
Date shall be determined by reference to the New Margins.
SECTION 3. Increase in Letters of Credit Sublimit. Section 2.05(b) of
the Credit Agreement is amended by replacing the amount "$100,000,000" in clause
(i) thereof with the amount "$350,000,000".
SECTION 4. Increase in Total Amount of Incremental Commitments .
Section 2.20(a) of the Credit Agreement is amended by replacing the amount
"$500,000,000" with the amount "$950,000,000".
SECTION 5. Exceptions to Mandatory Prepayments and Commitment
Reductions. (a) Clause (a) of the definition of "Prepayment Event" in Section
1.01 of the Credit Agreement is amended by replacing the phrase "clauses (a)
through (d), (f), (g) and (h) of Section 6.05" with the phrase "clauses (a)
through (d) and (f) through (i) of Section 6.05".
(b) Section 2.08(g) of the Credit Agreement is amended by replacing the
phrase "December 31, 2001" with the phrase "December 31, 2002".
(c) Section 2.11(c) of the Credit Agreement is amended by replacing the
phrase "December 31, 2001" with the phrase "December 31, 2002".
SECTION 6. Change in Reporting Requirements. Section 5.01(f) of the
Credit Agreement is amended by inserting the phrase "except to the extent any
such report, proxy statement or other material is available electronically on a
publicly-accessible website" at the end thereof.
SECTION 7. Sale of Solutions and ATL. (a) The following new definition
is added in alphabetical order in Section 1.01 of the Credit Agreement:
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"ATL" means ATL-Algar Telecom Leste S.A., a Brazilian
corporation.
(b) Article 5 of the Credit Agreement is amended by the addition of the
following new Section 5.19 immediately after Section 5.18 thereof:
Section 5.19. Sale of Solutions and ATL. (a) Not
later than September 30, 2001, Holdings and the Borrower shall
have sold, or caused to be sold, to one or more Persons that
are not Affiliates of Holdings or any of its Subsidiaries, in
one or more transactions (x) all of the capital stock of
Solutions held by the Borrower, Holdings or any of its
Subsidiaries and/or substantially all of the U.S. and Mexican
assets (except aged receivables) of Solutions (and its
Subsidiaries) in existence on the Amendment No. 4 Effective
Date and (y) all of the capital stock of ATL held by the
Borrower, Holdings or any of its Subsidiaries for fair market
value and for Net Proceeds in cash in an aggregate amount of
at least $700,000,000.
(b) Not later than December 31, 2001, Holdings and
the Borrower shall have sold or otherwise disposed of, or
caused to be sold or otherwise disposed of, to one or more
Persons that are not Affiliates of Holdings or any of its
Subsidiaries, in one or more transactions, substantially all
of the Canadian assets of Solutions (and its Subsidiaries) in
existence on the Amendment No. 4 Effective Date.
SECTION 8. Issuance of Additional Debt or Equity Securities. (a) The
following new definitions are added in alphabetical order in Section 1.01 of the
Credit Agreement:
"Incremental Facility Arranger" means each Person
acting as a "joint lead arranger" with respect to any
Incremental Facility.
"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 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, so long as the terms and
conditions of any such Indebtedness or Sale and Leaseback
Transaction shall have been approved by all the
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Incremental Facility Arrangers (if any) and the Administrative
Agent prior to the issuance thereof.
(b) Article 5 of the Credit Agreement is amended by the addition of the
following new Section 5.20 immediately after Section 5.19 thereof:
Section 5.20. Qualifying Issuances. Not later than
December 31, 2001, the Borrower and/or Holdings shall have
consummated Qualifying Issuances for Net Proceeds in cash in
an aggregate amount of at least $500,000,000; provided that
Net Proceeds in cash in an aggregate amount of not more than
$350,000,000 shall have resulted from Qualifying Issuances
described in clause (ii) or (iii) of the definition thereof.
SECTION 9. Additional Permitted Debt. (a) The following new definitions
are added in alphabetical order in Section 1.01 of the Credit Agreement:
"Amendment No.4 Effective Date" means the date of
effectiveness of Amendment No. 4 to this Agreement.
"Structured Note Financing" means the issuance by the
Structured Note Trust of notes for cash Net Proceeds of up to
$1,500,000,000 substantially on the terms and conditions
described by the Borrower in the "Term Sheet for Structured
Note" included as an attachment to the Borrower's Amendment
Request distributed to the Lenders on or prior to March 7,
2001 or otherwise approved by all the Incremental Facility
Arrangers (if any) and the Administrative Agent prior to the
issuance thereof.
"Structured Note Trust" means an Unrestricted
Subsidiary created for the purpose of consummating the
Structured Note Financing and conducting no activities other
than the consummation of the Structured Note Financing and
activities incidental thereto.
(b) Section 6.01 of the Credit Agreement is amended by the insertion of
the following new subsections (r), (s), (t) and (u) immediately after subsection
(q) thereof:
(r) Indebtedness of Holdings or the Borrower incurred
pursuant to a Qualifying Issuance; provided that the aggregate
Net Proceeds in cash received by Holdings and/or the Borrower
from the issuance of such Indebtedness, plus the Net Proceeds
in cash from any Sale and Leaseback Transaction constituting a
Qualifying Issuance shall not exceed $350,000,000;
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(s) Indebtedness with respect to industrial revenue
bonds issued for the benefit of the Borrower, Holdings or any
Restricted Subsidiary in an aggregate principal or face amount
not to exceed $50,000,000;
(t) unsecured Indebtedness of Holdings in an
aggregate principal amount not to exceed $150,000,000 incurred
prior to the consummation of the Structured Note Financing so
long as (i) the proceeds of such Indebtedness are used solely
to make the capital contributions described in Section 6.04(u)
and (ii) the terms and conditions of any such Indebtedness
shall have been approved by all the Incremental Facility
Arrangers (if any) and the Administrative Agent prior to the
issuance thereof;
(u) unsecured Indebtedness of Holdings owed to the
Structured Note Trust in an aggregate principal amount up to
$1,650,000,000 in connection with the consummation of the
Structured Note Financing, so long as the terms and conditions
of such Indebtedness shall have been approved by all the
Incremental Facility Arrangers (if any) and the Administrative
Agent prior to the issuance thereof; and
SECTION 10. Activities of Trading Subsidiary. Section 6.03(c) of the
Credit Agreement is amended by inserting the phrase "a developing or"
immediately prior to the phrase "established market" in clause (v) thereof.
SECTION 11. Additional Permitted Investments. (a) The definition of
"Additional Capital" in Section 1.01 of the Credit Agreement is amended to read
as follows:
"Additional Capital" means the sum of:
(a) $850 million;
(b) the aggregate Net Proceeds received by
the Borrower from the issuance or sale of any
Qualifying Equity Interests of Holdings, subsequent
to the Amendment No. 4 Effective Date; and
(c) the aggregate Net Proceeds from the
issuance or sale of Qualifying Holdings Debt
subsequent to the Amendment No. 4 Effective Date
convertible or exchangeable into Qualifying Equity
Interests of Holdings, in each case upon conversion
or exchange thereof into
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Qualifying Equity Interests of Holdings subsequent to
the Amendment No. 4 Effective Date;
provided, however, that the Net Proceeds
from the issuance or sale of Equity
Interests or Debt described in clause (b) or
(c) shall be excluded from any computation
of Additional Capital to the extent (1)
utilized to make a Restricted Payment or (2)
such Equity Interests or Debt shall have
been issued or sold to the Borrower, a
Subsidiary of the Borrower or a Plan.
(b) Section 6.04(e) of the Credit Agreement is amended by inserting the
phrase "any Indebtedness of Holdings or the Borrower constituting a Qualifying
Issuance" immediately after the phrase "High Yield Notes" in clause (i) thereof.
(c) Section 6.04 of the Credit Agreement is amended by (i) deleting the
"and" at the end of subsection (r) thereof and (ii) inserting the following new
subsections (t) and (u) immediately after subsection (s) thereof:
(t) Letters of Credit to support obligations
of a Trading Subsidiary incurred in the ordinary
course of business; and
(u) capital contributions made by Holdings
to the Borrower and by the Borrower to the Structured
Note Trust, in each case in an aggregate principal
amount not to exceed $150,000,000 and in order to
consummate the Structured Note Financing;
(d) The proviso at the end of Section 6.04 of the Credit Agreement is
amended by deleting all the words contained therein after "shall not exceed" and
replacing them with the following phrase: "the sum of an amount (which amount,
for purposes of this proviso only, shall not be less than zero) equal to (x) the
amount of Additional Capital as of such date minus (y) (A) acquisitions of ADP
Property permitted under Section 6.04(g) made on or prior to such date and (B)
Capital Expenditures permitted under Section 6.08(b) made on or prior to such
date.".
SECTION 12. Additional Permitted Asset Sales. (a) The definition of
"Permitted Telecommunications Asset Disposition" in Section 1.01 of the Credit
Agreement is amended to read as follows:
"Permitted Telecommunications Asset
Disposition" means the transfer, conveyance, sale,
lease or other
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disposition of an interest in or capacity on (1)
optical fiber and/or conduit and any related
equipment, technology or software used in a Segment
of the Borrower's and the Restricted Subsidiaries'
communications network, other than in the ordinary
course of business; provided that after giving effect
to such disposition, the Borrower and the Restricted
Subsidiaries would retain the right to use at least
the minimum retained capacity set forth below:
(i) with respect to any Segment constructed by, for
or on behalf of the Borrower or any Subsidiary or
Affiliate, (x) 24 optical fibers per route mile on
such Segment as deployed at the time of such
Permitted Telecommunications Asset Disposition or (y)
12 optical fibers and one empty conduit per route
mile on such Segment as deployed at the time of such
Permitted Telecommunications Asset Disposition; and
(ii) with respect to any Segment purchased or leased
from third parties, the lesser of (x) 50% of the
optical fibers per route mile originally purchased or
leased on such Segment, (y) 24 optical fibers per
route mile on such Segment as deployed at the time of
such Permitted Telecommunications Asset Disposition
or (z) 12 optical fibers and one empty conduit per
route mile on such Segment as deployed at the time of
such Permitted Telecommunications Asset Disposition;
or
(2) single strand fiber used in a Segment of
the Borrower's and the Restricted Subsidiaries'
communications network, other than in the ordinary
course of business; provided that after giving effect
to such disposition, the Borrower and the Restricted
Subsidiaries would not eliminate all capacity between
the endpoint cities connected by any fiber of the
Borrower or its Restricted Subsidiaries.
(b) Section 6.05 of the Credit Agreement is amended by (i) relettering
existing subsection (h) thereof as clause (j) and amending the cross-reference
in such new subsection (j) and in the proviso at the end of Section 6.05 to
reflect such change and (ii) inserting the following new subsection (h)
immediately after subsection (g) thereof:
(h) the sale, transfer or other dispositions
required by Section 5.19;
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SECTION 13. Carveout to Sale and Leaseback Transactions Covenant . The
proviso at the end of Section 6.06 of the Credit Agreement is amended to read as
follows: "; provided that the sum of the aggregate amount of Attributable Debt
in respect of all such Sale and Leaseback Transactions permitted under this
clause (ii) at any time outstanding (other than any such Attributable Debt with
respect to any Sale and Leaseback Transaction constituting a Qualifying
Issuance) and the aggregate amount of Indebtedness secured by Liens permitted by
Section 6.02(a)(viii) at such time outstanding shall not exceed 5% of
consolidated net property, plant and equipment of Holdings and the Restricted
Subsidiaries at such time. For purposes of determining compliance with the
proviso set forth in the immediately preceding sentence, Capital Lease
Obligations shall not in any event be included in the calculation of
"Attributable Debt.".
SECTION 14. Additional Permitted Restricted Payments. (a) The following
new definitions are added in alphabetical order in Section 1.01 of the Credit
Agreement:
"Leverage Target Date" means the first date
on or after March 31, 2002 on which the Total
Leverage Ratio for the fiscal quarter (or fiscal
year, as the case may be) most recently ended and
with respect to which Holdings and the Borrower shall
have delivered the financial statements required to
be delivered by them with respect to such fiscal
quarter (or fiscal year, as the case may be) pursuant
to Sections 5.01(a) or (b) does not exceed 3.5:1.0.
"Structured Note Bridge Indebtedness" means
the Indebtedness permitted to be incurred by Holdings
pursuant to Section 6.01(t).
(b) Section 6.07(a) of the Credit Agreement is amended by (i) deleting
the word "and" immediately preceding clause (iv) and (ii) replacing the period
at the end of such Section 6.07(a) with "; (v) on and after the Leverage Target
Date, Holdings may declare and pay dividends in cash with respect to its
convertible preferred stock outstanding as of the Amendment No. 4 Effective Date
in an amount not exceeding $40,000,000 in any fiscal year and the Borrower may
declare and pay dividends to Holdings to permit Holdings to declare and pay such
dividends and (vi) at any time after the consummation of the Structured Note
Financing, the Borrower may declare and pay a dividend to Holdings so long as
(x) the aggregate amount of such dividend shall not exceed the principal amount
of the Structured Note Bridge Indebtedness outstanding at the time such dividend
is paid plus accrued interest thereon, (y) no Default has occurred and is
continuing or would result therefrom and (z) immediately upon receipt thereof,
Holdings shall
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apply all of the proceeds of such dividend to repay in full the Structured Note
Bridge Indebtedness then outstanding.
SECTION 15. Permitted Capital Expenditures. Section 6.08 of the Credit
Agreement is amended to read as follows:
SECTION 6.08. Limitation on Capital
Expenditures. (a) Capital Expenditures (other than
Capital Expenditures permitted under Section 6.08(b)
below) for any fiscal year set forth below shall not
exceed the amount set forth below opposite such
fiscal year:
FISCAL YEAR AMOUNT
2001 $2,750,000,000
2002 $2,500,000,000
2003 $2,250,000,000
2004 $2,250,000,000
2005 $2,250,000,000
2006 and each fiscal year $2,800,000,000
thereafter
provided that if the aggregate amount of Capital Expenditures
(other than Capital Expenditures permitted under Section
6.08(b) below) actually made in any such period or fiscal year
shall be less than the limit with respect thereto set forth
above (before giving effect to any increase therein pursuant
to this proviso) (the "Base Amount"), then an amount equal to
50% of such shortfall may be added to the amount of such
Capital Expenditures permitted for the immediately succeeding
fiscal year (such amount to be added for any fiscal year, the
"Rollover Amount"); provided further that any Capital
Expenditures (other than Capital Expenditures permitted under
Section 6.08(b) below) made during any fiscal year for which
any Rollover Amount shall have been so added shall be applied,
first, to the Rollover Amount added for such fiscal year and,
second, to the Base Amount for such fiscal year.
(b) In addition to Capital Expenditures permitted under Section 6.08(a)
above, Holdings and the Restricted Subsidiaries may make (i) Capital
Expenditures consisting of acquisitions of ADP Property permitted under Section
6.04(g) or 6.04(l) and (ii) Capital Expenditures on any date after the Amendment
No.4 Effective Date in an aggregate amount not to exceed Additional Capital as
of such date minus (A) Investments permitted under clause (ii) of the proviso to
Section 6.04 made on or prior to such date and (B) purchases of ADP Property
permitted under Section 6.04(g) made on or prior to such date.
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SECTION 16. Total Net Debt to Contributed Capital Covenant. Section
6.15 of the Credit Agreement is amended to read as follows:
SECTION 6.15. Total Net Debt to Contributed Capital
Ratio. The Total Net Debt to Contributed Capital Ratio shall
at no time prior to January 1, 2002 exceed .65 to 1.00.
SECTION 17. Minimum EBITDA Covenant. Section 6.16 of the Credit
Agreement is amended by deleting the table set forth therein and replacing it
with the following table:
PERIOD AMOUNT
January 1, 2001-March 31, 2001 $200,000,000
April 1, 2001-June 30, 2001 $300,000,000
July 1, 2001-September 30, 2001 $350,000,000
October 1, 2001-December 31, 2001 $350,000,000
SECTION 18. Total Leverage Ratio Covenant. Section 6.17(a) of the
Credit Agreement is amended by deleting the table set forth therein and
replacing it with the following table:
TOTAL LEVERAGE
PERIOD RATIO
March 31, 2002-December 30, 2002 12.50:1.00
December 31, 2002-December 30, 2003 9.50:1.00
December 31, 2003 and thereafter 4.00:1.00
SECTION 19. Senior Leverage Ratio Covenant. Section 6.18 of the Credit
Agreement is amended by deleting the table set forth therein and replacing it
with the following table:
SENIOR LEVERAGE
PERIOD RATIO
March 31, 2002-December 30, 2002 5.25:1.00
December 31, 2002-December 30, 2003 3.25:1.00
December 31, 2003 and thereafter 2.50:1.00
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SECTION 20. Interest Coverage Ratio Covenant. Section 6.19 of the
Credit Agreement is amended by deleting the table set forth therein and
replacing it with the following table:
INTEREST COVERAGE
PERIOD RATIO
June 30, 2002-June 29, 2003 1.00:1.00
June 30, 2003-December 30, 2003 1.50:1.00
December 31, 2003 and thereafter 2.00:1.00
SECTION 21. Additional Events of Default. Clause (i) of Section 7.01(d)
of the Credit Agreement is amended to read as follows: " (i) Holdings or the
Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the existence of Holdings or
the Borrower), 5.10, 5.11A, 5.11B, 5.13, 5.17, 5.18, 5.19 or 5.20 or in Article
6 or".
SECTION 22. Addition of a Form of Security Agreement. (a) The Credit
Agreement is amended by adding Exhibit K hereto as Exhibit K to the Credit
Agreement.
SECTION 23. Requirement of Granting of Collateral Upon Borrower Ceasing
to Be a Subsidiary of Parent. (a) The definition of "Collateral Documents" in
Section 1.01 of the Credit Agreement is amended by inserting immediately after
the word "means" the phrase "the Security Agreement and".
(b) The following new definitions are added in alphabetical order in
Section 1.01 of the Credit Agreement:
"Initial Collateral Date" means the first date on
which the Parent ceases to own at least a majority of the
outstanding securities having ordinary voting power of
Holdings, whether as a result of the consummation of the
Spin-Off or otherwise.
"Security Agreement" means the security agreement
substantially in the form of Exhibit K hereto among the
Borrower, each Restricted Subsidiary and the Administrative
Agent entered into as of the Initial Collateral Date, as
amended from time to time.
(c) Section 5.11 of the Credit Agreement is renumbered Section 5.11B
and a new Section 5.11A is added immediately prior to such new Section 5.11B of
the Credit Agreement, to read in its entirety as follows:
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SECTION 5.11A. Initial Collateral Date. On the
Initial Collateral Date, Holdings and the Borrower hereby
agree that they will, and will cause each other Restricted
Subsidiary to:
(a) Deliver to the Administrative Agent duly executed
counterparts of the Security Agreement, together with the
following:
(i) duly executed counterparts of each
supplemental agreement required to be executed and
delivered by the terms of the Security Agreement
(including, without limitation, any Patent Security
Agreement, and Trademark Security Agreement and any
Control Agreement, in each case as defined in the
Security Agreement);
(ii) stock certificates representing any or
all of the outstanding shares of capital stock or
other Equity Interests of the Borrower and each
Restricted Subsidiary and stock powers and
instruments of transfer, endorsed in blank, with
respect to such stock certificates;
(iii) any or all documents and instruments,
including Uniform Commercial Code financing
statements, required by law or reasonably requested
by the Administrative Agent to be filed, registered
or recorded to create or perfect the Liens intended
to be created under the Security Agreement; and
(iv) a completed perfection certificate
dated the Initial Collateral Date, in form and
substance reasonably satisfactory to the
Administrative Agent and signed by an executive
officer or Financial Officer of Holdings, together
with all attachments contemplated thereby, including
the results of a search of the Uniform Commercial
Code (or equivalent) filings made with respect to the
Loan Parties in the jurisdictions contemplated by
such perfection certificate and copies of the
financing statements (or similar documents) disclosed
by such search and evidence reasonably satisfactory
to the Administrative Agent that the Liens indicated
by such financing statements (or similar documents)
are permitted by Section 6.02 or have been released.
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(b) Deliver to the Administrative Agent a favorable
written opinion (addressed to the Agents, the Issuing Banks,
the Swingline Lenders and the Lenders and dated the Initial
Collateral Date) of each of (i) counsel for Holdings, the
Borrower and each Subsidiary Loan Party reasonably acceptable
to the Administrative Agent, (ii) the general counsel of
Holdings and (iii) local counsel in the jurisdictions where
the Borrower is incorporated and where its chief executive
office is located and, in the case of each such opinion
required by this paragraph, covering such matters relating to
the Loan Parties, the Loan Documents, the Collateral and the
Transactions as the Administrative Agent (or its counsel) or
the Required Lenders shall reasonably request.
(d) New Section 5.11B(a) of the Credit Agreement is amended by
replacing the initial paragraph thereof with the following:
(a) Subject to subsection (d) of this Section 5.11B,
deliver to the Administrative Agent duly executed counterparts
of the Security Agreement (to the extent not previously
delivered pursuant to Section 5.11A) and each other Collateral
Document reasonably requested by the Administrative Agent or
the Required Lenders, in form and substance satisfactory to
the Administrative Agent or the Required Lenders, signed on
behalf of Holdings, the Borrower and each Subsidiary Loan
Party requested by the Administrative Agent or the Required
Lenders, together with (to the extent not previously delivered
pursuant to Section 5.11A) such of the following as shall have
been so requested:
(e) New Section 5.11B of the Credit Agreement is amended by adding the
following new subsection (e) immediately after subsection (d) thereof:
(e) None of the Borrower, Holdings or any Restricted
Subsidiary of Holdings shall be required to grant to the
Administrative Agent or any Lender, pursuant to the provisions
of this Section 5.11B, a Lien on any of the following assets:
(i) voting Equity Interests of any Foreign Subsidiary
representing in excess of 66% of the outstanding voting Equity
Interests of such Foreign Subsidiary, (ii) any ADP Property to
the extent such ADP Property secures any ADP Obligation and
(iii) any other asset subject to a security interest permitted
by clauses (iv), (v), (viii), or (ix) of Section 6.02 but
only, in the case of any asset described in clauses (ii) or
(iii), to the extent the granting of such Lien is prohibited
by the terms of the agreement pursuant to which such security
interest has been granted.
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(f) Sections 5.12(a) and (b) of the Credit Agreement are amended in
each case by deleting the phrase "After the occurrence of a Collateral
Establishment Date and for so long as a Collateral Event shall continue
thereafter," at the beginning of each such Section and capitalizing the initial
letter of the following word.
(g) Section 5.13 of the Credit Agreement is amended as follows:
SECTION 5.13. Additional Subsidiaries. (a) If CNG
shall become a Subsidiary Loan Party, if Solutions shall
determine to become a guarantor under the Subsidiary Guarantee
or if any additional Subsidiary is formed or acquired,
Holdings and the Borrower will notify the Administrative Agent
and the Lenders thereof and if such Subsidiary is a Subsidiary
Loan Party, (i) cause such Subsidiary, within ten Business
Days after such Subsidiary Loan Party is formed or acquired,
to become a party to the Subsidiary Guarantee as an additional
guarantor thereunder and to the Security Agreement as a "Lien
Grantor" thereunder, (ii) deliver all stock certificates
representing the capital stock or other Equity Interests of
such Subsidiary to the Administrative Agent, together with
stock powers and instruments of transfer, endorsed in blank,
with respect to such certificates and (iii) take all actions
required under the Security Agreement to perfect, register
and/or record the Liens granted by it thereunder and the Lien
on such capital stock or other Equity Interests or as may be
reasonably requested by the Administrative Agent or the
Required Lenders.
(b) If a Collateral Establishment Date has occurred
and any Collateral Event is then continuing, such Subsidiary
is a Subsidiary Loan Party and the Administrative Agent or the
Required Lenders so request in writing, Holdings and the
Borrower shall (i) within 30 days after such Subsidiary is
formed or acquired, cause such Subsidiary to become a party to
such Collateral Documents (in addition to the Security
Agreement) as the Administrative Agent or the Required Lenders
shall request and promptly take such actions as the
Administrative Agent or the Required Lenders shall reasonably
request to create and perfect Liens on such of such
Subsidiary's assets (in accordance with the standards set
forth in Section 5.11B(a)) as the Administrative Agent or the
Required Lenders shall so request to secure its obligations
under the Subsidiary Guarantee, and (ii) within 60 days after
such Subsidiary is formed or acquired, cause such Subsidiary
to enter into such Mortgage or Mortgages as the Administrative
Agent or the Required Lenders shall so request with respect to
any or all material
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real property owned by such Subsidiary to secure some or all
of its obligations under the Subsidiary Guarantee and to take
such actions (including, without limitation, actions of the
type referred to in Section 5.11B(a)) with respect thereto as
the Administrative Agent or the Required Lenders shall
reasonably request.
(c) None of the Borrower, Holdings or any Subsidiary
Loan Party shall be required to grant to the Administrative
Agent or any Lender, pursuant to the provisions of this
Section 5.13, a Lien on any of the following assets: (i)
voting Equity Interests of any Foreign Subsidiary representing
in excess of 66% of the outstanding voting Equity Interests of
such Foreign Subsidiary, (ii) any ADP Property to the extent
such ADP Property secures any ADP Obligation and (iii) any
other asset subject to a security interest permitted by
clauses (iv), (v), (viii), or (ix) of Section 6.02 but only,
in the case of any asset described in clauses (ii) or (iii),
to the extent the granting of such Lien is prohibited by the
terms of the agreement pursuant to which such security
interest has been granted.
(h) Section 5.14(a) of the Credit Agreement is amended by (i) deleting
the phrase "After the occurrence of a Collateral Establishment Date and for so
long as a Collateral Event shall continue thereafter," at the beginning there of
and replacing it with the phrase "On any date", (ii) inserting the phrase
"required to be in effect on such date" immediately after the reference to
"Collateral Documents" contained therein and (iii) inserting the phrase
"required to be in effect on such date" at the end of such Section.
(i) Section 5.14(b) of the Credit Agreement is amended by (i) deleting
the phrase "after any Collateral Establishment Date and prior to the date of a
Collateral Release Event" and (ii) adding the following proviso at the end
thereof: "provided that, none of the Borrower, Holdings or any Subsidiary Loan
Party shall be required to grant to the Administrative Agent or any Lender,
pursuant to the provisions of this Section 5.14, a Lien on any of the following
assets: (i) at any time prior to any Collateral Establishment Date, any assets
of a type other than a type constituting "Collateral" under the form of Security
Agreement set forth on Exhibit K hereto as in effect on the Amendment No. 4
Effective Date, (ii) voting Equity Interests of any Foreign Subsidiary
representing in excess of 66% of the outstanding voting Equity Interests of such
Foreign Subsidiary, (iii) any ADP Property to the extent such ADP Property
secures any ADP Obligation and (iv) any other asset subject to a security
interest permitted by clauses (iv), (v), (viii), or (ix) of Section 6.02 but
only, in the case of any asset described in clauses (iii) or (iv), to the extent
the granting of such Lien is prohibited by the terms of the agreement pursuant
to which such security interest has been granted.
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(j) Section 6.02(a)(i) of the Credit Agreement is amended by replacing
the reference to "Section 5.11(d)" with a reference to "Section 5.11B(d)".
SECTION 24. Permitted Receivables Transactions. (a) The following new
definitions are added in alphabetical order in Section 1.01 of the Credit
Agreement:
"Permitted Receivables Disposition" means any
transfer (by way of sale, pledge or otherwise) by the Borrower
or any Restricted Subsidiary to any other Person (including a
Receivables Subsidiary) of accounts receivable and other
rights to payment (whether constituting accounts, chattel
paper, instruments, general intangibles or otherwise and
including the right to payment of interest or finance charges)
and related contract and other rights and property (including
all general intangibles, collections and other proceeds
relating thereto, all security therefor (and the property
subject thereto), all guarantees and other agreements or
arrangements of whatsoever character from time to time
supporting such right to payment, and all other rights, title
and interest in goods relating to a sale which gave rise to
such right of payment) in connection with a Permitted
Receivables Financing.
"Permitted Receivables Financing" means any
receivables securitization program or other type of accounts
receivable financing transaction by the Borrower or any of its
Restricted Subsidiaries in an aggregate amount not to exceed
$250,000,000 on terms reasonably satisfactory to all the
Incremental Facilities Arrangers (if any) and the
Administrative Agent.
"Receivables Subsidiary" means any wholly-owned
Unrestricted Subsidiary (regardless of the form thereof) of
the Borrower formed solely for the purpose of, and which
engages in no other activities except those necessary for,
effecting Permitted Receivables Financings.
(b) The proviso contained in the definition of "Subsidiary Loan Party"
in Section 1.01 of the Credit Agreement is amended to read in its entirety as
follows "; provided that no Receivables Subsidiary shall be a Subsidiary Loan
Party for any purpose under the Loan Documents.".
(c) Section 6.01 of the Credit Agreement is amended by inserting the
following new subsection (v) immediately after subsection (u) thereof:
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(v) on any date on or after the Leverage Target Date,
Indebtedness of the Borrower owing to a Receivables Subsidiary
under a Permitted Receivables Financing;
(d) Section 6.02(a) of the Credit Agreement is amended by (i) deleting
the "and" at the end of clause (viii) thereof, (ii) inserting an "and" at the
end of clause (ix) thereof and (iii) inserting the following new clause (x)
immediately after clause (ix) thereof:
(x) on any date on or after the Leverage Target Date,
Liens created in connection with Permitted Receivables
Financings, including, without limitation, Liens on proceeds
in any form and bank accounts in which any such proceeds are
deposited; provided that, except for the assets transferred
pursuant to Permitted Receivables Dispositions made in
connection with such Permitted Receivables Financings, no such
Lien may extend to any assets of Borrower or any Subsidiary of
the Borrower that is not a Receivables Subsidiary;
(e) Section 6.04 of the Credit Agreement is amended by inserting the
following new subsection (v) immediately after subsection (u) thereof:
(v) Investments in Receivables Subsidiaries made in
connection with Permitted Receivables Financings;
(f) Section 6.05 of the Credit Agreement is amended by inserting the
following new subsection (i) immediately after subsection (h) thereof:
(i) any transfer of Receivables and Related
Transferred Rights (each as defined in the Security Agreement
attached hereto as Exhibit K) in order to consummate a
Permitted Receivables Transaction or to transfer such assets
pursuant to a factoring arrangement;
(g) Section 7.01(g) is amended by inserting the phrase "or Permitted
Receivables Financing" after all three references to "Material Indebtedness"
contained therein.
SECTION 25. Spin-Off Permitted. (a) The definition of "Change in
Control" in Section 1.01 of the Credit Agreement is amended by (i) inserting
into clause (c) the phrase "other than as a result of the consummation of the
Spin-Off," immediately before the phrase "the failure" contained therein and
(ii) replacing in clause (e) the phrase "other than the Parent" with the phrase
"(other than, prior to the consummation of the Spin-Off, the Parent)".
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(b) The following new definition is added in alphabetical order in
Section 1.01 of the Credit Agreement:
"Spin-Off" means the distribution by Parent to its
shareholders of all or substantially all of the capital stock
of Holdings held by Parent substantially on the terms
described by the Borrower to the Lenders prior to the
Amendment No. 4 Effective Date.
(c) Section 6.20(a) of the Credit Agreement is amended by adding the
following phrase at the beginning thereof: "At any time prior to the
consummation of the Spin-Off,".
(d) Section 7.01(p) of the Credit Agreement is amended by adding the
following phrase at the beginning thereof: "at any time prior to the
consummation of the Spin-Off,".
SECTION 26. Deletion of Provisions Relating to the Intercompany Note .
(a) Section 1.01 of the Credit Agreement is amended by deleting the defined term
"Intercompany Note" contained therein.
(b) Section 5.10(a) of the Credit Agreement is amended by deleting
clause (iii) thereof and renumbering the subsequent clauses thereof.
(c) Subsection (l) of Section 6.01 of the Credit Agreement is amended
to read as follows: "(l) [Intentionally deleted];".
(d) Subsection (n) of Section 6.01 of the Credit Agreement is amended
to read as follows: "(n) [Intentionally deleted];"
(e) Section 6.02(b) of Credit Agreement is amended by deleting clause
(i) thereof and renumbering the subsequent clauses thereof.
(f) Section 6.04(g) of the Credit Agreement is amended by deleting
clause (i) thereof and renumbering the subsequent clauses.
(g) Section 6.07(b) of the Credit Agreement is amended by (x) deleting
the phrase "Intercompany Note," contained therein, (y) replacing in clause (i)
thereof the phrase ", subject, in the case of payments of interest in respect of
the Intercompany Note, to the limitations set forth in Section 6.07(b)(ii) below
and in the Intercreditor Agreements; and " with a period and (z) deleting clause
(ii) thereof in its entirety.
(h) Section 6.08(b) of the Credit Agreement is amended by replacing the
comma before clause (B) with the word "and" and deleting the phrase "and (C)
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payments of principal of the Intercompany Note permitted under Section
6.07(b)(ii)(x) made on or prior to such date" contained therein.
(i) Section 6.10 of the Credit Agreement is amended by deleting the
phrase "Intercompany Note," in clause (i) in the proviso thereto.
(j) Section 6.13 of the Credit Agreement is amended by deleting clause
(c) thereof and relettering the subsequent clauses.
(k) Section 6.17 of the Credit Agreement is amended by deleting
subsection (b) thereof.
SECTION 27. CSI, Inc. No Longer an Unrestricted Subsidiaries. The
definition of "Unrestricted Subsidiaries" contained in Section 1.01 of the
Credit Agreement is amended by deleting the number "(i)" and the entire clause
(ii) thereof, and replacing the word "and" after the phrase "Section 6.14"
contained therein with a period.
SECTION 28. Representations of Borrower and Holdings. Each of the
Borrower and Holdings represents and warrants that (i) each of the
representations and warranties applicable to it as set forth in Article 3 of the
Credit Agreement will be true on and as of the Amendment No. 4 Effective Date
(except in the case of any such representation or warranty that, by its terms
expressly relates only to a specified earlier date, each of which
representations and warranties was true as of such specified earlier date), and
(ii) no Default will have occurred and be continuing on such date.
SECTION 29. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 30. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 31. Effectiveness. This Amendment shall become effective on and
as of the date when the following conditions are met (the "AMENDMENT NO. 4
EFFECTIVE DATE"):
(a) the Administrative Agent shall have received from each of
Holdings, the Borrower and the Required Lenders a counterpart hereof
signed by such party or facsimile or other written confirmation (in
form satisfactory to the Administrative Agent) that such party has
signed a counterpart hereof;
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(b) the Administrative Agent shall have received from each
Subsidiary Loan Party an acknowledgment in form and substance
reasonably satisfactory to the Administrative Agent to the effect that
the obligations of the Borrower and Holdings under the Credit Agreement
as amended hereby constitute "Guaranteed Obligations" of such
Subsidiary Loan Party under the Subsidiary Guarantee;
(c) the Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of each Loan Party, the authorization of the transactions
contemplated hereby and any other legal matters relating to the Loan
Parties, the Loan Documents or the transactions contemplated hereby,
all in form and substance satisfactory to the Administrative Agent and
its counsel;
(d) the Administrative Agent shall have received a
certificate, dated the Amendment No. 4 Effective Date and signed by the
President, a Vice President or a Financial Officer of the Borrower,
confirming compliance with the matters set forth in Section 28 of this
Amendment;
(e) the Administrative Agent shall have received evidence
satisfactory to it that the Intercreditor Agreement with respect to the
ADP shall be in full force and effect on the terms in effect
immediately prior to the effectiveness of this Amendment;
(f) the Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Amendment No. 4
Effective Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid
by any Loan Party hereunder or under any other Loan Document;
(g) the Lenders shall have received, and shall be satisfied
with, (i) audited consolidated financial statements of Holdings for the
fiscal years ended December 31, 1999 and December 31, 2000 (if
available) and (ii) satisfactory unaudited interim consolidated
financial statements of the Borrower and Holdings for each fiscal
quarterly period ended subsequent to the date of the latest financial
statements delivered pursuant to clause (i) of this paragraph as to
which such financial statements are available;
(h) the Lenders shall have received, and shall be satisfied
with, Holdings and the Borrower's projected annual pro forma balance
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sheets, statements of operations and cash flows for the fiscal years
2001 through 2007, in each of the foregoing cases (i) after giving
effect to Borrowings under the Incremental Facilities (in the maximum
aggregate amount permitted under the Credit Agreement as amended by
this Amendment) and the Structured Note Financing (as defined in the
Credit Agreement as amended by this Amendment) and (ii) after giving
effect to the transactions described in clause (i) and, in addition,
the sale of all of the capital stock or all or substantially all of the
assets of Solutions;
(i) there shall be no actions, suits or proceedings by or
before any arbitrator or Governmental Authority pending against or, to
the knowledge of Holdings or the Borrower, threatened against or
affecting Holdings or any Subsidiary (i) as to which there is a
reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect (other than the
Disclosed Matters) or (ii) that involve any of the Loan Documents or
the transactions contemplated by this Amendment;
(j) since December 31, 1999, there shall have been no Material
Adverse Change;
(k) the Administrative Agent shall have received evidence
reasonably satisfactory to it that the Borrower shall have entered into
one or more hedging transactions with respect to the portfolio of
equity securities investments referred to by the Borrower as the "Tech
Farm investments" on terms and conditions reasonably satisfactory to
the Administrative Agent; and
(l) the Administrative Agent shall have received a solvency
certificate, in form and substance reasonably satisfactory to the
Administrative Agent, from the Financial Officer of each of Holdings
and the Borrower.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
XXXXXXXX COMMUNICATIONS, LLC
By
--------------------------------------
Name:
Title:
XXXXXXXX COMMUNICATIONS GROUP, INC.
By
--------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By
--------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
--------------------------------------
Name:
Title:
[OTHER LENDERS]
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EXHIBIT K
FORM OF SECURITY AGREEMENT
[to come]
23
