EXHIBIT 10.102
Amendment No. 2 to Side Letter
Dated as of January 28, 2002
Reference is hereby made to the following:
(i) that certain letter agreement dated as of October 30,
2001, as amended (the "Side Letter") between Xxxxxxxx Communications,
LLC (the "Borrower") and Xxxxxxxx Communications Group, Inc.
("Holdings"), on the one hand, and Bank of America, as Administrative
Agent and as Issuing Bank, XX Xxxxxx Xxxxx Bank (formerly The Chase
Manhattan Bank), as Syndication Agent and as Issuing Bank, Xxxxxxx
Xxxxx Xxxxxx Inc., as Co-Documentation Agent, Xxxxxx Brothers, Inc., as
Co-Documentation Agent and Xxxxxxx Xxxxx & Co., Inc., as
Co-Documentation Agent, on the other hand; and
(ii) that certain Amended and Restated Credit Agreement dated
as of September 8, 1999 (as amended, the "Credit Agreement"), among the
Borrower, Holdings, the lenders party thereto (the "Lenders"), Bank of
America, N.A., as Administrative Agent for the Lenders (in such
capacity, the "Administrative Agent"), XX Xxxxxx Chase Bank, (formerly
The Chase Manhattan Bank), as Syndication Agent, Xxxxxxx Xxxxx Xxxxxx
Inc. and Xxxxxx Brothers, Inc., as Joint Lead Arrangers and Joint
Bookrunners with respect to the Incremental Facility referred to
therein, and Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxx Brothers, Inc. and
Xxxxxxx Xxxxx & Co., Inc., as Co-Documentation Agents.
Capitalized terms not otherwise defined herein are used herein as
defined in the Side Letter.
The Borrower and Holdings have requested, and the Agents, the Issuing
Bank and the Required Lenders have agreed, to amend the Side Letter (subject to
the terms and conditions set forth herein).
In consideration of the mutual agreements contained herein and other
good and valuable consideration the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. The Side Letter is hereby amended as follows:
(a) The introductory language at the beginning of Section 1 of the Side
Letter is hereby deleted in its entirety and the following text inserted in lieu
thereof:
"As used in this letter agreement: (i) the term "Negotiation Period"
shall mean the period beginning as of October 19, 2001 through and
including February 28, 2002; and (ii) the term "Extended Period" shall
mean the period beginning as of October 19, 2001 through and including
June 30, 2003. During the Extended Period, each of the Loan Parties
shall not, and shall not permit any Unrestricted Subsidiary to:"
(b) Clause (iii)(y) appearing in the proviso in Section 1 of the Side
Letter is hereby deleted in its entirety.
(c) The words "preliminary budget dated October 1, 2001" in the second
line of Section 2 of the Side Letter are hereby deleted and replaced by the
words "business plan dated January 11, 2002".
(d) The introductory language of Section 3 of the Side Letter is hereby
amended by deleting the word "Negotiation" appearing in the first line of such
Section 3 and inserting the word "Extended" in lieu thereof.
(e) Section 3 (a) of the Side Letter is hereby amended by deleting the
words "or any Foreign Subsidiaries, except as expressly provided in clause
(iii)(y) of the proviso appearing in paragraph 1 above" appearing therein.
(f) The first proviso at the end of Section 3 of the Side Letter is
hereby amended by inserting the words "and not otherwise prohibited" immediately
after the word "permitted" in the second line of such proviso.
(g) The defined term "Negotiation Period" is hereby deleted each place
such term appears in Sections 4 and 5 of the Side Letter and the term "Extended
Period" inserted in lieu thereof.
(h) The Side Letter is hereby amended to include the following new
Sections 6 and 7:
"6. Notwithstanding anything to the contrary contained in this letter
agreement, during the Negotiation Period, the Loan Parties hereby
covenant and agree not to make any investment (including, without
limitation, loans) in any Foreign Subsidiaries except for (A)
investments not exceeding $12 million in the aggregate made by the Loan
Parties in PowerTel Limited, Silica Networks, S.A. and/or Manquehue
Net, S.A., provided that such investments are expressly permitted by
the Credit Agreement, and (B) investments in Foreign Subsidiaries made
in compliance with that certain Consent dated as of December 21, 2001,
executed by the Loan Parties and the Agents.
7. During the Negotiation Period, each of Holdings, the Borrower and
the Agents shall continue their ongoing discussions relating to the
business and operations of the Loan Parties. Holdings and the Borrower
hereby further covenant and agree to provide to the Agents, not later
than three (3) Business Days prior to the expiration of the Negotiation
Period, a detailed comprehensive plan of financial restructuring and
deleveraging for Holdings, the Borrower and the other Loan Parties."
2. This Amendment shall not become effective until the date (the "Amendment
Effective Date") on which (i) the Administrative Agent shall have received fully
executed counterparts hereof executed by the Loan Parties, the Issuing Bank and
all of the Agents, together with the consent of the Required Lenders to this
Amendment as set forth hereinbelow; and (ii) all legal matters incident to this
Amendment and the effects hereof or any of the Loan Documents shall be
reasonably satisfactory to the Agents and their counsel.
3. Each of the Loan Parties represents and warrants to the Agents and the
Lenders that (X) the execution, delivery and performance by the Loan Parties of
this Amendment and the performance by each of them of the Side Letter as
modified by this Amendment (i) have been duly authorized by all requisite
corporate, partnership or limited liability company action (as applicable) on
the part of each such Loan Party; and (ii) will not violate (a) any provision of
any statute, rule or regulation, or the Certificate of Incorporation or By-laws
(or similar governing documents) of any of the Loan Parties, (b) any applicable
order of any court or any rule, regulation or order of any other agency of
government or (c) any indenture, agreement or other instrument to which any of
the Loan Parties is a party or by which any of the Loan Parties or any of their
respective properties is bound, or be in conflict with, result in a breach of,
or constitute (with notice or lapse of time or both) a default under, any such
indenture, agreement, or other instrument; and (Y) upon the occurrence of the
Amendment Effective Date, this Amendment will
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constitute the legal, valid and binding obligation of the Loan Parties,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally and by general equitable
principles (regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law).
4. The Loan Parties hereby agree that in the event any Loan Party or
Unrestricted Subsidiary shall fail to observe or perform any agreement set forth
in the Side Letter as amended by this Amendment, such event shall be an
immediate Event of Default under the Credit Agreement not requiring any notice,
lapse of time or other action on the part of any of the Agents or the Lenders;
and the Administrative Agent and/or the Required Lenders may exercise any and
all remedies it or they may have pursuant to any of the Loan Documents or other
applicable law.
5. The Borrower acknowledges and agrees that its obligations set forth in
Section 10.03 of the Credit Agreement include the preparation, execution and
delivery of this Amendment, and any other documentation contemplated hereby,
including, but not limited to, the reasonable fees and disbursements of Xxxxxxxx
Chance Xxxxxx & Xxxxx LLP, counsel to the Administrative Agent, and PWC.
6. This Amendment shall be limited precisely as written and shall not be deemed
(i) to be a consent granted pursuant to, or a waiver or modification of, any
other term or condition of the Side Letter or any of the instruments or
agreements referred to therein or a waiver of any Default or Event of Default
under the Credit Agreement, whether or not known to the Agents or the Lenders or
(ii) to prejudice any right or rights which the Administrative Agent or the
Lenders may now have or have in the future under or in connection with any Loan
Document or any of the instruments or agreements referred to in a Loan Document.
The Administrative Agent (on behalf of itself and the Lenders) and the other
Agents hereby expressly reserve all of the Administrative Agent's, the other
Agents' and the Lenders' (as applicable) respective rights and remedies under
the Credit Agreement and each of the other Loan Documents, as well as under
applicable law. No failure to exercise, delay in exercising or any singular or
partial exercise, by the Administrative Agent, the Agents or any of the Lenders,
of any right, power or remedy hereunder or any of the other Loan Documents shall
operate as a waiver thereof, nor shall any of the Loan Documents (including,
without limitation, the Side Letter) be construed as a standstill or a
forbearance by any of the Agents or the Lenders of their rights and remedies
thereunder. Except to the extent hereby modified, the Side Letter shall continue
in full force and effect in accordance with the provisions thereof on the date
hereof and the Side Letter as modified by this Amendment is hereby ratified and
confirmed. As used in the Side Letter, the terms "Side Letter," "this
Agreement," "herein," "hereafter," "hereto," "hereof," and words of similar
import, shall, unless the context otherwise requires, mean the Side Letter as
modified by this Amendment. Reference to the terms "Side Letter" appearing in
the other Loan Documents shall, unless the context otherwise requires, mean the
Side Letter as modified by this Amendment. This Amendment shall be deemed to
have been jointly drafted, and no provision of it shall be interpreted or
construed for or against any party hereto because such party purportedly
prepared or requested such provision, any other provision, or this Amendment as
a whole.
7. This Amendment may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument. Delivery of an
executed signature page to this Amendment by facsimile shall be as effective as
delivery of a manually executed counterpart of this Amendment.
8. This Amendment is a Loan Document pursuant to the Credit Agreement and shall
(unless expressly indicated herein or therein) be construed, administered, and
applied, in accordance with all of the terms and provisions of the Credit
Agreement.
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9. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WHICH ARE APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
10. The provisions of this Amendment shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the day and the year first above written.
BORROWER:
XXXXXXXX COMMUNICATIONS, LLC
[STAMP] By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Name:
Title:
HOLDINGS:
XXXXXXXX COMMUNICATIONS GROUP, INC.
[STAMP] By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Name:
Title:
SUBSIDIARY LOAN PARTIES:
CRITICAL CONNECTIONS, INC.
WCS COMMUNICATIONS SYSTEMS, INC.
WCS, INC.
XXXXXXXX COMMUNICATIONS OF VIRGINIA, INC.
XXXXXXXX COMMUNICATIONS PROCUREMENT, L.L.C.
XXXXXXXX COMMUNICATIONS PROCUREMENT, XX
XXXXXXXX GLOBAL COMMUNICATIONS
HOLDINGS, INC.
XXXXXXXX INTERNATIONAL VENTURES COMPANY
XXXXXXXX LEARNING NETWORK, INC.
XXXXXXXX LOCAL NETWORK, LLC
XXXXXXXX TECHNOLOGY CENTER, LLC
XXXXXXXX COMMUNICATIONS AIRCRAFT, LLC
XXXXXXXX COMMUNICATIONS MANAGED
SERVICES, LLC
[STAMP] By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Name:
Title:
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[AMENDMENT NO. 2 TO SIDE LETTER]
ISSUING BANK AND AGENTS:
BANK OF AMERICA, N.A., as Administrative
Agent and as Issuing Bank
By: /s/ XXXXXXX HONEY
----------------------------------------
Name: Xxxxxxx Honey
Title: Vice President
XX XXXXXX XXXXX BANK
(formerly The Chase Manhattan Bank), as
Syndication Agent and as Issuing Bank
By: /s/ HOUSTON X. XXXXXXXX
----------------------------------------
Name: Houston X. Xxxxxxxx
Title: Managing Director
XXXXXXX XXXXX XXXXXX INC.,
as Co-Documentation Agent
By: /s/ XXXX XXXXXX
----------------------------------------
NAME: Xxxx Xxxxxx
Title: [ILLEGIBLE]
XXXXXX BROTHERS, INC.,
as Co-Documentation Agent
By: /s/ [ILLEGIBLE]
----------------------------------------
Name: [ILLEGIBLE]
Title: Senior Vice President
XXXXXXX XXXXX & CO., INC.,
as Co-Documentation Agent
By: /s/ XXXXX XXXXX
----------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
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[AMENDMENT NO. 2 TO SIDE LETTER]
BY SIGNING IN THE APPROPRIATE SPACE BELOW, THE UNDERSIGNED HEREBY
CONSENT TO THE FOREGOING AMENDMENT NO. 2 TO THE SIDE LETTER AND TO THE EXECUTION
THEREOF BY THE AGENTS AND THE ISSUING BANK.
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ XXXXXXX HONEY
----------------------------------------
Name: Xxxxxxx Honey
Title: Vice President
XX XXXXXX CHASE BANK
(formerly The Chase Manhattan Bank)
By: /s/ HOUSTON X. XXXXXXXX
----------------------------------------
Name: Houston X. Xxxxxxxx
Title: Managing Director
CITICORP USA, INC.
By: /s/ XXXX XXXXXX
----------------------------------------
Name: Xxxx Xxxxxx
Title: [ILLEGIBLE]
XXXXXX COMMERCIAL PAPER INC.
By: /s/ [ILLEGIBLE]
----------------------------------------
Name: [ILLEGIBLE]
Title: Authorized Signatory
XXXXXXX XXXXX CAPITAL CORPORATION
By: /s/ XXXXX XXXXX
----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
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[AMENDMENT NO. 2 TO SIDE LETTER]
ABN AMRO BANK N.V.
By: /s/ XXXX X. XXXXXX
----------------------------------------
Name: XXXX X. XXXXXX
Title: GROUP VICE PRESIDENT
By: /s/ XXXXXX X. XXXXXXXX
----------------------------------------
Name: XXXXXX X. XXXXXXXX
Title: GROUP SENIOR VICE PRESIDENT
BANK OF MONTREAL
By:
----------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By: /s/ XXXXX X. FOLLOSCI
----------------------------------------
Name: XXXXX X. FOLLOSCI
Title: VICE PRESIDENT
BANK OF OKLAHOMA N.A.
By:
----------------------------------------
Name:
Title:
BANK ONE, N.A.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: XXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT
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[AMENDMENT NO. 2 TO SIDE LETTER]
BAYERISCHE HYPOVEREINS BANK, NEW YORK
BRANCH (formerly Bank Austria Creditanstalt
Corporate Finance, Inc.)
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
CIBC INC.
By: /s/ XXXX X. XXXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: EXECUTIVE DIRECTOR
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ XXXXXX XXXX
----------------------------------------
Name: Xxxxxx Xxxx
Title: VICE PRESIDENT
CREDIT SUISSE FIRST BOSTON
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
9
[AMENDMENT NO. 2 TO SIDE LETTER]
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By: /s/ XXXX X. XXXX
----------------------------------------
Name: Xxxx X. Xxxx
Title: SENIOR VICE PRESIDENT
FLEET NATIONAL BANK
By:
----------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By:
----------------------------------------
Name:
Title:
IBM CREDIT CORPORATION
By: /s/ XXXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: MANAGER, SPECIAL HANDLING
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
By:
----------------------------------------
Name:
Title:
10
[AMENDMENT NO. 2 TO SIDE LETTER]
KBC BANK, N.V.
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
SCOTIABANC INC.
By:
----------------------------------------
Name:
Title:
XXXXXXXXX ARBITRAGE CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------
Name:
Title:
XXXXXXXXX CLO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------
Name:
Title:
XXXXXXXXX/RMF TRANSATLANTIC CDO, LTD
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------
Name:
Title:
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[AMENDMENT NO. 2 TO SIDE LETTER]
WINDSOR LOAN FUNDING, LIMITED
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------
Name:
Title:
ARK II CLO 2001-I, LIMITED
By: Patriarch Partners II, LLC,
its Collateral Manager
By: /s/ XXXX XXXXXX
----------------------------------------
Name: Xxxx Xxxxxx
Title: AUTHORIZED DIGNATORY
XXXXXXXX CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------
Name:
Title:
12
[AMENDMENT NO. 2 TO SIDE LETTER]
