EXHIBIT 10.101
Amendment No. 1 to Side Letter
Dated as of January 14, 2002
Reference is hereby made to the following:
(i) that certain letter agreement dated as of October 30, 2001
(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 hereby acknowledge that the review, analysis
and due diligence regarding the business operations of Holdings, the Borrower
and the Subsidiaries and the preliminary budget dated October 1, 2001, by
PricewaterhouseCoopers, LLP, continues to be in process. As a result thereof,
the parties to the Side Letter hereby agree, by executing this Amendment No. 1
to the Side Letter (the "Amendment"), that the Negotiation Period (as defined in
the Side Letter) shall be extended until the earlier of (i) 12:00 noon (New York
City time) on January 28, 2002 and (ii) the effective date of the Seventh
Amendment (as defined in Section 3(C) of Amendment No. 6).
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.
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 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).
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.
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.
Except to the extent hereby waived or modified, the Side Letter remains
in full force and effect and is hereby ratified and confirmed. 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.
Except to the extent hereby waived or 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.
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.
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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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.
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:
[STAMP] XXXXXXXX COMMUNICATIONS GROUP, INC.
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:
[AMENDMENT NO. 1 TO SIDE LETTER]
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ISSUING BANK AND AGENTS:
BANK OF AMERICA, N.A., as Administrative Agent
and as Issuing Bank
By: /s/ XXXX X. XXXXXXX III
-------------------------------------------
Name: Xxxx X. Xxxxxxx III
Title: Managing Director
XX XXXXXX XXXXX BANK
(formerly The Chase Manhattan Bank), as
Syndication Agent and as Issuing Bank
By: /s/ XXXXXXXXX X. XXXXXXX
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX XXXXXX INC.,
as Co-Documentation Agent
By: /s/ XXXX XXXXXX
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Director
XXXXXX BROTHERS, INC.,
as Co-Documentation Agent
By: /s/ G. XXXXXX XXXXX
-------------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
XXXXXXX XXXXX & CO., INC.,
as Co-Documentation Agent
By: /s/ XXXXXXXX X. XXX
-------------------------------------------
Name: Xxxxxxxx X. Xxx
Title: Vice President
[AMENDMENT NO. 1 TO SIDE LETTER]
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BY SIGNING IN THE APPROPRIATE SPACE BELOW, THE UNDERSIGNED HEREBY
CONSENT TO THE FOREGOING AMENDMENT NO. 1 TO THE SIDE LETTER AND TO THE EXECUTION
THEREOF BY THE AGENTS AND THE ISSUING BANK.
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ XXXX X. XXXXXXX III
--------------------------------------------
Name: Xxxx X. Xxxxxxx III
Title: Managing Director
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: Director
XXXXXX COMMERCIAL PAPER INC.
By: /s/ G. XXXXXX XXXXX
-------------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
XXXXXXX XXXXX CAPITAL CORPORATION
By: /s/ XXXXXXXX X. XXX
-------------------------------------------
Name: Xxxxxxxx X. Xxx
Title: Vice President
[AMENDMENT NO. 1 TO SIDE LETTER]
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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:
-------------------------------------------
Name:
Title:
BANK OF OKLAHOMA N.A.
By:
-------------------------------------------
Name:
Title:
BANK ONE, N.A.
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
[AMENDMENT NO. 1 TO SIDE LETTER]
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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,
CIBC World Markets Corp.
As Agent
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ XXXXXX XXXX
-------------------------------------------
Name: Xxxxxx Xxxx
Title: Authorized Signature
CREDIT SUISSE FIRST BOSTON
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
[AMENDMENT NO. 1 TO SIDE LETTER]
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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:
[AMENDMENT NO. 1 TO SIDE LETTER]
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KBC BANK, N.V.
By: /s/ XXXXXX XXXXXXXX
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
By: /s/ XXXX XXXXXX
-------------------------------------------
Name: XXXX XXXXXX
Title: Vice President
SCOTIABANC INC.
By: /s/ X.X. XXXXX
-------------------------------------------
Name: X.X. Xxxxx
Title: Managing Director
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:
[AMENDMENT NO. 1 TO SIDE LETTER]
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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/ XXXXXX XXXXX
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
XXXXXXXX CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
-------------------------------------------
Name:
Title:
[AMENDMENT NO. 1 TO SIDE LETTER]
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