Amendment No. 1 to Side Letter Agreement among Williams Communications, Bank of America, and Other Lenders

Summary

This amendment extends the negotiation period under a previous side letter agreement between Williams Communications, its parent company, and a group of lenders led by Bank of America. The extension allows more time for due diligence and review of the companies' business operations and budget. The amendment becomes effective once all required parties sign and legal matters are approved. If any party fails to meet its obligations, it will be considered an immediate default under the main credit agreement, allowing lenders to take action. All other terms of the original side letter remain in effect.

EX-10.101 13 d95321ex10-101.txt AMENDMENT NO. 1 TO SIDE LETTER AGREEMENT 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 Williams Communications, LLC (the "Borrower") and Williams Communications Group, Inc. ("Holdings"), on the one hand, and Bank of America, as Administrative Agent and as Issuing Bank, JP Morgan Chase Bank (formerly The Chase Manhattan Bank), as Syndication Agent and as Issuing Bank, Salomon Smith Barney Inc., as Co-Documentation Agent, Lehman Brothers, Inc., as Co-Documentation Agent and Merrill Lynch & 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"), JP Morgan Chase Bank, (formerly The Chase Manhattan Bank), as Syndication Agent, Salomon Smith Barney Inc. and Lehman Brothers, Inc., as Joint Lead Arrangers and Joint Bookrunners with respect to the Incremental Facility referred to therein, and Salomon Smith Barney Inc., Lehman Brothers, Inc. and Merrill Lynch & 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 Clifford Chance Rogers & Wells 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. 2 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] 3 IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the day and the year first above written. BORROWER: WILLIAMS COMMUNICATIONS, LLC [STAMP] By: /s/ HOWARD S. KALIKA ------------------------------------------- Name: Title: HOLDINGS: [STAMP] WILLIAMS COMMUNICATIONS GROUP, INC. By: /s/ HOWARD S. KALIKA ------------------------------------------- Name: Title: SUBSIDIARY LOAN PARTIES: CRITICAL CONNECTIONS, INC. WCS COMMUNICATIONS SYSTEMS, INC. WCS, INC. WILLIAMS COMMUNICATIONS OF VIRGINIA, INC. WILLIAMS COMMUNICATIONS PROCUREMENT, L.L.C. WILLIAMS COMMUNICATIONS PROCUREMENT, LP WILLIAMS GLOBAL COMMUNICATIONS HOLDINGS, INC. WILLIAMS INTERNATIONAL VENTURES COMPANY WILLIAMS LEARNING NETWORK, INC. WILLIAMS LOCAL NETWORK, LLC WILLIAMS TECHNOLOGY CENTER, LLC WILLIAMS COMMUNICATIONS AIRCRAFT, LLC WILLIAMS COMMUNICATIONS MANAGED SERVICES, LLC [STAMP] By: /s/ HOWARD S. KALIKA ------------------------------------------- Name: Title: [AMENDMENT NO. 1 TO SIDE LETTER] 4 ISSUING BANK AND AGENTS: BANK OF AMERICA, N.A., as Administrative Agent and as Issuing Bank By: /s/ JOHN W. WOODIEL III ------------------------------------------- Name: John W. Woodiel III Title: Managing Director JP MORGAN CHASE BANK (formerly The Chase Manhattan Bank), as Syndication Agent and as Issuing Bank By: /s/ CONSTANCE M. COLEMAN ------------------------------------------- Name: Constance M. Coleman Title: Vice President SALOMON SMITH BARNEY INC., as Co-Documentation Agent By: /s/ JOHN DORANS ------------------------------------------- Name: John Dorans Title: Director LEHMAN BROTHERS, INC., as Co-Documentation Agent By: /s/ G. ANDREW KEITH ------------------------------------------- Name: G. Andrew Keith Title: Authorized Signatory MERRILL LYNCH & CO., INC., as Co-Documentation Agent By: /s/ BENJAMIN W. LAU ------------------------------------------- Name: Benjamin W. Lau Title: Vice President [AMENDMENT NO. 1 TO SIDE LETTER] 5 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/ JOHN W. WOODIEL III -------------------------------------------- Name: John W. Woodiel III Title: Managing Director JP MORGAN CHASE BANK (formerly The Chase Manhattan Bank) By: /s/ HOUSTON A. STUBBINS -------------------------------------------- Name: Houston A. Stubbins Title: Managing Director CITICORP USA, INC. By: /s/ JOHN DORANS ------------------------------------------- Name: John Dorans Title: Director LEHMAN COMMERCIAL PAPER INC. By: /s/ G. ANDREW KEITH ------------------------------------------- Name: G. Andrew Keith Title: Authorized Signatory MERRILL LYNCH CAPITAL CORPORATION By: /s/ BENJAMIN W. LAU ------------------------------------------- Name: Benjamin W. Lau Title: Vice President [AMENDMENT NO. 1 TO SIDE LETTER] 6 ABN AMRO BANK N.V. By: /s/ NEIL J. BIVONA ------------------------------------------- Name: Neil J. Bivona Title: Group Vice President By: /s/ STEVEN C. WIMPENNY ------------------------------------------- Name: Steven C. Wimpenny 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/ THOMAS T. BOWER ------------------------------------------- Name: Thomas T. Bower Title: Senior Vice President [AMENDMENT NO. 1 TO SIDE LETTER] 7 BAYERISCHE HYPOVEREINS BANK, NEW YORK BRANCH (formerly Bank Austria Creditanstalt Corporate Finance, Inc.) By: ------------------------------------------- Name: Title: By: ------------------------------------------- Name: Title: CIBC INC. By: /s/ JOAN S. GRIFFIN ------------------------------------------- Name: Joan S. Griffin Title: Executive Director, CIBC World Markets Corp. As Agent CREDIT LYONNAIS NEW YORK BRANCH By: /s/ JEREMY HORN ------------------------------------------- Name: Jeremy Horn Title: Authorized Signature CREDIT SUISSE FIRST BOSTON By: ------------------------------------------- Name: Title: By: ------------------------------------------- Name: Title: [AMENDMENT NO. 1 TO SIDE LETTER] 8 DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH By: ------------------------------------------- Name: Title: By: ------------------------------------------- Name: Title: FIRST UNION NATIONAL BANK By: /s/ MARK L. COOK ------------------------------------------- Name: Mark L. Cook Title: Senior Vice President FLEET NATIONAL BANK By: ------------------------------------------- Name: Title: THE FUJI BANK, LIMITED By: ------------------------------------------- Name: Title: IBM CREDIT CORPORATION By: /s/ STEVEN A. FLANAGAN ------------------------------------------- Name: Steven A. Flanagan Title: Manager Special Handling THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW YORK BRANCH By: ------------------------------------------- Name: Title: [AMENDMENT NO. 1 TO SIDE LETTER] 9 KBC BANK, N.V. By: /s/ ROBERT SNAUFFER ------------------------------------------- Name: Robert Snauffer Title: First Vice President By: /s/ ERIC RASKIN ------------------------------------------- Name: ERIC RASKIN Title: Vice President SCOTIABANC INC. By: /s/ W.J. BROWN ------------------------------------------- Name: W.J. Brown Title: Managing Director STANFIELD ARBITRAGE CDO, LTD. By: Stanfield Capital Partners LLC as its Collateral Manager By: ------------------------------------------- Name: Title: STANFIELD CLO, LTD. By: Stanfield Capital Partners LLC as its Collateral Manager By: ------------------------------------------- Name: Title: STANFIELD/RMF TRANSATLANTIC CDO, LTD By Stanfield Capital Partners LLC as its Collateral Manager By: ------------------------------------------- Name: Title: [AMENDMENT NO. 1 TO SIDE LETTER] 10 WINDSOR LOAN FUNDING, LIMITED By: Stanfield 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/ DENNIS DOLAN ------------------------------------------- Name: Dennis Dolan Title: Authorized Signatory HAMILTON CDO, LTD. By: Stanfield Capital Partners LLC as its Collateral Manager By: ------------------------------------------- Name: Title: [AMENDMENT NO. 1 TO SIDE LETTER] 11