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EXHIBIT 10.63
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 1, 2000 to
the Credit Agreement dated as of September 8, 1999 (as amended, the "Credit
Agreement") among WILLIAMS COMMUNICATIONS, INC. (the "Borrower"), WILLIAMS
COMMUNICATIONS GROUP, INC., as Guarantor, the LENDERS party thereto (the
"Lenders") and BANK OF AMERICA, N.A., as Administrative Agent (the
"Administrative Agent"), THE CHASE MANHATTAN BANK, as Syndication Agent, and
BANK OF MONTREAL and THE BANK OF NEW YORK, as Co-Documentation Agents.
WITNESSETH:
WHEREAS, the parties hereto have entered into the Credit Agreement and
now desire to amend the Credit Agreement as set forth herein and to restate the
Credit Agreement in its entirety to read as set forth in the Credit Agreement
with the amendments specified below;
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 shall, after this Amendment and Restatement
becomes effective, refer to the Credit Agreement as amended hereby.
SECTION 2. Amended Definitions. Section 1.01(a) of the Credit Agreement
is hereby amended
(a) by amending the definitions of "Mark-to-Market Valuation",
"Permitted Specified Security Hedging Transactions", "Senior Debt", "Specified
Security" and "Total Debt" set forth therein to read in their entirety as
follows:
"`Mark-to-Market Valuation' means, at any date with respect to
any Hedging Agreement or Permitted Specified Security Hedging
Transaction, all net obligations under such Hedging Agreement or
Permitted Specified Security Hedging Transaction in an amount equal to
(i) if such Hedging Agreement or Permitted Specified Security Hedging
Transaction has been closed out, the termination value thereof or (ii)
if such Hedging Agreement or Permitted Specified Security Hedging
Transaction has not been closed out, the mark-to-market value thereof
determined on the basis of readily available quotations provided by
any recognized dealer in Hedging Agreements or other transactions
similar to such Hedging Agreement or Permitted Specified Security
Hedging Transaction."
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"`Permitted Specified Security Hedging Transactions' means options,
collars, forwards and other similar transactions (including, without limitation,
prepaid forward transactions, collar/loan transactions and other similar
transactions) with respect to any Specified Security entered into by the
Borrower or any of its Subsidiaries to monetize the value of and/or hedge
against changes in the market price of such Specified Security."
"`Senior Debt' means, at any date, without duplication, all
Indebtedness (other than Qualifying Borrower Indebtedness permitted under
Section 6.01(p)) of the Borrower and the other Restricted Subsidiaries that are
subsidiaries of the Borrower, determined on a consolidated basis at such date
and the ADP Outstandings at such date; provided that, for purposes of this
definition, (i) Indebtedness in respect of Hedging Agreements shall be equal to
(A) the aggregate net Mark-to-Market Valuation of all Hedging Agreements of the
Borrower and the Restricted Subsidiaries that are subsidiaries of the Borrower
then outstanding, to the extent that such aggregate net Mark-to-Market Valuation
constitutes a net obligation of the Borrower and such Restricted Subsidiaries
and (B) zero, if such aggregate net Mark-to-Market Valuation does not constitute
such a net obligation and (ii) Indebtedness in respect of Permitted Specified
Security Hedging Transactions shall be equal to (A) an amount equal to the
Mark-to-Market Valuation of such Permitted Specified Security Hedging
Transaction less the fair market value of the Specified Securities and related
contract rights securing such Permitted Specified Security Hedging Transaction,
if such amount is greater than zero and (B) zero, if such amount is not greater
than zero."
"`Specified Security' means publicly traded equity securities of actual
or prospective customers or vendors of the Borrower and its subsidiaries
acquired by the Borrower and its subsidiaries in connection with (or pursuant to
warrants, options or rights acquired in connection with) actual or prospective
commercial agreements with such customers or vendors; provided that securities
of the Borrower or any of its subsidiaries or Affiliates shall not constitute
Specified Securities."
"`Total Debt' means, at any date, without duplication, the sum of all
Indebtedness of Holdings and the Restricted Subsidiaries, determined on a
consolidated basis at such date, and the ADP Outstandings at such date, provided
that, for purposes of this definition, (i) Indebtedness in respect of Hedging
Agreements shall be equal to (A) the aggregate net Mark-to-Market Valuation of
all Hedging Agreements of Holdings and the Restricted Subsidiaries then
outstanding, to the extent that such aggregate net Mark-to-Market Valuation
constitutes a net obligation of the Borrower and such Restricted Subsidiaries
and (B) zero, if such aggregate net Mark-to-Market Valuation does not constitute
such a net obligation and (ii) Indebtedness in respect of Permitted Specified
Security Hedging Transactions shall be equal to (A) an amount equal to the
Market-to-Market Valuation of such Permitted Specified Security Hedging
Transaction less the fair market value of the Specified Securities and related
contract rights securing such Permitted Specified Security Hedging Transaction,
if such amount is greater than zero and (B) zero, if such amount is not greater
than zero.";
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(b) by amending the definition of "Contributed Capital" set forth
therein by deleting the words "Total Debt" in clause (i) thereof and
substituting the words "Total Net Debt" therefor;
(c) by amending the definition of "Total Debt to Contributed Capital
Ratio" by replacing the words "Total Debt" with the words "Total Net Debt"
throughout;
(d) by amending the definition of "Indebtedness" set forth therein by
adding, at the end of the first sentence thereof, the phrase "or Permitted
Specified Security Hedging Transactions"; and
(e) by amending the definition of "Material Indebtedness" by inserting
the words "or Permitted Specified Security Hedging Transaction" immediately
following the words "Hedging Agreement" in the fifth and eighth lines thereof.
SECTION 3. Additional Subsidiaries. Section 5.13 of the Credit
Agreement is hereby amended by replacing the words "five" in the eighth line
thereof with the word "ten".
SECTION 4. Investments. Section 6.04 of the Credit Agreement is hereby
amended by (i) deleting the word "and" at the end of clause (q) thereof, (ii)
redesignating clause (r) as clause (s) and (iii) inserting a new clause (r) to
read in its entirety as follows:
"(r) Permitted Specified Security Hedging Transactions; and"
SECTION 5. Material Documents. Section 6.13 of the Credit Agreement is
hereby amended by adding the following parenthetical after the words
"organizational documents" in the fifth line thereof: "(except for the filing of
a Certificate of Designation with the Secretary of State of Delaware relating to
the issuance of preferred securities that are Qualifying Equity Interests of
such Person, to the extent provided for in its certificate of incorporation,
by-laws or other organizational documents)"
SECTION 6. Amendment to Certain Financial Covenants . (a) The table set
forth in Section 6.08 of the Credit Agreement is hereby amended to read in its
entirety as follows:
<TABLE>
<CAPTION>
"Fiscal Year Amount
------------ ------
<S> <C>
1999 $2,500,000,000
2000 $2,750,000,000
2001 $2,750,000,000
2002 $1,250,000,000
2003 $1,500,000,000
2004 $2,500,000,000
2005 $2,500,000,000
2006 $2,800,000,000"
</TABLE>
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(b) Section 6.15 of the Credit Agreement is hereby amended by replacing
the words "Total Debt" with the words "Total Net Debt" throughout.
(c) The table set forth in Section 6.16 of the Credit Agreement is
hereby amended to read in its entirety as follows:
<TABLE>
<CAPTION>
"Period Amount
------- ------
<S> <C>
October 1, 1999 - $ 0
December 31, 1999
January 1, 2000 - $ 0
March 31, 2000
April 1, 2000 - $ 0
June 30, 2000
July 1, 2000 - $ 40,000,000
September 30, 2000
October 1, 2000 - $120,000,000
December 31, 2000
January 1, 2001- $215,000,000
March 31, 2001
April 1, 2001- $300,000,000
June 30, 2001
</TABLE>
(d) The table set forth in Section 6.17(a) of the Credit Agreement is
hereby amended to read in its entirety as follows:
<TABLE>
<CAPTION>
"Period Total Leverage Ratio
------- --------------------
<S> <C>
December 31, 2000- 18.00:1.00
March 30, 2001
March 31, 2001- 15.00:1.00
June 29, 2001
June 30, 2001- 12.00:1.00
December 30, 2001
December 31, 2001- 11.00:1.00
June 29, 2002
June 30, 2002- 9.00:1.00
December 30, 2002
December 31, 2002- 7.00:1.00
December 30, 2003
December 31, 2003- 4.00:1.00"
and thereafter
</TABLE>
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SECTION 7. Intercreditor Agreement. Section 4.07 of the Intercreditor
Agreement is hereby amended in its entirety to read as follows:
"Intercompany Note Not to be Transferred. Unless and until
all Obligations shall have been paid in full, the Commitments
shall have been terminated and all Letters of Credit shall have
expired or been terminated, the Parent will not sell, transfer,
assign, pledge, hypothecate or otherwise dispose of the
Intercompany Note, or enter into any transaction having the
economic effect of any of the foregoing, and any such attempted
sale, transfer, assignment, pledge, hypothecation or other
disposition or transaction shall be null and void; provided that
the Parent may transfer the Intercompany Note to a trust or other
entity (i) all of the voting interests in which are owned,
directly or indirectly, by the Parent, (ii) the activities of
which trust or other entity are limited to the acquisition of the
Intercompany Note, the issuance and sale of pass-through
certificates or other securities and the entry into, and
performance under, agreements and other arrangements in respect
thereof and (iii) that shall have assumed all of the obligations
of the Parent in respect of the Intercompany Note set forth in
Article 4 of this Agreement pursuant to documentation reasonably
satisfactory to the Agents; provided further that the Parent
shall not thereby be relieved of its other obligations under this
Agreement."
SECTION 8. Representations of Borrower. The Borrower represents and
warrants that, as of the Amendment and Restatement Effective Date, both before
and after giving effect to this Amendment, (i) the representations and
warranties of the Borrower set forth in Article 3 of the Credit Agreement are
true and correct and (ii) no Default has occurred and is continuing.
SECTION 9. Amendment Fee. On or prior to the seventh Business Day
following the Signature Receipt Date (as defined below), the Borrower shall pay
the Administrative Agent, for the ratable accounts of the Lenders who shall have
executed and delivered a counterpart hereof (or other written confirmation in
form satisfactory to the Administrative Agent that such Lender has signed a
counterpart hereof) to the Administrative Agent on or prior to September 1,
2000, an amendment fee in an amount equal to 0.15% of the aggregate Commitments
of such Lenders.
SECTION 10. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 11. 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 12. Effectiveness. (a) This Amendment and Restatement shall
become effective on and as of the date hereof (the "Amendment and Restatement
Effective Date") on the date that the Administrative Agent shall have received
(the "Signature Receipt Date") from each of the Loan Parties 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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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed as of the date first above written.
WILLIAMS COMMUNICATIONS, INC.
By: /s/ Howard S. Kalika
-------------------------------------
Title: Treasurer
WILLIAMS COMMUNICATIONS GROUP, INC.
By: /s/ Howard S. Kalika
-------------------------------------
Title: Treasurer
BANK OF AMERICA, N.A.
By: /s/ Pamela S. Kurtzman
-------------------------------------
Title: Principal
THE CHASE MANHATTAN BANK
By: /s/ Constance M. Coleman
-------------------------------------
Title: Vice President
BANK OF MONTREAL
By: /s/ Sarah Kim
-------------------------------------
Title: Director
THE BANK OF NEW YORK
By: /s/ John R. Ciulla
-------------------------------------
Title: Vice President
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SCOTIABANC INC.
By: /s/ William E. Zarrett
-------------------------------------
Title: Managing Director
ABN AMRO BANK N.V.
By:
-------------------------------------
Title:
By:
-------------------------------------
Title:
FLEET NATIONAL BANK
By:
-------------------------------------
Title:
CIBC INC.
By: /s/ Michele E. Roller
-------------------------------------
Title: Executive Director
CIBC World Markets Corp.
as Agent
CREDIT SUISSE FIRST BOSTON
By: /s/ David L. Sawyer
-------------------------------------
Title: Vice President
By: /s/ Robert Hetu
-------------------------------------
Title: Vice President
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DEUTSCHE BANK AG
NEW YORK AND/OR CAYMAN ISLAND
BRANCH
By: /s/ Jon D. Storck
------------------------------------
Title: Vice President
By: /s/ Alexander Richarz
-------------------------------------
Title: Associate
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ JEREMY HORN
-------------------------------------
Title:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ ROBERT BIRINGER
-------------------------------------
Title:
By: /s/ RICHARD W. VARALIA
-------------------------------------
Title:
FIRST UNION NATIONAL BANK
By: /s/ C. BRAND HOSFORD
-------------------------------------
Title:
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IBM CREDIT CORPORATION
By: /s/ Thomas S. Curcio
-------------------------------------
Title: Manager of Credit
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: /s/ Michael N. Oakes
-------------------------------------
Title: Senior Vice President,
Houston Office
BANK OF OKLAHOMA N.A.
By: /s/ Robert D. Mattax
-------------------------------------
Title: Senior Vice President
BANK ONE, N.A.
By: /s/ Ronna Bury-Prince
-------------------------------------
Title: First Vice President
KBC BANK, N.V.
By: /s/ Jean-Pierre Diels
-------------------------------------
Title: First Vice President
By: /s/ Patrick A. Janssens
-------------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Jacques Azagury
-------------------------------------
Title: Senior Vice President &
Manager
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Acknowledged and agreed:
CNG COMPUTER NETWORKING GROUP, INC.
CRITICAL CONNECTIONS, INC.
DATA COMMUNICATIONS 2000, INC.
INTERNET ENGINEERING & CONSULTANT, INC.
SBCI - PACIFIC NETWORKS, INC.
WCS COMMUNICATIONS SYSTEMS,
INC.
WCS MICROWAVE SERVICES, INC.
WCS, INC.
WILLIAMS COMMUNICATIONS OF
VIRGINIA, INC.
WILLIAMS COMMUNICATIONS
PROCUREMENT, L.L.C.
WILLIAMS COMMUNICATIONS
PROCUREMENT, L.P.
WILLIAMS COMMUNICATIONS
SOLUTIONS, LLC
WILLIAMS GLOBAL COMMUNICATIONS
HOLDINGS, INC.
WILLIAMS INTERNATIONAL
VENTURES COMPANY
WILLIAMS LEARNING NETWORK,
INC.
WILLIAMS LOCAL NETWORK, INC.
WILLIAMS WIRELESS, INC.
All By: /s/ HOWARD S. KALIKA
----------------------------------
Title: Treasurer
THE WILLIAMS COMPANIES, INC.
By: /s/ JAMES IVEY
--------------------------------------
Title: Treasurer
