Exhibit 10.1


 


FIRST
AMENDMENT dated as of May 15, 2009 (this “Amendment”), to the
Amended and Restated Credit Agreement dated as of April 16, 2009 (the “Credit
Agreement”), among LEVEL 3 COMMUNICATIONS, INC. (“Level 3”), LEVEL 3
FINANCING, INC., as Borrower (the “Borrower”), the LENDERS party
thereto, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as Joint
Lead Arranger and Joint Bookrunner, MORGAN STANLEY & CO. INCORPORATED,
as Joint Lead Arranger, Joint Bookrunner and Syndication Agent, BANC OF AMERICA
SECURITIES LLC, as Sole Lead Arranger and Sole Bookrunner for the Tranche B
Term Loans, CITIGROUP GLOBAL MARKETS, INC., CREDIT SUISSE SECURITIES (USA) LLC
and WACHOVIA BANK, N.A., as Co-Documentation Agents, and MERRILL LYNCH CAPITAL
CORPORATION, as Administrative Agent and Collateral Agent.


 


Capitalized terms used but not otherwise
defined herein have the meanings assigned to them in the Credit Agreement.


 


Pursuant to Section 9.02(d) of the
Credit Agreement, (a) the Credit Agreement and the other Loan Documents
may be amended to establish, among other things, one or more additional classes
of term loans by an agreement in writing entered into by Level 3, the Borrower,
the Administrative Agent, the Collateral Agent and each person (including any
Lender) agreeing to make such additional term loans, but without the consent of
any other Lender, (b) the Borrower has requested that the Additional
Tranche B Term Lenders (as defined below) make an additional class of term
loans, which shall be deemed to be additional Tranche B Term Loans, available
to the Borrower in an aggregate principal amount of $60,000,000 (such new class
of term loans being called the “Additional Tranche B Term Loans”) on the
terms provided for herein, the net proceeds of which, together with additional
funds of the Borrower, will be advanced by the Borrower to Level 3 LLC on the
Amendment Effective Date (as defined below) in an amount equal to the aggregate
principal amount of the Additional Tranche B Term Loans issued, against
delivery of the Loan Proceeds Note (as increased by the amount of $60,000,000
to evidence such loan made by the Borrower to Level 3 LLC on the Amendment
Effective Date), and (c) the Additional Tranche B Term Lenders are willing
to become parties hereto and to the Credit Agreement, and to extend Additional
Tranche B Term Loans having the terms and conditions provided for herein.


 


Accordingly, in consideration of the mutual
agreements herein contained and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties hereto
hereby agree as follows:


 


SECTION 1.  Additional Tranche B Term Loans.  (a)  Subject to the terms and conditions
set forth herein, each person listed on Schedule 2.01(a) attached
hereto


 





















 


(other than any such person that has ceased to be a party hereto and to
the Credit Agreement pursuant to an Assignment and Assumption in accordance
with Section 9.04 of the Credit Agreement, an “Additional Tranche B
Term Lender”) agrees to make an Additional Tranche B Term Loan to the
Borrower on the Amendment Effective Date in a principal amount equal to its
Additional Tranche B Term Commitment (as defined below).  The Additional Tranche B Term Commitments
shall expire at 5:00 p.m. New York City time on the Amendment Effective
Date, and amounts paid or prepaid in respect of Additional Tranche B Term Loans
may not be reborrowed.  For purposes of
this Amendment, an “Additional Tranche B Term Commitment” means, with
respect to each Additional Tranche B Term Lender, the commitment of such
Additional Tranche B Term Lender to make Additional Tranche B Term Loans on the
Amendment Effective Date, expressed as an amount representing the maximum
principal amount of the Additional Tranche B Term Loans to be made by such
Additional Tranche B Term Lender hereunder. 
The amount of each Additional Tranche B Term Lender’s Additional
Tranche B Term Commitment is set forth on Schedule 2.01(a) attached
hereto, as it may be modified under Section 9.02 of the Credit
Agreement.  The aggregate amount of the
Additional Tranche B Term Lenders’ Additional Tranche B Term Commitments is
$60,000,000, subject to any increase under Section 9.02 of the Credit
Agreement.


 


(b)  For all purposes of the Credit
Agreement and the other Loan Documents, from and after the Amendment Effective
Date (i) except as expressly set forth herein, the Additional Tranche B
Term Loans shall be deemed to be additional Tranche B Term Loans, (ii) the
provisions of the Additional Tranche B Term Loans and the rights and obligations
of the Additional Tranche B Term Lenders shall be identical to those of the
Tranche B Term Loans and the Tranche B Term Lenders under the Credit Agreement
and the other Loan Documents, including Section 2 of the Amendment
Agreement dated as of April 16, 2009 (the “Amendment Agreement”),
among Level 3, the Borrower, the Subsidiary Loan Parties, Merrill Lynch Capital
Corporation, as Administrative Agent and Collateral Agent, and the Tranche B
Term Lenders party thereto, and (iii) the terms “Tranche B Term Commitment”,
“Tranche B Term Lender” and “Tranche B Term Loans”, as used in the Credit
Agreement and the other Loan Documents, are hereby amended to include each
Additional Tranche B Term Commitment, each Additional Tranche B Term Lender and
each Additional Tranche B Term Loan, respectively; provided that (A) notwithstanding
anything to the contrary contained herein or in the Credit Agreement (and
without affecting any other provisions hereof or thereof), the funded amount in
respect of each Additional Tranche B Term Loan to be made on the Amendment
Effective Date (i.e., the amount advanced to the Borrower on the Amendment
Effective Date) shall be equal to 101% of the principal amount of such
Additional Tranche B Term Loan (it being agreed that only 100% of the principal
amount of each such Additional Tranche B Term Loan will be deemed outstanding
on the Amendment Effective Date and the Borrower shall only be obligated to
repay 100% of the principal amount of each such Additional Tranche B Term Loan
as provided under the Credit Agreement), (B) each Additional Tranche B
Term Loan shall be funded as a Eurodollar Loan on the Amendment Effective Date
and (C) until the end of the Interest Period applicable to the Tranche B
Term Loans immediately prior to the Amendment Effective Date (the “Initial
Interest Period”), (x) the Additional Tranche B Term Loans shall bear
interest from and including the Amendment Effective Date to but


 


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excluding the last day of the Initial Interest Period at a rate per
annum equal to the LIBO Rate applicable to the Initial Interest Period with
respect to the other Tranche B Term Loans plus the Applicable Margin for
Tranche B Eurodollar Loans, which rate shall be deemed, for purposes of Section 2.07(b) of
the Credit Agreement, to be the rate applicable to the Additional Tranche B
Term Loans under Section 2.07(a) of the Credit Agreement for the
Initial Interest Period, (y) the initial Interest Period for the
Additional Tranche B Term Loans shall be deemed to be the remaining term of the
Initial Interest Period, and (z) subject to the proviso to Section 2.07(c),
accrued interest on the Additional Tranche B Term Loans shall be payable in
arrears on the Interest Payment Dates applicable to the other Tranche B Term
Loans for the Initial Interest Period; provided, that notwithstanding
clauses (x), (y) and (z) above, any conversion or continuation of the
Tranche B Term Loans, and the election of any Interest Period therefor,
occurring during the Initial Interest Period shall be allocated ratably among
the Lenders holding all Tranche B Term Loans (including the Additional Tranche
B Term Loans).


 


SECTION 2.  Amendments to Schedules and Exhibits.  (a)  Effective as of the Amendment
Effective Date, Schedule 2.01 to the Credit Agreement is hereby amended to
include the information on Schedule 2.01(a) attached hereto.


 


(b)  Effective as of the Amendment
Effective Date, Exhibit H to the Credit Agreement is hereby amended and
restated to be in the form of Exhibit H attached hereto.


 


(c)  Effective as of the Amendment
Effective Date, the Loan Proceeds Note is hereby amended and restated to be in
the form attached hereto as Exhibit H.


 


SECTION 3.  Benefits of Loan Documents.  The Additional Tranche B Term Loans shall be
entitled to all the benefits afforded by the Credit Agreement and the other
Loan Documents and shall benefit equally and ratably (except as provided in Section 2
of the Amendment Agreement) from the Guarantees created by the Guarantee
Agreement and the security interests created by the Collateral Agreement and
the other Security Documents.


 


SECTION 4.  Representations and Warranties.  Each of Level 3 and the Borrower represents
and warrants to the Lenders that:


 


(a) 
the execution, delivery and performance by each of Level 3, the Borrower and
the other Loan Parties of this Amendment, and the consummation of the
transactions contemplated hereby by each Loan Party on the Amendment Effective
Date, are within the powers of Level 3, the Borrower or such other Loan Party,
as applicable, and have been duly authorized by all necessary corporate or
other action and, if required, stockholder or member action;


 


(b) 
this Amendment has been duly executed and delivered by Level 3, the Borrower
and each other Loan Party and constitutes, and each other Loan Document to
which any Loan Party is a party constitutes, a legal, valid and binding
obligation of such Loan Party, enforceable in accordance with its terms,


 


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subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law;


 


(c) 
the representations and warranties of (i) Level 3 and the Borrower
contained in Article III of the Credit Agreement and (ii) each Loan
Party contained in any other Loan Document are true and correct in all material
respects on and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material respects as of such earlier
date, and except that (A) the representations and warranties contained in Section 3.04(a) of
the Credit Agreement shall be deemed to refer to the most recent financial
statements furnished pursuant to Section 5.01(a) of the Credit
Agreement as of the date hereof, (B) references in such representations
and warranties and the definition of “Disclosed Matters” to the “Effective Date”
shall be deemed to be references to the “Amendment Effective Date”, (C) references
to “January 1, 2007” and “March 12, 2007” in the definition of “Disclosed
Matters” and Section 3.04(c) shall be deemed to be references to “January 1,
2009” and “May 15, 2009”, respectively, (D) Section 3.06(a) shall
be deemed to include the following phrase in the parenthetical after the words “Disclosed
Matters”: “and as disclosed on Schedule 3.06”, which reference shall be
deemed to be a reference to Schedule 3.06 attached hereto, and (E) references
in such representations and warranties to “Schedule 3.12” and “Schedule 3.13”
shall be deemed to be references to Schedule 3.12 and Schedule 3.13,
respectively, attached hereto; and


 


(d) 
no Default has occurred and is continuing on the date hereof.


 


SECTION 5.  Effectiveness.  This Amendment and the amendment or amendment
and restatement of certain schedules and exhibits to the Credit Agreement as
set forth in Section 1 hereof, and the obligations of the Additional
Tranche B Term Lenders to make the Additional Tranche B Term Loans
hereunder, shall become effective on the first date (the “Amendment
Effective Date”) on which each the following conditions shall have been
satisfied (or waived in accordance with Section 9.02 of the Credit
Agreement):


 


(a) 
The Administrative Agent (or its counsel) shall have received from Level 3, the
Borrower, each other Loan Party, the Administrative Agent and each Additional
Tranche B Term Lender either (i) counterparts of this Amendment signed on
behalf of each such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include a telecopy transmission of a signed
signature page of this Amendment) that each such party has signed a
counterpart of this Amendment.


 


(b) 
The Administrative Agent shall have received favorable written opinions
(addressed to the Administrative Agent and the Additional Tranche B Term
Lenders and dated the Amendment Effective Date) of (i) Willkie Farr &
Gallagher LLP, counsel for the Borrower, (ii) the Chief Legal Officer or
an


 


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Assistant General Counsel of
Level 3, (iii) Potter Anderson & Corroon LLP, Delaware local
counsel, and (iv) Bingham McCutchen LLP, regulatory counsel for the
Borrower, covering such matters relating to the Loan Parties, the Loan
Documents or the transactions contemplated by this Amendment as the
Administrative Agent shall reasonably request.


 


(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
by the Loan Parties 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 reasonably satisfactory to the
Administrative Agent and its counsel.


 


(d) 
The Administrative Agent shall have received a certificate signed by a
Financial Officer of Level 3, dated the Amendment Effective Date, certifying
that the representations and warranties set forth in Section 4 hereof (in
each case, substituting all references in Section 4 to the “date hereof”
with references to the “Amendment Effective Date”) are true and correct as of
the Amendment Effective Date.


 


(e) 
The Guarantee and Collateral Requirement shall be satisfied.


 


(f) 
The Administrative Agent, Banc of America Securities LLC, as sole lead arranger
and sole bookrunner, and the Additional Tranche B Term Lenders shall have
received all fees and other amounts due and payable to them on or prior to the
Amendment Effective Date, including the reimbursement or payment of all
reasonable out-of-pocket expenses for which reasonably detailed invoices have
been presented (including the reasonable fees, charges and disbursements of
Cravath, Swaine & Moore LLP, counsel for the Administrative Agent)
incurred in connection with this Amendment.


 


(g) 
The Administrative Agent shall have received a completed (A) perfection
certificate in the form of Annex II hereto (the “Amendment Effective Date
Perfection Certificate”) and (B) perfection certificate in the form of
Annex III hereto (the “Amendment Effective Date Loan Proceeds Note
Perfection Certificate”), each dated the Amendment Effective Date and
signed by a Financial Officer, in each case, together with all attachments
contemplated thereby.


 


The Administrative Agent shall notify Level 3, the Borrower and the
Lenders of the Amendment Effective Date, and such notice shall be conclusive
and binding.


 


SECTION 6.  Effect of Amendment; No Novation.  (a)  Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair, constitute
a waiver of, or otherwise affect the rights and remedies of the Agent or the
Lenders under the Credit Agreement or any other Loan Document, and shall not
alter,


 


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modify, amend or in any way affect any of the terms, conditions,
obligations (including, for the avoidance of doubt, any guarantee obligations
and indemnity obligations of the Guarantors), covenants or agreements contained
in the Credit Agreement or any other Loan Document, all of which are ratified
and affirmed in all respects and shall continue in full force and effect.  Nothing herein shall be deemed to entitle any
Loan Party to a consent to, or a waiver, amendment, modification or other
change of, any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement or any other Loan Document in similar or
different circumstances.


 


(b)  From and after the Amendment
Effective Date, the terms “Agreement”, “this Agreement”, “herein”, “hereinafter”,
“hereto”, “hereof” and words of similar import, as used in the Credit
Agreement, shall refer to the Credit Agreement as amended by this Amendment,
and the term “Credit Agreement”, as used in any Loan Document, shall mean the
Credit Agreement as amended by this Amendment. 
This Amendment shall constitute a “Loan Document” for all purposes of
the Credit Agreement and the other Loan Documents.


 


(c)  This Amendment shall not extinguish
the obligations for the payment of money outstanding under the Credit Agreement
or discharge or release any Guarantee thereof. 
Nothing herein contained shall be construed as a substitution or
novation of the Obligations outstanding under the Credit Agreement or the
Guarantee Agreement, which shall remain in full force and effect, except as
modified hereby.  Nothing expressed or
implied in this Amendment or any other document contemplated hereby shall be
construed as a release or other discharge of the Borrower under the Credit
Agreement or any Loan Party under any Loan Document from any of its obligations
and liabilities thereunder.


 


SECTION 7.  GOVERNING LAW.  THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAWS OTHER THAN SECTIONS 5-1401 AND 5-1402 OF
THE GENERAL OBLIGATIONS LAW.


 


SECTION 8.  Counterparts.  This Amendment may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. 
Delivery of an executed counterpart of a signature page of this
Amendment by facsimile or other electronic means shall be effective as delivery
of a manually executed counterpart of this Amendment.


 


SECTION 9.  Headings. The headings of this
Amendment are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.


 


[Signature pages follow.]


 


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IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be duly executed by their respective authorized
officers as of the date first above written.


 


 


	
   

  	
  LEVEL
  3 COMMUNICATIONS, INC.,

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/
  Robin E. Grey

  
	
   

  	
   

  	
  Name:  Robin
  Grey

  
	
   

  	
   

  	
  Title:  Senior
  Vice President & Treasurer

  



 


 


	
   

  	
  LEVEL
  3 FINANCING, INC.,

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/
  Robin E. Grey

  
	
   

  	
   

  	
  Name:  Robin
  Grey

  
	
   

  	
   

  	
  Title:  Senior
  Vice President & Treasurer

  



 

















 


	
   

  	
  BROADWING,
  LLC,

  
	
   

  	
  BROADWING
  COMMUNICATIONS, LLC,

  
	
   

  	
  BROADWING
  FINANCIAL SERVICES, INC.,

  
	
   

  	
  BTE
  EQUIPMENT, LLC,

  
	
   

  	
  C
  III COMMUNICATIONS, LLC,

  
	
   

  	
  ELDORADO
  EQUIPMENT, INC.,

  
	
   

  	
  ICG
  COMMUNICATIONS, INC.,

  
	
   

  	
  LEVEL
  3 COMMUNICATIONS, LLC,

  
	
   

  	
  LEVEL
  3 ENHANCED SERVICES, LLC,

  
	
   

  	
  LEVEL
  3 INTERNATIONAL, INC.,

  
	
   

  	
  TELCOVE
  OPERATIONS, LLC,

  
	
   

  	
  WILTEL
  COMMUNICATIONS GROUP, LLC,

  
	
   

  	
  WILTEL
  COMMUNICATIONS, LLC,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/
  Robin E. Grey

  
	
   

  	
   

  	
  Name:  Robin
  Grey

  
	
   

  	
   

  	
  Title:  Senior
  Vice President & Treasurer

  



 

















 


	
   

  	
  MERRILL
  LYNCH CAPITAL

  
	
   

  	
  CORPORATION,

  
	
   

  	
  Individually,
  and as Administrative Agent and

  
	
   

  	
  Collateral
  Agent,

  



 


	
   

  	
  by:

  	
  /s/
  Scott Tolchin

  
	
   

  	
   

  	
  Name:
   Scott Tolchin

  
	
   

  	
   

  	
  Title:
    Vice President

  



 

















 


SIGNATURE PAGE TO FIRST
AMENDMENT TO


THE AMENDED AND RESTATED
CREDIT AGREEMENT OF


LEVEL 3 COMMUNICATIONS, INC.


 


	
  ADDITIONAL
  TRANCHE B TERM LENDER: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  by:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by:

  	
   

  	
  *

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 






(*) For Lenders requiring a second signature
line.