EXHIBIT 10.1
AGREEMENT
This Agreement (together with the Exhibits hereto, the "Agreement"),
dated as of April 19, 2002, is by and among (a) Xxxxxxxx Communications Group,
Inc. ("WCG"), Xxxxxxxx Communications, LLC ("WCLLC"), CG Austria, Inc. ("CGA"),
and each of WCG's other undersigned direct or indirect subsidiaries
(collectively, with WCG , WCLLC and CGA, the "Company"); (b) each of the
undersigned holders in their capacities as described in the attached signature
page (each, a "Noteholder") of certain of WCG's 10.70% Senior Redeemable Notes
due 2007, 10.875% Senior Redeemable Notes due 2009, 11.70% Senior Redeemable
Notes due 2008, and 11.875% Senior Redeemable Notes due 2010, in each case
issued by WCG (collectively, the "Notes"), and (c) each of the undersigned
lenders (collectively, the "Consenting Lenders") party to that certain Amended
and Restated Credit Agreement dated as of September 8, 1999, as amended,
restated, supplemented or modified from time to time (the "Credit Agreement")
among WCLLC, as Borrower, WCG and CGA, each as a Guarantor, the lenders party
thereto (collectively, "Lenders"), and Bank of America, N.A., as Administrative
Agent (the "Agent") for the Lenders and certain other parties. The Company, each
Noteholder, each Consenting Lender, and the Agent are referred to herein
collectively as the "Parties".
WHEREAS The Xxxxxxxx Companies, Inc. ("TWC") and WCG are parties to a
letter agreement dated as of February 23, 2002, pursuant to which, among other
things, TWC agreed to support the implementation of the restructuring of the
Company's obligations to its creditors (the "Restructuring") through the
prosecution and confirmation of a plan of reorganization in accordance with the
provisions of chapter 11 of title 11 of the United States Code (the "Bankruptcy
Code");
WHEREAS the Parties have engaged in good faith negotiations with the
objective of reaching agreement concerning the Restructuring; and
WHEREAS the Parties now desire to enter into this Agreement to further
implement the Restructuring through (1) certain modifications to the Credit
Agreement; (2) the commencement of cases with respect to WCG and CGA
(collectively, the "Chapter 11 Case") under chapter 11 of title 11 of the
Bankruptcy Code in the United States Bankruptcy Court for the Southern District
of New York or such other bankruptcy court with proper jurisdiction (the
"Bankruptcy Court"); and (3) the prosecution of a plan of reorganization
containing terms substantially similar in all material respects with the
provisions set forth in this Agreement and the Exhibits hereto (the "Plan").
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, each of the
undersigned Parties hereby agrees as follows:
1. INTERIM AMENDMENT AND CASH COLLATERAL ORDER. Prior to the entry of an
order for relief under chapter 11 of title 11 of the Bankruptcy Code in the
Chapter 11 Case, each of the Consenting Lenders, WCG and WCLLC will execute
and deliver an interim amendment to the Credit Agreement substantially in
the form annexed hereto as Exhibit "A" (the "Interim Amendment"). The
Parties further agree that they (a) will not challenge, or support a
challenge to, the validity or enforceability of the Interim
Amendment and (b) will support the entry or of an order authorizing WCG's
and CGA's use of cash collateral on the terms described in, and
substantially in the form of, Exhibit "B" hereto (the "Cash Collateral
Order").
2. AMENDED CREDIT AGREEMENT. Subject to satisfaction of the conditions
set forth herein and in the Exhibits hereto, the Company and each of the
Consenting Lenders agrees to execute an amended and restated Credit
Agreement that is consistent in all material respects with the terms set
forth in Exhibit "C" hereto (the "Amended Credit Agreement") and to deliver
such agreement on the effective date of the Plan (the "Consummation Date").
The Parties agree that (a) the Plan will authorize WCG's and CGA's entry
into the Amended Credit Agreement; and (b) the Plan will be consistent with
the terms and conditions of the Amended Credit Agreement.
3. CONSENTING LENDER AMENDMENT FEE. On the Effective Date (as such term
is hereinafter defined), WCLLC will pay indefeasibly in cash to the Agent
for the pro rata benefit of the Consenting Lenders, a fully-earned,
non-refundable fee in the aggregate amount of $7.904 million (the
"Consenting Lender Amendment Fee"). Further, the Parties waive and release
any right to challenge or object to in any respect the Consenting Lender
Amendment Fee.
4. PREPAYMENT OF AMORTIZATION. (a) On the Effective Date, WCLLC will
prepay, indefeasibly in cash, $200 million of the outstanding principal
balance under the Credit Agreement (the "Initial Payment"); and (b) on the
Consummation Date, WCLLC will prepay, indefeasibly in cash, $250 million of
the outstanding principal balance under the Credit Agreement (the
"Subsequent Payment"), provided, however, that if the Extension Payment (as
such term is herein defined) is paid on July 15, 2002, the Subsequent
Payment shall be reduced to $200 million. All of the payments under the
Credit Agreement set forth in this paragraph shall be applied to the next
scheduled amortization payments under the Credit Agreement, in
chronological order. The Parties waive and release any right to challenge
or object to, in any respect, the making by WCLLC of the Initial Payment,
the Subsequent Payment or the Extension Payment and under no circumstance
shall the Consenting Lender Amendment Fee, the Initial Payment, the
Subsequent Payment, the Extension Payment or any other fee or amount paid
by WCLLC under or in connection with this Agreement or the Initial
Amendment be subject to repayment, reallocation or return by the Agent, the
Consenting Lenders or the Lenders, as the case may be.
5. TREATMENT OF CLAIMS UNDER THE PLAN. The Parties agree to the following
treatment of certain claims (as such term is defined under section 101 of
the Bankruptcy Code, "Claims") under the Plan:
(a) GENERAL UNSECURED CLAIMS. In full satisfaction of all Claims that are
unsecured prepetition non-priority Claims and that have become allowed
Claims in the Chapter 11 Case ("Unsecured Claims"), each holder
thereof shall receive a pro rata share of 100% of the new common stock
(the "New Common Stock") of WCG, as reorganized under the Plan
("Reorganized WCG").
(b) CLAIMS ARISING UNDER THE WCG AND CGA GUARANTIES. The guaranties of WCG
and CGA of WCLLC's obligations under the Credit Agreement will be
unimpaired by the Plan (except as otherwise agreed to by that portion
of the
Consenting Lenders which constitute Required Lenders (as herein
defined) in their sole discretion) on the Consummation Date. In
addition, the Administrative Agent, for itself and on behalf of the
Lenders, shall retain its liens upon the collateral securing such
guaranties unaffected by the Plan or any order entered in the Chapter
11 Case.
(c) SECURITIES CLAIMS. To the fullest extent permitted under section
510(b) of the Bankruptcy Code, holders of Claims arising from
rescission of a purchase or sale of the WCG preferred stock, or the
WCG common stock (collectively, the "WCG Securities"), for damages
arising from the purchase or sale of WCG Securities, or for
reimbursement or contribution on account of such Claims, shall receive
no distribution under the Plan and such claims shall be discharged.
6. GOVERNANCE OF REORGANIZED WCG. The Plan will provide for a nine-person
board of directors for Reorganized WCG, to be initially comprised of the
CEO, at least two current directors selected by the current board of
directors of WCG and six directors who will be selected by the members of
the official committee of unsecured creditors appointed in the Chapter 11
Case (the "Creditors' Committee").
7. PURSUE PLAN PROCESS. WCG and CGA agree that, pursuant to section 1125
of the Bankruptcy Code, they shall file and use their reasonable best
efforts to obtain approval by the Bankruptcy Court of a disclosure
statement and other solicitation materials in respect of the Plan
(collectively, the "Disclosure Statement"), which shall be reasonably
acceptable to the Required Lenders, the Required Noteholders and the
Company, and, pursuant to section 1129 of the Bankruptcy Code, use their
commercially reasonable efforts to obtain confirmation and consummation of
the Plan as soon as practicable. WCG and CGA agree that, promptly after the
commencement of the Chapter 11 Case, they will file a motion for an order
authorizing the assumption of this Agreement pursuant to section 365 of the
Bankruptcy Code and shall diligently prosecute such motion in good faith.
8. VOTE FOR PLAN. Subject to the terms and conditions of this Agreement,
each of the undersigned Noteholders and Consenting Lenders (each a "Holder"
and, collectively, the "Holders") agrees that, so long as it remains
obligated under this Agreement, and subject to the receipt of a Disclosure
Statement that contains information not materially different from that
previously provided to the initial signatories hereto and that is approved
by the Bankruptcy Court as containing "adequate information" under section
1125 of the Bankruptcy Code:
(a) to the extent a Holder's Claim is impaired, in connection with any
solicitation of ballots by WCG and CGA with respect to the Plan, it
will vote all of its Holdings (as such term is defined hereinafter) to
accept the Plan by delivering its duly executed and completed ballot
accepting the Plan, and will not change or withdraw (or cause to be
changed or withdrawn) such votes(s);
(b) it will not (i) object to the Plan or (ii) propose, file, support or
vote for any restructuring, workout, or plan of reorganization for WCG
and CGA other than the Plan;
(c) it will vote against any restructuring, workout or plan of
reorganization relating to WCG and CGA other than the Plan;
(d) each Noteholder agrees that it will not (nor will it encourage any
other person to) delay, impede, or take any other action to interfere,
directly or indirectly, in any respect with acceptance or
implementation of the Plan and that it will not object to the separate
classification of allowed Claims arising under the Notes (other than
those subordinated pursuant to section 510(b) of the Bankruptcy Code)
from all other allowed Claims; and
(e) each Consenting Lender agrees that, effective upon consummation of the
Plan, the Agent shall, and is hereby authorized to, waive any and all
super priority Claims under the Cash Collateral Order;
provided, however, that no Holder shall be barred by this Agreement from
objecting to approval of the Disclosure Statement pursuant to section 1125 of
the Bankruptcy Code if such Holder believes in good faith that the proposed
Disclosure Statement lacks "adequate information" (as such term is defined in
section 1125(a)(1) of the Bankruptcy Code) or contains a material misstatement
or omission.
9. CLAIM HOLDINGS AND TRANSFERS; PARTICIPATION RIGHT
(a) Each of the undersigned Noteholders represents that with respect to
the Claim or Claims against WCG in the principal amount set forth on
such Noteholder's signature page (the "Note Holdings"), it is the
beneficial owner and/or the investment advisor or manager on behalf of
the beneficial owner of such Holdings with the power to vote and
dispose of such Holdings in accordance with this Agreement on behalf
of such beneficial owners.
(b) Each of the undersigned Consenting Lenders represents that it is (i)
the owner and/or the investment advisor or manager on behalf of the
owner of a Claim arising under the Credit Agreement (a "Credit
Agreement Claim" and, together with Note Holdings, "Holdings") in the
principal amount set forth opposite its name in Exhibit "D" attached
hereto.
(c) From the Effective Date until the Consummation Date, each Holder
agrees that it will not sell, pledge, assign, hypothecate, or
otherwise transfer any Holdings, and such attempted sale, pledge,
assignment, hypothecation, or other transfer shall be void and without
effect, unless the transferee executes and delivers to each of the
Noteholders, counsel to WCG and counsel to the Agent (such counsel
being the counsel designated in Section 23) a counterpart signature
page to this Agreement, thereby agreeing to be bound by all of the
terms of this Agreement with respect to the Holdings being
transferred.
(d) This Agreement shall in no way be construed to preclude a Noteholder
from acquiring additional Notes or other Claims against WCG or CGA and
the provisions of this Agreement, including without limitation, the
restrictions on transfer set forth in Section 9(c), shall not be
applicable to any such additional Notes. However, to the extent the
undersigned Noteholder is the beneficial owner of, or has control over
an affiliate that is the beneficial owner of Notes other than Note
Holdings on the record date established for voting on acceptance or
rejection of the Plan, it shall vote such additional Notes to accept
the Plan, subject to the
satisfaction of the terms and conditions set forth in Section 8(a)
(including the lead-in paragraph thereto).
(e) The Plan will provide that WCG and/or WCLLC, in connection with
procuring the New Investment (as herein defined), will offer each
Noteholder that has Note Holdings of at least $125 million and that
has delivered to WCG a signature page to this Agreement on or before
April 22, 2002 and TWC (collectively, the "Lock-Up Parties") the right
to invest (the "Additional Investment") up to an additional $150
million (above the amount of the New Investment) on the same terms and
conditions as the New Investment, subject to dilution by the
Additional Investment. If the Additional Investment is oversubscribed,
participation shall be pro rated among the Lock-Up Parties based on
the amount of New Common Stock to be issued to them upon consummation
of the Plan. The rights contained in this paragraph are not
transferable.
(f) The Plan will provide that WCG, for a period of two years commencing
on the Consummation Date, will provide ROFO Eligible Parties (as
hereinafter defined) a Right of First Offer (as hereinafter defined)
with respect to any public or qualifying private issuance (as
hereinafter defined) of debt or equity securities (including
equity-linked securities) by WCG involving amounts (in any individual
transaction or series of related transactions) aggregating in excess
of $50 million (a "Covered Issuance"). For this purpose, a "qualifying
private issuance" shall mean a straight issuance of debt or equity
securities not involving a strategic partnering with a key customer or
supplier. As used herein, a "ROFO Eligible Party" shall mean any
Noteholder that has delivered to WCG a signature page to this
Agreement on or before April 22, 2002 or TWC, as to which all of the
following conditions have been satisfied: (i) the Noteholder or TWC,
as the case may be, shall have elected to be treated as a ROFO
Eligible Party in connection with voting on the Plan and shall have
made a one-time qualifying payment to WCG in the amount of $100,000
and (ii) at the time any Right of First Offer is made it holds (A) in
the case of a Noteholder, New Common Stock in an amount equal to the
greater of (x) 50% of the New Common Stock issued in respect of the
Holdings set forth opposite the Noteholder's signature to this
Agreement, and (y) 50% of the New Common Stock issued in respect of
the Notes voted by the Noteholder to accept the Plan, and (B) in the
case of TWC, New Common Stock in an amount equal to 50% of the New
Common Stock, if any, issued to TWC under the Plan. As used herein, a
"Right of First Offer" shall require WCG to offer (the "Offer") to
ROFO Eligible Parties the first right to subscribe to a Covered
Issuance on such terms and conditions as shall be set forth by WCG in
a written notice accompanying the Offer. In the case of a Covered
Issuance that is a qualifying private issuance (a "Private Issuance
Offer") as to which the ROFO Eligible Parties have only partially
subscribed (with the amount subscribed being herein the "Partial
Subscription Amount"), WCG shall be free to pursue the Private
Issuance Offer with third parties; provided, however, that WCG shall
seek to permit the ROFO Eligible Parties to participate to the extent
of the Partial Subscription Amount, and, if necessary to accommodate
such participation, will increase the size of the Private Issuance
Offer (it being understood that WCG shall not be obligated to make
such participation available if it would cause the Private Issuance
Offer to be unacceptable to third parties); provided, further, that
if the terms of the Private Issuance Offer that relate to equity of
WCG, if any, as negotiated with the third party investors are
materially improved (from the standpoint of the investors), WCG will
offer the ROFO Eligible Parties the right to invest collectively up to
25% of the amount invested by the third party investors on the same
terms and conditions as the third parties. In the case of a Covered
Issuance that is a public offering as to which the ROFO Eligible
Parties have only partially subscribed, WCG will be free to offer and
sell to third parties that portion of the offering which was not
subscribed to by the ROFO Eligible Parties and there will be no
further obligation on WCG's part to make an Offer to the ROFO Eligible
Parties in respect of such Covered Issuance. To the extent any Offer
is oversubscribed by the ROFO Eligible Parties, participation in the
Offer shall be pro rated among the ROFO Eligible Parties based on
their respective holdings of New Common Stock at the time of the
Offer. The rights of a ROFO Eligible Party shall not be transferrable.
(g) In consideration for agreeing to be bound herein, and not to sell or
transfer their holdings of Notes (except as provided herein), the
Noteholders will receive a pro rata share of 5% of the equity to be
provided to the class of holders of Notes, provided however that the
Plan ballots shall provide a separate check off whereby members of the
Noteholders Class can vote to disapprove such additional equity
issuance, and provided further that the Bankruptcy Court must find
that such additional equity issuance does not constitute unfair
discrimination with respect to the remaining members of the class of
Noteholders or otherwise cause the Plan to fail to comply with any
other requirement of section 1129 of the Bankruptcy Code.
10. CONDITIONS TO EFFECTIVENESS OF THIS AGREEMENT. This Agreement shall
not become effective until such time as each of the following conditions
have been satisfied (the "Effective Date"):
(a) The receipt by WCG of the signatures to this Agreement by sufficient
numbers of the Consenting Lenders which comprise "Required Lenders"
(as such term is defined under the Credit Agreement) (the "Required
Lenders");
(b) The execution and delivery by the Required Lenders and the Company of
the Interim Amendment;
(c) The receipt by WCG of the signatures to this Agreement by Noteholders
whose Holdings as of the date hereof collectively comprise at least
$875 million in face amount of Notes;
(d) Execution of this Agreement by WCG, WCLLC and the undersigned
subsidiaries; and
(e) The payments required by Section 3 and Section 4(a) having been
received by the Agent.
11. TERMINATION EVENTS. This Agreement shall automatically terminate if
any of the following events occur (except with respect to Sections 11(b)
and 11(i), as to which if the
event specified therein occurs, this Agreement shall terminate at 5:00 p.m.
Eastern Time on the second business day after such event has occurred)
(each a "Termination Event"):
(a) The Consummation Date of the Plan shall have not occurred on or before
July 15, 2002; provided that a termination pursuant to this Section
11(a) shall not occur prior to October 15, 2002 if, on or before July
15, 2002, (i) WCLLC shall have prepaid indefeasibly in cash $50
million of the outstanding principal balance under the Credit
Agreement (the "Extension Payment") (which payment will be in addition
to the Initial Payment required pursuant to Section 4(a)), (ii) EBITDA
for April 2002, May 2002 and June 2002 shall not, in the aggregate, be
more than $50,000,000 less than the EBITDA set forth in the Budget (as
such term is defined in the Interim Amendment) for the same three (3)
month period (i.e., negative $81,000,000); (iii) WCG and CGA shall
have filed the Plan and proposed Disclosure Statement with the
Bankruptcy Court, (iv) a date for a hearing before the Bankruptcy
Court to consider approval of the Disclosure Statement shall have been
set by the Bankruptcy Court, and (v) WCG and CGA shall be prosecuting
such Plan in good faith toward confirmation (it being agreed that any
payment by WCLLC pursuant to this Section 11(a) shall be applied to
the next scheduled amortization of payments, in chronological order
and shall reduce dollar-for-dollar the amount required to be paid by
WCLLC as a Subsequent Payment pursuant to Section 4(b)); provided,
further, however, that such extension shall automatically terminate if
another Termination Event pursuant to this Section 11 shall occur at
any time during such extension from July 15,2002 to October 15, 2002;
or
(b) The Plan proposed by WCG and CGA contains terms that are materially
inconsistent with, or are less favorable to the Party or Parties than,
the terms and conditions of this Agreement, or the Plan is amended,
modified, or supplemented in any way that makes it materially
inconsistent with, or less favorable to the Party or Parties than, the
terms and conditions of this Agreement; or
(c) WCG and CGA shall have failed to file a motion in the Chapter 11 Case
on or by April 30, 2002 seeking to assume this Agreement; or
(d) On or before the Voting Deadline as such term shall be defined in the
Disclosure Statement, WCG shall not have procured a commitment from a
qualified investor to invest $150 million in WCG or WCLLC, which
investment will be committed to be fully and irrevocably funded on the
Consummation Date and will have such terms and conditions that are in
all material respects acceptable to that portion of the Consenting
Lenders which constitute Required Lenders and in all material respects
reasonably acceptable to the Creditors' Committee (such investment,
the "New Investment"); or
(e) WCG and CGA shall have failed to file the Plan and the Disclosure
Statement on or before May 20, 2002; or
(f) The Cash Collateral Order is not entered by the Bankruptcy Court by
May 20, 2002, or WCG's and CGA's authorization to use cash collateral
is terminated at any time without the consent of the Agent, acting at
the direction of the Consenting Lenders which constitute the Required
Lenders; or
(g) Any Event of Default (as such term is defined in the Credit Agreement)
under the Credit Agreement occurs and is continuing without waiver by
the Lenders required pursuant to Section 10.02 of the Credit
Agreement; or
(h) (i) The Company shall seek an order or judgment of the Bankruptcy
Court or any other court of competent jurisdiction to affect adversely
or alter in any respect the rights or remedies of, or to stay the
exercise of the rights or remedies of, the Agent or the Lenders with
respect to WCLLC or its property (including by asserting that any stay
or injunction in the Chapter 11 Case, under section 362 of the
Bankruptcy Code or otherwise, that affects the Agent's or the Lenders'
respective rights or remedies with respect to WCLLC or its property)
or (ii) the Bankruptcy Court or any court of competent jurisdiction
enters any such order or judgment sought by the Company or any other
entity, in which case, this Agreement shall automatically terminate
immediately prior to the entry of such an order or judgment; or
(i) If WCG and CGA shall have failed to propose in the Plan the separate
classification of allowed Claims arising under the Notes (other than
those subordinated pursuant to section 510(b) of the Bankruptcy Code)
from all other allowed Claims.
Notwithstanding anything in this Section 11 to the contrary, this Agreement
shall automatically terminate on October 15, 2002 without the requirement of any
further action by any of the Parties hereto.
If the Bankruptcy Court enters an order authorizing WCG and CGA to assume this
Agreement, then the introductory clause of this Section 11 and the second
proviso in Section 11(a) shall be deemed to be modified to (a) require a Party
(in the case of the Consenting Lenders, by the Agent at the direction of those
Consenting Lenders that constitute the Required Lenders and, in the case of the
Noteholders, by the informal committee of Noteholders (the "Informal Noteholders
Committee") at the direction of the Required Noteholders) to give written notice
of termination of this Agreement to the other Parties in order for a termination
pursuant to this Section 11 to become effective (which termination will become
effective upon delivery of such written notice) and (b) to delete in its
entirety the following language: "(except with respect to Sections 11(b) and
11(i), as to which if the event specified therein occurs, this Agreement shall
terminate at 5:00 p.m. Eastern Time on the second business day after such event
has occurred)" from the introductory clause of this Section 11. For purposes of
this Agreement, "Required Noteholders" means holders of not less than 51% in
principal amount of the Note Holdings of the Noteholders.
12. EFFECT OF A TERMINATION OF THIS AGREEMENT. Upon termination of this
Agreement pursuant to Section 11, this Agreement will be void and of no
further force and effect except that Sections 1, 3, 4(a), the last sentence
of Section 4 (except with respect to the Extension Payment, unless made, or
the Subsequent Payment) and 17 through 29 will survive any termination of
this Agreement and remain in full force and effect.
13. GOOD FAITH NEGOTIATION OF DOCUMENTS. Each of the Parties hereby
covenants and agrees to negotiate in good faith the definitive documents
relating to this Agreement, including the Plan and Disclosure Statement.
14. REPRESENTATIONS AND WARRANTIES. Each of the Parties hereby represents
and warrants to each other that:
(a) It has the requisite corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated by, and
perform its respective obligations under, this Agreement;
(b) The execution and delivery of this Agreement and the performance of
its obligations hereunder have been duly authorized by all necessary
corporate or other organizational action on its part;
(c) The execution, delivery, and performance of this Agreement does not
and shall not (i) violate any provision of law, rule, or regulation
applicable to it or any of its affiliates, or its certificate of
incorporation or bylaws or other organizational documents or those of
any of its affiliates, or (ii) conflict with, result in a breach of,
or constitute (with due notice or a lapse of time or both) a default
under any material contractual obligation to which it or any of its
affiliates is a party or under its certificate of incorporation or
bylaws or other organizational documents;
(d) The execution, delivery, and performance by it of this Agreement does
not and shall not require any registration or filing with, the consent
or approval of, notice to, or any other action with respect to
federal, state, or other governmental authority, regulatory body,
except such filings as may be necessary or required for disclosure by
the Securities Exchange Commission.
(e) This Agreement is the legally valid and binding obligation of it,
enforceable against it (in the case of Agent, only in its capacity as
a Lender) in accordance with the Agreement's terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other similar laws relating to or limiting creditors'
rights generally, or by equitable principles relating to
enforceability.
15. SPECIFIC PERFORMANCE. It is understood and agreed by each of the
Parties that money damages would not be a sufficient remedy for any breach
of this Agreement by any Party, and each non-breaching Party shall be
entitled to specific performance and injunctive or other equitable relief
as a remedy for such breach.
16. APPOINTMENT TO A CREDITORS' COMMITTEE. Notwithstanding anything herein
to the contrary, if any Noteholder is appointed to and serves on a
Creditors' Committee, the terms of this Agreement shall not be construed to
limit such Noteholder's exercise of its fiduciary duties to any person
arising from its service on a Creditors' Committee, and any exercise of
such fiduciary duties shall not be deemed to constitute a breach of the
terms of this Agreement, provided, however, that a Noteholder's service on
a Creditors' Committee shall not affect the continuing validity and
enforceability of this Agreement, or modify or limit such Noteholder's
obligations under this Agreement, including its obligation to vote to
accept the Plan and related obligations contained in Section 8 of this
Agreement. To the extent that a formal Creditors' Committee is constituted,
the Parties agree to cooperate in the appointment of the members of the
Informal Noteholders Committee as the members of the Creditors' Committee.
17. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and inure
to the benefit of each of the Parties and each of their respective
successors, assigns, heirs, executors, administrators, and representatives.
The agreements, representations, and obligations of the Parties to this
Agreement are several only and not joint in any respect.
18. NO THIRD-PARTY BENEFICIARIES. Unless expressly stated herein, this
Agreement shall be solely for the benefit of the Parties and no other
person or entity shall be a third-party beneficiary of this Agreement.
19. PRIOR AGREEMENTS. This Agreement supersedes all prior negotiations and
agreements among the Parties with respect to the matters set forth herein.
20. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York, regardless of
the laws that might otherwise govern under applicable principles of
conflicts of law of the State of New York.
21. VENUE. By execution and delivery of this Agreement, each of the
Parties irrevocably and unconditionally agrees that any legal action, suit,
or proceeding with respect to any matter under or arising out of or in
connection with this Agreement, or for recognition or enforcement of any
judgment rendered in any such action, suit, or proceeding, shall be brought
(a) in the Bankruptcy Court if the Chapter 11 Case has been commenced, or
(b) in a court of competent jurisdiction located in the City of New York if
the Chapter 11 Case has not been commenced. Each Party irrevocably waives
any objection it may have to the venue of any action, suit, or proceeding
brought in such court or to the convenience of the forum; provided,
however, that this paragraph shall not apply with respect to WCLLC or any
subsidiaries of WCG or CGA that are guarantors, their property or the
rights or remedies of the Agent or the Lenders under the Credit Agreement
or other applicable law.
22. PERSONAL JURISDICTION. By execution and delivery of this Agreement,
each of the Parties irrevocably and unconditionally submits to the personal
jurisdiction of (a) the Bankruptcy Court if the Chapter 11 Case has been
commenced, or (b) a court of competent jurisdiction located in the City of
New York if the Chapter 11 Case has not been commenced, for purposes of any
action, suit or proceeding arising out of or relating to this Agreement.
23. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered
by courier service, messenger, or facsimile to the following addresses, or
such other addresses as may be furnished hereafter by notice in writing, to
the following Parties:
(a) if to the Company:
Xxxxxxxx Communications Group, Inc.
Xxx Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to counsel for the Company:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Facsimile: (000) 000-0000
(b) if to the Noteholders:
Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxx Xxxxx
Facsimile: (000) 000-0000
(c) if to a Consenting Lender or the Agent:
Bank of America, N.A.
000 Xxxx Xx., 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to counsel for the Agent:
Xxxxxxxx Chance Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
24. HEADINGS. The section headings of this Agreement are for convenience
of reference only and shall not, for any purpose, be deemed a part of this
Agreement.
25. AMENDMENTS. This Agreement may not be modified, amended, or
supplemented except in writing signed by the Company, the Agent acting at
the direction of that portion of the Consenting Lenders that constitute the
Required Lenders and the Required Noteholders, provided, however, that the
terms and provisions of the Credit Agreement and the Interim Amendment may
be modified, amended, or supplemented pursuant to and in accordance with
Section 10.02 of the Credit Agreement, and the Cash Collateral Order may be
modified by WCG and the Required Lenders with the approval of the
Bankruptcy Court.
26. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
shall constitute one and the same Agreement. Delivery of an executed
signature page of this Agreement by facsimile shall be effective as
delivery of a manually executed signature page of this Agreement.
27. NO WAIVER OF PARTICIPATION AND RESERVATION OF RIGHTS. Except as
expressly provided in this Agreement and in any amendment among the
Parties, nothing herein is intended to, or does, in any manner waive,
limit, impair, or restrict the ability of each of the Agent, the Consenting
Lenders and Noteholders to protect and preserve its rights, remedies and
interests, including without limitation, its Claims against WCG or its full
participation in any bankruptcy case filed by WCG or any of its affiliates
and
subsidiaries. If the transactions contemplated by this Agreement or in the
Plan are not consummated, or if this Agreement is terminated for any
reason, the Parties fully reserve any and all of their rights, except to
the extent specified in Section 12 hereof.
28. ACKNOWLEDGEMENT. This Agreement is not and shall not be deemed to be a
solicitation of votes for the acceptance of the Plan. Each of the
Noteholders' votes and, to the extent the Consenting Lenders agree that
their Claims are impaired, the Consenting Lenders' votes, will not be
solicited until such Noteholder or Consenting Lender has been served with a
Disclosure Statement that has been approved by the Bankruptcy Court.
29. INTERPRETATION. This Agreement is the product of negotiations among
the Agent, the Consenting Lenders, WCG, and the Informal Noteholders
Committee, and in the enforcement or interpretation hereof, is to be
interpreted in a neutral manner, and any presumption with regard to
interpretation for or against any Party by reason of that Party having
drafted or caused to be drafted this Agreement, or any portion hereof,
shall not be effective in regard to the interpretation hereof.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed and delivered by its duly-authorized officer as of the date first
written above.
XXXXXXXX COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
XXXXXXXX COMMUNICATIONS, LLC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
SUBSIDIARIES:
CRITICAL CONNECTIONS, INC.
WCS COMMUNICATIONS SYSTEMS, INC.
WCS, INC.
XXXXXXXX COMMUNICATIONS VIRGINIA, INC.
XXXXXXXX COMMUNICATIONS OF PROCUREMENT, L.L.C.
XXXXXXXX COMMUNICATIONS OF PROCUREMENT, LP
CG AUSTRIA, INC.
XXXXXXXX LEARNING NETWORK, INC.
XXXXXXXX LOCAL NETWORK, LLC
XXXXXXXX TECHNOLOGY CENTER, LLC
XXXXXXXX COMMUNICATIONS MANAGED SERVICES, L.L.C.
XXXXXXXX COMMUNICATIONS MANAGED SERVICES OF
CALIFORNIA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
CONSENTING LENDERS:
SIGNATURE BLOCK OMITTED;
[EXECUTED BY EACH OF APPROXIMATELY 93% OF
BANKS]
CONSENTING NOTEHOLDERS:
SIGNATURE BLOCK OMITTED;
[EXECUTED BY 883 OF 2449 BONDHOLDERS, AS
OF APRIL 25, 2002.]
