EXHIBIT 10.107
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of April 19, 2002 (the "Amendment")
to the Amended and Restated Credit Agreement dated as of September 8, 1999 (as
amended, the "Credit Agreement"), among Xxxxxxxx Communications, LLC, as
Borrower (the "Borrower"), Xxxxxxxx Communications Group, Inc., as Guarantor
("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 Xxxxx Bank (formerly known as 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., as Co-Documentation Agents.
INTRODUCTORY STATEMENT
All capitalized terms not otherwise defined in this Amendment
are used herein as defined in the Credit Agreement.
The Borrower and Holdings have requested that the Lenders
agree to amend the Credit Agreement as hereinafter set forth.
Subject to the terms and conditions hereof, the Lenders are
willing to agree to such amendment, but only upon the terms and conditions set
forth herein.
In consideration of the mutual agreements contained herein and
other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the Credit Agreement.
(A) The definition of "Applicable Margin" appearing in Section
1.01 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"'Applicable Margin' means, for any day, with respect to
any Term Loan, Incremental Tranche A Loan or Revolving
Loan, the applicable rate per annum set forth below under
the caption "Eurodollar Spread" or "ABR Spread", as the
case may be:
Eurodollar Spread ABR Spread
----------------- ----------
Prior to July 1, 2004 4.50% 3.50%
On or after July 1, 2004 5.50% 4.50%
(B) The definition of "Existing International Joint Ventures"
appearing in Section 1.01 of the
Credit Agreement is hereby amended to include
the following text immediately after the word "Limited" in the first line
thereof: ", Silica Networks, S.A."
(C) The definition of "Loan Documents" appearing in Section
1.01 of the
Credit Agreement is hereby amended: (i) by deleting the word "and"
appearing immediately before the words "the Collateral Documents" and inserting
a comma in lieu thereof; and (ii) by adding the phrase "and any
other document, agreement or instrument executed in connection with this
Agreement or any other Loan Document, that is hereafter designated as a 'Loan
Document' pursuant to the terms thereof" at the end of such definition
immediately after the parenthetical phrase "(if any)" appearing therein.
(D) The definition of "Material Adverse Effect" appearing in
Section 1.01 of the
Credit Agreement is hereby amended in its entirety to read
as follows:
"'Material Adverse Effect' means a material adverse effect
on (a) the business, assets, operations, prospects or
condition, financial or otherwise, of Holdings and its
Subsidiaries taken as a whole, or of the Borrower and its
Subsidiaries taken as a whole, (b) the ability of any Loan
Party to perform any of its obligations under any Loan
Document, (c) the rights of, or benefits available to, the
Administrative Agent or the Lenders under any Loan
Document, or (d) the Liens granted to the Administrative
Agent with respect to a material portion of the
Collateral; provided, that a material adverse effect shall
not be deemed to have occurred solely on account of those
events which customarily occur leading up to and following
the commencement of a Holdings Bankruptcy Case."
(E) Clause (a) of the definition of "Prepayment Event"
appearing in Section 1.01 of the
Credit Agreement is hereby amended by deleting
the words "clauses (a) through (d) and (f) through (i) of Section 6.05" and
inserting the words "clauses (a) through (d), (f) through (i) and clause (k) of
Section 6.05" in lieu thereof.
(F) The definition of "Qualifying Borrower Indebtedness"
appearing in Section 1.01 of the Credit Agreement is hereby deleted in its
entirety.
(G) The definition of "Revolving Commitment" appearing in
Section 1.01 of the Credit Agreement is hereby amended by inserting the
parenthetical phrase "(subject to the provisions of Section 2.21 hereof)" after
the words "Swingline Loans hereunder" appearing therein.
(H) The definition of "Senior Debt" appearing in Section 1.01
of the Credit Agreement is hereby amended by deleting in its entirety, the
parenthetical phrase "(other than Qualifying Borrower Indebtedness permitted
under Section 6.01(p))" appearing in the first and second lines of such
definition.
(I) The following definitions are hereby added to Section 1.01
of the Credit agreement in their correct alphabetical sequence:
"'Bankruptcy Code' means the Bankruptcy Reform
Act of 1978, as heretofore and hereafter amended, as
codified at 11 U.S.C. Section 101 et seq.
'Budget' has the meaning assigned to such term in
Section 5.19 hereof.
'Business Plan' means that certain Business Plan
dated March 2002, and delivered by the Borrower to PWC on
March 11, 2002.
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'Cash Collateral Order' has the meaning assigned
to such term in the Lock Up Agreement.
'CERP Trust' means that certain trust established
by the Borrower prior to April 19, 2002, into which
approximately $30,000,000 was deposited or transferred by
the Borrower to fund or pay claims, expenses or other
amounts to senior executives of the Borrower in connection
with or pursuant to the Critical Executive Retention
Program (and the residual interest in which is retained by
the Borrower).
'Critical Executive Retention Program' means that
certain program established by the Borrower for the
retention, stay, severance or similar employee benefit for
or related to the senior executives of the Borrower.
'CGA' means CG Austria, Inc. (formerly known as
Xxxxxxxx Global Communications, Inc.)
'Existing Sale Leaseback Transactions' means the
transactions described in the Transaction Documents (as
defined in that certain Intercreditor Agreement dated as
of September 13, 2001 by and among Xxxxxxxx Headquarters
Building Company (the "Headquarters Lessor"), Xxxxxxxx
Technology Center, LLC (the "Headquarters Lessee"),
Xxxxxxxx Communications Aircraft, LLC (the "Aircraft
Lessor"), the Borrower, The Xxxxxxxx Companies, Inc., the
Administrative Agent and the Co-Arrangers (as defined
therein)), including, but not limited to (i) the Master
Lease Agreement dated as of September 13, 2001, among the
Headquarters Lessor, the Headquarters Lessee, the Borrower
and Holdings, (ii) the Agreement of Purchase and Sale
dated as of September 13, 2001, among the Headquarters
Lessee, as seller, the Headquarters Lessor, as purchaser,
and the Borrower, as guarantor, (iii) two (2) Aircraft Dry
Leases numbered N358WC and N359WC, each dated as of
September 13, 2001, among the Aircraft Lessor and the
Borrower, as lessee, and (iii) the Guaranty dated as of
September 13, 2001 of the Borrower in favor of the
Headquarters Lessor.
'Holdings Bankruptcy Case' means a case commenced
in the United States Bankruptcy Court by Holdings and CGA
under Chapter 11 of the Bankruptcy Code.
'Lock Up Agreement' means the Agreement dated as
of April 19, 2002, among Holdings, CGA and the Borrower on
behalf of themselves and certain of their direct and
indirect subsidiaries, the Lenders party thereto and the
members of the Informal Noteholders Committee (as defined
therein).
'Non-Core Assets' means those assets listed on
Schedule 6.05(k) hereto.
'Permitted Basket' has the meaning assigned to
such term in Section 6.21(d) hereof.
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'Permitted Deviation' has the meaning assigned to
such term in Section 5.19 hereof.
'Plan of Reorganization' means the Plan as that
term is defined in the Lock Up Agreement.
'PWC' means PricewaterhouseCoopers, LLP and its
successors.
'Targeted Line-Items' has the meaning assigned to
such term in Section 5.19 hereof.
'United States Bankruptcy Court' means the United
States Bankruptcy Court of the Southern District of
New
York or such other bankruptcy court with proper
jurisdiction."
(J) The first sentence of Section 2.01 of the Credit Agreement
is hereby amended by inserting the parenthetical phrase "(including, without
limitation, Section 2.21 hereof)" immediately after the words "Subject to the
terms and conditions set forth herein" appearing at the beginning of such
sentence.
(K) The first sentence of Section 2.04(a) of the Credit
Agreement is hereby amended by inserting the parenthetical phrase "(including,
without limitation, Section 2.21 hereof)" immediately after the words "Subject
to the terms and conditions set forth herein" appearing at the beginning of such
sentence.
(L) The first sentence of Section 2.05(a) of the Credit
Agreement is hereby amended by inserting the parenthetical phrase "(including,
without limitation, Section 2.21 hereof)" immediately after the words "Subject
to the terms and conditions set forth herein" appearing at the beginning of such
sentence.
(M) The third sentence of Section 2.05(b) of the Credit
Agreement is hereby amended (i) by changing the first word of such sentence to a
lower case "a"; and (ii) by inserting the words "Subject to the provisions of
Section 2.21 hereof," at the beginning of such sentence.
(N) The proviso appearing in Section 2.05(e) of the Credit
Agreement is hereby amended by inserting the words "and subject to the
provisions of Section 2.21 hereof" immediately after the words "subject to the
conditions to borrowing set forth herein" appearing in such proviso.
(O) The first sentence of Section 2.10(e) of the Credit
Agreement is hereby amended by adding the following text at the beginning
thereof: "Except as otherwise provided in Section 3(B) of Amendment No. 7 dated
as of April 19, 2002, to this Agreement, or Section 7(s) hereof".
(P) Section 2.13(a) of the Credit Agreement is hereby amended
by deleting the following text in the fourth, fifth and sixth lines thereof:
"and, if applicable to any loan (other than an Incremental
Term Loan), the Leverage Premium (each as set forth in the
Applicable Margin)"
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(Q) Section 2.13(b) of the Credit Agreement is hereby amended
by deleting the following text in the fourth, fifth and sixth lines thereof:
"and, if applicable to any loan (other than an Incremental
Term Loan), the Leverage Premium (each as set forth in the
Applicable Margin)"
(R) Article 2 of the Credit Agreement is hereby amended by
adding the following new Section at the end thereof:
"Section 2.21. Limitations on Borrowing and Letters of
Credit. Notwithstanding anything to the contrary in any
Loan Document, (a) the Borrower shall not request, and the
Revolving Lenders shall neither make nor have any
obligation to make, any Revolving Loans; (b) the Borrower
shall not request, and the Swingline Lenders shall neither
make nor have any obligation to make, any Swingline Loans;
and (c) the Borrower shall not request that a Letter of
Credit be issued, amended, renewed or extended, and an
Issuing Bank shall neither make nor have any obligation to
issue, amend, renew or extend any Letter of Credit, if
after giving effect to such issuance, amendment, renewal
or extension, the LC Exposure would exceed an amount equal
to (i) $45,000,000 minus, (ii) the aggregate amount of
cash deposits or pledges made by the Loan Parties to third
parties. It is hereby understood and agreed that (x) any
issuance, amendment, renewal or extension of a Letter of
Credit shall be subject to all the terms and conditions
set forth in this Agreement, (y) each Letter of Credit to
be issued shall be cash collateralized in the manner set
forth in Section 2.05(j) hereof as a condition precedent
to the issuance thereof and (z) notwithstanding anything
to the contrary in Section 2.05(d) or Section 2.05(e)
hereof, if the Borrower fails to reimburse any LC
Disbursement on the date when due in accordance with
Section 2.05(e), the Administrative Agent shall first
apply such cash collateral in an amount sufficient to
satisfy such reimbursement obligation."
(S) Section 3.04(e) of the Credit Agreement is hereby deleted
in its entirety.
(T) Clause (i) of Section 3.06(a) of the Credit Agreement is
hereby amended by deleting the parenthetical phrase appearing therein and
inserting the following parenthetical phrase in lieu thereof:
"(other than the Disclosed Matters and the Holdings
Bankruptcy Case)"
(U) The second sentence of Section 3.07 of the Credit
Agreement is hereby deleted in its entirety.
(V) Section 3.15 of the Credit Agreement is hereby deleted in
its entirety.
(W) Section 4.02 of the Credit Agreement is hereby amended by
adding the following new clause (c) immediately after clause (b) appearing
therein:
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"(c) with respect to the issuance, amendment,
renewal or extension of any Letter of Credit, such Letter
of Credit shall be cash collateralized in the manner set
forth in Section 2.05(j) hereof."
(X) The introductory language of Section 5.01 of the Credit
Agreement is hereby amended by adding the parenthetical phrase "(except as
otherwise explicitly provided in this Section 5.01)" immediately after the words
"each Lender" and immediately before the colon appearing therein.
(Y) Clause (ii) of Section 5.01(a) of the Credit Agreement is
hereby amended by inserting the following text to the second parenthetical
appearing in such clause immediately after the words "without a 'going concern'
or like qualifications":
"(except with respect to the report on the financial
statements for the fiscal year ending December 31, 2001)"
(Z) Clause (ii) of Section 5.01(c) of the Credit Agreement is
hereby deleted in its entirety and replaced with the following:
"[intentionally deleted]"
(AA) Section 5.01(e) of the Credit Agreement is hereby amended
by inserting the words "(other than fiscal year 2002)" after the words "120 days
after the commencement of each fiscal year."
(BB) Section 5.01 of the Credit Agreement is hereby amended by
adding the following new subsections at the end thereof:
"(h) furnish to the Administrative Agent and PWC (i) no
later than the tenth Business Day of each month, a
written report as of the end of the immediately preceding
month, detailing all uses of cash by each Unrestricted
Subsidiary, (ii) not later than the fifteenth Business
Day of each month, copies of all current bank statements
relating to any account or instruments maintained or
owned by any Unrestricted Subsidiary, and (iii) such
other information with respect to any Unrestricted
Subsidiary as any of the Agents or Credit Lyonnais
New
York Branch shall reasonably request;
(i) furnish to the Administrative Agent and PWC, for each
calendar week commencing on or after April 15, 2002, no
later than the fourth Business Day of such calendar week,
(i) a cash flow projection covering a period beginning
with such calendar week through and including the
calendar week that is nine (9) weeks after the next
scheduled Re-Forecast Date (as such term is defined
below); (ii) a comparison of actual cash flows to the
projected cash flows and a variance analysis for the
calendar week ended immediately prior to such calendar
week; (iii) a true and complete list of all cash deposits
or pledges made by the Loan Parties to third parties;
(iv) a true and complete list of all Deposit Accounts and
Securities Accounts (such terms are being used herein as
defined in the Security Agreement) or other similar
accounts or instruments held by any Loan Party and
including the following information: the correct legal
name of the institution where such account is maintained,
the Loan Party
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in whose name the account is maintained, the account
number and the balance (which may not include interest
income) as of the end of the immediately preceding
calendar week and including a representation and warranty
that to the extent required by the Loan Documents, all
such Deposit Accounts, Securities Accounts, other
accounts and instruments have been pledged to the
Administrative Agent (for the benefit of itself and the
Secured Parties (as defined in the Security Agreement))
(all of the foregoing information shall, in each case, be
in form and substance reasonably satisfactory to the
Administrative Agent and PWC); and (v) a statement,
certified by a Financial Officer of the Borrower, setting
forth the amount of the aggregate cash balances in all
Controlled Deposit Accounts (as such term is defined in
the Security Agreement) with the Lenders; provided, that
for any calendar week after the commencement of a
Holdings Bankruptcy Case, in addition to the information
set forth in clauses (i) and (ii) above, the following
shall be furnished (all in form and substance reasonably
satisfactory to the Administrative Agent and PWC): (X)
weekly reports of receipts, disbursements, and cash flow
projections and (Y) a reconciliation of actual
expenditures and disbursements with those set forth in
the Budget, on a line-by-line basis showing any variance
to the proposed corresponding line item of the Budget. As
used herein the term "Re-Forecast Date" shall mean April
25, 2002, and each Thursday thereafter occurring in
intervals of four (4) weeks;
(j) furnish to the Administrative Agent and PWC, within
fifteen (15) Business Days after the end of each calendar
month, a copy of the summary of monthly consolidated
financial information for Holdings and its Subsidiaries
in the form presented to Holdings' management (which
information is subject to normal quarterly and year-end
adjustment); and
(k) furnish to the Administrative Agent and PWC (i) on
the last Business Day of each month (beginning April
2002), a certificate of a Financial Officer, which
certificate shall be in a form reasonably satisfactory to
the Administrative Agent and shall include a statement as
to the aggregate amount of sales or other dispositions of
Non-Core Assets that the Borrower and its Restricted
Subsidiaries have made since March 31, 2002, and (ii)
such additional information with respect to any permitted
Non-Core Asset sale or disposition or proposed permitted
Non-Core Asset sale or disposition as the Administrative
Agent shall reasonably request."
(CC) Section 5.04 of the Credit Agreement is hereby amended by
inserting the following new clause (e) immediately after clause (d) appearing in
clause (i) of such Section:
"and (e) solely with respect to Indebtedness and other
obligations of Holdings or CGA, such Indebtedness or
other obligations are subject to, and will be resolved or
discharged, in a Holdings Bankruptcy Case,"
(DD) Section 5.15 of the Credit Agreement is hereby amended in
its entirety to read as follows:
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"SECTION 5.15. Bank Accounts. Holdings and the Borrower
(a) will maintain Holdings' and each Restricted
Subsidiary's principal concentration accounts with one or
more Lenders; and (b) will not establish or take any
action to establish, and will not permit any Restricted
Subsidiary to establish or take any action to establish,
any new Deposit Account, Securities Account (as such
terms are defined in the Security Agreement) or other
similar account or instruments, without the prior written
consent of the Administrative Agent, which consent may be
withheld by the Administrative Agent in its reasonable
discretion and provided in all cases, before any funds
are deposited or transferred into any such account or
before any instrument is created, such account or
instrument, as applicable, shall be subject to a Control
Agreement (as such term is defined in the Security
Agreement)."
(EE) Sections 5.17 and 5.18 of the Credit Agreement are hereby
amended in their entirety to read as follows: "[Intentionally deleted.]"
(FF) Article 5 of the Credit Agreement is hereby amended by
adding the following new Sections at the end thereof:
"Section 5.19. Operations and Use of Cash. (a) The
Borrower will, and will cause its subsidiaries (other
than Unrestricted Subsidiaries or Foreign Subsidiaries)
to, fund their business and operations in accordance
with, and use their cash solely and exclusively for the
disbursements set forth in the Business Plan, which will
be extrapolated into monthly reporting for April 2002
through December 2002 (the "Budget"). The Budget will be
submitted to the Lenders no later than April 22, 2002 and
will look in form substantially similar to the summary
pages of the Business Plan. Such Budget may be modified
from time to time by Holdings and the Borrower with the
prior written consent of the Required Lenders. The
Borrower and the Restricted Subsidiaries are and shall be
authorized to use cash exclusively for the purposes of
and to the extent set forth in the Budget. The
expenditures authorized in the Budget shall be adhered
to, with the targeted line items listed below (the
"Targeted Line-Items") being tested monthly on a Targeted
Line Item basis. Unused amounts shall carry forward to
successive months on a Targeted Line Item basis, with no
carry-over surplus to any other Targeted Line Item or to
a subsequent budget covering periods, if any, except to
the extent agreed to in writing by the Required Lenders
in their sole discretion. The deviation (the "Permitted
Deviation") for each of the following Targeted Line-Items
shall not exceed, in any month, the greater of the
percentage or the dollar amount set forth next to each
such line-item: (i) Network EBITDA (20%; $3,000,000);
(ii) Broadband Media EBITDA (20%; $1,000,000); (iii) the
aggregate sum of Severance, Professional Fees and
Retention Bonuses (excluding, for purposes of calculating
the Permitted Deviation, the professional fees and
expenses of the Lenders) (10%; $500,000); and (iv)
Capital Expenditures (10%; $500,000). Each month, the
Borrower shall pay to the Administrative Agent, for the
benefit of the Lenders, a fee, if any, equal to the
product of (x) .05% of the aggregate sum of all
outstanding Loans and LC Exposure and (y) the number of
Targeted Line-Items that
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exceed their respective Permitted Deviations in any given
month minus 1. Such fee shall be distributed to the
Lenders on a pro rata basis in accordance with each such
Lender's aggregate amount of outstanding Revolving
Exposure, Term Loans and Incremental Term Loans.
(b) Holdings will use its cash strictly in accordance
with the Cash Collateral Order and will not make any
disbursements other than in accordance with the Cash
Collateral Order and the budget attached thereto.
Section 5.20. High Yield Notes. The Borrower and Holdings
shall not retire, or permit to be retired or otherwise
transferred, any of the High Yield Notes held by any
Unrestricted Subsidiary, including, without limitation,
CG Investment Company, LLC."
(GG) Section 6.01(d) of the Credit Agreement is hereby amended
in its entirety to read as follows: "[Intentionally deleted];"
(HH) Section 6.01(p) of the Credit Agreement shall be amended
in its entirety to read as follows:
"(p) intercompany Indebtedness of the Borrower to
Holdings in an aggregate amount not exceeding
$75,000,000, as evidenced by that certain Promissory Note
dated November 1, 1999 from the Borrower and payable to
Holdings; provided, such note remains pledged by Holdings
to the Administrative Agent on a first priority basis;"
(II) The proviso at the end of Section 6.01 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"provided that, notwithstanding anything in this
Agreement to the contrary, (i) the Borrower and the other
Restricted Subsidiaries may not Guarantee any
Indebtedness of Holdings under (A) the High Yield Notes
or (B) any Qualifying Holdings Debt and (ii) Holdings
will not create, incur or assume any new Indebtedness."
(JJ) Section 6.02(a)(iii) of the Credit Agreement is hereby
amended in its entirety to read as follows "[Intentionally deleted];"
(KK) Section 6.02(a) of the Credit Agreement is hereby amended
by adding the following new clause (xi) at the end thereof:
"(xi) Liens in connection with the Existing Sale
Leaseback Transaction which Liens are in existence on the
effective date of Amendment No. 7 dated as of April 19,
2002 to this Agreement."
(LL) Section 6.02(a) of the Credit Agreement is hereby amended
by adding the following new paragraph at the end thereof immediately after new
clause (xi) being added to Section 6.02(a) in Paragraph (KK) of this Amendment:
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"Notwithstanding the foregoing and anything to the
contrary contained herein, Holdings and the Borrower will
not permit the amount of cash deposits or pledges made by
the Loan Parties to third parties to exceed $30,000,000
in the aggregate at any time."
(MM) Section 6.03(c) of the Credit Agreement is hereby amended
by (i) deleting in its entirety clause (vi) appearing in the first sentence of
such Section, (ii) deleting the word "and" appearing immediately before such
clause (vi), and (iii) deleting the words "Qualifying Borrower Indebtedness"
appearing in the second sentence of such Section.
(NN) Section 6.04(g) of the Credit Agreement is hereby amended
by adding the following proviso at the end thereof:
"; provided, however, that no acquisitions shall be
permitted to be made pursuant to this Section 6.04(g)
after March 29, 2002."
(OO) Section 6.04(j) of the Credit Agreement is hereby amended
in its entirety to read as follows:
"(j) (i) for any period prior to April 22, 2002, subject
to the proviso to this Section 6.04, Investments in the
Telecommunications Business, and (ii) on and after April
22, 2002, Investments in the Telecommunications Business,
provided that (X) the aggregate amount of all Investments
made pursuant to this clause (ii) shall not exceed
$5,000,000, (Y) all such Investments shall be in the
ordinary course of business and (Z) all such Investments
shall not constitute the purchase or other acquisition of
any other Person or the assets of any other Person
constituting a business unit."
(PP) Sections 6.04(l), 6.04(m), 6.04(s) and 6.04(v) of the
Credit Agreement are each hereby amended in their entirety to read as follows:
"[Intentionally deleted]; and"
(QQ) The proviso at the end of Section 6.04 of the Credit
Agreement is hereby amended by inserting "(1)"immediately after the words
"provided that" and inserting the following text at the end thereof:
"; (2) notwithstanding anything to the contrary contained
in this Agreement or any other Loan Document, no
investments (including, without limitation, loans or
guarantees of obligations) shall be permitted to be made
in, to or for the benefit of any Foreign Subsidiaries
except for (A) investments not exceeding $12,000,000 in
the aggregate made by the Loan Parties in PowerTel
Limited, Silica Networks, S.A. and/or Manquehue Net, S.A.
from and after October 19, 2001, provided that such
investments are expressly permitted by Section 6.04(k)
above, and (B) investments in Foreign Subsidiaries in an
aggregate amount not exceeding $5,000,000 for the period
from December 21, 2001 and thereafter so long as such
Investments are made solely to fund expenses which have
been incurred or are to be incurred by the Foreign
Subsidiaries in the ordinary course of their businesses
and which
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expenses are in accordance with the Budget and the
Business Plan; and (3) notwithstanding anything to the
contrary contained in this Agreement or any other Loan
Document, no investments (including, without limitation,
loans or guarantees of obligations) shall be permitted to
be made by the Restricted Subsidiaries or other
Subsidiaries in, to or for the benefit of Holdings or
CGA.)"
(RR) Section 6.05 of the Credit Agreement is hereby amended by
adding the following new subsection (k), immediately after subsection (j)
appearing therein:
"(k) sales, transfers and dispositions of Non-Core
Assets; provided that (i) the sale price of each such
asset sold or disposed of (or the asset(s) being received
in exchange therefor) shall not be less than the fair
value of such asset at the time of sale or disposition
thereof (and, if the sale price thereof is equal to or
greater than $10,000,000 in a single transaction or a
series of related transactions, then the fair value of
such asset shall be determined in good faith and approved
by the Board of Directors of the Borrower); (ii) prior
to, or concurrently with, each such sale or disposition
for which the sale price (or the asset(s) being received
in exchange therefor) is equal to or greater than
$10,000,000, the Borrower shall deliver to the Agents a
certificate of an Authorized Officer of the Borrower
setting forth the fair value at the time of sale or
disposition of the asset being sold or disposed of as
determined by the Board of Directors of the Borrower,
together with the material reviewed by the Board of
Directors of the Borrower in connection with making such
determination; (iii) the purchase price of any asset sold
or disposed of pursuant to this Section 6.05(k) shall be
payable in cash on the date of such sale or disposition
or the Borrower or a Restricted Subsidiary shall receive
asset(s) of equal value to be used in the regular course
of its business in exchange for the asset disposed of;
(iv) if such sale or disposition is to an Affiliate, it
shall be made in compliance with Section 6.09 hereof and
(v) the Net Proceeds received (if any) shall be deposited
in a Deposit Account that is with a Lender and that is
subject to a Lien in favor of the Administrative Agent
(and such Net Proceeds shall only be used in accordance
with Section 5.19 hereof). The applicable Loan Party
shall deliver to the Administrative Agent and PWC, no
less than five (5) Business Days prior to the date of any
expected sale or other disposition permitted under this
Section 6.05(k) in which the sales price is equal to or
greater than $10,000,000, written notice of the identity
of the purchaser or transferee, the expected date of the
closing of such sale or other disposition, the expected
date of receipt by the applicable Loan Party of the Net
Proceeds with respect thereto (or the asset(s) being
received, if applicable), the principal terms of the sale
or disposition and such other information as any of the
Administrative Agent or PWC may reasonably request (which
notice shall also contain a statement that the sale price
(or the fair value of the asset(s) being received, if
applicable) is greater than or equal to the fair value of
the asset being sold or disposed of);"
(SS) Clause (i) appearing in Section 6.06 of the Credit
Agreement is hereby amended in its entirety to read as follows: "[Intentionally
deleted]; and"
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(TT) Section 6.07(a) of the Credit Agreement is hereby amended
by adding the following paragraph at the end thereof;
"Notwithstanding the foregoing, the Borrower will not,
and will not permit any other Restricted Subsidiary to,
declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment to, or for the benefit
of, Holdings, or enter into any transaction the economic
effect of which is substantially similar to a Restricted
Payment to, or for the benefit of, Holdings or CGA."
(UU) Section 6.07(b) of the Credit Agreement is hereby amended
in its entirety to read as follows:
"(b) Neither Holdings nor the Borrower will, nor will
they permit any Restricted Subsidiary to make, directly
or indirectly, any prepayment or other voluntary payment
or distribution (whether in cash, securities or other
property) in respect of (i) any Indebtedness (other than
the Obligations) or (ii) the Existing Sale Leaseback
Transaction or (iii) the $125 million account payable
from Holdings to The Xxxxxxxx Companies, Inc.
(collectively, "Specified Indebtedness") or any
prepayment or other voluntary payment or other
distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Specified
Indebtedness (or enter into any transaction the economic
effect of which is substantially similar to any of the
foregoing), except, (X) the Borrower and the Restricted
Subsidiaries shall be permitted to make payments of
regularly scheduled principal and interest as and when
due in respect of any Specified Indebtedness; provided,
no Default or Event of Default has occurred and is
continuing or would result therefrom and provided,
further, that such payment is being made in accordance
with the Budget and (Y) the Borrower shall be permitted
to pay an aggregate amount of $25,000,000 to Holdings in
repayment of intercompany Indebtedness evidenced by that
certain Promissory Note dated November 1, 1999 from the
Borrower and payable to Holdings."
(VV) Section 6.07 of the Credit Agreement is hereby amended by
adding the following new subsection (c) at the end thereof:
"(c) It is hereby agreed by the parties hereto that, each
of Holdings and the Borrower shall not, and shall not
permit any Unrestricted Subsidiary or any other
Subsidiary to:
(i) directly or indirectly redeem, purchase or otherwise
acquire any notes or other indebtedness issued by
Holdings, the Borrower or any of their subsidiaries or
Affiliates, or
(ii) directly or indirectly pay any cash dividends in
respect of, or redeem, purchase or otherwise acquire, any
Equity Interests of Holdings, the Borrower or any of
their subsidiaries or Affiliates, or
12
(iii) accept as payment on any account receivable or
other obligation, any notes, indebtedness or Equity
Interest issued by Holdings, the Borrower or any of their
subsidiaries or Affiliates;
provided, however, that (X) Holdings, with the prior
written consent of the Required Lenders or in connection
with the Plan of Reorganization, may issue equity
securities of Holdings in exchange or substitution for
outstanding debt securities issued by and against
Holdings or the Borrower and (Y) the Borrower may enter
into transactions with a Restricted Subsidiary and a
Restricted Subsidiary may enter into transactions with
another Restricted Subsidiary in each case in accordance
with past practices and provided that such transactions
are expressly permitted by Sections 6.01 and 6.04
hereof."
(WW) Section 6.13 of the Credit Agreement is hereby amended in
its entirety to read as follows:
"SECTION 6.13. Amendment of Material Documents. Holdings
will not (except pursuant to the Plan of Reorganization),
the Borrower will not, and Holdings and the Borrower will
not permit any other Restricted Subsidiary to, without
the prior written consent of the Required Lenders,
consent to any amendment, modification, supplement or
waiver of (a) its certificate of incorporation, by-laws
or other organizational documents (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), (b) any agreements governing any Indebtedness
(other than the Loan Documents), or the Existing Sale
Leaseback Transaction or (c) any agreement set forth on
Schedule 6.13 hereto in each of the foregoing cases if
such amendment, modification or waiver could reasonably
be expected to have (i) an adverse effect on the ability
of any Loan Party to perform any of its obligations under
any Loan Document or any of the rights of, or benefits
available to, the Lenders under any Loan Document or (ii)
a Material Adverse Effect."
(XX) Section 6.08 and Sections 6.15 through 6.19 of the Credit
Agreement are hereby amended in their entirety to read as follows:
"[Intentionally deleted]"
(YY) Article 6 of the Credit Agreement is hereby amended by
adding the following new Sections to the end thereof:
"SECTION 6.21. Covenant Relating to Unrestricted
Subsidiaries. Except as otherwise agreed to in writing by
the Required Lenders, each of Holdings, and the Borrower
agrees as follows:
(a) it shall not make, and will not permit any
Subsidiary to make, any investment (including,
without limitation, loans) in any Unrestricted
Subsidiaries,
13
(b) it shall cause the Unrestricted Subsidiaries to
maintain at all times, all Unrestricted
Subsidiaries' cash and cash equivalents in separate
identifiable securities or deposit accounts and
shall not permit any such cash or cash equivalents
to be commingled with any funds or other assets of
any Loan Party,
(c) it shall not permit any Unrestricted Subsidiary to
purchase, acquire or otherwise hold any Investment,
other than existing Investments listed on Schedule
6.21 hereto and Investments in cash and cash
equivalents, subject to and in accordance with the
terms hereof; and it shall not permit any
Unrestricted Subsidiary to incur, create, assume or
suffer to exist any Indebtedness, other than
existing Indebtedness listed on Schedule 6.21
hereto, and
(d) it shall not permit the Unrestricted Subsidiaries
to hold at any time an aggregate amount in excess
of $5,000,000 of cash and cash equivalents (the
"Permitted Basket"); it being understood that (w)
there shall not be a default under this provision
so long as any amounts in excess of such $5,000,000
limit are remitted to the Borrower in compliance
with the provisions of this Section set forth
below; (x) the Permitted Basket shall not include
any additional investment in any Unrestricted
Subsidiary by Holdings, the Borrower or any other
Loan Party; (y) nothing herein shall prevent the
Unrestricted Subsidiaries from liquidating any
existing Investments held by them, and any net loss
from the liquidation of such Investments shall be
charged against the Permitted Basket; and (z) the
Permitted Basket is to be used by the Unrestricted
Subsidiaries for their operations and any cash,
cash equivalents and proceeds of investments
received after the date hereof shall be remitted to
the Borrower pursuant to the provisions set forth
below.
In the event that either (1) the aggregate amount
of cash and cash equivalents held by the
Unrestricted Subsidiaries exceeds $5,000,000 minus
the amount of any net loss charged against the
Permitted Basket pursuant to paragraph (d) above,
or (2) any interest payment is made by Holdings
and/or the Borrower to an Unrestricted Subsidiary
that has purchased or otherwise holds indebtedness
issued by Holdings and/or the Borrower, or (c) any
amount is required to be remitted to the Borrower
pursuant to the paragraphs set forth above, then
Holdings and/or the Borrower (as applicable) shall,
within two (2) Business Days of any such event (x)
cause Unrestricted Subsidiaries to remit to the
Borrower cash in the amount necessary so that the
aggregate amount of cash and cash equivalents held
by the Unrestricted Subsidiaries does not exceed
$5,000,000 minus the amount of any net loss charged
against the Permitted Basket pursuant to paragraph
(d) above and/or (y) cause the applicable
Unrestricted Subsidiary to remit to the Borrower
any such interest payment received by such
Unrestricted Subsidiary or other amount required to
be remitted to the Borrower. All cash received by
the Borrower pursuant to the
14
immediately preceding sentence shall be deposited
by the Borrower in one or more Controlled Deposit
Accounts (as such term is defined in the Security
Agreement).
Section 6.22. Minimum Cash Balance. The Borrower shall
not permit the amount of the aggregate cash balances in
all Controlled Deposit Accounts (as such term is defined
in the Security Agreement) with the Lenders plus the
aggregate amount of cash collateral held by the
Administrative Agent to cash collateralize Letters of
Credit, to be less than (i) $350,000,000 at any time on
or prior to June 30, 2002, and (ii) $200,000,000 at any
time after June 30, 2002.
Section 6.23. CERP Trust.
(a) The Borrower shall, within five (5) Business Days
following the effective date of Amendment No. 7 to the
Credit Agreement, furnish to the Administrative Agent, a
copy of (i) all agreements and other documents related to
the Critical Executive Retention Program, including,
without limitation, all employment agreements for
employees eligible under the Critical Executive Retention
Program; and (ii) all documentation related to the CERP
Trust.
(b) The Borrower hereby agrees to negotiate in good faith
with the Administrative Agent (on behalf of the Required
Lenders) to reach an agreement with respect to the CERP,
including, without limitation, an agreement as to the
amount, timing, conditions precedent and covered
individuals, for any payments permitted to be made from
the CERP Trust. The Borrower hereby agrees that it shall
not pay or cause to be paid any amounts from the CERP
Trust to any Person prior to the effective date of the
Plan of Reorganization except as otherwise agreed in
connection with the foregoing negotiations. "
(ZZ) Section 7.01(d) of the Credit Agreement is hereby amended
in its entirety to read as follows:
"(d) Holdings or the Borrower shall fail to observe or
perform any covenant, condition or agreement contained
in Sections 5.02, 5.03 (with respect to the existence of
Holdings or the Borrower), 5.10, 5.11A, 5.11B, 5.13,
5.15, 5.20 or in Article 6 and such failure shall
continue unremedied for a period of three (3) Business
Days after the earlier to occur of (x) a Loan Party
receives notice thereof or (y) an officer of a Loan
Party obtains knowledge of such failure;"
(AAA) Section 7.01(g) of the Credit Agreement is hereby
amended by adding the following proviso at the end thereof:
"; and provided, further, that notwithstanding the
foregoing, there shall not be an Event of Default under
this Section 7.01(g), solely by reason of an event of
default under the Existing Sale Leaseback Transaction
arising solely because of the Holdings Bankruptcy Case,
until two (2) Business Days after the commencement of
any enforcement action or the exercise
15
of any other remedies (other than the sending of a
demand letter or notice of termination) against the
Borrower or Xxxxxxxx Technology Center, LLC in respect
of the Existing Sale Leaseback Transaction (in which
case there will be an Event of Default hereunder on such
second Business Day)."
(BBB) Article 7 of the Credit Agreement is hereby amended by
inserting the following new subsections immediately after subsection (p)
appearing therein:
"(q) any Holdings Bankruptcy Case is dismissed or is
converted to a case under Chapter 7 of the Bankruptcy
Code;
(r) in a Holdings Bankruptcy Case, (i) the United States
Bankruptcy Court shall enter an order granting relief
from the automatic stay imposed by Section 362 of the
Bankruptcy Code to any entity other than the
Administrative Agent or the Lenders with respect to any
Collateral without the Required Lenders' consent or (ii)
a trustee or examiner (other than an examiner who will
investigate and report with respect to the Spin-Off)
with expanded powers shall be appointed or elected;
(s) the Plan of Reorganization shall not have been
confirmed and become effective by July 15, 2002;
provided, that such date shall automatically be extended
from July 15, 2002 until October 15, 2002; provided,
that (i) the Borrower has made, on or prior to July 15,
2002, a prepayment in an amount not less than
$50,000,000, which prepayment shall be applied against
the outstanding Term Loans and outstanding Incremental
Term Loans in direct chronological order of maturity;
(ii) Holdings has filed and is diligently prosecuting
the Plan of Reorganization; (iii) a hearing has been
scheduled to consider approval of the Disclosure
Statement in respect of the Plan of Reorganization; and
(iv) 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 for the same
three (3) month period (i.e., less than negative
$81,000,000).
(t) the Cash Collateral Order (1) shall not have been
entered by the United States Bankruptcy Court on or by
May 20, 2002; or (2) following entry thereof, the Cash
Collateral Order shall be terminated, modified or
amended in any respect without the Administrative
Agent's and the Required Lenders' consent;
(u) any order or judgement is entered under Sections 105
or 362 of the Bankruptcy Code or any other applicable
law in a Holdings Bankruptcy Case or any other court of
competent jurisdiction which alters, suspends, stays,
enjoins, limits or affects in any respect the rights and
remedies of the Administrative Agent or the Lenders with
respect to the Borrower, any Restricted Subsidiary
(other than CGA) or the Collateral, including any stay
in the enforcement or exercise of rights or remedies;
16
(v) the Lock Up Agreement shall terminate or otherwise
cease to be in full force and effect, other than solely
by reason of any action taken by the Lenders in
violation of the terms and provisions of the Lock Up
Agreement;
(w) Holdings or the Borrower shall fail to comply with
their respective obligations under the Lock Up
Agreement;
(x) any Termination Event (as defined in the Lock Up
Agreement) shall have occurred; or
(y) the Borrower and the Administrative Agent, (on
behalf of the Required Lenders) shall fail to reach an
agreement on or before July 15, 2002, regarding the
Critical Executive Retention Program and the CERP Trust,
as contemplated by Section 6.23 hereof; provided,
however, that no Event of Default shall occur if, on or
before July 15, 2002, the CERP Trust shall be terminated
and the Borrower shall have received, indefeasibly in
cash, all amounts deposited or transferred into the CERP
Trust and all amounts earned thereon and all such
amounts shall have been deposited by the Borrower into a
Controlled Deposit Account;"
(CCC) Schedules 6.05(k), 6.13 and 6.21 attached hereto are
hereby added as schedules to the Credit Agreement in the correct numerical
sequence.
SECTION 2. Representations and Warranties. Each of the Loan
Parties represents and warrants to the Administrative Agent and the Lenders
that:
(A) the execution, delivery and performance by the Loan
Parties of this Amendment and in the case of the Borrower and Holdings, the
performance by each of them of the Credit Agreement 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;
(B) upon the occurrence of the Amendment No. 7 Effective Date
(as defined in Section 4 below), 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); and
(C) after giving effect to this Amendment, all representations
and warranties set forth in the Credit Agreement and the other Loan Documents
are true, correct and complete in all material respects on and as of the date
hereof with the same effect as if such representations and warranties had been
made on and as of the date hereof, unless such representation is as of a
specific date, in which case, as of such date.
17
SECTION 3. Consent, Agreement and Waiver by the Lenders.
(A) The Lenders hereby consent to (i) the Borrower repaying
intercompany Indebtedness to Holdings in the aggregate amount of $25,000,000
pursuant to that certain Promissory Note dated November 1, 1999 from the
Borrower and payable to Holdings and (ii) the use by Holdings of cash collateral
to pay costs and expenses of a Holdings Bankruptcy Case; provided that such use
is made pursuant to the Cash Collateral Order (as such term is defined in
Section 1(I) of this Amendment) and the budget attached thereto.
(B) The Lenders hereby agree that the $200 million prepayment
described in Section 4(C) below shall be applied to reduce the scheduled
repayments of Term Borrowings and Incremental Term Borrowings in direct
chronological order of maturity.
(C) The Borrower and Holdings hereby acknowledge and confirm
that certain Defaults and Events of Default have occurred prior to the Amendment
No. 7 Effective Date (collectively, the "Existing Defaults") and continue to
exist.
(D) The Administrative Agent, the other Agents, the Issuing
Bank and the Lenders hereby waive all Existing Defaults and any Event of Default
under Section 7.01(h), 7.01(i) and/or 7.01(j) caused by the filing of the
Holdings Bankruptcy Case (collectively, "Specified Defaults"); provided,
however, that (i) such waiver shall extend only to the Specified Defaults and
not to any other Defaults or Events of Default occurring on or after the
Amendment No. 7 Effective Date and (ii) such waiver is conditioned upon there
not having occurred a Waiver Termination Event (as defined below). Upon the
occurrence of a Waiver Termination Event, the waiver granted herein shall
terminate and the Administrative Agent, the other Agents, the Issuing Bank and
the Lenders shall be entitled to exercise any and all rights or remedies with
respect to the Specified Defaults and any other Event of Default that shall have
occurred and then be continuing, whether pursuant to the Loan Documents or
otherwise. "Waiver Termination Event" shall mean the occurrence and continuance
of an Event of Default other than the Specified Defaults.
SECTION 4. Effective Date. This Amendment shall not become
effective until the date on which all of the following conditions precedent
shall have been satisfied, or waived in writing (such date being referred to
herein as the "Amendment No. 7 Effective Date"):
(A) The Administrative Agent shall have received fully
executed counterparts of this Amendment executed by (i) the Loan Parties, (ii)
the Administrative Agent and (iii) those Lenders required by the provisions of
Section 10.02 of the Credit Agreement.
(B) All Qualifying Borrower Indebtedness (other than
$75,000,000 of existing Qualifying Borrowing Indebtedness) held by Holdings
shall be converted by the Borrower and Holdings into ordinary membership
interests in the Borrower which (i) are not mandatorily redeemable or redeemable
at the option of Holdings, (ii) are not convertible or exchangeable, (iii) are
not required to be repurchased, (iv) do not require the payment of any cash by
the Borrower either upon issuance or otherwise, and (v) which shall be pledged
on a first priority basis to the Administrative Agent pursuant to the Security
Agreement (to the extent not already so pledged).
(C) The Borrower shall have made a prepayment of existing
outstanding Loans in an aggregate amount of not less than $200,000,000, and
shall have instructed that such prepayment be applied to outstanding Term Loans
and outstanding Incremental Term Loans on a pro rata basis in accordance with
Section 3(B) above.
18
(D) The Administrative Agent shall have received a fee from
the Borrower in the amount of $7,904,000 (which fee shall be promptly
distributed by the Administrative Agent to the Lenders who have executed this
Amendment and the Lock-up Agreement described in Section 4(F) below) by 5:00
p.m. (
New York City time) on Monday, April 22, 2002, on a pro rata basis in
accordance with each such Lender's aggregate amount of outstanding Revolving
Exposures, Term Loans and Incremental Term Loans).
(E) The Administrative Agent shall have received an executed
copy of that certain fee letter dated as of April 19, 2002 between the Borrower
on the one hand, and the Agents on the other hand, and shall have received
payment of the fee set forth therein (which fee shall be distributed by the
Administrative Agent to each of the Agents in accordance with such fee letter).
(F) The Administrative Agent shall have received a copy of a
Lock Up Agreement, in form and substance satisfactory to the Administrative
Agent and the Required Lenders, executed by those parties necessary to make such
agreement effective; and all conditions precedent to the effectiveness of the
Lock Up Agreement shall have been satisfied or waived by the appropriate
persons.
(G) The Borrower shall have provided cash collateral for the
total LC Exposure as of the Amendment No. 7 Effective Date, in the manner
provided in Section 2.05(j) of the Credit Agreement.
(H) The Loan Parties shall have obtained all consents and
waivers from any Persons necessary for the execution, delivery and performance
of this Amendment and any other transaction contemplated hereby or thereby.
(I) The Agents, Credit Lyonnais
New York Branch and their
respective counsels shall have received such approvals, information, materials
and documentation as any of the Agents, Credit Lyonnais
New York Branch or their
respective counsel may reasonably request, which approvals, information,
materials and documentation shall be satisfactory in form and substance to the
Agents, Credit Lyonnais
New York Branch and their respective counsel.
(J) All fees and other charges presently due and payable to
the Administrative Agent or any Lender pursuant to any Loan Document shall have
been paid by the Borrower.
(K) All out-of-pocket expenses incurred by the Agents and
Credit Lyonnais
New York Branch and invoiced by April 19, 2002 in connection
with the Credit Agreement, this Amendment, any other Loan Document or the
transactions contemplated by any of the foregoing (including, without
limitation, the reasonable fees and disbursements of Xxxxxxxx Chance Xxxxxx &
Xxxxx LLP, Xxxxx Xxxx & Xxxxxxxx, Xxxxxxxx & Sterling, Xxxxxxx Xxxxxxx &
Xxxxxxxx, Xxxxxx & Xxxxx LLP and PWC), shall have been paid by the Borrower.
(L) 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.
SECTION 5. CONFIRMATION AND ACKNOWLEDGEMENT OF THE
OBLIGATIONS; RELEASE. THE BORROWER HEREBY (A) CONFIRMS AND ACKNOWLEDGES TO THE
ADMINISTRATIVE AGENT AND THE LENDERS THAT IT IS VALIDLY AND JUSTLY INDEBTED TO
THE ADMINISTRATIVE AGENT AND THE LENDERS FOR THE PAYMENT OF ALL OBLIGATIONS
WITHOUT OFFSET, DEFENSE, CAUSE OF ACTION OR COUNTERCLAIM OF ANY KIND OR NATURE
WHATSOEVER AND (B) REAFFIRMS AND ADMITS THE VALIDITY AND ENFORCEABILITY OF THE
CREDIT AGREEMENT AND THE LOAN DOCUMENTS AND THE LIENS IN THE
19
COLLATERAL WHICH WERE GRANTED PURSUANT TO ANY OF THE LOAN DOCUMENTS OR
OTHERWISE. EACH OF THE LOAN PARTIES, ON ITS OWN BEHALF AND ON BEHALF OF ITS
SUCCESSORS AND ASSIGNS, HEREBY WAIVES, RELEASES AND DISCHARGES EACH AGENT AND
EACH LENDER AND ALL OF THE AFFILIATES OF EACH AGENT AND EACH LENDER, AND ALL OF
THE DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, SUCCESSORS AND ASSIGNS OF
EACH AGENT, EACH LENDER AND SUCH AFFILIATES, FROM ANY AND ALL CLAIMS, DEMANDS,
ACTIONS OR CAUSES OF ACTION (KNOWN AND UNKNOWN) ARISING OUT OF OR IN ANY WAY
RELATING TO ANY OF THE LOAN DOCUMENTS AND ANY DOCUMENTS, AGREEMENTS, DEALINGS OR
OTHER MATTERS CONNECTED WITH ANY OF THE LOAN DOCUMENTS, IN EACH CASE TO THE
EXTENT ARISING (X) ON OR PRIOR TO THE DATE HEREOF OR (Y) OUT OF, OR RELATING TO,
ACTIONS, DEALINGS OR MATTERS OCCURRING ON OR PRIOR TO THE DATE HEREOF.
SECTION 6. ACKNOWLEDGEMENT AND CONSENT BY HOLDINGS AND THE
SUBSIDIARY LOAN PARTIES.
(A) HOLDINGS AND EACH SUBSIDIARY LOAN PARTY HEREBY
ACKNOWLEDGES THAT IT HAS READ THIS AMENDMENT AND CONSENTS TO THE TERMS HEREOF
AND FURTHER CONFIRMS AND AGREES THAT, NOTWITHSTANDING THE EFFECTIVENESS OF THIS
AMENDMENT, (I) ITS OBLIGATIONS PURSUANT TO THE CREDIT AGREEMENT OR ITS
SUBSIDIARY GUARANTEE (AS APPLICABLE) SHALL NOT BE IMPAIRED OR AFFECTED AND (II)
ITS GUARANTEE PURSUANT TO THE CREDIT AGREEMENT OR SUBSIDIARY GUARANTEE (AS
APPLICABLE) IS, AND SHALL CONTINUE TO BE, IN FULL FORCE AND EFFECT AND IS HEREBY
CONFIRMED AND RATIFIED IN ALL RESPECTS.
(B) HOLDINGS AND EACH SUBSIDIARY LOAN PARTY HEREBY CONFIRMS
AND ACKNOWLEDGES THAT IT IS VALIDLY AND JUSTLY INDEBTED TO THE ADMINISTRATIVE
AGENT AND THE LENDERS FOR THE PAYMENT OF ALL OF THE OBLIGATIONS WHICH IT HAS
GUARANTEED, WITHOUT OFFSET, DEFENSE, CAUSE OF ACTION OR COUNTERCLAIM OF ANY KIND
OF NATURE WHATSOEVER.
(C) HOLDINGS AND EACH SUBSIDIARY LOAN PARTY HEREBY REAFFIRMS
AND ADMITS THE VALIDITY AND ENFORCEABILITY OF THE CREDIT AGREEMENT AND THE LOAN
DOCUMENTS TO WHICH IT IS A PARTY AND THE LIENS IN THE COLLATERAL WHICH WERE
GRANTED BY IT PURSUANT TO ANY OF THE LOAN DOCUMENTS OR OTHERWISE.
20
SECTION 7. Costs and Expenses. 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 or thereby (whether or not this Amendment
becomes effective or the transactions contemplated hereby are consummated),
including, but not limited to, the reasonable fees and disbursements of Xxxxxxxx
Chance Xxxxxx & Xxxxx LLP, counsel to the Administrative Agent, Shearman &
Sterling, counsel to the Co-Documentation Agents, Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel to the Syndication Agent, and Xxxxxx & Xxxxx LLP, counsel to Credit
Lyonnais
New York Branch, and PWC.
SECTION 8. Limited Waiver or Modification; Ratification of
Credit Agreement.
(A) Except to the extent hereby expressly waived or modified,
the Credit Agreement and each of the Loan Documents remain in full force and
effect and are hereby ratified and confirmed.
(B) 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 Credit Agreement 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 except to the extent expressly and for the purposes set forth in
Section 3(C) of this Amendment 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, the other Agents and
the Lenders 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. No failure to exercise, delay in exercising or any
singular or partial exercise, by the Administrative Agent, the Agents or any of
the Lenders, of any right, power or remedy hereunder or any of the other Loan
Documents shall operate as a waiver thereof or in the case of a singular or
partial exercise of a right, power or remedy, preclude any other or further
exercise thereof of any other right, power or remedy, nor shall any of the Loan
Documents be construed as a standstill or a forbearance by any of the Agents or
the Lenders of their rights and remedies thereunder. All remedies of the
Administrative Agent, the Agents or the Lenders are cumulative and are not
exclusive of any other remedies under any other Loan Document or provided by
applicable law. Except to the extent hereby waived or modified and subject to
the terms and provisions of the Side Letter, the Credit Agreement and each of
the Loan Documents shall continue in full force and effect in accordance with
the provisions thereof on the date hereof and the Credit Agreement as heretofore
amended or modified and as modified by this Amendment are hereby ratified and
confirmed; provided that to the extent there is any inconsistency between the
provisions of the Credit Agreement as amended by this Amendment and the Side
Letter (except paragraphs 13 and 14 thereof), the provisions of the Credit
Agreement shall control. As used in the Credit Agreement, the terms "Credit
Agreement," "this Agreement," "herein," "hereafter," "hereto," "hereof," and
words of similar import, shall, unless the context otherwise requires, mean the
Credit Agreement as modified by this Amendment. Reference to the terms
"Agreement" or "Credit Agreement" appearing in the Exhibits or Schedules to the
Credit Agreement or in the other Loan Documents shall, unless the context
otherwise requires, mean the Credit Agreement 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.
SECTION 9. Counterparts. 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
21
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.
SECTION 10. Loan Document. 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.
SECTION 11. Severability. Any provision of this Amendment
which is invalid, illegal or unenforceable under the applicable law of any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without invalidating the
remaining provisions hereof, and any such invalidity, illegality or
unenforceability in any jurisdiction shall not invalidate such provision in any
other jurisdiction.
SECTION 12. GOVERNING LAW. 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.
SECTION 13. Successors and Assigns. The provisions of this
Amendment shall be binding upon, and inure to the benefit of, the parties hereto
and their respective successors and assigns.
SECTION 14. Headings. The headings of this Amendment are for
the purposes of reference only and shall not affect the construction of, or be
taken into consideration in interpreting, this Amendment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
22
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and the year first above written.
BORROWER:
XXXXXXXX COMMUNICATIONS, LLC
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
HOLDINGS:
XXXXXXXX COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
AGENTS AND LENDERS:
SIGNATURE BLOCK OMITTED:
[EXECUTED BY EACH OF APPROXIMATELY
81% OF BANKS]
ACCEPTED AND AGREED TO:
SUBSIDIARY LOAN PARTIES:
CG AUSTRIA, INC. (formerly known as XXXXXXXX GLOBAL COMMUNICATIONS
HOLDINGS, INC.)
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 LEARNING NETWORK, INC.
XXXXXXXX LOCAL NETWORK, LLC
XXXXXXXX TECHNOLOGY CENTER, LLC
XXXXXXXX COMMUNICATIONS MANAGED
SERVICES, LLC
XXXXXXXX COMMUNICATIONS MANAGED SERVICES
OF CALIFORNIA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
SCHEDULE 6.05(k)
NON-CORE ASSETS
SCHEDULE 6.13
MATERIAL AGREEMENTS
SCHEDULE 6.21
EXISTING INVESTMENT AND INDEBTEDNESS OF THE
UNRESTRICTED SUBSIDIARIES
