EXHIBIT 99.13
AMENDMENT NO. 9 dated as of October 15, 2002 to the Amended and
Restated Credit Agreement dated as of September 8, 1999 (as amended, the
"Existing Credit Agreement"), among Xxxxxxxx Communications, LLC, as Borrower
(the "Borrower"), Xxxxxxxx Communications Group, Inc., as Guarantor ("Old WCG"),
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.
and
AMENDMENT NO. 1 dated as of October 15, 2002 to the Subsidiary
Guarantee dated as of September 8, 1999 (as amended, amended and restated,
supplemented or otherwise modified, renewed or replaced from time to time, the
"Subsidiary Guarantee") executed by those certain subsidiaries of the Borrower
and/or Old WCG that are a party thereto.
INTRODUCTORY STATEMENT
This document shall be referred to herein as the "Amendment". All
capitalized terms not otherwise defined in this Amendment are used herein as
defined in the Existing Credit Agreement.
As contemplated in that certain Consent and Agreement dated as of
September 13, 2002 executed by Lenders constituting "Required Lenders" and the
Loan Parties, the Existing Credit Agreement is to be amended and restated
(subject to the satisfaction of certain conditions) in accordance with, and
consistent in all material respects with, the term sheet attached as Exhibit B
to such Consent and Agreement.
Subject to the terms and conditions hereof, the Lenders are willing to
agree to the amendment and restatement of the Existing Credit Agreement and the
Subsidiary Guarantee, 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. The Borrower, Old WCG, WilTel Communications
Group, Inc., a Nevada corporation ("New Holdings"), the other Loan Parties, the
Administrative Agent, each of the Issuing Banks, and upon execution of this
Amendment by the Required Lenders, the Lenders, each hereby agrees as follows:
(A) that on and as of the Amendment No. 9 Closing Date (such term being
used herein as defined in Section 6 below), (i) the Existing Credit Agreement
shall be amended and restated in its entirety to read as set forth in Exhibit A
hereto (the Existing Credit Agreement as so amended and restated, the "Restated
Credit Agreement"); and (ii) on and after the Amendment No. 9 Closing Date, the
rights and obligations of the parties to the Existing Credit Agreement
thereunder shall in all respects be governed by the Restated Credit Agreement;
provided, that the rights and obligations of such parties with respect to the
period prior to the Amendment No. 9 Closing Date, shall continue to be governed
by the provisions of the Existing Credit Agreement; and
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(B) that on and as of the Amendment No. 9 Closing Date, (i) the
Restated Credit Agreement shall amend and restate in its entirety the Subsidiary
Guarantee; and (ii) on and after the Amendment No. 9 Closing Date, the rights
and obligations of the parties to the Subsidiary Guarantee under such agreement
shall be governed by the Restated Credit Agreement; provided, that the rights
and obligations of such parties with respect to the period prior to the
Amendment No. 9 Closing Date, shall continue to be governed by the provisions of
the Subsidiary Guarantee.
SECTION 2. Side Letter Agreement. The Borrower, Old WCG, the other Loan
Parties, the Agents, each of the Issuing Banks, and the Required Lenders hereby
agree that on and as of the Amendment No. 9 Closing Date, that certain letter
agreement dated as of October 30, 2001 between the Borrower and Old WCG, on the
one hand, and Bank of America, as Administrative Agent and as Issuing Bank, XX
Xxxxxx Chase Bank (formerly The Chase Manhattan Bank), as Syndication Agent and
as Issuing Bank, Xxxxxxx Xxxxx Xxxxxx Inc., as Co-Documentation Agent, Xxxxxx
Brothers, Inc., as Co-Documentation Agent and Xxxxxxx Xxxxx & Co., Inc., as
Co-Documentation Agent, on the other hand; (as such letter agreement has
heretofore been amended or supplemented, the "Side Letter") shall be terminated
and shall thereafter be of no further force and effect.
SECTION 3. Authorizations and Consents of the Lenders.
(A) Upon execution of this Amendment by the Required Lenders, the
Lenders hereby (i) consent to that certain Security Agreement dated as of April
23, 2001 among the Borrower, Old WCG, the other Loan Parties and the
Administrative Agent (as amended or supplemented) being amended and restated to
read as set forth in Exhibit C hereto and (ii) authorize, and consent to, the
Administrative Agent entering into the Amended and Restated Security Agreement
in substantially the form of such Exhibit C.
(B) Upon execution of this Amendment by the Required Lenders, the
Lenders hereby authorize, and consent to, the Administrative Agent entering into
on behalf and/or for the benefit of the Secured Parties (i) that certain
Intercreditor Agreement (PowerTel Collateral) relating to, among other things,
the subordination of the Liens of Xxxxxxxx Headquarters Building Company in 66%
of the capital stock of WilTel Communications Pty. Limited owned by CG Austria,
Inc. and certain related collateral; and (ii) that certain Intercreditor
Agreement (Mortgaged Property) relating to, among other things, the
subordination of the Liens of the Administrative Agent (for the benefit of the
Secured Parties) in the Mortgaged Property (as defined therein). As used in this
Amendment, the terms "Intercreditor Agreement (PowerTel Collateral)" and
"Intercreditor Agreement (Mortgaged Property)" shall have the meanings set forth
in the Restated Credit Agreement.
SECTION 4. Representations and Warranties. Each of the Loan Parties
(including, without limitation New Holdings) represents and warrants to the
Administrative Agent and the Lenders that:
(A) the execution, delivery and performance by the Loan Parties of 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 (x) any provision of any applicable
statute, rule or regulation, or the Certificate of Incorporation or By-laws (or
similar governing documents) of any of the Loan Parties, (y) any applicable
order of any court or any applicable rule, regulation or order of any other
agency of government, or (z) 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;
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(B) upon the occurrence of the Amendment No. 9 Closing Date, this
Amendment, the Restated Credit Agreement, the Restated Security Agreement, the
Joinder (such terms being used herein as hereinafter defined) and the Second
Mortgage (such term being used herein as defined in the Restated Credit
Agreement) will constitute the legal, valid and binding obligation of the Loan
Parties party thereto, 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) upon the Amendment No. 9 Closing Date, the representations and
warranties set forth in the Restated Credit Agreement, the Restated Security
Agreement, the Second Mortgage and the Joinder shall be true and correct in all
material respects.
SECTION 5. Application of Prepayment; Agreement by the Lenders. The
Lenders hereby agree that the $350 million prepayment described in Section 6(C)
below shall be applied to reduce the scheduled repayments of Term Borrowings and
Incremental Term Borrowings on a pro rata basis and in direct chronological
order of maturity.
SECTION 6. Effective Date. This Amendment shall not become effective
until the date on or prior to October 15, 2002 on which all of the following
conditions precedent shall have been satisfied, or waived by the Administrative
Agent and the Required Lenders in writing (such date being referred to herein as
the "Amendment No. 9 Closing Date"):
(A) The Amendment. The Administrative Agent shall have received
executed counterparts of this Amendment and the Restated Credit Agreement which,
when taken together, bear the signature of (i) Old WCG, New Holdings, the
Borrower and the other Loan Parties, (ii) the Administrative Agent, (iii) the
Issuing Banks, and (iv) those Lenders required by the provisions of Section
10.02 of the Existing Credit Agreement.
(B) Joinder. The Administrative Agent shall have received a joinder
agreement in substantially the form of Exhibit B hereto (the "Joinder") duly
executed by New Holdings.
(C) Prepayment of Outstanding Loans. The Borrower shall have made a
prepayment of the outstanding Loans under the Existing Credit Agreement in an
aggregate principal amount of not less than $350 million, and shall have
instructed that such prepayment be applied to outstanding Term Loans and
outstanding Incremental Term Loans on a pro rata basis and in accordance with
Section 5 above.
(D) Organizational Documents of the Loan Parties. The Administrative
Agent shall have received those organizational documents specified on Schedule
6(D) hereto.
(E) Opinions of Counsel. The Administrative Agent shall have received
the written opinion of (i) Xxxxx, Day, Xxxxxx & Xxxxx, counsel to the Loan
Parties and (ii) Xxxxx Xxxxxx, Nevada counsel to New Holdings, each dated the
Amendment No. 9 Closing Date and addressed to the Administrative Agent, the
Issuing Banks and the Lenders, which opinions shall be in form and substance
reasonably satisfactory to the Administrative Agent and to Xxxxxxxx Chance US
LLP, counsel to the Administrative Agent.
(F) Amended and Restated Security Agreement. The Administrative Agent
shall have received the Amended and Restated Security Agreement in substantially
the form of Exhibit C
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hereto (the "Restated Security Agreement") duly executed by Old WCG, New
Holdings, the Borrower and each of the other Loan Parties.
(G) Financing Statements; Pledged Stock. To the extent not currently in
the possession of the Administrative Agent or subject to a Control Agreement (as
defined in the Restated Security Agreement), the Administrative Agent shall have
received or have Control (as defined in the Restated Security Agreement) of (i)
the Pledged Securities (as defined in the Restated Security Agreement) other
than those with respect to (A) Centennial Ventures Partners VI, L.P., (B) iBEAM
Broadcasting K.K., a Japanese corporation, (C) Xxxxxxxx Communications Group
PTE. Ltd., a Singapore company and (D) Next Venue Europe, Ltd., a company
organized under the laws of the United Kingdom (which in the case of the Pledged
Securities for the entities listed in clauses (B) through (D), shall be
delivered post-closing (to the extent required) in accordance with the terms of
the Restated Security Agreement) and to the extent such Pledged Securities are
represented by a certificate or other instrument, appropriate undated stock
powers or other appropriate documents duly executed in blank with respect
thereto and (ii) Instruments and Promissory Notes (as defined in the Restated
Security Agreement) as listed on Schedule 4 to the Restated Security Agreement
and marked with an asterisk, together with appropriate undated note powers or
other appropriate documents duly executed in blank.
(H) Perfection Certificates. The Administrative Agent shall have
received Perfection Certificates in substantially the form of Exhibit B to the
Restated Security Agreement from each of Old WCG, New Holdings, the Borrower and
each of the other Loan Parties.
(I) Contribution Agreement. The Administrative Agent shall have
received the Contribution Agreement (in substantially the form of Exhibit D to
the Restated Credit Agreement) executed by Old WCG, New Holdings, the Borrower
and each of the other Loan Parties.
(J) Intercreditor Agreement (Mortgaged Property). The Administrative
Agent shall have received the Intercreditor Agreement (Mortgaged Property) duly
executed by Xxxxxxxx Headquarters Building Company and consented to by the Loan
Parties.
(K) Collateral Documents. The Administrative Agent shall have received
such other agreements, instruments and/or documents (including, without
limitation, amendments to existing agreements) relating to any Collateral or any
Mortgaged Real Property Asset (as defined in the Restated Credit Agreement) as
the Administrative Agent or its counsel may reasonably request, duly executed by
the parties thereto.
(L) Tax, UCC Liens and Judgment Searches. The Administrative Agent
shall have received such tax, UCC lien and judgment searches as the
Administrative Agent may reasonably request and demonstrating that no other
filings, encumbrances or transfers (other than in connection with Permitted
Encumbrances (as defined in the Restated Credit Agreement)) with regard to any
Collateral (as defined in the Restated Credit Agreement) are of record in any
jurisdiction in which it shall be reasonably necessary or desirable for the
Administrative Agent to make a UCC filing in order to provide the Administrative
Agent (for the benefit of the Secured Parties (as defined in the Restated Credit
Agreement)) with a perfected security interest in the Collateral.
(M) Insurance. The Administrative Agent shall have received (i) a
summary (certified by an Authorized Officer of the Borrower) of all existing
insurance coverage maintained by the Loan Parties which summary shall include
for each insurance policy, the policy number, the type of coverage, the policy
limits and deductibles, the insurer (and reinsurers, if applicable) and the
expiration date, (ii) evidence reasonably acceptable to the Administrative Agent
that the insurance policies required by Section 5.5 of the Restated Credit
Agreement have been obtained and are in full force and effect, and
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(iii) Certificates of Insurance with respect to all existing property, liability
and/or umbrella insurance coverage maintained by the Loan Parties and/or their
Subsidiaries which is set forth on the summary delivered pursuant to clause (i)
above, which certificates shall comply with the requirements set forth in
Section 5.5. of the Restated Credit Agreement.
(N) Strategic Asset Disposition Letter. The Administrative Agent shall
have received the Strategic Asset Disposition Letter (as defined in the Restated
Credit Agreement) duly executed by the Borrower.
(O) Minimum EBITDA. Old WCG and the Restricted Subsidiaries shall have
EBITDA (on a consolidated basis) for the period beginning July 1, 2002 through
and including September 30, 2002 of not less than negative $34.1 million.
(P) Confirmation Order. The Administrative Agent shall have received a
certified copy of an order (the "Confirmation Order") of the United States
Bankruptcy Court, in substantially the form of Exhibit D hereto, which
Confirmation Order (unless otherwise agreed to by the Administrative Agent)
shall have become a Final Order, shall not have been amended or modified without
the prior written consent of the Administrative Agent and the Required Lenders,
and shall not have been stayed, reversed, vacated or rescinded in any respect.
(Q) Escrow Agreement. The Administrative Agent shall have received a
fully executed copy of the Escrow Agreement (such term being used herein as
defined in the Restated Credit Agreement) and any other agreement, document or
instrument executed or delivered in connection therewith, and all of the
foregoing shall be in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(R) Plan of Reorganization. The Second Amended Joint Plan of
Reorganization of Old WCG and CG Austria, Inc. and all related plan
modifications or supplements shall be satisfactory in all material respects to
the Administrative Agent and its counsel and all conditions to confirmation and
the effectiveness of such Plan of Reorganization shall have been satisfied or
waived by the appropriate parties. All plan documents as identified in such plan
of reorganization shall have terms and conditions reasonably acceptable to the
Administrative Agent and its counsel.
(S) OTC Documents. The Administrative Agent or its counsel shall have
reviewed fully executed copies of all of the OTC Documents, other than the OTC
Pledge Agreements (as such terms are defined in the Restated Credit Agreement)
and any other agreement, document, certificate or instrument executed by a Loan
Party in connection with any such OTC Document; and all of such OTC Documents
and any such other agreement, document, certificate or instrument shall be in
form and substance acceptable to the Administrative Agent and its counsel and
shall have been delivered to The Bank of New York as escrow agent under the
Escrow Agreement pursuant to, and in accordance with, the terms thereof.
(T) Second Mortgage. (i) The Administrative Agent or its counsel shall
have reviewed (a) the Second Mortgage duly executed on behalf of Xxxxxxxx
Technology Center, LLC, a Delaware limited liability company ("WTC"), in favor
of the Administrative Agent and such Second Mortgage shall be in form and
substance satisfactory to the Administrative Agent and its counsel and (b) a
UCC-1 fixture filing, a lender's policy of title insurance, a survey with
respect to the applicable mortgaged real property, an opinion of Xxxxx &
Xxxxxxx, counsel to WTC, as to the enforceability and perfection of the Second
Mortgage, all of the foregoing set forth in this clause (b) to be in form and
substance reasonably satisfactory to the Administrative Agent and its counsel;
and (ii) all of the
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documents referred to in clause (i) above shall have been delivered to The Bank
of New York as escrow agent under the Escrow Agreement pursuant to, and in
accordance with, the terms thereof.
(U) Required Consents, Approvals and/or Waivers. The Administrative
Agent shall be reasonably satisfied that all required consents, approvals and/or
waivers have been obtained by the Loans Parties and New Holdings and shall be in
effect with respect to the execution, delivery and performance of this
Amendment, the Restated Credit Agreement, the Restated Security Agreement, the
Joinder and any other documentation or agreement contemplated by any of the
foregoing and with respect to the transactions contemplated by any of the
foregoing, from all Governmental Authorities with jurisdiction over the business
and activities of any Loan Party and from any other entity whose consent,
approval or waiver is required pursuant to the terms of its organizational
documents or existing contracts to which any of the Loan Parties is bound, or
which the Agents in their reasonable discretion deem necessary to the
transactions contemplated hereby.
(V) Material Agreements. The Administrative Agent or its counsel shall
have received a true and complete copy, certified as such by the Borrower, of
each agreement listed in subpart (iii) of Schedule 3.15 of the Restated Credit
Agreement.
(W) Compliance with Laws. The Administrative Agent shall be satisfied
that the transactions contemplated by this Amendment, the Restated Credit
Agreement, the Restated Security Agreement, the Joinder, and any other Loan
Document (as defined in the Restated Credit Agreement) will not violate any
provision of Applicable Law, or any order of any Governmental Authority
applicable to any of the Loan Parties or New Holdings or any of their respective
properties or assets.
(X) Representations and Warranties. The representations and warranties
set forth in Section 4 hereof shall be true and correct in all material
respects.
(Y) No Default or Event of Default. Upon the Amendment No. 9 Closing
Date, no Default or Event of Default shall occur or be continuing under the
Restated Credit Agreement.
(Z) Closing Certificate. The Administrative Agent shall have received a
closing certificate signed by an Authorized Officer (such term being used herein
as defined in the Restated Credit Agreement) of the Borrower, substantially in
the form of Exhibit E.
(AA) Litigation. No litigation, inquiry, injunction or restraining
order shall be pending, entered or threatened which involves this Amendment, the
Restated Credit Agreement, the Restated Security Agreement, the Joinder or any
of the other Loan Documents or which in the Administrative Agent's good faith
judgment could reasonably be expected to have a Material Adverse Effect.
(BB) Requested Information. Bank of America, N.A., XX Xxxxxx Xxxxx
Bank, Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxxx Xxxxx & Co., Credit Lyonnais New York
Branch and their respective counsel shall have received such information,
materials and documentation with respect to any of the Loan Parties as any of
them may reasonably request, which information, materials and documentation
shall be reasonably satisfactory in form and substance to Bank of America, N.A.,
XX Xxxxxx Chase Bank, Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxxx Xxxxx & Co., Credit
Lyonnais New York Branch and their respective counsel.
(CC) Fees and other Charges under the Loan Documents. All fees and
other charges presently due and payable to the Administrative Agent, any Issuing
Bank or any Lender pursuant to any Loan Document shall have been paid by the
Borrower.
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(DD) Out of Pocket Expenses. All out-of-pocket expenses incurred by the
Agents and Credit Lyonnais New York Branch and invoiced on or before October 10,
2002 in connection with the Existing Credit Agreement, the restructuring
thereof, this Amendment, the Restated Security Agreement, the Australian
Security Agreement, the Second Mortgage, the Joinder, any other Loan Document
(as defined in the Restated Credit Agreement) or the transactions contemplated
by any of the foregoing (including, without limitation, the reasonable fees and
disbursements of Xxxxxxxx Xxxxxx XX XXX, Xxxxx Xxxx & Xxxxxxxx, Xxxxxxxx &
Sterling, Xxxxxxx Xxxxxxx & Xxxxxxxx, Xxxxxx and Xxxxx, LLP and FTI Consulting
(and its predecessors)), shall have been paid by the Borrower.
(EE) Administration Fee Letter. The Administrative Agent shall have
received an executed copy of that certain fee letter dated as of October 15,
2002 between the Borrower on the one hand, and the Administrative Agent on the
other hand, relating to the annual administration fee payable to the
Administrative Agent (which letter shall be in form and substance satisfactory
to the Administrative Agent) and shall have received payment of any fees due and
payable pursuant thereto.
(FF) Existing Sale Leaseback Transaction. The Borrower and/or WTC shall
have obtained a waiver of all existing defaults and/or events of default under
or with respect to, any of the Transaction Documents (as defined below), and
such waiver shall be in form and substance satisfactory to the Administrative
Agent. As used in this subsection (FF), the "Transaction Documents" shall be
those agreements listed in clauses (i) through (iv) of the definition of
"Existing Sale Leaseback Transaction" in the Restated Credit Agreement.
(GG) Right of Way Certificate. The Administrative Agent shall have
received a certificate signed by an Authorized Officer of the Loan Parties with
respect to the Rights of Way (as defined in the Restated Credit Agreement) as of
the Amendment No. 9 Closing Date, which certificate shall be in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.
(HH) Approval of Counsel to Members of the Steering Committee. All
legal matters incident to this Amendment, the Restated Credit Agreement, the
Joinder, the Restated Security Agreement, any of the other Loan Documents, the
effects of this Amendment or any of the transactions contemplated by any of the
foregoing shall be reasonably satisfactory to counsel to Bank of America, N.A.,
XX Xxxxxx Chase Bank, Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxxx Xxxxx & Co., and Credit
Lyonnais New York Branch.
SECTION 7. CONFIRMATION AND ACKNOWLEDGEMENT OF THE OBLIGATIONS;
RELEASE. THE BORROWER HEREBY (A) CONFIRMS AND ACKNOWLEDGES TO THE ADMINISTRATIVE
AGENT AND THE LENDERS THAT AS OF THE AMENDMENT NO. 9 CLOSING DATE, 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 EXISTING CREDIT AGREEMENT AND THE LOAN DOCUMENTS AND THE
LIENS IN THE 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, EACH
ISSUING BANK AND EACH LENDER AND ALL OF THE AFFILIATES OF EACH AGENT, EACH
ISSUING BANK AND EACH LENDER, AND ALL OF THE DIRECTORS, OFFICERS, EMPLOYEES,
ATTORNEYS, AGENTS, SUCCESSORS AND ASSIGNS OF EACH AGENT, EACH ISSUING BANK, EACH
LENDER AND SUCH AFFILIATES, FROM ANY AND ALL CLAIMS, DEMANDS, ACTIONS OR CAUSES
OF ACTION (KNOWN AND UNKNOWN) ARISING OUT
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OF OR IN ANY WAY RELATING TO THIS AMENDMENT, THE EXISTING CREDIT AGREEMENT, THE
EXISTING COLLATERAL DOCUMENTS, THE AMENDMENT AND RESTATEMENT OF THE EXISTING
CREDIT AGREEMENT, THE SUBSIDIARY GUARANTEE AND THE SECURITY AGREEMENT, ANY OF
THE OTHER LOAN DOCUMENTS AND ANY DOCUMENTS, AGREEMENTS, DEALINGS OR OTHER
MATTERS CONNECTED WITH THIS AMENDMENT, THE EXISTING CREDIT AGREEMENT, THE
EXISTING COLLATERAL DOCUMENTS, THE AMENDMENT AND RESTATEMENT OF THE EXISTING
CREDIT AGREEMENT, THE SUBSIDIARY GUARANTEE AND THE SECURITY AGREEMENT, OR ANY OF
THE OTHER LOAN DOCUMENTS, IN EACH CASE TO THE EXTENT ARISING (X) ON OR PRIOR TO
THE AMENDMENT NO. 9 CLOSING DATE OR (Y) OUT OF, OR RELATING TO, ACTIONS,
DEALINGS OR MATTERS OCCURRING ON OR PRIOR TO THE AMENDMENT NO. 9 CLOSING DATE.
SECTION 8. ACKNOWLEDGEMENT AND CONSENT BY OLD WCG, NEW HOLDINGS AND THE
SUBSIDIARY LOAN PARTIES.
(A) OLD WCG, NEW HOLDINGS AND EACH SUBSIDIARY LOAN PARTY HEREBY
ACKNOWLEDGES THAT IT HAS READ THIS AMENDMENT AND CONSENTS TO THE TERMS HEREOF.
(B) OLD WCG, NEW 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
PURSUANT TO ITS GUARANTEE, WITHOUT OFFSET, DEFENSE, CAUSE OF ACTION OR
COUNTERCLAIM OF ANY KIND OR NATURE WHATSOEVER.
(C) OLD WCG, NEW HOLDINGS AND EACH SUBSIDIARY LOAN PARTY HEREBY
REAFFIRMS AND ADMITS THE VALIDITY AND ENFORCEABILITY OF THE EXISTING 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.
SECTION 9. Costs and Expenses. The Borrower acknowledges and agrees
that its obligations set forth in Section 10.03 of the Existing Credit Agreement
include the preparation, execution and delivery of this Amendment, the Restated
Credit Agreement, the Restated Security Agreement, 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 US LLP,
counsel to the Administrative Agent, Shearman & Sterling, counsel to the
Co-Documentation Agents, Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Syndication
Agent, and Xxxxxx and Xxxxx, LLP, counsel to Credit Lyonnais New York Branch,
and FTI Consulting (and its predecessors).
SECTION 10. 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 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 11. Loan Document. This Amendment is a Loan Document pursuant
to the Existing Credit Agreement and the Restated Credit Agreement.
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SECTION 12. 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 13. 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 14. 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 15. Construction. 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. This Amendment, the Restated
Credit Agreement, the Restated Security Agreement and any other Loan Document
(as defined in the Restated Credit Agreement) executed and delivered pursuant to
Section 6 hereof shall be deemed to have been jointly drafted, and no provision
of any of the foregoing 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, the Restated Credit
Agreement, the Restated Security Agreement or any such Loan Document as a whole.
SECTION 16. Post Closing Matters. Unless otherwise indicated,
capitalized terms used in this Section 16 are used in this Section as defined in
the Restated Credit Agreement. The Loan Parties hereby agree to deliver to the
Administrative Agent or its counsel, each of the following documents (all of
which shall be in form and substance reasonably satisfactory to the
Administrative Agent and its counsel) by the date indicated below:
(A) On or prior to October 23, 2002, (i) the Australian Security
Agreement duly executed by CGA and any of the documents contemplated thereunder
duly executed by the appropriate Persons; (ii) the Intercreditor Agreement
(PowerTel Collateral) duly executed by the parties thereto and consented to by
the Loan Parties; (iii) share certificates representing sixty-six percent (66%)
of the issued and outstanding Equity Interests of WilTel Communications Pty
Limited, together with appropriate undated stock powers or other appropriate
documents duly executed in blank with respect thereto; (iv) the written opinion
of Mallesons Xxxxxxx Xxxxxxx, Australian counsel to the Administrative Agent,
which opinion shall be addressed to the Administrative Agent, the Issuing Banks
and the Lenders and shall relate to the Australian Security Agreement and the
Intercreditor Agreement (PowerTel Collateral); and (v) copies of the executed
OTC Pledge Agreements and any other agreement, document, certificate or
instrument executed by a Loan Party in connection with the OTC Pledge Agreements
(as the foregoing will be delivered to the Bank of New York as escrow agent
under the Escrow Agreement to be held pursuant to the terms thereof).
(B) No later than ten (10) Business Days after the Administrative
Agent's request, the written opinion of Xxxxx, Day, Xxxxxx & Xxxxx, counsel to
the Loan Parties (or such other counsel to the Loan Parties as shall be
reasonably acceptable to the Administrative Agent), addressed to the
Administrative Agent, the Issuing Banks and the Lenders, which opinion shall
relate to the perfection of the security interests of the Administrative Agent
(for the benefit of the Secured Parties) in the Loan Parties' Deposit Accounts
and Securities Accounts pursuant to the existing Deposit Account Control
Agreements and Securities Account Control Agreements (as such terms are defined
in the Restated Security Agreement).
9
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/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Group Executive,
Corporate Development and Finance
OLD WCG:
XXXXXXXX COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Group Executive,
Corporate Development and Finance
NEW HOLDINGS:
WILTEL COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Group Executive,
Corporate Development and Finance
AGENTS AND LENDERS:
BANK OF AMERICA, N.A., individually, as
Issuing Bank and as Administrative Agent
By: /s/ Xxxxxxx Honey
-------------------------------------------
Name: Xxxxxxx Honey
Title: Vice President
XX XXXXXX CHASE BANK, individually, as Issuing
Bank and as Syndication Agent
By: /s/ Houston X. Xxxxxxxx
-------------------------------------------
Name: Houston X. Xxxxxxxx
Title: Managing Director
10
XXXXXXX XXXXX XXXXXX INC., as Joint Lead
Arranger and Joint Bookrunner with respect to
the Incremental Facility and as
Co-Documentation Agent
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
CITICORP USA, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
XXXXXX BROTHERS, INC., as Joint Lead Arranger
and Joint Bookrunner with respect to the
Incremental Facility and as Co-Documentation
Agent
By: /s/ Xxxxx X. Xxxxx, Xx.
-------------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Authorized Signatory
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxx X. Xxxxx, Xx.
-------------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Authorized Signatory
XXXXXXX XXXXX XXXXXX XXXXXX & XXXXX
INCORPORATED (d/b/a XXXXXX XXXXX & CO.),
as Co-Documentation Agent
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
11
XXXXXXX XXXXX CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
ABN AMRO BANK N.V.
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
AHAB PARTNERS, L.P.
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Managing Member, Pequod LLC
General Partner, Ahab Partners, L.P.
ARK II CLO 2001-1, LIMITED
By: Patriarch Partners II, LLC,
its Collateral Manager
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Manager
12
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE,
INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: General Manager
BANK OF MONTREAL
By: /s/ Bin Xxxxxxxx
-------------------------------------------
Name: Bin Xxxxxxxx
Title: Director
THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
BANK OF OKLAHOMA N.A.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
13
BANK ONE, N.A.
By:
-------------------------------------------
Name:
Title:
CANPARTNERS INVESTMENTS IV, LLC
By:
-------------------------------------------
Name:
Title:
CERBERUS PARTNERS, L.P.
By: Cerberus Associates, L.L.C,
its General Partner
By:
-------------------------------------------
Name:
Title:
CIBC INC.
By: /s/ Xxxxxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxxxxx Xxxxxxx
Title: Executive Director, CIBC Inc., as
Agent
CONTRARIAN FUNDS, LLC
By: Contrarian Capital Management, LLC
as Manager
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Member
14
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN
ISLANDS BRANCH
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Director
15
DREYFUS HIGH YIELD STRATEGIES FUND
By:
-------------------------------------------
Name:
Title:
FERNWOOD ASSOCIATES L.P.
By:
-------------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Officer
FRANKLIN MUTUAL ADVISERS, LLC
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
16
XXXXXXXX CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Partner
IBM CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Special Handling
KBC BANK, N.V.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
LOEB PARTNERS CORPORATION
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President
17
XXXXXXX XXXXX GLOBAL ALLOCATION FUND, INC.
By: /s/ Xxxx X'Xxxxxxx
-------------------------------------------
Name: Xxxx X'Xxxxxxx
Title: Director MLIM
Authorized Signatory
XXXXXXX XXXXX SERIES FUNDS, INC. Global
Allocation Strategy Portfolio
By: /s/ Xxxx X'Xxxxxxx
-------------------------------------------
Name: Xxxx X'Xxxxxxx
Title: Director MLIM
Authorized Signatory
XXXXXXX XXXXX VARIABLE SERIES FUNDS, INC.
Global Allocation Focus Fund
By: /s/ Xxxx X'Xxxxxxx
--------------------------------------------
Name: Xxxx X'Xxxxxxx
Title: Director MLIM
Authorized Signatory
MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
MUZINICH CASHFLOW CBO LTD.
By:
--------------------------------------------
Name:
Title:
18
MUZINICH CASHFLOW CBO II LTD.
By:
--------------------------------------------
Name:
Title:
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset Management
as Investment Manager
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
PPM AMERICA SPECIAL INVESTMENTS FUND, L.P.
By: PPM America, Inc., On Behalf of its
Accounts
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Managing Director
R2 TOP HAT, LTD
By: Amalgamated Gadget, L.P.,
as Investment Manager
By: Scepter Holdings, Inc., its General Partner
By:
--------------------------------------------
Name:
Title:
19
SALOMON BROTHERS HOLDING COMPANY, INC.
By:
--------------------------------------------
Name:
Title:
SANKATY HIGH YIELD ASSET PARTNERS
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
SANKATY HIGH YIELD PARTNERS II LP
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
SCOTIABANC INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
XXXXXXXXX CLO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Partner
20
XXXXXXXXX/RMF TRANSATLANTIC CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Partner
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxx Xxxxxx
--------------------------------------------
Name: Xxx Xxxxxx
Title: Director
WINDSOR LOAN FUNDING, LIMITED
By: Xxxxxxxxx Capital Partners LLC
as its Investment Manager
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Partner
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.
XXXXXXXX COMMUNICATIONS EMERGING MARKETS, LLC
XXXXXXXX COMMUNICATIONS MANAGED
SERVICES, LLC
XXXXXXXX COMMUNICATIONS MANAGED SERVICES
OF CALIFORNIA, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and/or Treasurer
00
XXXXXXXX XXXXXXXXXXXXXX XX XXXXXXXX, INC.
XXXXXXXX COMMUNICATIONS PROCUREMENT, L.L.C.
XXXXXXXX LEARNING NETWORK, INC.
XXXXXXXX LOCAL NETWORK, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and/or Treasurer
XXXXXXXX COMMUNICATIONS PROCUREMENT, LP
By: Xxxxxxxx Communications, LLC, as
General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Group Executive,
Corporate Development and Finance
XXXXXXXX TECHNOLOGY CENTER, LLC
By: Xxxxxxxx Communications, LLC, as
Sole Member
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Group Executive,
Corporate Development and Finance
22
SCHEDULE 6(D)
ORGANIZATIONAL DOCUMENTS
Borrower:
(i) a copy of the Certificate of Formation of the Borrower,
certified as of a recent date by the Secretary of State of
Delaware;
(ii) a certificate of the Secretary of State of Delaware, dated as
of a recent date as to the good standing of, and payment of
taxes by, the Borrower which certificate lists the
organizational documents on file in the office of such
Secretary of State with respect to the Borrower;
(iii) a certificate dated as of a recent date as to the good
standing and/or authority to do business of the Borrower
issued by the Secretary of State or other appropriate
governmental official of each jurisdiction listed on Schedule
3.1(a) to the Restated Credit Agreement;
(iv) a certificate of the Secretary of the Borrower (or New
Holdings in its capacity as the sole member of the Borrower),
dated the Amendment No. 9 Closing Date and certifying (A) that
attached thereto is a true and complete copy of the limited
liability company agreement of the Borrower as in effect on
the date of such certification; (B) that the Certificate of
Formation of the Borrower has not been amended since the date
of the last amendment thereto indicated on the applicable
certificate of the Secretary of State of Delaware furnished
pursuant to clause (i) above, except to the extent specified
in such Secretary's certificate; (C) that attached thereto is
a true and complete copy of resolutions adopted by the Board
of Directors of the Borrower authorizing the execution,
delivery and performance by the Borrower in accordance with
its respective terms of this Amendment, the Restated Credit
Agreement, the Restated Security Agreement and any other
documents required or contemplated by the foregoing and that
such resolutions have not been amended, rescinded or
supplemented and are currently in effect; and (D) as to the
incumbency and specimen signature of each officer of the
Borrower (or New Holdings as the sole member of the Borrower)
executing this Amendment, the Restated Credit Agreement, the
Restated Security Agreement, or any other document delivered
in connection with any of the foregoing on behalf of the
Borrower (such certificate to contain a certification by
another officer of the Borrower (or New Holdings as the sole
member of the Borrower) as to the incumbency and signature of
the officer signing the certificate referred to in this clause
(iv));
New Holdings:
(v) a copy of the Certificate of Incorporation of New Holdings,
certified as of a recent date by the Secretary of State of
Nevada;
(vi) a certificate of the Secretary of State of Nevada, dated as of
a recent date as to the good standing of, and payment of taxes
by, New Holdings which certificate lists the charter documents
on file in the office of such Secretary of State with respect
to New Holdings;
(vii) a certificate dated as of a recent date as to the good
standing and/or authority to do business of New Holdings
issued by the Secretary of State or other appropriate
Schedule 6(D)-1
governmental official of each jurisdiction listed on Schedule
3.1(b) to the Restated Credit Agreement;
(viii) a certificate of the Secretary of New Holdings dated the
Amendment No. 9 Closing Date and certifying (A) that attached
thereto is a true and complete copy of the by-laws of New
Holdings as in effect on the date of such certification; (B)
that the Certificate of Incorporation of New Holdings has not
been amended since the date of the last amendment thereto
indicated on the certificate of the Secretary of State
furnished pursuant to clause (v) above, except to the extent
specified in such Secretary's certificate; (C) that attached
thereto is a true and complete copy of the resolutions adopted
by the Board of Directors of New Holdings authorizing the
Guaranty under the Restated Credit Agreement by New Holdings,
and the execution, delivery and performance by New Holdings in
accordance with its respective terms of this Amendment, the
Restated Credit Agreement, the Restated Security Agreement and
any other documents required or contemplated by the foregoing
and that such resolutions have not been amended, rescinded or
supplemented and are currently in effect; and (D) as to the
incumbency and specimen signature of each officer of New
Holdings executing this Amendment, the Restated Credit
Agreement, the Restated Security Agreement or any other
document delivered in connection with any of the foregoing on
behalf of New Holdings (such certificate to contain a
certification by another officer of New Holdings as to the
incumbency and signature of the officer signing the
certificate referred to in this clause (viii));
Old WCG:
(ix) a copy of the Certificate of Incorporation of Old WCG
certified as of a recent date by the Secretary of State of
Delaware;
(x) a certificate of the Secretary of State of Delaware, dated as
of a recent date as to the good standing of, and payment of
taxes by, Old WCG which certificate lists the charter
documents on file in the office of such Secretary of State
with respect to Old WCG;
(xi) a certificate dated as of a recent date as to the good
standing and/or authority to do business of Old WCG issued by
the Secretary of State or other appropriate governmental
official of each jurisdiction listed on Schedule 3.1(c) to the
Restated Credit Agreement;
(xii) a certificate of the Secretary of Old WCG dated the Amendment
No. 9 Closing Date and certifying (A) that attached thereto is
a true and complete copy of the by-laws of Old WCG as in
effect on the date of such certification; (B) that the
Certificate of Incorporation of Old WCG has not been amended
since the date of the last amendment thereto indicated on the
certificate of the Secretary of State furnished pursuant to
clause (ix) above, except to the extent specified in such
Secretary's certificate; (C) that attached thereto is a true
and complete copy of the resolutions adopted by the Board of
Directors of Old WCG authorizing the Guaranty under the
Restated Credit Agreement by Old WCG, and the execution,
delivery and performance by Old WCG in accordance with its
respective terms of this Amendment, the Restated Credit
Agreement, the Restated Security Agreement and any other
documents required or contemplated by the foregoing and that
such resolutions have not been amended, rescinded or
supplemented and are currently in effect; and (D) as to the
incumbency and specimen signature of each officer of Old WCG
executing this Amendment, the Restated Credit Agreement, the
Restated Security Agreement or any other document delivered in
connection with any of the
Schedule 6(D)-2
foregoing on behalf of Old WCG (such certificate to contain a
certification by another officer of Old WCG as to the
incumbency and signature of the officer signing the
certificate referred to in this clause (xii));
Other Loan Parties:
(xiii) a copy of the Articles or Certificate of Incorporation,
Certificate of Limited Partnership, Certificate of Formation
or other organizational document of each such other Loan
Party, certified as of a recent date by the Secretary of State
(or other appropriate governmental official) of such Loan
Party's jurisdiction of incorporation or organization, as the
case may be;
(xiv) a certificate of the Secretary of State or other appropriate
governmental official of such jurisdiction of incorporation or
organization (as the case may be), dated as of a recent date
as to the good standing of, and payment of taxes by, the
applicable Loan Party which certificate lists the charter or
other organizational documents on file in the office of such
Secretary of State or other governmental official with respect
to such Loan Party;
(xv) a certificate dated as of a recent date as to the good
standing and/or authority to do business of each other Loan
Party issued by the Secretary of State or other appropriate
governmental official of each jurisdiction in which such Loan
Party is qualified to do business as listed on Schedule 3.1(d)
to the Restated Credit Agreement;
(xvi) a certificate of the Secretary of each other Loan Party, dated
the Amendment No. 9 Closing Date and certifying (A) that
attached thereto is a true and complete copy of the by-laws
(or partnership agreement or limited liability company
agreement, if applicable) of such Loan Party as in effect on
the date of such certification; (B) that the articles or
certificate of incorporation or other organizational document
of such Loan Party has not been amended since the date of the
last amendment thereto indicated on the certificate of the
Secretary of State (or other appropriate governmental
official) furnished pursuant to clause (xiii) above, except to
the extent specified in such Secretary's certificate; (C) that
attached thereto is a true and complete copy of resolutions
adopted by such Loan Party's Board of Directors (or other
governing board if such Loan Party is not a corporation)
authorizing the Guaranty under the Restated Credit Agreement
by such Loan Party, and the execution, delivery and
performance by such Loan Party in accordance with its
respective terms of this Amendment, the Restated Credit
Agreement, the Restated Security Agreement and any other
documents required or contemplated by the foregoing and that
such resolutions have not been amended, rescinded or
supplemented and are currently in effect; and (D) as to the
incumbency and specimen signature of each officer of such Loan
Party executing this Amendment, the Restated Credit Agreement,
the Restated Security Agreement or any other document
delivered in connection with any of the foregoing on behalf of
such Loan Party (such certificate to contain certification by
another officer of such Loan Party as to the incumbency and
signature of the officer signing the certificate referred to
in this clause (xvi)); and
(xvii) with respect to any Loan Party that is a limited partnership,
such Loan Party shall also provide the foregoing documents
described in clauses (xiii) through (xvi) for its general
partner.
Schedule 6(D)-3
Other:
(xviii) such additional supporting documents relating to the Borrower,
New Holdings, Old WCG or any other Loan Party as the
Administrative Agent or its counsel may reasonably request.
Schedule 6(D)-4
EXHIBIT A
FORM OF RESTATED CREDIT AGREEMENT
Exhibit A-1
EXHIBIT B
FORM OF JOINDER
Exhibit B-1
EXHIBIT C
FORM OF RESTATED SECURITY AGREEMENT
Exhibit C-1
EXHIBIT D
FORM OF CONFIRMATION ORDER
Exhibit D-1
EXHIBIT E
FORM OF CLOSING CERTIFICATE
Exhibit E-1
