Exhibit 10.38
SECOND WAIVER
SECOND WAIVER, dated as of April 15, 2002 (this "WAIVER"), to
the Credit Agreement dated as of October 29, 1999 (as heretofore amended,
supplemented or otherwise modified, the "CREDIT AGREEMENT"), among XX.Xxx Corp.,
a Delaware corporation (the "BORROWER"), the lenders and financial institutions
from time to time party thereto (collectively, the "LENDERS") and Wachovia Bank,
National Association (formerly known as First Union National Bank), in its
capacity as the administrative agent (in such capacity, the "ADMINISTRATIVE
AGENT") for the Lenders.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
made certain loans and other extensions of credit to the Borrower;
WHEREAS, pursuant to and subject to the terms of a Waiver
dated as of March 20, 2002, the Lenders agreed to waive, but only until April
15, 2002, the occurrence and continuance of certain Defaults and Events of
Default under the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders continue
to waive any Defaults or Events of Default that have occurred and are continuing
under the Credit Agreement through April 30, 2002; and
WHEREAS, the Lenders are willing to agree to the requested
waiver, subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized
terms are used herein as defined in the Credit Agreement.
2. WAIVER. The Lenders hereby waive, but only until the
expiration of the Waiver Period (as defined below), any Default or Event of
Default under Sections 7.01(c), (d) or (e) of the Credit Agreement arising by
reason of (a) any failure by the Borrower to comply with Section 6.14 (Minimum
Cumulative Dark Fiber/Conduit Revenue/Proceeds), Section 6.15 (Minimum
Consolidated Operating Revenues) and Section 6.16 (Consolidated EBITDA) of the
Credit Agreement for the period ending Xxxxx 00, 0000, (x) any failure by the
Borrower to comply with Sections 5.01(a) or (d) (Financial Statements and Other
Information) or Section 5.02(a) (Notice of Material Events) of the Credit
Agreement; PROVIDED that the Borrower shall deliver to the Administrative Agent
and the Lenders as soon as available financial statements in respect of the 2001
fiscal year of the Borrower, (c) any failure by the Borrower to comply with
Section 5.05 (Payment of Obligations) of the Credit Agreement, (d) any failure
by the Borrower to comply with Section 6.02(ii) (Liens) of the Credit Agreement
as a result of the creation of any
Lien not permitted under clause (b) of the definition of Permitted Encumbrances
or (e) any failure of any representation or warranty made or deemed made by or
on behalf of any Loan Party in connection with any extension of credit under the
Credit Agreement to have been true and correct in all respects (or, in the case
of any representation or warranty that is not qualified as to materiality, in
all material respects) as of the date made or deemed made. The term "WAIVER
PERIOD" shall mean the period from the date hereof until the earliest to occur
of (i) the occurrence of any Default or Event of Default not expressly waived
pursuant to this Waiver, (ii) April 30, 2002 or (iii) any failure by the
Borrower to comply with Section 3 of this Waiver.
3. LIMITATION ON BORROWING AND RESTRICTED PAYMENTS. (a) The
Borrower hereby acknowledges and agrees that the Borrower shall not have the
right to, and shall not, make a Borrowing Request or request the issuance of any
Letter of Credit, and that the Lenders shall have no obligation to honor any
such Borrowing Request or issue any such Letter of Credit.
(b) The Borrower hereby agrees that during the Waiver Period it shall
not have the right, and shall not, make any Restricted Payment, except on
account of Permitted Parent Expenses, otherwise permitted under Section 6.06(iv)
(Restricted Payments) of the Credit Agreement.
4. REPRESENTATIONS AND WARRANTIES. After giving effect to this
Waiver, the Borrower hereby confirms, reaffirms and restates in all respects the
representations and warranties set forth in Article 3 (other than Section
3.04(c)) of the Credit Agreement MUTATIS MUTANDIS, except that where such
representations and warranties relate to an earlier date, such representations
and warranties shall have been true and correct in all material respects as of
such earlier date.
5. VALIDITY OF OBLIGATIONS; RELEASE. Each Loan Party
acknowledges and agrees that (a) such Loan Party is truly and justly indebted to
the Lenders and the Administrative Agent for the Obligations, without defense,
counterclaim or offset of any kind, and such Loan Party ratifies and reaffirms
the validity, enforceability and binding nature of such Obligations and (b) such
Loan Party has no claim, right or cause of action of any kind against any
Lender, the Administrative Agent or any of such Lender's or the Administrative
Agent's present or former subsidiaries, Affiliates, officers, directors,
employees, attorneys or other representatives or agents (collectively with their
respective successors and assigns, the "LENDER PARTIES") in connection with the
Obligations, this Waiver, the Credit Agreement and the other Loan Documents, or
the transactions contemplated hereby or thereby. Each Loan Party
unconditionally, freely, voluntarily and, after consultation with counsel and
becoming fully and adequately informed as to the relevant facts, circumstances
and consequences, releases, waives and forever discharges (and further agrees
not to allege, claim or pursue) any and all claims, rights, liabilities, causes
of action, counterclaims or defenses of any kind whatsoever, in contract or in
tort, in law or in equity, whether known or unknown, direct or derivative, which
such Loan Party or any predecessor, successor or assign might otherwise have or
may have against any Lender Party on account of any conduct, condition, act,
omission, event, contract, liability, obligation, demand, covenant, promise,
indebtedness, claim, right, cause of action, suit, damage, defense, circumstance
or matter of any kind whatsoever which existed, arose or occurred at any time
prior to the Effective Date in connection with the Obligations, this Waiver, the
Credit Agreement and the other Loan Documents, or the transactions contemplated
hereby or thereby.
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6. CONDITIONS PRECEDENT. This Waiver shall become effective on
the date of satisfaction of the following conditions precedent (the "EFFECTIVE
DATE"):
(a) WAIVER. The Administrative Agent shall have received
counterparts of this Waiver, duly executed by the Borrower, the other
Loan Parties, the Administrative Agent and the Required Lenders.
(b) NO DEFAULT OR EVENT OF DEFAULT. After giving effect to
this Waiver, no Default or Event of Default shall have occurred and be
continuing.
(c) FEES AND EXPENSES. The Administrative Agent and the
Lenders shall have received payment of all fees and expenses required
to be paid pursuant to Section 9.03 of the Credit Agreement for which
invoices have been presented.
7. CONTINUING EFFECT; NO OTHER WAIVERS OR AMENDMENTS. Except
as expressly waived hereby, all of the terms and provisions of the Credit
Agreement and the other Loan Documents are and shall remain in full force and
effect. The waiver contained herein shall not constitute a waiver, amendment or
modification of any other provision of the Credit Agreement or the other Loan
Documents and does not indicate the Lenders' willingness to consent to any other
waiver, amendment or modification of the Credit Agreement or the other Loan
Documents. The Administrative Agent and the Lenders expressly reserve the right
to exercise all of their rights and remedies under the Credit Agreement, the
other Loan Documents and applicable law at any time after the expiration of the
Waiver Period in respect of the occurrence and continuance of any Default or
Event of Default waived pursuant to Section 2.
8. GUARANTORS. Each Loan Party party to a Guarantee and
Subordination Agreement acknowledges and consents to all of the terms and
conditions of this Waiver and agrees that this Waiver does not operate to reduce
or discharge such Loan Party's obligations under such Guarantee or the other
Loan Documents to which such Loan Party is a party.
9. GOVERNING LAW. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK.
10. COUNTERPARTS. This Waiver may be executed by the parties
hereto in any number of 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 one and the same instrument. Delivery of an executed
counterpart of a signature page of this Waiver by facsimile transmission shall
be as effective as delivery of a manually executed counterpart of this Waiver.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be executed by their duly authorized representatives as of the date first
above written.
XX.XXX CORP.
By: /s/ W. XXXXXXX XXXXXXXXX XX.
---------------------------------
Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
VELOCITA CORP.
By: /s/ XXXXX X. XXXXXX, XX.
---------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Chief Executive Officer
XX.XXX CONSTRUCTION CORP.
By: /s/ W. XXXXXXX XXXXXXXXX XX.
---------------------------------
Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX SUPPLY CORP.
By: /s/ W. XXXXXXX XXXXXXXXX XX.
---------------------------------
Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX NETWORK SERVICES CORP.
By: /s/ W. XXXXXXX XXXXXXXXX XX.
---------------------------------
Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX PROPERTY CORP.
By: /s/ W. XXXXXXX XXXXXXXXX XX.
---------------------------------
Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX VIRGINIA CORP.
By: /s/ W. XXXXXXX XXXXXXXXX XX.
---------------------------------
Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX VIRGINIA, LLC
By: /s/ W. XXXXXXX XXXXXXXXX XX.
---------------------------------
Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX NETWORK SERVICES EAST LLC
By: /s/ W. XXXXXXX XXXXXXXXX XX.
---------------------------------
Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX NETWORK SERVICES WEST LLC
By: /s/ W. XXXXXXX XXXXXXXXX XX.
---------------------------------
Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX CONSTRUCTION SERVICES LLC
By: /s/ W. XXXXXXX XXXXXXXXX XX.
---------------------------------
Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX SUPPLY LLC
By: /s/ W. XXXXXXX XXXXXXXXX XX.
---------------------------------
Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
as Administrative Agent and as a Lender
By: /s/ X. X. XXXXXXX
---------------------------------
Name: X. X. Xxxxxxx
Title: Senior Vice President
ABN AMRO BANK N.V.
By: /s/ XXXXXXX X. XXXXXXX, XX.
---------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Group Vice President
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Group Vice President
BANK OF AMERICA, N.A.
By: /s/ XXXXXXX HONEY
---------------------------------
Name: Xxxxxxx Honey
Title: Vice President
BANKERS TRUST COMPANY
By: /s/ XXXX XXXXXX
---------------------------------
Name: Xxxx Xxxxxx
Title: Director
CISCO SYSTEMS CAPITAL CORPORATION
By: /s/ XXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Credit Officer
CREDIT LYONNAIS-NEW YORK BRANCH
By: /s/ XXXXX X. XXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By: /s/ XXXXXXX XXXXXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
By: /s/ XXXXX XXXXXXXX
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate Director
