Exhibit 4.7.4
EXECUTION COPY
WAIVER
This Waiver, dated as of March 13, 2003 (this "WAIVER"),
between Xxxxxx Communications Corporation, a Delaware corporation (the
"BORROWER"), and the Administrative Agent (as defined below) waives certain
provisions of the Credit Agreement, dated as of July 12, 2001 (as amended,
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Borrower, the Lenders (as defined in the Credit
Agreement), Citicorp USA, Inc., as administrative agent for the Lenders and as
collateral agent for the Secured Parties under the Collateral Documents (in each
such capacity, the "ADMINISTRATIVE AGENT"), Union Bank of California, N.A., as
syndication agent for the Lenders, and CIBC, Inc. and General Electric Capital
Corporation, each as co-documentation agents for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative
Agent are parties to the Credit Agreement and, as of the date hereof, the
Lenders consenting to this Waiver constitute the Requisite Lenders (as defined
in the Credit Agreement);
WHEREAS, the Borrower and the Administrative Agent, on behalf
of the Lenders constituting the Requisite Lenders, have agreed to waive certain
terms of the Credit Agreement as set forth herein; and
WHEREAS, pursuant to Section 11.1 of the Credit Agreement, the
consent of the Requisite Lenders is required to waive certain terms of the
Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and obligations herein set forth and other good and valuable
consideration, the adequacy and receipt of which are hereby acknowledged, and in
reliance upon the representations, warranties and covenants herein contained,
the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to such terms in
the Credit Agreement.
SECTION 2. WAIVER TO CREDIT AGREEMENT. Effective as of the
Effective Date (as defined below) and subject to the terms and conditions set
forth herein, the Administrative Agent, on behalf of the Lenders constituting
the Requisite Lenders, hereby waives the following:
(a) Compliance with Section 5.1 of the Credit Agreement for
the Fiscal Quarter ending June 30, 2003; PROVIDED, that the waiver in this
Section 2(a) shall cease to be of any further force and effect (and any Default
or Event of Default that would have otherwise been waived by this Section 2(a)
shall continue to constitute a Default or Event of Default, as the case may be)
if any of the following conditions are not satisfied:
(i) the Borrower's Net Revenue for the four Fiscal Quarters
ending on the last day of such Fiscal Quarter shall be not less than
$250,000,000; and
(ii) in the event the Borrower's Net Revenue for the four
Fiscal Quarters ending on the last day of such Fiscal Quarter is less
than $270,000,000 but equal to or greater than $250,000,000, the
Administrative Agent shall have received from the Borrower concurrently
with the delivery of the Borrower's Compliance Certificate for such
Fiscal Quarter pursuant to Section 6.1(d) of the Credit Agreement, for
the ratable benefit of the Lenders party to the Credit Agreement, a
waiver fee equal to 0.125% of the sum of each such Lender's (A)
Commitment as of the date of delivery of such Compliance Certificate
and (B) Ratable Portion of the principal amount of Term A Loans and
Term B Loans outstanding on the date of delivery of such Compliance
Certificate.
(b) Compliance with Section 5.1 of the Credit Agreement for
the Fiscal Quarter ending September 30, 2003; PROVIDED, that the waiver in this
Section 2(b) shall cease to be of any further force and effect (and any Default
or Event of Default that would have otherwise been waived by this Section 2(b)
shall continue to constitute a Default or Event of Default, as the case may be)
if any of the following conditions are not satisfied:
(i) the Borrower's Net Revenue for the four Fiscal Quarters
ending on the last day of such Fiscal Quarter shall be not less than
$250,000,000; and
(ii) in the event the Borrower's Net Revenue for the four
Fiscal Quarters ending on the last day of such Fiscal Quarter is less
than $280,000,000 but equal to or greater than $250,000,000, the
Administrative Agent shall have received from the Borrower concurrently
with the delivery of the Borrower's Compliance Certificate for such
Fiscal Quarter pursuant to Section 6.1(d) of the Credit Agreement, for
the ratable benefit of the Lenders party to the Credit Agreement, a
waiver fee equal to 0.125% of the sum of each such Lender's (A)
Commitment as of the date of delivery of such Compliance Certificate
and (B) Ratable Portion of the principal amount of Term A Loans and
Term B Loans outstanding on the date of delivery of such Compliance
Certificate.
(c) Compliance with Section 5.1 of the Credit Agreement for
the Fiscal Quarter ending December 31, 2003; PROVIDED, that the waiver in this
Section 2(c) shall cease to be of any further force and effect (and any Default
or Event of Default that would have otherwise been waived by this Section 2(c)
shall continue to constitute a Default or Event of Default, as the case may be)
if any of the following conditions are not satisfied:
(i) the Borrower's Net Revenue for the four Fiscal Quarters
ending on the last day of such Fiscal Quarter shall be not less than
$250,000,000; and
(ii) in the event the Borrower's Net Revenue for the four
Fiscal Quarters ending on the last day of such Fiscal Quarter is less
than $290,000,000 but equal to or greater than $250,000,000, the
Administrative Agent shall have received from the Borrower concurrently
with the delivery of the Borrower's Compliance Certificate for such
Fiscal Quarter pursuant to Section 6.1(d) of the Credit Agreement, for
the ratable benefit of the Lenders party to the Credit Agreement, a
waiver fee equal to 0.125% of the sum of each such Lender's (A)
Commitment as of the date of delivery of such Compliance Certificate
and (B) Ratable Portion of the principal amount of Term A Loans and
Term B Loans outstanding on the date of delivery of such Compliance
Certificate.
SECTION 3. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
WAIVER. This Waiver shall become effective as of the date the following
conditions precedent have been satisfied (the "EFFECTIVE DATE"):
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(a) CERTAIN DOCUMENTS. The Administrative Agent shall have
received on or before the Effective Date all of the following, all of which
shall be in form and substance satisfactory to the Administrative Agent, in
sufficient executed copies for each of the Lenders:
(i) this Waiver executed by the Borrower;
(ii) the Consent, Agreement and Affirmation of Guaranty, in
the form attached hereto as ANNEX A, executed by the Subsidiary
Guarantors;
(iii) an executed Acknowledgment and Consent, in the form
attached hereto as ANNEX B (an "ACKNOWLEDGMENT AND CONSENT"), from
Lenders constituting the Requisite Lenders; and
(iv) such additional documentation as the Administrative Agent
or the Requisite Lenders may reasonably require.
(b) UPFRONT FEE. The Administrative Agent shall have received
from the Borrower, for the ratable benefit of the Lenders executing an
Acknowledgment and Consent on or prior to the Effective Date, an upfront fee
equal to 0.125% of the sum of each such Lender's (i) Commitment as of the
Effective Date and (ii) Ratable Portion of the principal amount of Term A Loans
and Term B Loans outstanding on the Effective Date.
(c) OTHER FEES. The Administrative Agent shall have received
from the Borrower for its own account the fees described in that certain letter
agreement, dated as of the date hereof, between the Borrower and the
Administrative Agent.
(d) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower or any Guarantor in or
pursuant to the Credit Agreement and the other Loan Documents to which the
Borrower or any Guarantor is a party or by which the Borrower or any Guarantor
is bound, shall be true and correct in all material respects on and as of the
Effective Date (except to the extent such representations and warranties in any
such Loan Document expressly relate to an earlier date).
(e) NO EVENTS OF DEFAULT. No Event of Default or Default shall
have occurred and be continuing on the Effective Date.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that as of
the date hereof, (a) no Event of Default or Default under the Credit Agreement
shall have occurred and be continuing and (b) all of the representations and
warranties of the Loan Parties contained in Article IV of the Credit Agreement
and in any other Loan Document continue to be true and correct in all material
respects, as though made on and as of such date (except to the extent such
representations and warranties in any such Loan Document expressly relate to an
earlier date).
SECTION 5. COSTS AND EXPENSES. The Borrower agrees to pay on
demand in accordance with the terms of Section 13.3 of the Credit Agreement all
costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this Waiver and all other
Loan Documents entered into in connection herewith, including the reasonable
fees, expenses and disbursements of Weil, Gotshal & Xxxxxx LLP, counsel for the
Administrative Agent with respect thereto.
SECTION 6. NO OTHER WAIVERS.
(a) Except as specifically waived herein, all of the terms of
the Credit Agreement and all other Loan Documents shall remain unchanged and in
full force and effect.
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(b) The execution, delivery and effectiveness of this Waiver
shall not, except as expressly provided herein, operate as an amendment or
waiver of any right, power or remedy of any Lender or the Administrative Agent
under the Credit Agreement or any of the Loan Documents, nor constitute an
amendment or waiver of any provision of the Credit Agreement or any of the Loan
Documents.
(c) This Waiver is a Loan Document.
SECTION 7. TITLES. The Section titles contained in this Waiver
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
SECTION 8. EXECUTION IN COUNTERPARTS. This Waiver may be
executed and delivered in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which taken together shall constitute one
and the same original agreement.
SECTION 9. NOTICES. All communications and notices to the
Borrower and the Administrative Agent hereunder shall be given as provided in
the Credit Agreement.
SECTION 10. SEVERABILITY. If any term or provision set forth
in this Waiver shall be invalid or unenforceable, the remainder of this Waiver,
or the application of such term or provision to persons or circumstances, other
than those to which it is held unenforceable, shall not in any way be affected
or impaired thereby.
SECTION 11. SUCCESSORS. The terms of this Waiver shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors or assigns.
SECTION 12. GOVERNING LAW. This Waiver shall be interpreted,
and the rights and liabilities of the parties determined, in accordance with the
internal law of the State of New York.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
XXXXXX COMMUNICATIONS CORPORATION,
as Borrower
By:
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Name: Xxxxxx Xxxxxxxx, Xx.
Title: Senior Vice President, Chief Financial
Officer and Treasurer
CITICORP USA, INC.,
as Administrative Agent
By:
-----------------------------------------------
Name:
Title:
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ANNEX A
CONSENT, AGREEMENT AND AFFIRMATION OF GUARANTY
Each of the undersigned Subsidiary Guarantors hereby consents
to the terms of the foregoing Waiver in its capacity as a guarantor under the
Guaranty and agrees that the terms of the foregoing Waiver shall not affect in
any way its obligations and liabilities under its Guaranty, all of which
obligations and liabilities shall remain in full force and effect and each of
which is hereby reaffirmed.
On behalf of each of the Subsidiary Guarantors
under the Loan Documents
By:
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Name: Xxxxxx Xxxxxxxx, Xx.
Title: Vice President and Treasurer and,
with respect to America 51, L.P., Vice
President and Treasurer of its General and
Limited Partners
ANNEX B
ACKNOWLEDGMENT AND CONSENT
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx., Chief Financial Officer,
with a copy to Xxxxxxx X. Xxxxxxxx, Esq., Chief Legal Officer
Telecopy no: (000) 000-0000
Citicorp USA, Inc., as Administrative Agent
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Judge
Telecopy no: (000) 000-0000
RE: XXXXXX COMMUNICATIONS CORPORATION
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of July
12, 2001 (as amended, restated, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among Xxxxxx Communications Corporation, a
Delaware corporation (the "BORROWER"), the Lenders (as defined in the Credit
Agreement), Citicorp USA, Inc., as administrative agent for the Lenders and as
collateral agent for the Secured Parties under the Collateral Documents (in each
such capacity, the "ADMINISTRATIVE AGENT"), Union Bank of California, N.A., as
syndication agent for the Lenders, and CIBC, Inc. and General Electric Capital
Corporation, each as co-documentation agents for the Lenders. Unless otherwise
defined herein, capitalized terms used herein and defined in the Credit
Agreement are used herein as therein defined.
The Borrower has requested that the Lenders consent to a
waiver to the Credit Agreement on the terms described in the Waiver (the
"WAIVER"), a form of which is attached as EXHIBIT A hereto.
Pursuant to Section 11.1 of the Credit Agreement, the
undersigned Lender hereby consents to the waivers to the Credit Agreement
contained in the Waiver and authorizes the Administrative Agent to execute the
Waiver on its behalf.
Very truly yours,
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(NAME OF LENDER)
By:_______________________________
Name:
Title:
Dated as of March ___, 2003