EXHIBIT 10.1
WAIVER
WAIVER, dated as of April 30, 2001 (this "Waiver"), to the CREDIT
AGREEMENT, dated as of July 2, 1998 (as heretofore amended, supplemented or
otherwise modified, the "Credit Agreement"), among Teligent, Inc., a Delaware
corporation (the "Borrower"), the Lenders from time to time parties thereto,
Xxxxxxx Xxxxx Credit Partners L.P., as Syndication Agent, Toronto Dominion
(Texas), Inc., as Documentation Agent, and The Chase Manhattan Bank, as
Administrative Agent.
W I T N E S S E T H :
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WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed
to make, and have made, certain loans and other extensions of credit;
WHEREAS, pursuant to Section 5.12 and Section 5.13 of the Credit
Agreement, on or before April 30, 2001 the Borrower is obligated to deliver
executed documentation with respect to (1) the issuance of Convertible Notes
having an aggregate principal amount equal to or in excess of $100,000,000 and
(2) the establishment of one or more Optional Vendor Loan Tranches having an
aggregate principal amount equal to or in excess of $250,000,000 (together,
the "Additional Financing"); and
WHEREAS, the Borrower has informed the Lenders that it does not
expect to have Additional Financing in place by April 30, 2001 and has
requested that the Lenders waive, for a period of two weeks, any Default or
Event of Default resulting from the failure of the Borrower to implement the
Additional Financing;
NOW, THEREFORE, the Borrower, the Administrative Agent, and the
Required Lenders hereby agree as follows:
1. Defined Terms. Capitalized terms used herein without definition
shall have the meaning ascribed to such terms in the Credit Agreement.
2. Waiver. The Lenders hereby waive, but only until May 14, 2001,
any Default or Event of Default arising solely as a result of the failure of
the Borrower to comply with Sections 5.12 and 5.13 of the Credit Agreement;
provided, that the foregoing waiver shall terminate immediately if (a) the
Borrower shall fail to pay any interest on any Loan when due (without giving
effect to any grace period that may otherwise apply), (b) the Administrative
Agent has not received, by 10:00 A.M., May 7, 2001, a Certificate of a
Responsible Officer of the Borrower certifying the aggregate amount of cash
expenditures of the Borrower and its Restricted Subsidiaries for the period
from the close of business on April 27, 2001 to the open of business on May 7,
2001 (the "Week One Cash Expenditures"), (c) Week One Cash Expenditures exceed
$13,000,000, (d) the aggregate amount of cash expenditures of the Borrower and
its Restricted Subsidiaries for the period from the open of business on May 7,
2001 to the close of business on May 14, 2001 exceed the sum of (i)
$13,000,000 less Week One Cash Expenditures, plus (ii) $8,000,000, or (e) the
Borrower requests that the Collateral Agent make any transfer of funds or
investment property from the Collateral and Securities Account.
3. Conditions Precedent. Subject to the satisfaction of the
following conditions, this Waiver will become effective as of April 30, 2001
(the "Effective Date"):
(a) Waiver. The Administrative Agent shall have received
counterparts of this Waiver, duly executed by the Borrower, the
Administrative Agent and the Required Lenders.
(b) Cash Balance. (i) The Administrative Agent shall have received a
Certificate of a Responsible Officer of the Borrower certifying the
aggregate amount of cash and Cash Equivalents of the Borrower and its
Restricted Subsidiaries on deposit in the Collateral and Securities
Account, the Operating Accounts and any other account maintained with any
bank or other financial institution by or on behalf of the Borrower or
any of its Restricted Subsidiaries (x) as of close of business on April
20, 2001 (the "April 20 Cash Balance") and (y) as of close of business on
April 27, 2001 (the "April 27 Cash Balance").
(ii) The difference between the April 20 Cash Balance and the April
27 Cash Balance shall be less than $11,000,000.
(c) No Default or Event of Default. On and as of the Effective Date
after giving effect to this Waiver, no Default or Event of Default shall
have occurred and be continuing.
(d) Representations and Warranties. The representations and
warranties made by the Borrower in the Credit Agreement and the other
Loan Documents after giving effect to this Waiver shall be true and
correct in all material respects on and as of the Effective Date as if
made on such date, 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.
(e) Closing Certificate. The Administrative Agent shall have
received a Certificate of a Responsible Officer of the Borrower
certifying the matters referred to in paragraphs (c) and (d).
(f) Expenses. The Administrative Agent shall have received payment
for expenses for which invoices have been presented, including, without
limitation, all expenses required to be paid pursuant to Section 9.5 of
the Credit Agreement, on or before the date hereof.
4. 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, including, without limitation, any waiver of a Default
or Event of Default which may arise out of the Borrower's continuing failure
to comply with Section 5.12 or Section 5.13 of the Credit Agreement after May
14, 2001.
5. Binding Effect. This Waiver shall apply equally to each of the
Lenders parties to the Credit Agreement, and shall be binding upon the
Borrower, the Lenders, the Administrative Agent, the Arrangers, the
Documentation Agent, the Syndication Agent and all future holders of the
Notes.
6. Governing Law. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
7. Counterparts. This Waiver 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 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.
8. Headings. Section headings in this Waiver are included herein for
convenience of reference only and shall not constitute a part of this Waiver
for any other purpose.
[Remainder of this page left blank intentionally; Signature page to follow.]
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.
TELIGENT, INC.
By:/s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
and General Counsel
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: /s/ Xxx Xxxxxxxxx
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Name: Xxx Xxxxxxxxx
Title: Managing Director
JPMORGAN, a division of CHASE SECURITIES,
as an Arranger
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Managing Director
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as an Arranger, as Syndication Agent
and as a Lender
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
