Exhibit 10.27
WAIVER AGREEMENT NO. 1
TO
SECOND AMENDED AND RESTATED
LOAN AND
SECURITY AGREEMENT
THIS WAIVER AGREEMENT NO. 1 dated as of December 31, 1999 (the "Waiver
Agreement No. 1), to the Loan and Security Agreement dated as of October 22,
1999 (as may be further amended, supplemented, amended and restated or otherwise
modified from time to time, the "Loan Agreement"), is among Broadview Networks
Holdings, Inc., a Delaware corporation ("BNH"), Broadview Networks, Inc., a Now
York corporation, and Broadview Networks of Massachusetts, Inc., a Delaware
corporation, each with its principal place of business at 00-00 Xxxxx Xxxxxx,
Xxx. 000, Xxxx Xxxxxx Xxxx, XX 00000, and the Subsidiaries of BNH which
subsequently become a party to the Loan Agreement pursuant to Section 2.11 of
the Loan Agreement (individually a "Borrower" and collectively the "Borrowers"),
and NTFC Capital Corporation, a Delaware corporation (the "Lender").
WITNESSETH:
WHEREAS, the Borrowers have requested that certain provisions of the Loan
Agreement be waived in certain respects as set forth herein; and
WHEREAS, the Lender is willing to waive such provisions of the Loan
Agreement and to take or permit the taking of certain actions as set forth
herein, but only on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, capitalized terms used in this Waiver Agreement
No. 1, including its preamble and recitals, have the meanings
provided in the Loan Agreement.
ARTICLE II
WAIVER OF LOAN AGREEMENT
AS OF THE WAIVER EFFECTIVE DATE
Effective on (and subject to the occurrence of) the Waiver Effective Date,
the provisions of the Loan Agreement referred to below are hereby waived in
accordance with this Article II. Except as expressly so waived, the Loan
Agreement shall continue in full force and effect in accordance with its terms.
SECTION 2.1. Limited Waiver of Article VII (Covenants). ArticIe VII of the
Loan Agreement is hereby waived to the extent, but only to the extent, necessary
so that the Borrower's obligation to comply with the financial covenant of a
minimum Fixed Charge Coverage Ratio set forth in Schedule 7.15 of the Loan
Agreement is hereby waived for the period measured ending December 31,1999.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.1. Waiver Effective Date. This Waiver Agreement No. 1 shall
become effective as of the date fist above written (the "Waiver Effective
Date"), when all of the conditions set forth in Sections 3.1.1 through 3.1.2
shall have been satisfied:
SECTION 3.1.1. Execution of Counterparts. The Lender Shall have received
counterparts of this Waiver Agreement No. 1 duly executed by each Borrower and
the Lender.
SECTION 3.1.2. Compliance with Warranties; No Default etc. The Lender
shall have received from a Responsible Officer of BNH a certificate, dated the
date first above written, stating that
(a) the representations and warranties of the Borrowers set forth
in the Loan Agreement and the representations and warranties of
the Borrowers set forth in each of the other Loan Documents, in
each case as waived in accordance herewith, are true and correct
in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case
such representations and warranties were true and correct as of
such earlier date); and
(b) no Default or Event of Default has occurred and is
continuing.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Cross References. References in this Waiver Agreement No. 1 to
any article or section are, unless otherwise specified, to such article or
section of this Waiver Agreement No. 1.
SECTION 4.2. Instrument Pursuant to Loan Agreement. This Waiver Agreement
No. 1 is a Loan Document executed pursuant to the Loan Agreement and shall
(unless otherwise expressly indicated therein) be construed, administered, and
applied in accordance with all of the terms and provisions of the Loan
Agreement. Except to the extent otherwise provided in the Loan Agreement, this
First Amendment shall be governed by and construed in accordance with the laws
of the State of New York. Any term or provision of and any waiver effected by
this Waiver Agreement No. 1 may be modified in any manner by an instrument in
writing executed by the Borrowers and the Lender. Except as expressly waived
hereby, all of the representations, warranties, terms, covenants and conditions
of the Loan Agreement shall remain unmodified and unwaived. The waivers set
forth herein shall be limited precisely as provided for herein to the provisions
expressly waived herein and shall not be deemed to be a waiver of, amendment of,
consent to or modification of any other term or provision of any other Loan
Document or of any transaction or further or future action on the part of any
Borrower which could require the consent of the Lender under the Loan Agreement.
SECTION 4.3. Successors and Assigns. This Waiver Agreement No. 1 shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 4.4. Counteparts. This Waiver Agreement No. 1 may be executed by
the parties hereto in several counterparts which shall be executed by the
Borrowers and the Lender, as the case may be, all of which shall be deemed to be
an original and which shall constitute together but one and the same agreement.
SECTION 4.5. Event of Default. It is understood and agreed that any breach
of any representation or warranty or covenant contained herein shall constitute
an Event of Default.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver Agreement
No. 1 to be executed by the respective officers hereunder duly authorized as of
the day and year first above written.
BROADVIEW NETWORKS HOLDINGS,
INC.
BY: /s/ Xxxxxxxx X. Xxxxxxxx
TITLE: Executive Vice President - Finance
BROADVIEW NETWORKS INC.
BY: /s/ Xxxxxxxx X. Xxxxxxxx
TITLE: Executive Vice President
BROADVIEW NETWORKS OF
MASSACHUSETTES, INC.
BY: /s/ Xxxxxxxx X. Xxxxxxxx
TITLE: Executive Vice President -
Finance
LENDER:
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NTFC CAPITAL CORPORATION
BY: /s/ Xxxxx Xxxx
TITLE: Vice President - Portfolio Mgr.