Exhibit 10.37
WAIVER
WAIVER, dated as of March 20, 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 from time to time party
thereto (collectively, the "LENDERS") and First Union National Bank, in its
capacity as 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, the Borrower has requested that the Lenders waive
until April 15, 2002 any Defaults or Events of Default that have occurred and
are continuing under the Credit Agreement; 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, (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 15, 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, request a borrowing of any Loan or the issuance of any
Letter of Credit, and that the Lenders shall have no obligation to make any such
Loan 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. (a) 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.
(b) The Borrower further represents and warrants that the Borrower and
the other Loan Parties are truly and justly indebted to the Administrative Agent
and the Lenders pursuant to the Loan Documents, without defense, counterclaim or
offset of any kind.
5. 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 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.
6. 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.
7. GUARANTORS. Each Loan Party party to a Guarantee
acknowledges and consents to all of the terms and conditions of this Waiver and
agrees that this Waiver does not
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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.
8. 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.
9. 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.
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Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
VELOCITA CORP.
By: /s/ XXXXX X. XXXXXX, XX.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: Chief Executive Officer
XX.XXX CONSTRUCTION CORP.
By: /s/ W. XXXXXXX XXXXXXXXX XX.
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Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX SUPPLY CORP.
By: /s/ W. XXXXXXX XXXXXXXXX XX.
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Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX NETWORK SERVICES CORP.
By: /s/ W. XXXXXXX XXXXXXXXX XX.
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Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX PROPERTY CORP.
By: /s/ W. XXXXXXX XXXXXXXXX XX.
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Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX VIRGINIA CORP.
By: /s/ W. XXXXXXX XXXXXXXXX XX.
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Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
XX.XXX VIRGINIA, LLC
By: /s/ W. XXXXXXX XXXXXXXXX XX.
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Name: W. Xxxxxxx Xxxxxxxxx Xx.
Title: Vice President
FIRST UNION NATIONAL BANK,
as Administrative Agent and as a Lender
By: /s/ X. X. XXXXXXX
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Name: X. X. Xxxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A.
By: /s/ XXXXXXX HONEY
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Name: Xxxxxxx Honey
Title: Vice President
BANKERS TRUST COMPANY
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: Director
CISCO SYSTEMS CAPITAL CORPORATION
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Credit Officer
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By: /s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Associate Director
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
Title: Associate Director
