Exhibit 10.1
AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
AMENDMENT, dated as of June 11, 2002 (this "AMENDMENT"), to the Credit
and Guaranty Agreement, dated as of February 3,2000 (such agreement as amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
by and among XO COMMUNICATIONS, INC. (formerly, NEXTLINK Communications, Inc.),
a Delaware corporation (the "COMPANY"), CERTAIN SUBSIDIARIES OF THE COMPANY, as
Guarantors, VARIOUS LENDERS (each individually referred to herein as a "LENDER"
and collectively as the "LENDERS", TORONTO DOMINION (TEXAS), INC., as
Administrative Agent (in such capacity, "ADMINISTRATIVE AGENT"), BARCLAYS BANK
PLC and JPMORGAN CHASE BANK (formerly known as The Chase Manhattan Bank), as
Co-Documentation Agents (in such capacity, each a "CO-DOCUMENTATION AGENT"),
XXXXXXX XXXXX CREDIT PARTNERS L.P. ("GSCP") and TD SECURITIES (USA) INC., as Co-
Lead Arrangers, and GSCP, as Syndication Agent (in such capacity, "SYNDICATION
AGENT").
RECITALS:
WHEREAS, the terms used herein, including in the preamble and recitals
hereto, not otherwise defined herein or otherwise amended hereby shall have the
meanings ascribed thereto in the Credit Agreement;
WHEREAS, the Lenders and Company are working toward a reorganization of
Company and are seeking to protect the interests of the Lenders, as a group,
from other parties who may seek to purchase interests under the Credit Agreement
or in the Notes or the legal or beneficial interests thereunder in order to
pursue actions inconsistent with the interests of the Lenders; and
WHEREAS, Company has requested that the Lenders, subject to and upon
the terms and conditions set forth herein to amend the Credit Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, each of Company's
Subsidiaries party hereto, the Requisite Lenders and Agents party hereto agree
as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
Subject to the conditions set forth in Section 2 of this Amendment, the
provisions set forth in this Section 1 shall remain in effect until the earlier
of (i) September 15, 2002 and (ii) the date which Requisite Lenders consent to
the rescission of such provisions, which such rescission shall not require the
consent of the Company.
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a. Section 10.6(c) of the Credit Agreement is hereby amended by
amending and restating the leadin sentence therein in its
entirety as follows:
"(c) Upon receipt of the prior written consent of Requisite
Lenders, each Lender shall have the right to sell, assign or
transfer all or a portion of its rights and obligations under
this Agreement, including, without limitation, all or a
portion of its Commitment or Loans owing to it, Note or Notes
held by it, or other Obligation (PROVIDED, HOWEVER, that each
such assignment shall be of a uniform, and not varying,
percentage of all rights and obligations under and in respect
of every Loan and its related Commitments):"
b. Section 10.6(h) of the Credit Agreement is hereby amended by
amending and restating the first sentence therein in its
entirety as follows:
"(h) Upon receipt of the prior written consent of Requisite
Lenders, each Lender shall have the right to sell one or more
participations to any Person (other than Company, any of its
Subsidiaries or any of its Affiliates) in all or any part of
its Commitments, Loans or in any other Obligation."
c. Section 10.6 of the Credit Agreement is hereby amended by
adding the following new Section 10.6(j) at the end of Section
10.6:
"(j) Without receiving the prior written consent of the
Requisite Lenders in each case, no Lender shall nor shall any
Lender agree to, directly or indirectly, sell, assign,
transfer or otherwise grant any interest however designated in
any of its economic rights or any other interests it may have
with respect to its rights and obligations under this
Agreement, including, without limitation, all or a portion of
Loans owing to it, Note or Notes held by it, or other
Obligations, to any Person."
SECTION 2. CONDITIONS PRECEDENT
The provisions set forth in Section 1 hereof shall be effective as of
the date (the "AMENDMENT EFFECTIVE DATE") on which Administrative Agent shall
have received sufficient copies of this Amendment, originally executed and
delivered by each applicable Credit Party and the Requisite Lenders.
Upon the occurrence of the Amendment Effective Date, the Credit
Agreement as amended by Section 1 hereof and all references in any other Credit
Document to the Credit Agreement shall be a reference to such Agreement as
modified pursuant to Section 1.
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SECTION 3. MISCELLANEOUS
a. Except as specifically amended and waived by this Amendment,
the Credit Agreement and the other Credit Documents shall
remain in full force and effect and are hereby ratified and
confirmed.
b. The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any
right, power or remedy of any Lender or Agent under, the
Credit Agreement or any of the other Credit Documents.
c. This Amendment shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns
of Lenders. No Credit Party's rights or obligations hereunder
or any interest therein may be assigned or delegated by any
Credit Party without the prior written consent of all Lenders.
d. In case any provision in or obligation hereunder shall be
invalid, illegal or un-enforceable in any jurisdiction, the
validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation
in any other jurisdiction, shall not in any way be affected or
impaired thereby.
e. Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
f. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
g. This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed
an original, but all such counterparts together shall
constitute but one and the same instrument.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
XO COMMUNICATIONS, INC.
By: /s/ Xxxxxx Beams
-----------------------------------
Name: Xxxxxx Beams
Title: VP & Treasurer
GUARANTORS
XO ALABAMA, INC.
XO ARIZONA, INC.
XO CALIFORNIA, INC.
XO CAPITAL, INC.
XO COLORADO, LLC
XO CONNECTICUT, INC.
XO DELAWARE, INC.
XO D.C., INC.
XO FLORIDA, INC.
XO GEORGIA, INC.
XO HAWAII, INC.
XO IDAHO, INC.
XO ILLINOIS, INC.
XO INDIANA, INC.
XO INTERCITY HOLDINGS NO. 1, LLC
XO INTERCITY HOLDINGS NO. 2, LLC
XO KANSAS, INC.
XO KENTUCKY, INC.
XO LMDS HOLDINGS NO. 1, INC.
XO LOUISIANA, INC.
XO MAINE, INC.
XO MANAGEMENT SERVICES, INC.
XO MANAGEMENT SERVICES NEVADA, INC.
XO MARYLAND, LLC
XO MASSACHUSETTS, INC.
XO MICHIGAN, INC.
XO MINNESOTA, LLC
XO MISSISSIPPI, INC.
XO MISSOURI, INC.
XO NEW HAMPSHIRE, INC.
XO NEW JERSEY, INC.
XO NEW MEXICO, INC.
By: /s/ Xxxxxx Beams
------------------------------------
Name: Xxxxxx Beams
Title: VP & Treasurer
GUARANTORS
(CONTINUED)
XO NEW YORK, INC.
XO NORTH CAROLINA, INC.
XO OHIO, INC.
XO OREGON, INC.
XO PENNSYLVANIA, INC.
XO RHODE ISLAND, INC.
XO SOUTH CAROLINA, INC.
XO TENNESSEE, INC.
XO TEXAS, INC.
XO UTAH, INC.
XO VIRGINIA, LLC
XO WASHINGTON, INC.
XO WEST VIRGINIA, INC.
XO WISCONSIN, INC.
By: /s/ Xxxxxx Beams
------------------------------------
Name: Xxxxxx Beams
Title: VP & Treasurer
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LENDERS:
Bank of America, N. A.
Amount of Claim: $63,490,000
By: /s/ X.x. Xxxxxxxx
--------------------------------
Name: X.X. Xxxxxxxx
Title: Managing Director
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LENDERS:
Barclays Bank PLC
Amount of Claim: $62,500,000 plus interest
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
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LENDERS:
Credit Lyonnais New York Branch
Amount of Claim: $35,000,000 plus accrued interest
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: VP
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LENDERS:
Credit Suisse First Boston
Amount of Claim: $27,000,000
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxx Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx Xxxxx Xxxxxx
Title: Director Director
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LENDERS:
Deutsche Bank Trust Company Americas
Amount of Claim: $50,000,000.00
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Director
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LENDERS:
Export Development Canada
Amount of Claim: $25,000,000
----------
By: /s/ Xxxxx Xxxxxx /s/ X. Xxxxxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxx X. Xxxxxxxxx
Title: Portfolio Manager Assistant Manager
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LENDERS:
Fleet National Bank
Amount of Claim: $33,400,000.00
-------------
By: /s/ Xxx X. Xxxxxxxx
--------------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
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LENDERS:
XX Xxxxxx Xxxxx
Amount of Claim: $97,500,000
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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LENDERS:
THE BANK OF NOVA SCOTIA
Amount of Claim: $50,000,000
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
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LENDERS:
Toronto Dominion (Texas), Inc.
Amount of Claim: $62,500,000
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
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