EXHIBIT
10.38
WAIVER TO THE AGENCY
AGREEMENT
Dated as of October 7, 2004
|
|
Deutsche Bank
Trust Company Americas,
|
Deutsche Bank
AG London, by DB Advisors, L.L.C., as investment
advisor,
VantagePoint
Venture Partners III (Q), L.P.,
VantagePoint Venture Partners III,
L.P.,
VantagePoint Communications Partners,
L.P.,
VantagePoint Venture Partners 1996,
L.P.,
each, as an
Investor under the Agency Agreement referred to below
Ladies and
Gentlemen:
We refer to (a) the Agency, Guaranty and
Security Agreement dated as of July 18, 2003 (as amended or
otherwise modified prior to the date hereof, the “ Agency
Agreement ”), among us (the “ Company
”), certain of our subsidiaries party thereto as grantors
(the “ Grantors ”), Deutsche Bank Trust Company
Americas, as Administrative Agent (in such capacity, the "
Agent "), and each of you, as Investors thereunder, (b) the
Subordination Agreement dated the date hereof, among us, the Agent
and Laurus Master Funds Ltd. (“ Laurus ”)
pursuant to which you have agreed to subordinate your Liens on and
security interest in our accounts receivable and other assets (as
more specifically described therein), including our deposit account
with Fleet National Bank, Account No. 9429398649 (the “
Account ”), to those of Laurus, (c) the Deposit
Account Control Agreement in respect of the Account dated August
31, 2004 by and among, Company, Laurus and Fleet National Bank, (d)
the Deposit Account Control Agreement in respect of the Account
dated the date hereof by and among, the Company, the Agent and
Fleet National Bank (the “ Control Agreement ”)
and (e) the Security Agreement dated August 30, 2004 between Laurus
and the Company (the “ Security Agreement ”).
Capitalized terms not otherwise defined in this Waiver have the
same meanings as specified in the Agency Agreement.
1. We hereby request that
the Majority Investors waive the requirements of Section 12(d) of
the Agency Agreement (and any Event of Default existing on the date
hereof pursuant to paragraph (d) of the definition of “Event
of Default” in the Agency Agreement caused by the failure to
fulfill such requirements) with respect to the requirement that our
Deposit Accounts, specifically the Account, be maintained only with
the Agent or with Pledge Account Banks that have agreed, in a
record authenticated by the Company, the Agent and the Pledge
Account Banks, to comply with instructions originated by the Agent
directing disposition of funds in the Deposit Accounts without the
further consent of the Company.
2. Subject to Sections 3 and 4 hereof, by executing
this Waiver, the Majority Investors hereby agree that the waiver
requested in Section 1 hereof is hereby agreed to on, and subject
to, the terms and conditions of this Waiver.
3. In order to induce the Majority Investors to
enter into this Waiver, the Company hereby agrees to (a) establish
a segregated, non-interest bearing trust account with the Agent
titled “DSL.net, Inc. Proceeds Account” (the “
Proceeds Account ”) into which all of the proceeds of
any borrowings under the Security Agreement (the “
Proceeds ”) shall be paid, (b) irrevocably instruct
Laurus, in writing in a form acceptable to DB Advisors, L.L.C., as
advisor to Deutsche Bank AG London, and the Agent (the “
Instruction ”) and acknowledged by Laurus, to wire all
of the Proceeds directly to the Proceeds Account on the date of
each such borrowing in same day funds, and (c) withdraw funds from
the Proceeds Account only with the prior consent of DB Advisors,
L.L.C., as advisor to Deutsche Bank AG London, and the Agent in
such amounts and for such purposes as DB Advisors, L.L.C., as
advisor to Deutsche Bank AG London, and the Agent shall agree. The
Company hereby confirms and acknowledges that, notwithstanding any
agreement to the contrary, the Agent shall be under no obligation
to disburse funds from the Proceeds Account to it or any other
Person, except in acco
