Exhibit 10.3
AMENDMENT NO. 2 AND WAIVER TO
AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
dated
as of May 9, 2008
among
XO
COMMUNICATIONS, LLC
and
the
GUARANTORS listed on the signature pages hereof
and
ARNOS
CORP., as a Lender
and
BARBERRY CORP., as a Lender
and
HIGH
RIVER LIMITED PARTNERSHIP, as a Lender
AMENDMENT NO. 2 AND WAIVER TO AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
This AMENDMENT NO. 2 AND WAIVER TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT (this
“Amendment No. 2 and Waiver” ), dated as of
May 9, 2008, is made by and among XO Communications, LLC (the
“Company”), certain guarantors signatory hereto
(the “Guarantors”) and Arnos Corp., Barberry
Corp. and High River Limited Partnership, each as a Lender.
WITNESSETH:
WHEREAS, the Company (as
successor-by-merger to XO Communications, Inc.), the Guarantors,
certain lenders party thereto and the administrative agent named
therein (the “Administrative Agent”) entered
into an Amended and Restated Credit and Guaranty Agreement, dated
as of January 16, 2003 (as amended, supplemented or otherwise
modified as of the date hereof, the “Original Credit
Agreement”, as further amended by this Amendment
No. 2 and Waiver and as the same may be further amended,
supplemented or otherwise modified from time to time in accordance
with its terms, the “Credit Agreement” );
WHEREAS, pursuant to that certain
Final Judgment and Order entered by the Court of Chancery of the
State of Delaware on March 31, 2008 approving the Stipulation
and Agreement of Compromise, Settlement and Release, dated as of
January 14, 2008 (the “Stipulation”),
providing for a global settlement of litigation initiated by
certain of the Company’s minority stockholders against the
Company and certain of its current and former directors, the
parties thereto have agreed that (i) as of the effective date of
the Stipulation, the financial covenants set forth in
Section 6.6 of the Credit Agreement shall be waived through
July 15, 2009, and any existing default of any financial
covenant set forth in such section shall be deemed waived and
(ii) effective as of January 1, 2008, the interest
accruing on each of the Tranche A Lender’s (as such term is
defined below) Term Loan shall be reduced by one hundred fifty
(150) basis points;
WHEREAS, pursuant to
Section 10.5 of the Credit Agreement, the Requisite Lenders
have the right to waive any provision of the Credit Documents or
consent to any departure of any Credit Party therefrom or may take
any action contemplated in the Credit Documents and such waiver
shall be effective upon the written concurrence of the Requisite
Lenders;
WHEREAS, under Section 1.1 of
the Credit Agreement, “Requisite Lenders” means one or
more Lenders having or holding Term Loan Exposure representing more
than 50% of the aggregate Term Loan Exposure of all Lenders.
WHEREAS, the undersigned desires to
waive compliance by the Company with the requirements of
Section 6.6 of the Credit Agreement on the terms and for the
periods set forth herein.
WHEREAS, the parties hereto desire to
amend the Original Credit Agreement in certain respects in
accordance with Section 10.5 thereof;
NOW, THEREFORE, in consideration of
the mutual agreements herein contained and of other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions .
Except as otherwise defined in this Amendment No. 2 and
Waiver, terms defined in Section 1.1 of the Original Credit
Agreement are used herein as defined therein, with such definitions
applying to terms that are used without definition in the recitals
to this Amendment No. 2 and Waiver.
ARTICLE II
WAIVER
OF SECTION
