exv10w1



 





Exhibit 10.1




XO COMMUNICATIONS, LLC




WAIVER

WITH RESPECT TO

AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT




          This Waiver (the “Waiver”), dated as of March 13, 2008, with respect to the Amended
and Restated Credit and Guaranty Agreement, dated as of January 16, 2003 (as amended, supplemented
or otherwise modified, through the date hereof, and as it may be further amended, supplemented or
otherwise modified, the “Credit Agreement”), by and among XO Communications, LLC, a
Delaware limited liability company (the “Company,” as successor by merger to XO
Communications, Inc., a Delaware corporation), certain affiliates and subsidiaries of the Company,
as Guarantors, the Lenders party thereto from time to time and Mizuho Corporate Bank, Ltd., as
administrative agent (the “Administrative Agent”).




RECITALS




          A. Capitalized terms used herein without definition shall have the same meanings herein as set
forth in the Credit Agreement.





          B. Pursuant to Section 10.5 of the
Credit Agreement, the Requisite Lenders have the right to
waive certain provisions of the Credit Documents or consent to
certain departures 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.





          C.
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.





          D. The Company anticipates entering into a
certain Note Purchase Agreement (the
“Agreement”), dated as of March 13, 2008, by and among XO Communications, LLC and the
purchasers listed in Schedule A of the Agreement (the “Purchasers”), and, in connection
therewith, XO Holdings, Inc. and certain of its subsidiaries (collectively, the “Note
Guarantors”) anticipate entering into a guaranty agreement (the “Note Guaranty”),
guaranteeing the Company’s obligations under the Agreement and the notes issued pursuant thereto
(the “Notes” and, together with the Agreement and the Note Guaranty, the “Note Purchase
Documents”).





          E. In connection with the transactions described above, the Company
has requested that the
undersigned waive compliance by the Company and the Note Guarantors with certain of the
provisions of the Credit Agreement.





          F. The undersigned desire to (i) waive compliance by the Company and the Note Guarantors
with the provisions of Sections 6.1 and 6.4 of the Credit Agreement on the terms set forth herein
and (ii) waive any right the undersigned may have to declare the occurrence of an Event of Default under Section 8.1(b) of the Credit Agreement under the
circumstances set forth herein.



 









 






          NOW THEREFORE, in consideration of the promises and the mutual covenants and agreement herein
contained, the parties hereto hereby agree as follows:




WAIVER





          1. Effective as of the date of this Waiver, the undersigned hereby waive compliance by
the Company and the Note Guarantors with the requirements of Sections 6.1 and 6.4 of the Credit
Agreement in so far as any such requirement would prevent, limit or otherwise alter the Company’s
or such Note Guarantor’s ability to enter into, perform its obligations under or consummate the
transactions contemplated by, the Agreement and the other Note Purchase Documents (including, but
not limited to, the Company’s or such Note Guarantor’s ability to make any prepayment of any amount
due pursuant to the Agreement or any other Note Purchase Document).




          2.
Effective as of the date of this Waiver, the undersigned hereby agree that the
failure of the Company or any Note Guarantor to pay when due any principal of or interest on any
Note issued pursuant to the Agreement or any other amount payable in respect of any Note Purchase
Document shall not constitute an Event of Default under Section 8.1(b) of the Credit Agreement
until or unless any Purchaser shall have declared any of the Notes then outstanding and held by it
to be due and payable (and such declaration has not been rescinded or annulled pursuant to the
terms of the Agreement).




          3. Except as expressly provided herein, (a) the execution, delivery and performance of this
Waiver shall not constitute a waiver of any provision of, or operate as a waiver of any right,
power or remedy of the Administrative Agent or any Lender under the Credit Agreement or any other
Credit Document and (b) the Credit Agreement and the other Credit Documents shall remain in full
force and effect and are hereby ratified and confirmed.




          4. This Waiver and the rights and obligations of the parties hereunder shall be governed by,
and shall be construed and enforced in accordance with, the internal laws of the State of New York.




          5. This Waiver may be executed in any number of counterparts and by different parties hereto
in separate 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; signature
pages may be detached from multiple separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same document.




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          IN WITNESS WHEREOF,
Arnos Corp. has caused this
Waiver to be duly executed and delivered by its respective officers thereunto duly authorized as of
the date first written above.




	 	 	 	 	 
	 	LENDER:



ARNOS CORP.

 	 
	 	By:  	/s/
Keith Cozza	 
	 	 	Name:  	Keith Cozza	 
	 	 	Title:  	Authorized Signatory	 
	 
	 	Agreed and acknowledged:



XO COMMUNICATIONS, LLC

 	 
	 	By:  	
/s/ Gregory W. Freiberg	 
	 	 	Name:  	Gregory W. Freiberg 	 
	 	 	Title:  	Chief Financial Officer 	 
	 




 









 





	 	 	 	 	 	 	 
	 

	 	GUARANTORS:
	 	 
	 
	 	 	 	 	 	 
	 	 	XO HOLDINGS, INC.

NEXTLINK WIRELESS, INC.

TELECOMMUNICATIONS OF NEVADA, LLC

V&K HOLDINGS, INC.

XO ASIA LIMITED

XO COMMUNICATIONS SERVICES, INC.

XO INTERACTIVE, INC.

XO INTERNATIONAL HOLDINGS, INC.

XO INTERNATIONAL, INC.

XO NEVADA MERGER SUB, INC.

XO NS, INC.

XO SERVICES, INC.

XO VIRGINIA, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Gregory W. Freiberg	 	 
	 

	 	 	 	 

Name: Gregory W. Freiberg
	 	 
	 

	 	 	 	 Title: Chief Financial Officer