RCN CORPORATION, as Issuer and HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee FIRST SUPPLEMENTAL INDENTURE Dated as of May 30, 2006
RCN
CORPORATION,
as
Issuer
and
HSBC
BANK USA, NATIONAL ASSOCIATION,
as
Trustee
Dated
as of May 30, 2006
7.375%
Convertible Second Lien Notes due 2012
THIS
FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”), dated as of
May 30, 2006, by and among RCN Corporation, a Delaware corporation (the
“Company”), and HSBC Bank USA, National Association, a national banking
association, as trustee (the “Trustee”), pursuant to the Indenture by and among
the Company and the Trustee dated as of December 21, 2004 (the
“Indenture”).
WHEREAS,
the holders of not less than a majority in aggregate principal amount of the
Notes outstanding have duly consented to the proposed amendments to the
Indenture set forth in this First Supplemental Indenture, in accordance with
the
provisions of Article IX and Section 11.2 of the Indenture;
WHEREAS,
in accordance with Section 11.5 of the Indenture, the Company has heretofore
delivered or is delivering contemporaneously herewith to the Trustee an
Officers' Certificate and an Opinion of Counsel, with respect to the execution
and delivery by the Trustee of this First Supplemental Indenture;
and
WHEREAS,
all conditions necessary to authorize the execution and delivery of this First
Supplemental Indenture and to make this First Supplemental Indenture valid
and
binding have been complied with or have been done or performed;
ARTICLE
I
Section
1.1 Definitions.
All
terms used herein and not otherwise defined herein shall have the respective
meanings assigned to them in the Indenture.
ARTICLE
II
Section
2.1 Amendments
to Definitions.
(a) Consolidated
EBITDA.
The
definition of “Consolidated EBITDA” set forth in Section 1.1 of the Indenture is
hereby amended by restating clause (vii) in its entirety as set forth
below:
“(vii)
(A) any non-cash, non-recurring charges and any non-cash charges associated
with
stock-based compensation and (B) any non-cash impairment, non-cash exit costs
(i.e., costs for exiting a facility) and non-cash restructuring
charges;”
(b) Excess
Cash Flow.
Section
1.1 of the Indenture is hereby amended to include the definition of “Excess Cash
Flow” set forth below:
“Excess
Cash Flow” shall have the meaning set forth in the First Lien Credit
Agreement.
(c) First-Lien
Credit Agreement.
The
definition of “First-Lien Credit Agreement” set forth in Section 1.1 of the
Indenture is hereby amended by adding a second sentence as set forth
below:
This
definition shall specifically include the First Lien Credit Agreement dated
as
of May 30, 2006 among the Company, the lenders party thereto from time to time
and Deutsche Bank Trust Company Americas, as administrative agent, and any
Refinancing thereof.
(d) First-Lien
Obligations.
The
definition of “First-Lien Obligations” set forth in Section 1.1 of the Indenture
is hereby amended by adding a second sentence as set forth below:
This
definition shall specifically include any Incremental Term Loans (as defined
in
the First-Lien Credit Agreement) under the First-Lien Credit Agreement so long
as all Indebtedness under the First-Lien Credit Agreement does not exceed the
Maximum First-Lien Credit Documents Principal Amount.
(e) Permitted
Indebtedness.
The
definition of “Permitted Indebtedness” set forth in Section 1.1 of the Indenture
is hereby amended by:
(i) replacing
clause (i) in its entirety as set forth below:
(i)
Indebtedness of the Company and/or any Restricted Subsidiary to the extent
it
represents a Refinancing of outstanding Indebtedness of the Company and/or
any
Restricted Subsidiary incurred or outstanding pursuant to clause (a), or (b),
of
this definition or the proviso of Section 5.11 hereof, provided that (1)
Indebtedness of the Company may not be Refinanced to such extent under this
clause (i) with Indebtedness of any Restricted Subsidiary, and (2) any such
Refinancing shall only be permitted under this clause (i) to the extent that
(x)
it does not result in a lower Average Life to Stated Maturity of such
Indebtedness as compared with the Indebtedness being Refinanced and (y) it
does
not exceed the sum of the principal amount (or, if such Indebtedness provides
for a lesser amount to be due and payable upon a declaration of acceleration
thereof, an amount no greater than such lesser amount) of the Indebtedness
being
Refinanced plus the amount of accrued interest thereon and the amount of any
reasonably determined prepayment premium necessary to accomplish such
Refinancing and such reasonable fees and expenses incurred in connection
therewith;
(ii) replacing
clause (l) in its entirety as set forth below:
2
(l)
Subordinated Indebtedness of the Company (which Indebtedness may in no event
be
guaranteed by, or secured by the assets of, any Subsidiary of the Company)
in an
aggregate original principal amount not to exceed $100,000,000 plus any increase
in the principal amount thereof resulting from the payment-in-kind or
capitalization of interest accruing thereon as contemplated by the terms
thereof;
(iii) inserting
a new clause (m) in its entirety as set forth below:
(m)
Indebtedness incurred pursuant to an accounts receivable securitization facility
in an aggregate principal amount not to exceed $50,000,000; and
;
and
(iv) inserting
a new clause (n) in its entirety as set forth below:
(n)
in
addition to the items referred to in clauses (a) through (m) above, Indebtedness
of the Company and/or the Restricted Subsidiaries having an aggregate principal
amount not to exceed $25,000,000 at any time outstanding.
(f) Refinancing.
The
definition of “Refinancing” set forth in Section 1.1 of the Indenture is hereby
amended and restated in its entirety as set forth below:
“Refinancing”
means, in respect of any Indebtedness, the refinancing, extension, renewal,
defeasance, amendment, modification, supplementation, restructuring,
replacement, refund or repayment, or issuance of other Indebtedness, in exchange
or replacement for, such Indebtedness. “Refinance” and “Refinanced” shall have
correlative meanings.
(g) Restricted
Payment.
The
definition of “Restricted Payment” set forth in Section 1.1 of the Indenture is
hereby amended by restating clause (iii) in its entirety as set forth
below:
(iii)
the
purchase, redemption, defeasance or other acquisition or retirement for value
prior to any scheduled repayment, sinking fund or maturity of any Subordinated
Indebtedness (other than (x) any Third-Lien Obligation held by any Person,
or
(y) any Subordinated Indebtedness held by the Company or a Wholly Owned
Restricted Subsidiary);
Section
2.2 Amendments
to Covenants.
(a) Limitation
on Restricted Payments.
Section
5.13 of the Indenture is hereby amended as set forth below:
(i) amending
and restating clause (iii) in its entirety as follows:
(iii) immediately
after giving effect to such Restricted Payment, the aggregate amount of all
Restricted Payments declared or made on or after May 30, 2006 and all
Designation Amounts does not exceed an amount equal to the lesser of (a) 50%
of
the cumulative Excess Cash Flow accrued on a cumulative basis during the period
beginning on January 1, 2006 and ending on the last day of the fiscal quarter
of
the Company immediately preceding the date of such proposed Restricted Payment,
and (b) $100,000,000.
3
(ii) in
clause
(d), replacing “$10,000,000” with “$30,000,000”;
(iii) deleting
the word “or” at the end of clause (e);
(iv) inserting
the word “or” at the end of clause (f); and
(v) inserting
a new clause (g) in its entirety as set forth below:
(g)
in
addition to the items referred to in clauses (a) through (f) above, so long
as
no Default shall have occurred and be continuing, Restricted Payments in an
aggregate amount not to exceed $15,000,000.
(b) Limitation
on Certain Guarantees and Indebtedness of Restricted Subsidiaries; Domestic
Restricted Subsidiaries to Become Guarantors and Provide
Collateral.
Section
5.18(d) of the Indenture is hereby amended as set forth below:
(i) amending
and restating the first clause of Section 5.18(d) in its entirety as
follows:
(d)
The
Company will, and will cause each Domestic Restricted Subsidiary to, grant
to
the Collateral Agent for the benefit of the Noteholders security interests
and
Mortgages in such assets, properties and owned real properties of the Company
and the Domestic Restricted Subsidiaries having a fair market value (certified
and identified by the Company in an Officers’ Certificate) in excess of
$5,000,000 as may be reasonably requested pursuant to the terms of the
First-Lien Documents and, after the date of Discharge of First-Lien Obligations,
by the Trustee (collectively, the “Additional Security Documents”);
(ii) adding
the following sentence at the end of Section 5.18(d):
Promptly
after May 30, 2006, the Trustee acting at the direction of the Company shall
instruct the Collateral Agent to release existing Mortgages in such assets,
properties and owned real properties of the Company and the Domestic Restricted
Subsidiaries having a fair market value (certified and identified by the Company
in an Officers’ Certificate) less than $5,000,000 at the Company’s
expense.
Section
2.3 Amendments
to Miscellaneous Provisions.
(a) Addresses
for Notices, Etc.
The
notice information for the Company or any Guarantor included in Section 16.3
of
the Indenture is hereby amended and restated as set forth below:
If
to the
Company or any Guarantor:
RCN
Corporation
000
Xxx
Xxxxx Xxxxxx, Xxxxx 000
Herndon,
VA 20170
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
General Counsel
4
ARTICLE
III
Section
3.1 Except
as
amended hereby, all of the terms of the Indenture shall remain and continue
in
full force and effect and are hereby confirmed in all respects.
Section
3.2 This
First Supplemental Indenture and each and every provision hereof shall be deemed
to be a contract made under the laws of the State of New York and for all
purposes shall be construed in accordance with the laws of such
State.
Section
3.3 This
First Supplemental Indenture may be executed in any number of counterparts,
each
of which shall be an original; but such counterparts shall constitute but one
and the same instrument.
Section
3.4 In
entering into this First Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture relating to the conduct
or
affecting the liability of or affording protection to the Trustee, whether
or
not elsewhere herein so provided.
Section
3.5 Promptly
after the effective date of this First Supplemental Indenture, (1) all existing
deposit account control agreements to which the Collateral Agent is a party
with
the Company or any of its Subsidiaries shall be terminated and the Trustee
(at
the written direction of the First Lien Collateral Agent and the Company) shall
direct the Collateral Agent to execute such documents as the First Lien
Collateral Agent may request to evidence such termination, all at the sole
cost
and expense of the Company and (2) Trustee (at the written direction of the
First Lien Collateral Agent and the Company) shall direct the Collateral Agent
to enter into new deposit account control agreements in order to perfect the
security interests of the First-Lien Administrative Agent under the Credit
Agreement dated as of May 30, 2006, among the Company, the lenders party thereto
from time to time and Deutsche Bank Trust Company Americas, as Administrative
Agent for such lenders, and the Collateral Agent in bank accounts of the Company
and its Subsidiaries.
Section
3.6 The
recitals contained herein shall be taken as the statement of the Company and
the
Trustee assumes no responsibility for their correctness. The Trustee makes
no
representations as to the validity or sufficiency of this First Supplemental
Indenture.
[Signature
page follows]
5
RCN
CORPORATION
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Executive
Vice President and
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Chief
Financial Officer
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Attest:
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By:
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/s/
Xxxxxxxx X. Xxxxxxx
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Name:
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Xxxxxxxx
X. Xxxxxxx
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Title:
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Secretary
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HSBC
BANK USA, NATIONAL ASSOCIATION, as Trustee
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By:
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/s/
Xxxxxxx X. Xxxxxxxx, Xx.
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Name:
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Xxxxxxx
X. Xxxxxxxx, Xx.
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Title:
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Vice
President
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[SIGNATURE
PAGE TO FIRST SUPPLEMENTAL INDENTURE]