CONFORMED COPY
FOURTH AMENDMENT
FOURTH AMENDMENT dated as of March 22, 2002 (this
"Amendment"), to the Credit Agreement, dated as of June 3, 1999, as amended
(as so amended, the "Credit Agreement"), among RCN CORPORATION, (the
"Company"), RCN TELECOM SERVICES OF PENNSYLVANIA, INC. (now known as RCN
Telecom Services, Inc.), RCN CABLE SYSTEMS, INC. (now known as RCN Telecom
Services, Inc.), JAVANET, INC. (now known as UNET Holding, Inc.), RCN
FINANCIAL MANAGEMENT, INC., UNET HOLDING, INC., INTERPORT COMMUNICATIONS
CORP. (now known as UNET Holding, Inc.) and ENET HOLDING, INC. (now known
as RCN Internet Services, Inc.) (collectively, the "Borrowers"), the
LENDERS party thereto, and JPMORGAN CHASE BANK, formerly known as THE CHASE
MANHATTAN BANK, as Administrative Agent and Collateral Agent.
WHEREAS pursuant to the Credit Agreement, the Lenders
have agreed to make certain loans to the Borrowers; and
WHEREAS the Company and the Borrowers have requested that
certain provisions of the Credit Agreement be modified in the manner
provided for in this Amendment, and the Lenders are willing to agree to
such modifications as provided for in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. Defined Terms. Capitalized terms used and not defined
herein shall have the meanings given to them in the Credit Agreement, as
amended hereby.
2. Amendments to Section 1.01.
(a) Section 1.01 of the Credit Agreement is hereby
amended as follows:
(i) the definition of "Applicable Spread" is hereby
amended by (x) deleting clause (a) of the first sentence thereof
and replacing such clause with "(a) with respect to any Tranche B
Term Loan, (i) 3.00% per annum, in the case of an ABR Loan, or
(ii) 4.00% per annum, in the case of a Eurodollar Loan," and (y)
deleting in its entirety the table set forth therein and inserting
in its place the following table:
Debt Ratio: ABR Spread Eurodollar Spread
----------- ---------- -----------------
Category 1
----------
Greater than 10.0 to 1 2.50% 3.50%
Category 2
----------
Less than or equal to 10.0 to 1
but greater than 8.0 to1 2.25% 3.25%
Category 3
----------
Less than or equal to 8.0 to1
but greater than 6.0 to1 2.00% 3.00%
Category 4
----------
Less than or equal to 6.0 to 1
but greater than 5.0 to 1 1.75% 2.75%
Category 5
----------
Less than or equal to 5.0 to 1 1.50% 2.50%
(ii) the definition of the term "Applicable Rate" is
hereby amended by deleting such definition in its entirety and
replacing such definition with the following:
"Applicable Rate" means, with respect to the
commitment fee payable pursuant to Section 2.12(a), a
rate per annum equal to 1.50%.
(iii) the definition of the term "Capital Expenditures"
is hereby amended by deleting clause (i) from the second proviso
thereof in its entirety and replacing it with the following:
"(i) expenditures to the extent they are made with the
proceeds of (A) cash consideration received by the
Company after the Fourth Amendment Effective Date from
issuances of its capital stock (including preferred
stock) or Permitted Debt and not previously used for any
other purpose (other than the temporary repayment of
Revolving Loans or Investments in Permitted Investments)
or (B) cash capital contributions to, or cash payments
for the issuance of Equity Interests of, RCN-BecoCom,
Starpower or the California Joint Venture made by third
parties (other than Subsidiaries or controlled Affiliates
of the Company)"
(iv) the definition of "EBITDA" is hereby amended by
deleting such definition in its entirety and replacing such
definition with the following:
"EBITDA" means, for any period, Consolidated Net
Income of the Company and its Restricted Subsidiaries for
such period plus, without duplication and to the extent
deducted from revenues in determining such Consolidated
Net Income, the sum of (a) the aggregate amount of
Interest Expense for such period, (b) the aggregate
amount of income tax expense for such period, (c) all
amounts attributable to depreciation and amortization for
such period, (d) all non-cash non-recurring charges
during such period (it being understood that charges
shall be deemed non-cash charges until the period that
cash disbursements attributable to such charges are made,
at which point such charges shall be deemed cash
charges), (e) all non-cash charges associated with
stock-based compensation, (f) all costs and expenses
incurred in connection with the execution and delivery of
the Fourth Amendment, and minus, without duplication and
to the extent added to revenues in determining
Consolidated Net Income for such period, (x) all non-cash
non-recurring gains during such period (it being
understood that gains shall be deemed non-cash gains
until the period that cash receipts attributable to such
gains are received, at which point such gains shall be
deemed cash gains) and (y) all gains on the sales of
assets outside of the ordinary course of business, all as
determined on a consolidated basis with respect to the
Company and the Restricted Subsidiaries in accordance
with Adjusted Accounting Principles.
(v) the definition of the term "LIBO Rate" is hereby
amended by deleting such definition in its entirety and replacing
such definition with the following:
"LIBO Rate" means, with respect to any
Eurodollar Borrowing for any Interest Period, the greater
of (i) 3.00% per annum and (ii) the rate appearing on
Page 3750 of the Telerate Service (or any successor or
substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations
comparable to those currently provided on such page of
such Service, as determined by the Agent from time to
time for purposes of providing quotations of interest
rates applicable to dollar deposits in the London
interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period or, in the
event that such rate is not available at such time for
any reason, then the rate (rounded upwards, if necessary,
to the nearest 1/16 of 1%) at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the
Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such
Interest Period.
(vi) the definition of the term "Megacable" is hereby
amended by deleting such definition in its entirety and replacing
such definition with the following:
"Megacable" means collectively, Mega Cable, S.A.
de C.V., MCM Holding, S.A. de C.V. and Megacable
Telecomunicaciones, S.A. de C.V., each a sociedad anonima de
capital variable organized under the laws of the United Mexican
States, approximately 49% of the outstanding Equity Interests of
which are, on the Fourth Amendment Effective Date, owned by RCN
International Holdings, Inc.
(vii) the definition of the term "Net Proceeds" is hereby
amended by adding at the end thereof the following sentence:
"For the purposes of Section 2.10(c) "Net Proceeds" shall
exclude the portion of the proceeds of any sale, transfer
or other disposition of the New Jersey Assets that would
otherwise constitute Net Proceeds up to $250,000,000 in
the aggregate, it being understood that any amount in
excess of such $250,000,000 shall be applied in
accordance with Section 6.05(h) herein."
(viii) the definition of the term "Prepayment Event" is
hereby amended by deleting the period at the end of clause (c)
therein and replacing it with "; or" and inserting the following
clause (d):
"(d) (i) the receipt by the Company or any Company Group
Subsidiary of Net Proceeds from any sale, transfer or
other disposition of any property or asset of Megacable
or Megacable Holdco (including of any Equity Interest
owned by Megacable or Megacable Holdco) and any return of
capital to the Company or any Company Group Subsidiary of
all or any portion of its investment in Megacable or
Megacable Holdco, (ii) the receipt by the Company or any
Company Group Subsidiary of any Net Proceeds from the
issuance of any Equity Interests in Megacable or
Megacable Holdco and (iii) the receipt by the Company or
any Company Group Subsidiary of any dividend or
distribution from Megacable or Megacable Holdco that is
designated or otherwise identifiable as a dividend or
distribution of any portion of the proceeds to Megacable
or Megacable Holdco of a sale or disposition of any of
its property or assets or the issuance of any Equity
Interest in Megacable or Megacable Holdco. For the
purposes of Section 2.10(c), any Prepayment Event in
respect of this clause (d) shall be subject to the
proviso in such Section 2.10(c); provided, however that
to the extent the Net Proceeds received by the Company or
any Company Group Subsidiary as a result of an event
described in this clause (d) exceed $150,000,000 in the
aggregate, 50% of such excess shall be used to prepay
Term Borrowings and shall not be eligible for
reinvestment in Telecommunications Assets."
(b) The definitions of the terms "Homes Passed" and "On-Net
Connections" are hereby deleted from Section 1.01 in their entirety.
(c) The following definitions are added, in the appropriate
alphabetical order, to Section 1.01:
"California Assets" means the Telecommunications
Assets, consisting of two communication systems, owned by
the Borrowers and the Restricted Subsidiaries that are,
on the Fourth Amendment Effective Date, physically
located in California and utilized to provide
telecommunications services to customers of the Borrowers
or the Restricted Subsidiaries in California plus (i)
such additional Telecommunications Assets as are, after
the Fourth Amendment Effective Date, acquired for such
cable systems and located in California pursuant to
Capital Expenditures made in accordance with Section
6.12(m), (ii) related net working capital and (iii)
Equity Interests in Persons that own no assets other than
such assets; provided that California Assets shall not in
any event include any cash, cash equivalents, Permitted
Investments or accounts receivable (other than trade and
customer receivables). On the Fourth Amendment Effective
Date, the book value of the California Assets is
approximately $325,000,000.
"California Joint Venture" means a joint venture
established after the Fourth Amendment Effective Date by
the Borrowers and/or one or more Restricted Subsidiaries
with Persons that are not Affiliates of the Company for
the provision of telecommunications services to customers
in California.
"Equity Proceeds" means cash proceeds received
by the Company after the Fourth Amendment Effective Date
from the issuance and sale of common stock of the Company
or Non-Cash Pay Preferred Stock of the Company.
"Fourth Amendment" means the Fourth Amendment to
this Agreement dated as of March 22, 2002, among the
Company, the Borrowers, the Lenders party thereto and the
Agent.
"Fourth Amendment Effective Date" means the date
on which the Fourth Amendment became effective in
accordance with its terms.
"Megacable Holdco" has the meaning assigned to
such term in Section 6.02(b).
"Network Connections" means the number of
customer connections for customers receiving internet
access, cable TV, telephony communications, home security
or energy monitoring services (each such service being
deemed a separate connection) on any network of the
Company, the Borrowers or any of their Subsidiaries
including unbundled network elements and whose service
payments are not overdue to a point where service is
generally discontinued; provided that ISP dial-up
customer connections which are not part of a network
customer bundle and resale customer connections shall not
in any event be deemed Network Connections.
"New Jersey Assets" means the
Telecommunications Assets, consisting of a cable system
operating on the Fourth Amendment Effective Date under
the franchises set forth on Schedule 1.01, owned by the
Borrowers and the Restricted Subsidiaries that are, on
the Fourth Amendment Effective Date, physically located
in New Jersey and utilized to provide services to
customers of the Borrowers or the Restricted Subsidiaries
in New Jersey, plus (i) such additional
Telecommunications Assets as are, after the Fourth
Amendment Effective Date, acquired for such cable system
and located in New Jersey pursuant to Capital
Expenditures made in accordance with Section 6.12(m),
(ii) related net working capital and (iii) Equity
Interests in Persons that own no assets other than such
assets; provided that the New Jersey Assets shall not in
any event include any cash, cash equivalents, Permitted
Investments or accounts receivable (other than trade and
customer receivables). On the Fourth Amendment Effective
Date, the book value of the New Jersey Assets is
approximately $75,000,000.
"Senior Secured Debt Ratio" means, on any date,
the ratio of (i) Senior Secured Debt outstanding on such
date to (ii) Annualized EBITDA determined as of the last
day of the fiscal quarter most recently ended on or prior
to such date.
"Total Debt Ratio" means, on any date, the ratio
of (i) Total Debt outstanding on such date, minus the
amount of the Cash Adjustment on such date, to (ii)
Annualized EBITDA determined as of the last day of the
fiscal quarter most recently ended on or prior to such
date.
(d) Each reference in the Credit Agreement to the defined term
"On-Net Connections" is hereby replaced with a reference to the defined
term "Network Connections".
3. Amendment to Section 2.02. Section 2.02 is hereby amended by
adding the following paragraph at the end of such Section:
"(e) Notwithstanding any other provision of this
Agreement, each of the Company and the Borrowers
covenants and agrees that it shall not request any
Revolving Borrowing during the period from the Fourth
Amendment Effective Date until the date that is the later
of (i) the date on which the Company delivers its
financial statements in accordance with Section 5.01(b)
of this Agreement for fiscal quarter ending on March 31,
2004, and (ii) the date on which the Company delivers a
certificate in accordance with Section 5.01(c) of this
Agreement setting forth reasonably detailed calculations
demonstrating its compliance with Section 6.12 as of the
last day of the relevant fiscal quarter, which
calculation shall show that the Company's EBITDA is at
least $60,000,000 in the aggregate for the two most
recent consecutive fiscal quarters, provided, however,
that the foregoing shall not affect the right of the
Company or any Borrower to request the issuance of any
Letter of Credit under Section 2.04."
4. Amendment to Section 2.10(c). Section 2.10(c) of the Credit
Agreement is hereby amended by inserting after the clause "or any event
described in clause (c) of such definition constituting a distribution by a
Joint Venture Subsidiary of Net Proceeds received by it from the sale of
Telecommunications Assets" the following: "or any event described in clause
(d) of such definition".
5. Amendment to Section 3. Section 3.04(c) of the Credit Agreement
is hereby amended by deleting the date "December 31, 1998" in such Section
and replacing it with the date "December 31, 2001" and by adding at the end
of such Section the following sentence: "The financial information
contained in the draft of the Report on Form 10-K to be filed by the
Company with the Securities and Exchange Commission in respect of its
fiscal year ended December 31, 2001, a copy of which draft has been
forwarded to the Agent prior to the Fourth Amendment Effective Date,
presents fairly, in all material respects, the financial position and
results of operations of the Company and its consolidated Subsidiaries as
of December 31, 2001 and for such fiscal year in accordance with GAAP."
6. Amendments to Section 5.
(a) Section 5.01 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (f) thereof, (ii) replacing
the period at the end of clause (g) thereof with "; and", and (iii)
inserting at the end thereof the following new clause:
"(h) commencing with a report for the month of
April 2002, within 30 days after the end of each month
(or concurrent with the required compliance certificate
for such month if such month is the last month of a
fiscal quarter), (i) its consolidated balance sheet and
related statements of operations and cash flow as at the
end of, and for, such month, together with summary income
statements by market and operating statistics including
the average revenue per unit, the number of Network
Connections, customer churn and penetration, in each case
by product and market and homes passed by market as at
the end of such month and (ii) a Management Discussion
and Analysis report with respect to the consolidated
results for such period.
(b) Section 5 of the Credit Agreement is hereby amended by adding
the following Section 5.15:
"SECTION 5.15. Cash held by RFM 2, LLC Within 10
Business Days following the Fourth Amendment Date and at
all times after such date, the Company will maintain and
cause to maintain all of the cash and cash equivalents of
the Company and its Restricted Subsidiaries on the Fourth
Amendment Effective Date (other than cash reasonably
deemed necessary to be maintained in accounts of the
Company or any of its Restricted Subsidiaries for the
operation of the business thereof in the ordinary course
of business, which in any event shall not exceed
$25,000,000 in the aggregate) at RFM 2, LLC, a Delaware
limited liability company ("RFM 2, LLC"), and will use
such cash and cash equivalents for the conduct of the
business of the Company and its Subsidiaries only to the
extent that other cash is not available from the
operation of such business."
(c) Section 5 of the Credit Agreement is hereby amended by adding
the following Section 5.16:
"SECTION 5.16. RCN Finance, LLC. Within 10
Business Days following the Fourth Amendment Effective
Date, RCN Finance, LLC, a Delaware limited liability
company ("RCN Finance, LLC"), and any other Unrestricted
Subsidiaries then holding cash or Permitted Investments
shall transfer to RFM 2, LLC (without the payment of any
consideration) all cash and/or Permitted Investments in
an amount equal to the amount of all investments
previously made by the Company or Restricted Subsidiaries
therein and earnings thereon less the amount of cash
expended thereby in connection with repurchases of
Indebtedness of the Company as of the Fourth Amendment
Effective Date.
7. Amendments to Section 6.01(a). Section 6.01(a) of the Credit
Agreement is hereby amended by:
(i) deleting the phrase "$225,000,000 at any time
outstanding" in clause (v) thereof and inserting in its place
"$125,000,000 at any time outstanding after the Fourth Amendment
Effective Date";
(ii) deleting clause (vii) thereof in its entirety and
replacing such clause with the following: "(vii) Permitted Debt of
the Company; provided that such Indebtedness is permitted by
Section 6.12(j) when incurred; and provided, further that any such
Indebtedness which is unsecured senior Indebtedness shall not
exceed $100,000,000 at any time outstanding;"; and
(iii) inserting immediately after clause (xii) the following:
"(xiii) Indebtedness of the Company or any of its
Restricted Subsidiaries pursuant to any letter of credit
facility with one or more financial institutions, which
letter of credit facility may be cash collateralized if
necessary; provided that such Indebtedness shall not
exceed $25,000,000 in the aggregate for all such letter
of credit facilities at any time."
8. Amendment to Section 6.02.
(a) Section 6.02(a)(vii) of the Credit Agreement is hereby amended
by adding the phrase "or (xiii)" in such Section at the end thereof.
(b) Section 6.02(b) of the Credit Agreement is hereby amended by
adding the following at the end of the second sentence thereof:
"Notwithstanding anything in this Section 6.02(b) or in
the Loan Documents to the contrary, RCN International
Holdings, Inc. may hold the Equity Interests of Megacable
through one intermediate holding company ("Megacable
Holdco"), provided that (i) Megacable Holdco shall be
created solely for the purposes of issuing a single class
of Equity Interests and holding the Equity Interests of
Megacable, (ii) RCN International Holdings, Inc. shall
hold Equity Interests of Megacable Holdco in an amount
equal to the Equity Interests of Megacable owned by RCN
International Holdings, Inc. immediately preceding any
transfer of such Equity Interests to Megacable Holdco and
(iii) RCN International Holdings, Inc. shall remain a
Restricted Subsidiary and an Investment Subsidiary
hereunder."
9. Amendments to Section 6.03.
(a) Section 6.03(a) is hereby amended by:
(i) adding the phrase "if the Company determines in good
faith in accordance with its business judgment that such merger or
consolidation is in the best interests of the Company and is not
materially disadvantageous to the Lenders" at the end of clause
(ii) thereof; and
(ii) adding the following proviso at the end of clause
(v) thereof:
", provided that no Subsidiary holding any assets may be
liquidated or dissolved into the Company and further"
(b) Section 6.03(c) of the Credit Agreement is amended by
replacing each reference therein to "the date of execution of this
Agreement" with "the Fourth Amendment Effective Date".
(c) Section 6.03 is further amended by inserting at the end
thereof the following new clause:
"(e) The Company will not permit RFM 2, LLC to
incur any Indebtedness (other than Indebtedness permitted
under Section 6.01(a)(viii) and (xiii)), to merge into or
consolidate with any other Person, to permit any other
Person to merge into or consolidate with it, to liquidate
or dissolve or to engage in any business or activity
other than the ownership of cash and Permitted
Investments and activities incidental thereto; provided,
however, notwithstanding the foregoing or anything
contained in the Credit Agreement, each of the Lenders
hereby acknowledges and agrees that (i) other than as
created by Section 6.05 hereof and by the Security
Documents with respect to cash that constitutes Proceeds
as set forth therein, the Company, the Borrowers, the
Restricted Subsidiaries and the Unrestricted Subsidiaries
do not intend to grant and the parties hereto agree that
the Lenders do not have a lien on any cash held by the
Company, any Borrower, any Restricted Subsidiary or
Unrestricted Subsidiary and (ii) the maintenance and
transfer of cash and cash equivalents to RFM 2, LLC
pursuant to Sections 5.15 and 5.16 will not prejudice or
impair RFM 2 LLC's right to seek relief under Title 11 of
the United States Code or render RFM 2 LLC ineligible for
such relief."
10. Amendments to Section 6.04.
(a) Section 6.04(d) of the Credit Agreement is hereby amended by
replacing the phrase "then-existing Subsidiaries" in such Section with the
phrase "then-existing Restricted Subsidiaries" and by replacing the
reference to "$100,000,000 at any time outstanding" in such Section with a
reference to "$25,000,000 at any time outstanding after the Fourth
Amendment Effective Date".
(b) Section 6.04(e) of the Credit Agreement is hereby amended by
deleting clause (ii) thereof in its entirety and replacing it with the
following:
"(ii) other than pursuant to such existing commitments,
in an aggregate amount together with the purchases and
acquisitions permitted under Section 6.04(l) not in
excess of $200,000,000"
(c) Section 6.04(f) of the Credit Agreement is hereby amended by
inserting the word "Restricted" immediately before each reference to
"Subsidiary" in such Section.
(d) Section 6.04(j) of the Credit Agreement is hereby amended by
deleting such Section in its entirety and replacing such Section with the
following:
"(j) investments, including acquisitions and
investments in Unrestricted Subsidiaries, to the extent
the consideration paid therefor consists of common stock
of the Company, Non-Cash Pay Preferred Stock of the
Company or Equity Proceeds received after the Fourth
Amendment Effective Date (to the extent not previously
used for other purposes (other than temporary repayment
of Revolving Loans or investments in Permitted
Investments)), provided that (i) in the case of an
investment in an Unrestricted Subsidiary at the time any
such investment under this clause (j) is made (x) the
Senior Secured Debt Ratio is less than 4.00 to 1 and (y)
the Total Debt Ratio is less than 6.00 to 1 and (ii) in
any case, any such investment made with Equity Proceeds
is made, and the consideration therefor is paid, not
later than the 120th day after receipt by the Company of
such Equity Proceeds;"
(e) Section 6.04(l) of the Credit Agreement is hereby amended by
adding the following at the end of such Section:
"and provided further that the aggregate amount of such
purchases and acquisitions and any other investments in
Joint Venture Subsidiaries after the Fourth Amendment
Effective Date pursuant to Section 6.04(e) shall not
exceed $200,000,000"
(f) Section 6.04(n) of the Credit Agreement is hereby amended by
inserting the following immediately before the semicolon at the end
thereof:
"; provided, however, that to the extent the aggregate
amount of such investments exceed $25,000,000 no such
further investment shall be made under this clause (n)
unless at the time such further investment is made (x)
the Senior Secured Debt Ratio is less than 4.00 to 1 and
(y) the Total Debt Ratio is less than 6.00 to 1".
(g) Section 6.04 of the Credit Agreement is further amended by (i)
deleting the word "and" at the end of clause (n) thereof, (ii) replacing
the period at the end of clause (o) thereof with "; and", and (iii)
inserting at the end thereof the following new clause:
"(p) (i) investments consisting of the sale or
contribution of the California Assets to the California
Joint Venture, provided that (A) all Equity Interests and
other investments in the California Joint Venture
(including Indebtedness of the California Joint Venture)
at any time owned or held by the Company or any
Subsidiary shall be owned or held by a Company Group
Subsidiary and pledged on a first priority basis to the
Agent pursuant to the appropriate Security Documents, and
(B) no agreement, instrument or constitutive document
relating to the California Joint Venture shall prohibit
or restrict the pledge of the Equity Interests or other
investments referred to in clause (i) above or (ii) below
or the exercise of remedies with respect thereto in
accordance with the Security Documents; and (ii)
additional investments made in the California Joint
Venture (and pledged as contemplated by clause (A) above)
(x) as required under capital contribution provisions in
connection with substantially contemporaneous investments
being made by third party partners in the California
Joint Venture in an aggregate amount for all such
additional investments not to exceed $80,000,000 or (y)
with Equity Proceeds resulting from a substantially
contemporaneous investment in the Company by third party
partners in the California Joint Venture."
11. Amendments to Section 6.05.
(a) Section 6.05(b) of the Credit Agreement is hereby amended by
deleting such Section in its entirety and replacing such Section with the
following:
"(b) sales, transfers and dispositions to the Company or
a Restricted Subsidiary; provided that (i) any such
sales, transfers or dispositions involving a Restricted
Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.09 and (ii) any such sale,
transfer or disposition of the Equity Interests in
Starpower shall be to a Restricted Subsidiary and not to
the Company;"
(b) Section 6.05(c) of the Credit Agreement is hereby amended by
(i) adding "or in Megacable or Megacable Holdco" after the phrase "Joint
Venture Subsidiaries" in the first parenthetical thereof and (ii) inserting
the following before the "and" at the end of clause (ii) thereof: "or
$150,000,000 in the aggregate in the case of any sales, transfers or
dispositions of Equity Interests in Megacable or Megacable Holdco".
(c) Section 6.05(d) of the Credit Agreement is hereby amended by
(i) adding "or in Megacable or Megacable Holdco" after the phrase "Joint
Venture Subsidiary" in the first clause thereof, (ii) inserting the
following immediately after the (i) therein: "except with respect to sales,
transfers or other dispositions of Equity Interests in Megacable or
Megacable Holdco," and (iii) inserting the following proviso at the end of
clause (ii) therein:
"provided that with respect to any excess consideration
in the case of any sales, transfers or dispositions of
Equity Interests in Megacable or Megacable Holdco, the
Company makes a prepayment of Loans pursuant to Section
2.10(c) in an aggregate amount equal to 50% of the Net
Proceeds attributable to such excess consideration (it
being understood that (A) such 50% of the Net Proceeds
shall not be eligible for reinvestment in
Telecommunications Assets in lieu of prepaying Loans and
(B) that the other 50% of the Net Proceeds attributable
to such excess consideration retained by the Company
shall be used by the Company to prepay the Loans or for
reinvestment in Telecommunications Assets in accordance
with Section 2.10(c))"
(d) Section 6.05(e) is hereby amended by deleting the word
"Megacable" from the second line thereof.
(e) Section 6.05 of the Credit Agreement is hereby further amended
by inserting immediately after clause (f) the following:
"(g) the sale or contribution of the California Assets to
the California Joint Venture in a transaction permitted
under Section 6.04(p); and
(h) the sale, transfer or other disposition of the New
Jersey Assets, provided that (i) not less than 80% of the
consideration therefor shall consist of cash and (ii) all
the Net Proceeds of such sale, transfer or other
disposition in excess of $250,000,000 shall be applied to
prepay Term Borrowings (and shall not be used to acquire
Telecommunications Assets).
(f) Section 6.05 of the Credit Agreement is hereby further amended
by adding the following at the end thereof:
"The Borrowers will cause all the Net Proceeds of any
sale, transfer or other disposition permitted under this
Section (other than under clauses (a) and (b)) in excess
of $5,000,000 for all such sales, transfers and other
dispositions (other than Net Proceeds from sales,
transfers or other dispositions of Equity Interests in
Megacable or Megacable Holdco permitted under this
Section 6.05) during any fiscal year of the Company to be
subjected to a Lien securing the Obligations and will
take such actions as shall be necessary or reasonably
requested by the Agent to grant and perfect such Liens,
including the creation of a cash collateral account and
any actions described in Section 5.13(a) of this
Agreement; provided, however that the Borrowers may
withdraw all or any portion of such Net Proceeds from
such cash collateral account (A) to prepay the Term Loans
hereunder or (B) to acquire Telecommunications Assets, so
long as the Company shall have delivered to the Agent a
certificate of a Financial Officer to the effect that the
Company and the Borrowers intend to apply the Net
Proceeds to be withdrawn within 12 months of such sale,
transfer or disposition (or within 6 months of a binding
commitment entered into during such 12 month period) and
in any event no later than 5 Business Days after the date
of such certificate (it being understood that such time
period shall not apply to the Net Proceeds from the sale
of the New Jersey Assets) to acquire Telecommunications
Assets and certifying that no Event of Default has
occurred and is continuing."
12. Amendments to Section 6.08.
(a) Section 6.08 of the Credit Agreement is hereby amended by
deleting the reference to "$25,000,000" in clause (iii) of the first
paragraph of such Section and inserting in its place the amount
"$17,500,000".
(b) Section 6.08 of the Credit Agreement is hereby further amended
by adding a third paragraph at the end thereof as follows:
"The Company will not (i) permit any Unrestricted
Subsidiary to make or agree to make any Restricted
Payment or other payment or distribution referred to in
the foregoing provisions of this Section that could not
be made directly by the Company or a Restricted
Subsidiary in accordance with the provisions of this
Section or (ii) furnish any funds to or make any
investment in an Unrestricted Subsidiary or other Person
for purposes of enabling it to make any such Restricted
Payment, other payment or distribution that could not be
made directly by the Company or a Restricted Subsidiary
in accordance with the provisions of this Section."
13. Amendments to Section 6.11.
(a) Section 6.11 of the Credit Agreement is hereby amended by
deleting in its entirety the first sentence thereof (including clauses (i),
(ii) and (iii)) and inserting in place thereof the following:
"The Company will not, on or after the Fourth Amendment
Effective Date, designate any Subsidiary, other than a
newly created Subsidiary in which no investment has
previously been made, as an "Unrestricted Subsidiary" and
may designate any such newly created Subsidiary as an
"Unrestricted Subsidiary" under this Agreement (a
"Designation") if no Event of Default shall have occurred
and be continuing at the time of or after giving effect
to such Designation and if the Company has delivered to
the Agent (x) written notice of such Designation and (y)
a certificate, dated the effective date of such
Designation, of any Executive Officer stating that no
Event of Default has occurred and is continuing."
(b) Section 6.11 of the Credit Agreement is hereby further amended
by adding the following sentence at the end thereof:
"Notwithstanding the foregoing, RCN Finance, LLC may make
the transfers required hereunder and may transfer to the
Company all or substantially all of its assets consisting
of Indebtedness of the Company; provided that such
transfer is effected pursuant to a dividend or
liquidation and RCN Finance, LLC receives no
consideration for such transfer."
14. Amendments to Section 6.12.
Section 6.12 of the Credit Agreement is hereby amended by deleting
such Section in its entirety and replacing such Section with the following:
"Section 6.12. Financial Covenants. The Company and the
Borrowers will not:
(a) Minimum Cash Balances. Permit cash and cash
equivalents on hand at the Company and its Restricted
Subsidiaries on the last day of any fiscal quarter to be
less than the difference between (i) the amount set forth
opposite such date below and (ii) an amount equal to the
transaction costs and expenses of the Company in
connection with the Fourth Amendment of up to a maximum
of $15,000,000:
Fiscal Quarter
Ending Cash Balance
------ ------------
March 31, 2002 $493,000,000
June 30, 2002 $400,000,000
September 30, 2002 $311,000,000
December 31, 2002 $201,000,000
March 31, 2003 $364,000,000
June 30, 2003 $280,000,000
September 30, 2003 $204,000,000
December 31, 2003 $137,000,000
provided, however, that in the event that the New Jersey
Assets are not sold, transferred or otherwise disposed of
to a Person other than the Company or any Subsidiary
prior to the last day of any fiscal quarter of the
Company commencing with the fiscal quarter ending March
31, 2003, the amount set forth opposite such date above
shall be deemed to be amended to be the amount set forth
opposite such date below:
Fiscal Quarter
Ending Cash Balance
------ ------------
March 31, 2003 $200,000,000
June 30, 2003 $150,000,000
September 30, 2003 $100,000,000
December 31, 2003 $100,000,000
provided, further that the foregoing required amounts in
and preceding the proviso shall be reduced by amounts
that the Company or any Restricted Subsidiary uses to
cash collateralize letter of credit facilities permitted
by Section 6.01(a)(xiii).
(b) Minimum Consolidated Revenue. Permit Consolidated
Revenue for any period of four consecutive fiscal
quarters ending on a date set forth below to be less than
the amount set forth opposite such date:
Fiscal Quarter Minimum
Ending Consolidated Revenue
------ --------------------
March 31, 2002 $470,000,000
June 30, 2002 $485,000,000
September 30, 2002 $488,000,000
December 31, 2002 $492,000,000
March 31, 2003 $512,000,000
June 30, 2003 $533,000,000
September 30, 2003 $566,000,000
December 31, 2003 $607,000,000
March 31, 2004 $640,000,000
June 30, 2004 $672,000,000
September 30, 2004 $704,000,000
December 30, 2004 $733,000,000
(c) Minimum Network Connections. Permit Network
Connections at the end of any fiscal quarter ending on a
date set forth below to be less than the number set forth
opposite such date:
Fiscal Quarter
Ending Network Connections
------ -------------------
March 31, 2002 742,000
June 30, 2002 787,000
September 30, 2002 754,000
December 31, 2002 806,000
March 31, 2003 848,000
June 30, 2003 893,000
September 30, 2003 936,000
December 31, 2003 989,000
March 31, 2004 1,038,000
June 30, 2004 1,083,000
September 30, 2004 1,125,000
December 30, 2004 1,162,000
(d) Cumulative Minimum EBITDA.
(i) Permit cumulative EBITDA from the period
commencing on January 1, 2002 to the last day of each
fiscal quarter ending on a date set forth below to be
less than the amount set forth opposite such date:
Fiscal Quarter
Ending EBITDA
------ ------
March 31, 2002 $ (37,000,000)
June 30, 2002 $ (63,000,000)
September 30, 2002 $ (90,000,000)
December 31, 2002 $(110,000,000)
March 31, 2003 $(119,000,000)
June 30, 2003 $(117,000,000)
September 30, 2003 $ (97,000,000)
December 31, 2003 $ (70,000,000)
(ii) Permit EBITDA for any period of four
consecutive fiscal quarters ending on a date set forth
below to be less than the amount set forth opposite such
date:
Fiscal Quarter
Ending EBITDA
------ ------
March 31, 2004 $ 62,000,000
June 30, 2004 $111,000,000
September 30, 2004 $163,000,000
December 31, 2004 $204,000,000
(e) Maximum Senior Secured Debt Ratio. Permit the Senior
Secured Debt Ratio on any day from and including (A) the
last day of any fiscal quarter set forth below through
(B) the day immediately preceding the last day of the
immediately following fiscal quarter to exceed the ratio
set forth below opposite such date or period:
Fiscal Quarter Maximum Ratio
Ending -------------
------
March 31, 2005 3.00 to 1
June 30, 2005 2.75 to 1
September 30, 2005 2.50 to 1
December 31, 2005 and thereafter 2.00 to 1
(f) Maximum Total Debt Ratio. Permit the Total Debt Ratio
on any day from and including (A) the last day of any
fiscal quarter set forth below through (B) the day
immediately preceding the last day of the immediately
following fiscal quarter to exceed the ratio set forth
below opposite such date or period:
Fiscal Quarter Maximum Ratio
Ending -------------
------
March 31, 2005 6.75 to 1
June 30, 2005 6.50 to 1
September 30, 2005 6.00 to 1
December 31, 2005 6.00 to 1
March 31, 2006 5.50 to 1
June 20, 2006 5.50 to 1
September 30, 2006 5.00 to 1
December 31, 2006 5.00 to 1
March 31, 2007 5.00 to 1
June 30, 2007 5.00 to 1
(g) Minimum Interest Coverage Ratio. Permit the ratio of
(i) Annualized EBITDA determined as of the last day of
any fiscal quarter set forth below to (ii) Annualized
Cash Interest Expense determined as of the last day of
such fiscal quarter to be less than the ratio set forth
below opposite such date:
Fiscal Quarter
Ending Minimum Ratio
------ -------------
March 31, 2005 1.30 to 1
June 30, 2005 1.35 to 1
September 30, 2005 1.45 to 1
December 31, 2005 1.50 to 1
March 31, 2006 1.60 to 1
June 30, 2006 1.65 to 1
September 30, 2006 1.75 to 1
December 31, 2006 1.85 to 1
March 31, 2007 2.00 to 1
June 30, 2007 2.15 to 1
(h) Minimum Fixed Charge Coverage Ratio. Permit the ratio
of (i) Annualized EBITDA determined as of the last day of
any fiscal quarter set forth below to (ii) Annualized
Fixed Charges determined as of such date to be less than
the amount set forth opposite such date:
Fiscal Quarter
Ending Minimum Ratio
------ -------------
March 31, 2005 1.05 to 1
June 30, 2005 1.05 to 1
September 30, 2005 1.05 to 1
December 31, 2005 1.05 to 1
March 31, 2006 1.05 to 1
June 30, 2006 1.05 to 1
September 30, 2006 1.05 to 1
December 31, 2006 1.05 to 1
March 31, 2007 1.10 to 1
June 30, 2007 1.10 to 1
; provided that Annualized Fixed Charges shall be
adjusted to exclude scheduled principal amortization of
Indebtedness outstanding under the Credit Agreement.
(i) Maximum Capital Expenditures. Permit Capital
Expenditures of the Company and its Restricted
Subsidiaries for any fiscal year to exceed the amount set
forth below opposite such year:
Maximum Capital
Fiscal Year Ending Expenditures
------------------ ------------
December 31, 2002 $249,000,000
December 31, 2003 $205,000,000
December 31, 2004 $73,000,000
December 31, 2005 $70,000,000
December 31, 2006 $72,000,000
December 31, 2007 $75,000,000
Amounts not expended in any fiscal year set forth above
may be carried over to the next two subsequent fiscal
years; provided that no amounts shall be carried forward
from any period prior to January 1, 2002. Notwithstanding
the foregoing, the Company and the Borrowers will not,
after the Fourth Amendment Effective Date, permit Capital
Expenditures (which term, for purposes of this sentence,
shall have the meaning set forth in the definition
thereof without regard to clauses (i), (ii), (iii) or
(iv) of the second proviso therein) to be made (x) to
acquire assets that will be California Assets other than
(A) to the extent necessary to maintain the cable systems
comprising the California Assets and existing on the
Fourth Amendment Effective Date in good repair and
working order, (B) to the extent necessary to obtain new
subscribers to be included in the California Assets or
(C) as required pursuant to franchise or similar
agreements entered into in connection with the California
Assets, (y) to acquire assets that will be New Jersey
Assets other than to the extent necessary to maintain the
services provided to the subscribers included in the New
Jersey Assets and as required pursuant to franchise or
similar agreements related thereto."
15. Amendment to Article VII. Section (d) of Article VII is hereby
amended by adding ", 5.15, 5.16" after the first parenthetical therein.
16. Pricing Changes. The Applicable Spread and the LIBO Rate in
respect of all periods prior to the Fourth Amendment Effective Date shall
be as provided in the Credit Agreement immediately prior to the Fourth
Amendment Effective Date, and the Applicable Spread and the LIBO Rate in
respect of all periods on and after the Fourth Amendment Effective Date
shall be as set forth in the Credit Agreement as amended by this Amendment,
with the result, among others, that any Eurodollar Borrowing outstanding on
the Fourth Amendment Effective Date based on a LIBO Rate of less than 3.00%
per annum shall, from the Fourth Amendment Effective Date until the end of
its then current Interest Period, bear interest based on a LIBO Rate of
3.00% per annum plus the Applicable Spread.
17. Reduction of Facilities. On the Effective Date, (i) the
aggregate amount of the Revolving Commitments shall be automatically and
permanently reduced from $250,000,000 to $187,500,000, and the Borrowers
shall prepay Revolving Borrowings to the extent required by Section 2.10(b)
of the Credit Agreement as a result of such reduction, (ii) the Borrowers
shall make a prepayment of Tranche A Term Borrowings in an aggregate
principal amount equal to $62,500,000, and (iii) the Borrowers shall make a
prepayment of Tranche B Term Borrowings in an aggregate principal amount
equal to $125,000,000. Each such prepayment of Borrowings shall be made in
accordance with the provisions of Section 2.10 of the Credit Agreement
(provided that the Lenders waive any prior notice requirements) and shall
be accompanied by accrued interest on the amounts prepaid, and the
Borrowers shall make payment of any amounts required to be paid pursuant to
Section 2.16 of the Credit Agreement in connection with such prepayments;
provided, however, that no reduction shall be made to the amount of LC
Exposure available under Section 2.04(b) of the Credit Agreement.
18. Waivers.
(a) RCN Finance, LLC, an Unrestricted Subsidiary, has purchased
certain Indebtedness of the Company including, without limitation, pursuant
to Offers to Purchase dated September 21, 2001 (the "Debt Repurchase"). The
Lenders hereby waive any Default or Event of Default that may have arisen
as a result of the Debt Repurchase.
(b) The Lenders hereby waive any Default or Event of Default that
may have arisen in connection with Section 6.12 of the Credit Agreement
prior to the Fourth Amendment Effective Date, and such waiver shall be
effective for the purposes of any compliance certificate to be delivered
after the Fourth Amendment Effective Date with respect to any period that
ended or date that occurred prior to the Fourth Amendment Effective Date.
(c) The Lenders hereby waive any Default or Event of Default that
may have arisen as a result of any failure by the Company or any of its
Subsidiaries to comply with the requirements of Section 5.13 of the Credit
Agreement or any provisions of the Security Documents, including any
Default or Event of Default arising out of any representation or warranty
or condition precedent to Borrowings as to compliance with such
requirements or as to the filing of all financing statements and other lien
documents and to the taking of other appropriate steps to perfect security
interests in collateral. Each of the Lenders, the Agent, the Company and
the Borrowers hereby represents and warrants that it is not aware of any
non-compliance with such Section 5.13 or any such provisions as of the
Fourth Amendment Effective Date.
(d) Except for the Defaults or Events of Default expressly waived
in clauses (a), (b) and (c) above, each of the Lenders, the Company and the
Borrowers hereby represents and warrants that it is not aware of any other
Default or Event of Default that has occurred and is continuing as of the
Fourth Amendment Effective Date (without giving effect to the waiver in the
next succeeding sentence). Each of the Lenders hereby waives any Default or
Event of Default that shall have occurred prior to the Fourth Amendment
Effective Date and any other claim raised in letters sent to the Company or
the Administrative Agent prior to the Fourth Amendment Effective Date,
including, without limitation, the letters dated October 15, 2001, November
2, 2001, November 7, 2001, November 8, 2001, November 14, 2001, February 1,
2002 and February 22, 2002 (excluding, to the extent necessary, any Default
or Event of Default that would result from any representation or warranty
contained herein proving to have been incorrect in any material respect
when made or deemed made).
19. Releases. The Company and the Borrowers hereby release the
Agent and each of the Lenders and their respective officers, directors,
employees, advisors and agents from any and all claims, damages or actions
against such parties that may have accrued in favor of the Company or any
of the Borrowers on or before the Fourth Amendment Effective Date arising
out of or related directly or indirectly to the Loan Documents or the
administration or enforcement thereof or the consummation of any
transactions contemplated thereby.
20. No Other Amendments or Waivers; Confirmation. Except as
expressly amended hereby, the provisions of the Credit Agreement are and
shall remain in full force and effect. Nothing herein shall be deemed to
entitle the Borrowers to a consent to, or a waiver, amendment, modification
or other change of, any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any Loan Document in
similar or different circumstances.
21. Representations and Warranties. The Company and the Borrowers
hereby represent and warrant to the Administrative Agent and the Lenders
that, as of the date hereof and after giving effect to the amendments and
waivers contained herein:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Company and the
Borrowers of this Amendment have been duly authorized by all necessary
corporate and other action and do not and will not require any registration
with, consent or approval of, notice to or action by, any person (including
any Governmental Authority) in order to be effective and enforceable. The
Credit Agreement as amended by this Amendment constitutes the legal, valid
and binding obligation of the Company and the Borrowers, enforceable
against each in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.
(c) All representations and warranties of each Loan Party set
forth in the Loan Documents as amended hereby are true and correct in all
material respects.
22. Conditions Precedent to Effectiveness. This Amendment shall
become effective on the date on which each of the following conditions is
satisfied (the "Effective Date"):
(a) The Agent shall have received counterparts hereof duly
executed and delivered by the Company, the Borrowers and the Required
Lenders;
(b) The Agent shall have received a certificate, dated the
Effective Date and signed by the President, a Vice President or a Financial
Officer of the Company, confirming compliance as of such date with the
conditions set forth in paragraphs (a) and (b) of Section 4.02 of the
Credit Agreement (as if a Borrowing were being effected on such date);
(c) RFM 2, LLC shall have become party to the Security Documents
and the Company will cause the Equity Interests of RFM 2, LLC to be pledged
pursuant to the Security Documents;
(d) The Agent shall have received an opinion of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, with respect to RFM 2, LLC in form and substance
satisfactory to the Agent;
(e) The Agent shall have received all fees and other amounts due
and payable on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses (including
reasonable fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan
Document;
(f) The Borrowers shall have made the prepayments of Borrowings
and paid the other amounts required to be paid pursuant to Section 17 of
this Amendment; and
(g) The Borrowers shall have paid to the Agent, in immediately
available funds, for the account of each Lender that has delivered
(including by telecopy) an executed counterpart of this Amendment to the
Agent or its counsel prior to 5:00 p.m., New York time, on March 22, 2002,
an amendment fee equal to 0.75% of the aggregate amount of such Lender's
unused Commitments, Revolving Exposure and outstanding Term Loans on the
date of this Amendment and prior to giving effect to the reductions and
prepayments required by Section 17 of this Amendment.
23. Expenses. The Borrowers agree to pay or reimburse the Agent
for its out-of-pocket expenses in connection with this Amendment, including
the reasonable fees, charges and disbursements of Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Agent, the reasonable fees, charges and
disbursements of Cravath, Swaine & Xxxxx, counsel for the Agent and the
reasonable fees, charges and disbursements of FTI Xxxxxxxx & Xxxxx with
respect to the business plan and operational review performed and related
on-going work. The Borrowers also agree to pay each member of the Steering
Committee for their accrued out-of-pocket expenses related to travel and
similar expenses.
24. Governing Law; Counterparts. (a) This Amendment and the rights
and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties
to this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of
the relevant signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their duly authorized officers as of
the day and year first above written.
RCN CORPORATION,
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Title: Executive Vice President &
Chief Financial Officer
RCN TELECOM SERVICES, INC.,
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Title: Executive Vice President &
Chief Financial Officer
RCN FINANCIAL MANAGEMENT, INC.,
By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Executive Vice President &
Chief Financial Officer
UNET HOLDING, INC.,
By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Executive Vice President &
Chief Financial Officer
RCN INTERNET SERVICES, INC.,
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Executive Vice President &
Chief Financial Officer
JPMORGAN CHASE BANK, individually and as
Agent,
By /s/ Xxxx Xxxxx Xxxxxx
---------------------------------
Title: Managing Director
ADDISON CDO, LIMITED (Acct 1279)
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Title: Executive Vice President
AIMCO CDO SERIES 2000-A, as a Lender
By /s/ Xxxxx X. Xxxxxxx
--------------------------------
Title: Authorized Signatory
By /s/ Xxxxx Xxxxxxx
---------------------------------
Title: Authorized Signatory
AIMCO CLO, 2001-A
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Title: Authorized Signatory
By /s/ Xxxxx Xxxxxxx
---------------------------------
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY, as a
Lender
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Title: Authorized Signatory
By /s/ Xxxxx Xxxxxxx
--------------------------------
Title: Authorized Signatory
AMARA-1 FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc. As Sub-Advisor
By /s/ Xxxxxx X.X. Xxxxx
----------------------------------
Title: Authorized Signatory
AMARA-2 FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc. As Sub-Advisor
By /s/ Xxxxxx X.X. Xxxxx
-----------------------------------
Title: Authorized Signatory
ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors LLC as
Collateral Manager
By /s/ Xxxx Xxxxxxxxxx
-----------------------------------
Title: Senior Vice President
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC as
Collateral Manager
By /s/ Xxxx Xxxxxxxxxx
----------------------------------
Title: Senior Vice President
ARES III CLO LTD.
By: Ares CLO Management LLC
By /s/ Xxxx X. Xxxxxxx
---------------------------------
Title: Vice President
ARES IV CLO LTD.
By: Ares CLO Management IV, L.P.,
Investment Manager
By: Ares CLO XX XX, LLC, Its Managing
Member
By /s/ Xxxx X. Xxxxxxx
----------------------------------
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: Ares Management II, L.P.,
Its General Partner
By /s/ Xxxx X. Xxxxxxx
---------------------------------
Title: Vice President
ARES LEVERAGED INVESTMENT FUND, L.P.
By: ARES Management, L.P.,
Its General Partner
By /s/ Xxxx X. Xxxxxxx
----------------------------------
Title: Vice President
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management,
Inc. As Portfolio Advisor
By /s/ Xxxxxx X.X. Xxxxx
-----------------------------------
Title: Authorized Signatory
AVALON CAPITAL LTD. II
By: INVESCO Senior Secured Management,
Inc. As Portfolio Advisor
By /s/ Xxxxxx X.X. Xxxxx
-----------------------------------
Title: Authorized Signatory
BANK OF MONTREAL
By /s/ X. Xxxxxxxxxx
----------------------------------
Title: Director
BAYERISCHE HYPO-UND VEREINSBANK AG, NEW
YORK BRANCH
By /s/ Xxxxxxxxx X. Xxxxxxxxx
---------------------------------
Title: Managing Director, Chief
Investment Officer
By /s/ Xxxxxx X. Xxxxx
---------------------------------
Title: Associate Director
BEDFORD CDO, LIMITED (Acct 1276)
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Title: Executive Vice President
BLACK DIAMOND CLO 1998-1 LTD.
By /s/ Xxxx Xxxxxxx
---------------------------------
Title: Director
BLACK DIAMOND CLO 2000-1 LTD.
By /s/ Xxxx Xxxxxxx
----------------------------------
Title: Director
Sankaty Advisors Inc., as Collateral
Manager for XXXXX POINT CBO 1999-1,
LTD., as Term Lender
By /s/ Xxxxx X. Xxxxx
----------------------------------
Title: Managing Director, Portfolio
Manager
CANPARTNERS INVESTMENTS IV LTD.
By /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Title: Authorized Signatory
CANYON CAPITAL CDO 2001-1
By /s/ Xxxxxxxx X. Xxxxx
----------------------------------
Title: Authorized Signatory
CAPTIVA III FINANCE LTD. (Acct 275),
as advised by Pacific Investment
Management Company LLC
By /s/ Xxxxx Xxxx
------------------------------
Title: Director
CAPTIVA IV FINANCE LTD. (Acct 1275),
as advised by Pacific Investment
Management Company LLC
By /s/ Xxxxx Xxxx
-------------------------------
Title: Director
CENTURION CDO I, LIMITED
By: American Express Asset Management
Group Inc. as Collateral Manager
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Title: Managing Director
CENTURION CDO II, LTD.
By: American Express Asset Management
Group Inc. as Collateral Manager
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Title: Managing Director
CENTURION CDO III, LIMITED
By: American Express Asset Management
Group Inc. as Collateral Manager
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Title: Managing Director
CERES FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc. As Sub-Managing Agent
By /s/ Xxxxxx X.X. Xxxxx
----------------------------------
Title: Authorized Signatory
CERES II FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc. As Sub-Managing Agent
(Financial)
By /s/ Xxxxxx X.X. Xxxxx
-----------------------------------
Title: Authorized Signatory
CIT LENDING SERVICES CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President
CLYDESDALE CLO 2001-1, LTD.
By /s/ Xxxxxxxxx Xxxxxxx
----------------------------------
Title: Vice President
CYPRESSTREE INVESTMENT PARTNERS I
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By /s/ Xxxxxxx Xxxxx
---------------------------------
Title: Principal
CYPRESSTREE INVESTMENT PARTNERS II
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By /s/ Xxxxxxx Xxxxx
-----------------------------------
Title: Principal
DELANO COMPANY (Acct 274)
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------
Title: Executive Vice President
DEUTSHCE BANK AG NEW YORK BRANCH
By /s/ Xxxxxxxxx Xxxxxxx
---------------------------------
Title: Vice President
By /s/ Xxxxxxxx X. Xxxx
---------------------------------
Title: Vice President
XXXXX XXXXX CDO III, LTD.
By: Xxxxx Xxxxx Management
as Investment Advisor
By /s/ Xxxxx X. Page
-----------------------------------
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR
LOAN FUND
By: Xxxxx Xxxxx Management
as Investment Advisor
By /s/ Xxxxx X. Page
----------------------------------
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management
as Investment Advisor
By /s/ Xxxxx X. Page
---------------------------------
Title: Vice President
ELC (CAYMAN) LTD.
By /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Title: Director
ELC (CAYMAN) LTD. 1999-II
By /s/ Xxxxxxxx Xxxxxxx
-------------------------------
Title: Director
ELC (CAYMAN) LTD. 1999-III
By /s/ Xxxxxxxx Xxxxxxx
-------------------------------
Title: Director
ELC (CAYMAN) LTD. 2000-1
By /s/ Xxxxxxxx Xxxxxxx
-------------------------------
Title: Director
ELC (CAYMAN) LTD. CDO SERIES 1999-1
By /s/ Xxxxxxxx Xxxxxxx
--------------------------------
Title: Director
ELT LTD.
By /s/ Xxxxx X. Xxxxxxx
--------------------------------
Title: Authorized Agent
ENDURANCE CLO I LTD.
c/o ING Capital Advisors LLC,
as Portfolio Manager
By /s/ Xxxx Xxxxxxxxxx
---------------------------------
Title: Senior Vice President
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC.
As: Attorney-in-Fact and on behalf of
FIRST ALLMERICA FINANCIAL LIFE
INSURANCE
By /s/ Xxxxxxx Xxxxx
---------------------------------
Title: Principal
FIRST UNION NATIONAL BANK
By /s/ Xxxx Xxxxxx
--------------------------------
Title: Vice President
FLEET BANK
By /s/ Xxxxxxxx X. Xxxxx
--------------------------------
Title: Workout Officer
FOOTHILL CAPITAL CORPORATION
By /s/ Xxxx Xxxxx
--------------------------------
Title: Vice President
FRANKLIN CLO I, LTD.
By /s/ Xxxxxxx X'Xxxxxxx
---------------------------------
Title: Vice President
FRANKLIN FLOATING RATE TRUST
By /s/ Xxxxxxx X'Xxxxxxx
--------------------------------
Title: Vice President
FUJI BANK, LIMITED
By /s/ Xxxxxxx Xxxxx
--------------------------------
Title: Senior Vice President
XXXXXXX & CO.
By: Boston Management and Research
as Investment Advisor
By /s/ Xxxxx X. Page
--------------------------------
Title: Vice President
Sankaty Advisors, Inc. as Collateral
Manager for XXXXX XXXXX XXX 0000-0 LTD.,
as Term Lender
By /s/ Xxxxx X. Xxxxx
---------------------------------
Title: Managing Director, Portfolio
Manager
Sankaty Advisors, LLC as Collateral
Manager for GREAT POINT CLO 1999-1 LTD.,
as Term Lender
By /s/ Xxxxx X. Xxxxx
---------------------------------
Title: Managing Director, Portfolio
Manager
XXXXXXXX CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By /s/ Xxxxxxx X. Xxxxx
----------------------------------
Title: Partner
HBK MASTER FUND L.P.
By /s/ Xxxxx X. Xxxxx
---------------------------------
Title: Authorized Signatory
XXXXXX FINANCIAL, INC.
By /s/ Xxxx Xxxxxxx
--------------------------------
Title: Duly Authorized Signatory
HIGHLAND LEGACY LIMITED
By: Highland Capital Management, L.P.
as Collateral Manager
By /s/ Xxxxx Xxxxx
-----------------------------------
Title: Executive Vice President-CFO,
Highland Capital Management, L.P.
IBM CREDIT CORPORATION
By /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: Manager of Credit
JHW CASH FLOW I, LP
By /s/ Xxxxxxx Xxxxx
-----------------------------------
Title: Fund Controller
JISSEKIKUN FUNDING, LTD. (Acct 1288)
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------
Title: Executive Vice President
KZH CYPRESS TREE-1 LLC
By /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Title: Authorized Agent
KZH ING-2 LLC
By /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Title: Authorized Agent
KZH ING-3 LLC
By /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Title: Authorized Agent
KZH RIVERSIDE LLC
By /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Title: Authorized Agent
LIBERTY - XXXXX XXX ADVISOR FLOATING
RATE ADVANTAGE FUND
By: Xxxxx Xxx & Farnham Incorporated as
Advisor
By /s/ Xxxxx X. Xxxxxxx
----------------------------------
Title: Sr. Vice President &
Portfolio Manager
XXXXXXX XXXXX CAPITAL CORPORATION
By /s/ Xxxxx X.X. Xxxxx
----------------------------------
Title: Vice President, Xxxxxxx Xxxxx
Capital Corp.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
By /s/ Xxxxxxxx Xxxxx Lipsher
----------------------------------
Title: Debt Markets Counsel
METROPOLITAN LIFE INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Title: Authorized Signatory
METROPOLITAN PROPERTY AND CASUALTY
INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Title: Authorized Signatory
ML CLO XIX STERLING (CAYMAN) LTD.
By: Highland Capital Management, L.P.
(As successor in interest to
Sterling Asset Management)
By /s/ Xxxxx Xxxxx
----------------------------------
Title: Executive Vice President-CFO,
Highland Capital Management, L.P.
JPMORGAN CHASE BANK CORPORATE HIGH YIELD
COMMINGLED PENSION TRUST FUND
By /s/ Xxxxxx Xxxx
----------------------------------
Title: Vice President
JPMORGAN CHASE BANK CORPORATE HIGH
YIELD OPPORTUNITY COMMINGLED TRUST FUND
By /s/ Xxxxxx Xxxx
----------------------------------
Title: Vice President
XXXXXX XXXXXXX PRIME INCOME TRUST
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Executive Director
XXXXXX XXXXXXX SENIOR FUNDING
By /s/ Xxxxxxx Xxxxxx
----------------------------------
Title: Vice President
MOUNTAIN CAPITAL CLO I, LTD.
By /s/ Xxxxxx X. Xxxxx
----------------------------------
Title: Director
MUIRFIELD TRADING LLC
By /s/ Xxxxx X. Xxxxxxx
----------------------------------
Title: Assistant Vice President
NATIONAL WESTMINSTER BANK PLC
By: NatWest Capital Markers Limited,
its Agent
By: Greenwich Capital Markers, Inc.,
its Agent
By /s/ Xxxxx Xxxxxxxxxxx
-----------------------------------
Title: Vice President
NEMEAN CLO, LTD.
By: ING Capital Advisors LLC,
As Investment Manager
By /s/ Xxxx Xxxxxxxxxx
-----------------------------------
Title: Senior Vice President
NOMURA BOND & LOAN FUND
By /s/ Xxxxxxxxx Xxxxxxx
----------------------------------
Title: Vice President
NORSE CBO, LTD.
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC its
Manager and pursuant to delegated
authority
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Title: President
NUVEEN SENIOR INCOME FUND
By
----------------------------------
Name:
Title:
OASIS COLLATERALIZED HIGH INCOME
PORTFOLIOS-1
By: INVESCO Senior Secured Management,
Inc. As Sub-Advisor
By /s/ Xxxxxx X.X. Xxxxx
----------------------------------
Title: Authorized Signatory
OLYMPIC FUNDING TRUST SERIES 1999-1
By /s/ Xxxxx X. Xxxxxxx
----------------------------------
Title: Authorized Agent
ORIX FINANCE CORP. I
By /s/ Xxxxxxxx X.X. Xxxxx, Xx.
-----------------------------------
Title: Authorized Representative
XXX CAPITAL FUNDING LP
By: Highland Capital Management, L.P.
As Collateral Manager
By /s/ Xxxxx Xxxxx
----------------------------------
Title: Executive Vice President-CFO,
Highland Capital Management, L.P.
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.
As Collateral Manager
By /s/ Xxxxx Xxxxx
-----------------------------------
Title: Executive Vice President-CFO,
Highland Capital Management, L.P.
PARIBAS CAPITAL FUNDING LLC
By
----------------------------------
Name:
Title:
PB CAPITAL CORPORATION
By /s/ Xxxx X. XxXxxxxxx
---------------------------------
Title: Vice President
By /s/ Xxxx Xxxxxxxx
---------------------------------
Title: Associate
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx X. XxXxxxxx
---------------------------------
Title: Vice President
PPM SPYGLASS FUNDING TRUST
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Title: Authorized Agent
PROMETHEUS INVESTMENT FUNDING NO. 1 LTD.
By: CPF Asset Advisors LLC as Investment
Manager
By /s/ Xxxxxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Chief Investment Officer
By /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Associate Director
SALOMON BROTHERS HOLDING COMPANY INC.
By /s/ Xxxxx X. Garuia
----------------------------------
Title: Attorney-in-Fact
XXXXXXX FLOATING RATE FUND
By /s/ Xxxxxxx Xxxxx
----------------------------------
Title: Senior Vice President
SEABOARD CLO 2000 LTD.
By /s/ Xxxxxxxx X.X. Xxxxx, Xx.
----------------------------------
Title: Authorized Representative of
ORIX Capital Markets, LLC, Its
Collateral Manager
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By /s/ Xxxxx X. Page
----------------------------------
Title: Vice President
SEQUILS-CENTURION V, LTD.
By: American Express Asset Management
Group Inc., as Collateral Manager
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Title: Managing Director
SEQUILS - CUMBERLAND I, LTD.
By: Deerfield Capital Management LLC
As its Collateral Manager
By /s/ Xxx Xxxxxxx
-----------------------------------
Title: Vice President
SEQUILS ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
As Collateral Manager
By /s/ Xxxx Xxxxxxxxxx
----------------------------------
Title: Senior Vice President
SPS HIGH YIELD LOAN TRADING
By /s/ Xxxx Xxxxx Xxxxxx
----------------------------------
Title: Managing Director
SRF 2000 LLC
By /s/ Xxxxx X. Xxxxxxx
----------------------------------
Title: Assistant Vice President
XXXXXXXXX ARBITRAGE CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxx X. Xxxxx
----------------------------------
Title: Partner
XXXXXXXXX CLO LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxx X. Xxxxx
----------------------------------
Title: Partner
XXXXXXXXX/RMF TRANSATLANTIC CDO LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxx X. Xxxxx
----------------------------------
Title: Partner
XXXXX XXX FLOATING RATE LLC
By /s/ Xxxxx X. Xxxxxxx
----------------------------------
Title: Senior Vice President, Xxxxx
Xxx & Xxxxxxx Incorporated, as
Advisor to the Xxxxx Xxx Floating
Rate Limited Liability Company
STRATA FUNDING LTD.
By: INVESCO Senior Secured Management,
Inc. As Sub-Managing Agent
By /s/ Xxxxxx X.X. Xxxxx
-----------------------------------
Title: Authorized Signatory
SWISS LIFE US RAINBOW LIMITED
By: ING Capital Advisors LLC
as Investment Manager
By /s/ Xxxx Xxxxxxxxxx
-----------------------------------
Title: Senior Vice President
WHITNEY CASHFLOW FUND II
By /s/ Xxxxxxx Xxxxx
----------------------------------
Title: Fund Controller
WINDSOR LOAN FUNDING, LIMITED
By: Xxxxxxxxx Capital Partners LLC
as its Investment Manager
By /s/ Xxxxxxx X. Xxxxx
---------------------------
Title: Partner
