Exhibit 4.1
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EXECUTION COPY
FIFTH AMENDMENT
FIFTH AMENDMENT dated as of March 7, 2003 (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
inserting the following after the table set forth therein:
"; provided that, if on July 1, 2004, the aggregate amount of
outstanding Loans exceeds $415,875,000, the Applicable Spread
for all Loans, including Loans whose Applicable Spread is
determined by reference to the table set forth above, shall be
increased by 1.00%; provided, further that, if on or before
December 31, 2004, the aggregate amount of outstanding Loans
is equal to or less than $390,937,500, then as of such date,
such increase shall no longer apply."
(ii) the definition of "Change in Control" is hereby amended by
deleting "30%" in clause (a) thereof and inserting in its place "40%".
(iii)the definition of "EBITDA" is hereby amended by adding at the
end of such definition the following:
"provided that, for the purposes of determining compliance by
the Company and the Borrowers after the Fifth Amendment
Effective Date with the covenants contained in Section 6.12,
EBITDA shall not include any EBITDA of any joint venture or
Joint Venture Subsidiary of the Company, even if such
inclusion would otherwise be permitted in accordance with
Adjusted Accounting Principles or GAAP; provided, however,
that the foregoing proviso shall not apply to any EBITDA of
(i) any Joint Venture Subsidiaries existing as of the Fifth
Amendment Effective Date and (ii) Wholly Owned Subsidiaries of
the Company existing as of the Fifth Amendment Effective Date
that subsequently become Joint Venture Subsidiaries."
(iv) the definition of "Prepayment Event" is hereby amended by
deleting the last sentence of clause (d) thereof.
(v) the definition of "Security Documents" is hereby amended by
inserting after "the Mortgages" the following: ", any cash collateral
agreement entered into pursuant to Section 6.05".
(b) Section 1.01 of the Credit Agreement is hereby amended by
adding the following definitions, in the appropriate alphabetical order:
"Additional New Jersey Cash Collateral" has the meaning
assigned to such term in Section 6.05.
"Fifth Amendment" means the Fifth Amendment to this Agreement
dated as of March 7, 2003, among the Company, the Borrowers, the
Lenders party thereto and the Agent.
"Fifth Amendment Effective Date" means the date on which the
Fifth Amendment became effective in accordance with its terms.
"New Jersey Cash Collateral" has the meaning assigned to such
term in Section 6.05.
"Note Repurchase" has the meaning assigned to such term in
Section 6.08.
"Silent Second Facility" has the meaning assigned to such term
in Section 2.07.
3. Amendments to Section 2.07. Section 2.07 of the Credit
Agreement is hereby amended by (a) deleting "Incremental Loans" from the
heading thereof and inserting in its place "Silent Second Facility", (b)
deleting clause (d) thereof in its entirety and (c) replacing such clause
with the following:
"(d) At any time, the Borrowers may enter into an additional
term loan facility to be effectuated pursuant to either (i)
this Credit Agreement or (ii) a separate agreement (in either
case, the "Silent Second Facility"); provided, that such
Silent Second Facility shall have terms and conditions as set
forth on Annex I hereto. The Lenders parties to the Fifth
Amendment hereby authorize the Agent on their behalf to enter
with the Company and the Borrowers into amendments and other
documents as the Agent may reasonably deem appropriate
permitting and effectuating the Silent Second Facility on the
basis set forth in Annex I hereto without further consent."
4. Amendments to Section 2.10. (a) Section 2.10(c) of the Credit
Agreement is hereby amended by (i) inserting in the fourth line thereof after
"provided that," the following: "subject to the last sentence of this
Section," and (ii) inserting at the end thereof the following sentence:
"Notwithstanding anything in the proviso to the immediately
preceding sentence to the contrary, to the extent that the Net
Proceeds received by the Company and the Company Group
Subsidiaries as a result of any events of any of the types
described in clauses (a), (c) and (d) of the definition of the
term Prepayment Event following the Fifth Amendment Effective
Date (i) do not exceed $100,000,000 in the aggregate, 50% of
such Net Proceeds shall be used to prepay Term Borrowings and
shall not be otherwise eligible for reinvestment in
Telecommunications Assets and (ii) exceed $100,000,000 in the
aggregate, 80% of such excess shall be used to prepay Term
Borrowings and shall not be otherwise eligible for
reinvestment in Telecommunications Assets. In addition,
notwithstanding anything to the contrary contained herein, all
prepayments of Term Borrowings of either Class made pursuant
to this paragraph (c) shall be applied to reduce the
subsequent scheduled repayments of the Term Borrowings of such
Class to be made pursuant to Section 2.09 in the inverse order
of maturity."
(b) Section 2.10 of the Credit Agreement is hereby amended by
inserting after clause (d) thereof the following text:
"(e) Commencing with the first scheduled amortization payment
after June 30, 2003, the Company shall make a mandatory
prepayment of the Term Borrowings (each, an "Additional
Payment") on the date of each scheduled installment of
principal pursuant to Section 2.09 in an amount equal to 50%
of the cash interest savings realized by the Company from the
Note Repurchases, such savings to be measured from the date of
the previous scheduled installment of principal; provided,
that the amount of all Additional Payments under this clause
(e) shall not exceed $25,000,000 in the aggregate. The amount
of each Additional Payment shall be determined by the Agent on
the basis of information provided by the Company as reasonably
requested by the Agent, and in determining such amount (i) the
Agent shall not take into account any interest expense on the
Silent Second Facility and (ii) the Agent shall refer to the
cash interest payments actually made during the measurement
period as against the cash interest payments that would
otherwise have been required to be made during such period had
the Note Repurchases not been completed. In addition,
notwithstanding anything to the contrary contained herein, all
prepayments of Term Borrowings of either Class made pursuant
to this paragraph (e) shall be applied to reduce the
subsequent scheduled repayments of the Term Borrowings of such
Class to be made pursuant to Section 2.09 in the inverse order
of maturity."
5. Amendments to Section 6.01. (a) Section 6.01(a)(vii) of the
Credit Agreement is hereby amended by deleting the first proviso therein and
inserting in its place the following:
"provided that the Company and the Borrowers are in pro forma
compliance with the covenant contained in Section 6.12(f) at
the time of, and after giving effect to, the incurrence of
such Indebtedness or, in the case of the incurrence of any
such Indebtedness prior to March 31, 2005, the Company in good
faith projects compliance with such covenant as of such date
after giving effect to the incurrence of such Indebtedness".
(b) Section 6.01(a)(xiii) of the Credit Agreement is hereby
amended by deleting the amount "$25,000,000" therein and inserting in
its place "$35,000,000".
6. Amendments to Section 6.02. Sections 6.02(a)(viii) and
6.02(a)(ix) of the Credit Agreement are hereby amended by deleting such
Sections in their entireties and inserting "[RESERVED]." in their respective
places.
7. Amendments to Section 6.03. (a) Section 6.03(b) of the Credit
Agreement is hereby amended by deleting such Section in its entirety and
inserting "[RESERVED]." in its place.
(b) Section 6.03(e) of the Credit Agreement is hereby amended
by deleting the parenthetical contained therein and inserting in its
place the following: "(other than Indebtedness constituing Indebtedness
of other Loan Parties that is cash collateralized by assets of RFM 2,
LLC as permitted by Sections 6.01(a)(viii) and (xiii))".
8. Amendment to Section 6.04. Section 6.04(e) of the Credit
Agreement is hereby amended by inserting at the end thereof the following:
"; provided, that the proceeds of any such investment shall
not be used by RCN-BecoCom or Starpower (or their respective
subsidiaries) to make an investment or payment that would not
be permitted to be made by the Company directly under the
provisions of this Section or Section 6.08;"
9. Amendments to Section 6.05. (a) Section 6.05(c)(ii) of the
Credit Agreement is hereby amended by deleting "$100,000,000 during any
fiscal year of the Company" and substituting in its place the following:
"$150,000,000 during any fiscal year of the Company (it being understood that
in determining compliance with this basket, any sale, transfer or other
disposition of any asset that is part of the Lehigh Valley system shall be
attributable to the fiscal year in which the first of any such asset was
sold)".
(b) Section 6.05 of the Credit Agreement is hereby amended by (i)
inserting in the first sentence following clause (h) thereof after "any
fiscal year of the Company" the following: ", to the extent not used to
prepay the Term Loans,"and (ii) inserting at the end thereof the following:
"In no event shall the amount on deposit in the cash
collateral account established in respect of an amount equal
to the Net Proceeds from the sale of the New Jersey Assets
(the "New Jersey Cash Collateral") be less than $100,000,000;
provided, that, on the last day of each fiscal quarter of the
Company, commencing on December 31, 2003, such minimum amount
of the New Jersey Cash Collateral shall be increased (such
increase to be recalculated at the end of each fiscal quarter)
by an amount, if positive, equal to the difference of (a)
$125,000,000 minus (b) the aggregate amount of cash used to
effectuate the Note Repurchases that were completed as of the
end of such fiscal quarter, less an amount equal to a
reasonable estimate of the cash interest savings not realized
as a result of the Note Repurchases being in an amount less
than $125,000,000, such estimate to be calculated in a manner
consistent with the method of determination of any Additional
Payments provided for in Section 2.10(e). In addition,
notwithstanding anything to the contrary above, the Borrowers
shall not make a withdrawal of the New Jersey Cash Collateral
or the Additional New Jersey Cash Collateral (as defined
below) such that the resulting amount of the New Jersey Cash
Collateral and the Additional New Jersey Cash Collateral after
such withdrawal is less than the Net Proceeds of the sale of
the New Jersey Assets unless the Company shall have delivered
a certificate of a Financial Officer to the effect that the
Company and the Group Subsidiaries do not have or expect to
have other available cash on hand or Permitted Investments
(excluding any cash collateral unable to be used) to fund
expenditures required to be made within the next 5 Business
Days and that the amount to be withdrawn is not in excess of
the aggregate amount of such expenditures (net of expected
receipts); provided that (i) in the event that the Borrowers
shall make any such withdrawal, the Company and the Borrowers
shall replace the amount withdrawn with any other cash (other
than equity proceeds or proceeds from any sale, transfer,
lease or other disposition of assets permitted by Section 6.05
obtained after the Fifth Amendment Effective Date, which
proceeds in the case of asset sale proceeds shall be deposited
into a cash collateral account as required above) later
obtained by the Company or any Subsidiary in excess of an
amount 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 amount in any event shall not exceed
$25,000,000 in the aggregate (the "Additional New Jersey Cash
Collateral"), and (ii) the Borrowers may use any amount of the
New Jersey Cash Collateral or the Additional New Jersey Cash
Collateral withdrawn for general corporate purposes."
10. Amendments to Section 6.08. (a) Section 6.08(viii) of the
Credit Agreement is hereby amended by deleting the word "and" at the end
thereof.
(b) Section 6.08(ix)(d) of the Credit Agreement is hereby amended
by (i) deleting the amount "90 days" and replacing it with "nine months",
(ii) deleting the period at the end thereof and substituting "; and" therefor
and (iii) inserting thereafter the following clause:
"(x) the repurchase by the Company of its senior notes then
outstanding (each such repurchase, a "Note Repurchase");
provided that any Note Repurchase shall be made with existing
cash of the Company and its Subsidiaries (in an amount not to
exceed $125,000,000 (plus related fees and expenses)) and with
the Net Proceeds of the Silent Second Facility; provided,
further, that in the event that any senior notes repurchased
by the Company are not cancelled thereafter, the Company shall
pledge to the Agent such senior notes by (i) depositing or
crediting such senior notes to a securities account with
respect to which the applicable securities intermediary has
agreed to grant control of such account to the Agent in order
to perfect a Lien on such account, (ii) granting a Lien on
such account in favor of the Agent and (iii) delivering to the
Agent any instruments necessary to enable the Agent to vote
such senior notes upon the occurrence of an Event of Default
to the extent that the Agent would be able to so vote such
senior notes. The Company further agrees that it shall not
repurchase any senior notes held by its employees, officers or
directors (each, an "Insider") unless such repurchase (i) is
part of, and on terms and conditions no more favorable than, a
broader Note Repurchase from non-Insiders or (ii) is on terms
and conditions no more favorable to the sellers than the terms
and conditions of similar Note Repurchases from non-Insiders
effected on a substantially concurrent basis."
11. 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 (including cash collateral) at the Company and its Restricted
Subsidiaries on the last day of any fiscal quarter to be less than
the amount set forth opposite such date below:
Fiscal Quarter
Ending Cash Balance
-------------- ------------
March 31, 2003 $225,000,000
June 30, 2003 $175,000,000
September 30, 2003 $125,000,000
December 31, 2003 $100,000,000
March 31, 2004 $100,000,000
June 30, 2004 $100,000,000
September 30, 2004 $100,000,000
December 31, 2004 $100,000,000
March 31, 2005 $100,000,000
June 30, 2005 $100,000,000
September 30, 2005 $100,000,000
December 31, 2005 $100,000,000
March 31, 2006 $100,000,000
June 30, 2006 $100,000,000
September 30, 2006 $100,000,000
December 31, 2006 $100,000,000
March 31, 2007 $100,000,000
June 30, 2007 $100,000,000
(b) [RESERVED].
(c) [RESERVED].
(d) Cumulative Minimum EBITDA. 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, 2004 $(50,000,000)
June 30, 2004 $(30,000,000)
September 30, 2004 $(10,000,000)
December 31, 2004 $15,000,000
(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) [RESERVED].
(h) [RESERVED].
(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 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."
12. Annex I to the Credit Agreement. The Credit Agreement is
hereby amended by (a) adding "Annex I -- Silent Second Facility Provisions"
at the end of the list of Exhibits in the Table of Contents thereto and (b)
attaching thereto as Annex I the provisions relating to the Silent Second
Facility in the form of Exhibit A attached hereto.
13. Miscellaneous Amendments. (a) Section 1.1 of the Credit
Agreement is hereby amended by (i) deleting "Section 6.12(m)" from the
definitions of "California Assets" and "New Jersey Assets" and inserting
"Section 6.12(i)" in its place, (ii) deleting "Section 2.10(c)" from the
definition of "Net Proceeds" and inserting "Sections 2.10(c) and (d)" in its
place and (iii) deleting "Exhibit D" from the definition of "Subsidiary
Guarantee Agreement" and inserting "Exhibit F" in its place.
(b) Section 2.07(b) of the Credit Agreement is hereby amended by
deleting "Section 2.11" and inserting "Section 2.10" in its place.
(c) Section 2.10 of the Credit Agreement is hereby amended by (i)
deleting the clause references "(e)" and "(f)" and replacing them with the
clause references "(f)" and "(g)", respectively, (ii) deleting "paragraph
(f)" in clause (f) thereof and inserting "paragraph (g)" in its place and
(iii) deleting "paragraph (c)" in clause (g) thereof and inserting "paragraph
(g)" in its place.
(d) Section 6.01(a) of the Credit Agreement is hereby amended by
(i) deleting the second proviso contained in clause (v) thereof in its
entirety and (ii) deleting clause (xii) thereof in its entirety and inserting
"[RESERVED]." in its place.
(e) Sections 6.02(a)(v) and (vii) of the Credit Agreement are
hereby amended by inserting "(a)" immediately after the references to
"Section 6.01" therein.
(f) Sections 6.03(a) and 6.04(h) of the Credit Agreement are hereby
amended by deleting "Section 6.12(m)" and inserting "Section 6.12(i)" in its
place.
14. Reduction of Facilities. On the Fifth Amendment Effective
Date the aggregate amount of the Revolving Commitments shall be automatically
and permanently reduced from $187,500,000 to $15,000,000 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. 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. If at any time after the Fifth Amendment Effective Date any
Revolving Commitments shall become unused, such Revolving Commitments shall
be automatically and permanently terminated. The Borrowers irrevocably agree
not to borrow any Revolving Loans after the Fifth Amendment Effective Date.
15. 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 Fifth 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.
16. 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.
17. 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.
18. Conditions Precedent to Effectiveness. This Amendment shall
become effective on the date on which each of the following conditions is
satisfied (the "Fifth Amendment 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 all fees and other amounts due
and payable on or prior to the Fifth Amendment Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel and FTI
Consulting) required to be reimbursed or paid by any Loan Party hereunder or
under any other Loan Document;
(c) The Borrowers shall have made the prepayments of Borrowings and
paid the other amounts required to be paid pursuant to Section 14 of this
Amendment;
(d) 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 7, 2003, an amendment fee
equal to 1.00% of the aggregate amount of such Lender's unused Commitments,
Revolving Exposure and outstanding Term Loans on the date of this Amendment
and after giving effect to the reductions and prepayments required by Section
14 of this Amendment;
(e) The Company, RFM2, LLC and the Agent shall have entered into an
appropriate amendment to the side letter to the cash collateral agreement in
respect of the New Jersey Cash Collateral to reflect the changes made pursuant
to this Amendment, and the Company shall have deposited funds into the cash
collateral account in an amount equal to the aggregate amount withdrawn
therefrom following the effectiveness of the cash collateral agreement; and
(f) The parties to the Security Agreement shall have entered into
an amendment to the Security Agreement the effect of which is to xxxxx x xxxx
on the Net Proceeds of any asset sale to the extent such Net Proceeds are
required to be deposited into a cash collateral account pursuant to Section
6.05 of the Credit Agreement or are to be used to make any prepayment of the
Term Loans. The Lenders party hereto hereby consent to the Agent entering
into such amendment.
19. Expenses. The Borrowers agree to pay or reimburse the Agent
(a) 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, and the reasonable fees, charges and
disbursements of FTI Consulting and (b) for the payment of retainers to such
counsel and FTI Consulting. 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.
20. 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
RCN TELECOM SERVICES, INC.,
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Executive Vice President
RCN FINANCIAL MANAGEMENT, INC.,
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Executive Vice President
UNET HOLDING, INC.,
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Executive Vice President
RCN INTERNET SERVICES, INC.,
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Executive Vice President
JPMORGAN CHASE BANK,
individually and as Agent
By /s/ Xxxxxxxx Xxxx
---------------------------------
Title: Vice President
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
By /s/ Xxxxx Xxxxxxx
---------------------------------
Title: Authorized Signatory
By /s/ Xxxxx X. Xxxxxxx
--------------------------------
Title: Authorized Signatory
AIMCO CLO, SERIES 2001-A
By /s/ Xxxxx Xxxxxxx
---------------------------------
Title: Authorized Signatory
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY
By /s/ Xxxxx Xxxxxxx
---------------------------------
Title: Authorized Signatory
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Title: Authorized Signatory
AMARA-1 FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc. As Financial Advisor
By /s/ Xxxxx Xxxxxxx
----------------------------------
Title: Authorized Signatory
AMARA-2 FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc. As Financial Advisor
By /s/ Xxxxx Xxxxxxx
-----------------------------------
Title: Authorized Signatory
ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors LLC as
Collateral Manager
By /s/ Xxxxxx Xxxxxx
-----------------------------------
Title: Vice President &
Senior Credit Analyst
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC as
Collateral Manager
By /s/ Xxxxxx Xxxxxx
-----------------------------------
Title: Vice President &
Senior Credit Analyst
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, L.P.
By: ARES Management, L.P.,
Its General Partner
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
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management,
Inc. As Portfolio Advisor
By /s/ Xxxxx Xxxxxxx
-----------------------------------
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management,
Inc. As Portfolio Advisor
By /s/ Xxxxx Xxxxxxx
-----------------------------------
Title: Authorized Signatory
BANK OF MONTREAL
By /s/ X. X. Xxxxxxxxxx
----------------------------------
Title: Director
BDC FINANCE, L.L.C.
By /s/ Xxxxx X. Xxxxx
---------------------------------
Title: Authorized Signatory
BDCM OPPORTUNITY FUND, L.P.
By: Black Diamond Capital Management,
L.L.C., its General Partner
By /s/ Xxxxx X. Xxxxx
---------------------------------
Title: Authorized Signatory
BEDFORD CDO, LIMITED (Acct 1276)
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Title: Executive Vice President
XXXXXXX CDO, L.P.
By /s/ Xxxxxx Xxxxx
---------------------------------
Title: Managing Director
BLACK DIAMOND CLO 1998-1 LTD.
By /s/ Xxxx Xxxxxxx
---------------------------------
Title: Director
BLACK DIAMOND CLO 2000-1 LTD.
By /s/ Xxxx Xxxxxxx
----------------------------------
Title: Director
BLACK DIAMOND INTERNATIONAL FUNDING,LTD.
By /s/ Xxxx Xxxxxxx
---------------------------------
Title: Directory
BNP PARIBAS
By /s/ Xxx Xxxxxxxxx
---------------------------------
Title: Director
By /s/ Xxxxx 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 LLC
By /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Title: Authorized Signatory
CANYON CAPITAL CDO 2001-1, LTD.
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 Xxxxxxxxx
-----------------------------------
Title: Director - Operations
CENTURION CDO II, LTD.
By: American Express Asset Management
Group Inc. as Collateral Manager
By /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Title: Director - Operations
CENTURION CDO III, LIMITED
By: American Express Asset Management
Group Inc. as Collateral Manager
By /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Title: Director - Operations
CERES FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc. As Sub-Managing Agent
By /s/ Xxxxx Xxxxxxx
----------------------------------
Title: Authorized Signatory
CERES II FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc. As Sub-Managing Agent
(Financial)
By /s/ Xxxxx Xxxxxxx
----------------------------------
Title: Authorized Signatory
CITIBANK NA
By /s/ Xxxx Xxxxxx
----------------------------------
Title: Vice President
CIT LENDING SERVICES CORPORATION
By /s/ Xxxxxx Xxxxx
----------------------------------
Title: Director
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY
As: Attorney-in-Fact and on behalf of
First Allmerica Financial Life
Insurance Company, Inc., as
Portfolio Manager
By /s/ Xxxxxxx Xxxxxx
---------------------------------
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/ Xxxx Xxxxxx
---------------------------------
Title: Director
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: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Title: Managing Director
ELC (CAYMAN) LTD. 1999-II
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By /s/ Xxxxxxxx Xxxxxxx
-------------------------------
Title: Managing Director
ELC (CAYMAN) LTD. 1999-III
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By /s/ Xxxxxxxx Xxxxxxx
-------------------------------
Title: Managing Director
ELC (CAYMAN) LTD. 2000-1
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By /s/ Xxxxxxxx Xxxxxxx
-------------------------------
Title: Managing Director
ELC (CAYMAN) LTD. CDO SERIES 1999-1
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By /s/ Xxxxxxxx Xxxxxxx
--------------------------------
Title: Managing 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/ Xxxxxxx Xxxxxx
---------------------------------
Title: Vice President &
Senior Credit Analyst
FIDELITY SUMMER STREET TRUST
FIDELITY CAPITAL & INCOME FUND
By /s/ Xxxx Xxxxxxxxx
--------------------------------
Title: Assistant Treasurer
FLEET NATIONAL BANK
By /s/ Xxxxxxxxx X. Xxxxx
--------------------------------
Title: Workout Officer
FOOTHILL INCOME TRUST II, L.P.
By FIT II GP, LLC
Its General Partner
By /s/ Xxxx Xxxxx
--------------------------------
Title: Managing Member
FRANKLIN CLO I, LTD.
By /s/ Xxxxxxx Xxx
---------------------------------
Title: Vice President
FRANKLIN FLOATING RATE TRUST
By /s/ Xxxxxxx Xxx
--------------------------------
Title: Vice President
XXXXXXX SACHS CREDIT PARTNERS
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Title: Authorized Signatory
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/ Xxxxxxxxxxx Xxxxxxx
----------------------------------
Title: Partner
HIGHLAND CRUSADER OFFSHORE PARTNERS
By: Highland Capital Management, L.P.
as General Partners
By /s/ Xxxx Xxxxxxx
-----------------------------------
Title: Senior Portfolio Manager,
Highland Capital Management, L.P.
IBM CREDIT LLC
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Manager Special Handling
JISSEKIKUN FUNDING, LTD. (Acct 1288)
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------
Title: Executive Vice President
KS CAPITAL PARTNERS, LP
By /s/ Xxxx Xxxxx
----------------------------------
Title: General Partner
KS INTERNATIONAL, INC.
By /s/ Xxxx Xxxxx
----------------------------------
Title: General Partner
KZH CYPRESS TREE-1 LLC
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: Authorized Agent
KZH ING-2 LLC
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: Authorized Agent
KZH ING-3 LLC
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: Authorized Agent
KZH STERLING LLC
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: Authorized Agent
LIBERTY - FLOATING
RATE ADVANTAGE FUND
By: Xxxxx Xxx & Farnham Incorporated as
Advisor
By /s/ Xxxxxxxx X. Xxxx
----------------------------------
Title: Senior Vice President
XXXXXXXX MASTER FUND, LTD.
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Director
LONG LANE MASTER TRUST IV
By: Fleet National Bank as Trust
Administrator
By /s/ Xxxxx Xxxxxx
----------------------------------
Title: Managing Director
MAGMA CDO, L.P.
By /s/ Xxxxxx Xxxxx
----------------------------------
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ Xxxxx Xxxxx
----------------------------------
Title: Managing Director
METROPOLITAN LIFE INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Title: Director
METROPOLITAN PROPERTY AND CASUALTY
INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Title: Director
MIZUHO CORPORATE BANK, LTD.
By /s/ Xxxx Xxxxxxx
-----------------------------------
Title: Senior Vice President
ML CLO XIX STERLING (CAYMAN) LTD.
By: Highland Capital Management, L.P.
(As successor in interest to
Sterling Asset Management)
By /s/ Xxxx Xxxxxxx
----------------------------------
Title: Senior Portfolio Manager,
Highland Capital Management, X.X.
XXXXXX XXXXXXX PRIME INCOME TRUST
By /s/ Xxxxx Xxxxxxx
----------------------------------
Title: Vice President
MOUNTAIN CAPITAL CLO I, LTD.
By /s/ Xxxxx Xxxxxxx
----------------------------------
Title: Director
MUIRFIELD TRADING LLC
By /s/ Xxxxx X. Xxxxxxx
----------------------------------
Title: Assistant Vice President
NEMEAN CLO, LTD.
By: ING Capital Advisors LLC,
As Investment Manager
By /s/ Xxxxxx Xxxxxx
-----------------------------------
Title: Vice President &
Senior Credit Analyst
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 /s/ Xxxxx Xxxxx
----------------------------------
Title: Portfolio Manager
OASIS COLLATERALIZED HIGH INCOME
PORTFOLIOS-1 LTD.
By: INVESCO Senior Secured Management,
Inc. As Sub-Advisor
By /s/ Xxxxx Xxxxxxx
----------------------------------
Title: Authorized Signatory
OLYMPIC FUNDING TRUST SERIES 1999-1
By /s/ Xxxxx X. Xxxxxxx
----------------------------------
Title: Authorized Agent
XXX CAPITAL FUNDING LP
By: Highland Capital Management, L.P.
As Collateral Manager
By /s/ Xxxx Xxxxxxx
----------------------------------
Title: Senior Portfolio Manager,
Highland Capital Management, L.P.
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.
As Collateral Manager
By /s/ Xxxx Xxxxxxx
----------------------------------
Title: Senior Portfolio Manager,
Highland Capital Management, L.P.
PB CAPITAL CORPORATION, as a Lender
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: Assistant Vice President
By /s/ Xxxxx X. XxXxxxxx
---------------------------------
Title: Assistant Vice President
PPM AMERICA SPECIAL INVESTMENTS
FUND, L.P.
By /s/ Xxxxxx Xxxxxx
---------------------------------
Title: Vice President
PPM SPYGLASS FUNDING TRUST
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Title: Authorized Agent
SATELLITE ASSET MANAGEMENT
By /s/ Xxxxxxx Xxxxxxx
----------------------------------
Title: Authorized Signatory
SEABOARD CLO 2000 LTD.
By /s/ Xxxxxxxx X.X. Xxxxx, Xx.
----------------------------------
Title: Authorized Representative for
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 Xxxxxxxxx
-----------------------------------
Title: Director - Operations
SEQUILS - CUMBERLAND I, LTD.
By: Deerfield Capital Management LLC
As its Collateral Manager
By /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Title: Senior Vice President
SEQUILS ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
As Collateral Manager
By /s/ Xxxxxx Xxxxxx
----------------------------------
Title: Vice President and
Senior Credit Analyst
SPCP GROUP LLC
By /s/ Xxxxxx X. Mule
-----------------------------------
Title: Authorized Signatory
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/ Xxxxxxxxxxx Xxxxxxx
----------------------------------
Title: Partner
XXXXXXXXX CLO LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxxxxxx Xxxxxxx
----------------------------------
Title: Partner
XXXXXXXXX QUATTRO CLO Ltd.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxxxxxx Xxxxxxx
----------------------------------
Title: Partner
XXXXXXXXX/RMF TRANSATLANTIC CDO LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxxxxxx Xxxxxxx
----------------------------------
Title: Partner
XXXXX XXX FLOATING RATE
LIMITED LIABILITY COMPANY
By: XXXXX XXX & XXXXXXX
INCORPORATED AS ADVISOR
By /s/ Xxxxxxxx X. Xxxx
----------------------------------
Title: Senior Vice President
STRATA FUNDING LTD.
By: INVESCO Senior Secured Management,
Inc. As Sub-Managing Agent
By /s/ Xxxxx Xxxxxxx
-----------------------------------
Title: Authorized Signatory
SUNAMERICA SENIOR FLOATING RATE
FUND, INC.
By: XXXXXXXXX CAPTIAL PARTNERS LLC
as subadvisor
By /s/ Xxxxxxxxxxx Xxxxxxx
----------------------------------
Title: Partner
WACHOVIA BANK, ANTIONAL ASSOCIATION
as a Lender
By /s/ Xxxx Xxxxxx
--------------------------------------
Title: Director
WINDSOR LOAN FUNDING, LIMITED
By: Xxxxxxxxx Capital Partners LLC
as its Investment Manager
By /s/ Xxxxxxxxxxx Xxxxxxxx
---------------------------
Title: Partner
Exhibit A
to the Fifth Amendment
----------------------
ANNEX I
to Credit Agreement
SILENT SECOND FACILITY PROVISIONS
Capitalized terms used and not defined herein shall have the
meanings given to them in the Credit Agreement, as amended, to which this
Annex I is attached.
A. Any Silent Second Facility created or contemplated pursuant to
Section 2.07(d) of the Credit Agreement shall have the following features and
limitations:
1. It shall not exceed $500,000,000 in the aggregate;
2. It shall not, before the date that is one year following the
later of (a) the maturity of the existing Term Loans under the Credit
Agreement and (b) the termination of the Revolving Commitments under the
Credit Agreement, have a final maturity or provide for any amortization
payments;
3. It may contain equity conversion provisions or warrants;
provided that if a Change of Control, determined on a fully diluted
basis after giving effect to any equity conversion provisions or
warrants, would arise by virtue of the lenders lending under such Silent
Second Facility, such lenders shall be reasonably satisfactory to the
Agent;
4. It may allow for the creation and perfection of a silent,
second lien on the Collateral; provided, that, until the Credit
Agreement is terminated and all amounts owing under the Credit Agreement
have been paid in full in cash, the holders of such lien shall not have
any right to (a) enforce the lien or foreclose upon the Collateral, (b)
vote in any bankruptcy or similar proceeding in respect of the Company
or any Company Group Subsidiary (any such proceeding, a "Bankruptcy")
with respect to, or take any other actions concerning, the Collateral,
(c) receive any proceeds from any sale, transfer or other disposition of
the Collateral, (d) oppose any sale, transfer or other disposition of
the Collateral, (e) object to any debtor-in-possession financing in any
Bankruptcy which is provided by one or more Lenders among others
(including on a priming basis), (f) object to the use of cash collateral
in respect of the Collateral in any Bankruptcy, or (g) seek or object to
the Lenders seeking any adequate protection or relief from the automatic
stay with respect to the Collateral in any Bankruptcy. In addition, the
holders of such lien shall grant a power of attorney in favor of the
Agent to permit the Agent or the Lenders to effectuate any sale,
transfer or other disposition of the Collateral; and
5. It shall have terms and conditions not covered by the
provisions hereof reasonably satisfactory to the Agent.
B. If such Silent Second Facility is created pursuant to Section
2.07(d)(i) of the Credit Agreement, the following features and limitations
shall apply:
1. The Credit Agreement shall be amended to include (a) a
separate set of covenants and defaults pertaining to such Silent Second
Facility, with terms no more restrictive than those in the Credit
Agreement and which are otherwise reasonably satisfactory to the Agent,
and which terms in any event shall not include any financial covenants
or cross-default (as opposed to cross-acceleration) to other
indebtedness or any asset sale covenant more restrictive than that in
the indentures governing the Company's senior notes and (b) a condition
to closing that an appropriate "no conflict opinion" be received;
2. The lenders under such Silent Second Facility shall be
consented to by the Agent (which consent shall not be unreasonably
withheld); provided, that such consent shall not be required for certain
shareholders of the Company, to be agreed upon between the Company and
the Agent; and
3. The lenders under such Silent Second Facility shall have no
voting rights under the Credit Agreement, other than with respect to (a)
the covenants and defaults solely related to the Silent Second Facility,
(b) reductions in the amount of amortization, (c) extensions of the
scheduled date of amortization, (d) extensions of the date of final
maturity, (e) reductions in the rate of interest due on account thereof,
(f) reductions in any fee due thereto or (g) extensions of any due date
for any such interest or fee.
C. If such Silent Second Facility is contemplated by Section
2.07(d)(ii) of the Credit Agreement, it shall have terms that are no more
restrictive than those in the Credit Agreement and which are otherwise
reasonably satisfactory to the Agent, and which terms in any event shall not
include any financial covenants or cross-default (as opposed to
cross-acceleration) to other indebtedness or any asset sale covenant more
restrictive than that in the indentures governing the Company's senior notes.
