Exhibit 99.6
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY (as amended, modified, restated and/or
supplemented from time to time, this "Guaranty"), dated as of December 21,
2004, made by and among each of the undersigned guarantors (each, a
"Guarantor" and, together with any other entity that becomes a guarantor
hereunder pursuant to Section 22 hereof, collectively, the "Guarantors") in
favor of Deutsche Bank AG Cayman Islands Branch, as Administrative Agent
(together with any successor administrative agent, the "Administrative
Agent"), for the benefit of the Secured Creditors (as defined below). Except
as otherwise defined herein, all capitalized terms used herein and defined in
the Credit Agreement (as defined below) shall be used herein as therein
defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, RCN Corporation (the "Borrower"), the lenders from
time to time party thereto (the "Lenders"), Deutsche Bank Securities Inc., as
Sole Lead Arranger and Sole Book Manager, and the Administrative Agent, have
entered into a Credit Agreement, dated as of December 21, 2004 (as amended,
modified, restated and/or supplemented from time to time, the "Credit
Agreement"), providing for the making of Loans to, and the issuance of, and
participation in, Letters of Credit for the account of the Borrower, all as
contemplated therein (the Lenders, each Issuing Lender, the Administrative
Agent, the Collateral Agent, each other Agent and the Pledgee are herein
called the "Lender Creditors");
WHEREAS, the Borrower and/or one or more of its Subsidiaries
may at any time and from time to time enter into one or more Interest Rate
Protection Agreements and/or Other Hedging Agreements with one or more Lenders
or any affiliate thereof (each such Lender or affiliate, even if the
respective Lender subsequently ceases to be a Lender under the Credit
Agreement for any reason, together with such Lender's or affiliate's
successors and assigns, if any, collectively, the "Other Creditors" and,
together with the Lender Creditors, the "Secured Creditors");
WHEREAS, each Guarantor is a direct or indirect Subsidiary of
the Borrower;
WHEREAS, it is a condition precedent to the making of Loans
to the Borrower and the issuance of, and participation in, Letters of Credit
for the account of the Borrower under the Credit Agreement and to the Other
Creditors entering into Interest Rate Protection Agreements and Other Hedging
Agreements that each Guarantor shall have executed and delivered to the
Administrative Agent this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the
incurrence of Loans by the Borrower and the issuance of, and participation in,
Letters of Credit for the account of the Borrower under the Credit Agreement
and the entering into by the Borrower and/or one or more of its Subsidiaries
of Interest Rate Protection Agreements or Other Hedging Agreements and,
accordingly, desires to execute this Guaranty in order to satisfy the
condition described in the preceding paragraph and to induce the Lenders to
make Loans to the Borrower and issue, and/or participate in, Letters of Credit
for the account of the Borrower and the Other Creditors to enter into Interest
Rate Protection Agreements or Other Hedging Agreements with the Borrower
and/or one or more of its Subsidiaries;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Guarantor, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby makes the following representations
and warranties to the Administrative Agent for the benefit of the Secured
Creditors and hereby covenants and agrees with each other Guarantor and the
Administrative Agent for the benefit of the Secured Creditors as follows:
1. GUARANTY. (a) Each Guarantor, jointly and severally,
irrevocably, absolutely and unconditionally guarantees as a primary obligor
and not merely as surety:
(i) to the Lender Creditors the full and prompt payment when
due (whether at the stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise) of (x) the principal of, premium, if
any, and interest on the Notes issued by, and the Loans made to, the
Borrower under the Credit Agreement, and all reimbursement obligations
and Unpaid Drawings with respect to Letters of Credit and (y) all other
obligations (including, without limitation, obligations which, but for
the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due), liabilities and indebtedness owing by the Borrower to the
Lender Creditors under the Credit Agreement and each other Credit
Document to which the Borrower is a party (including, without limitation,
indemnities, Fees and interest thereon (including, without limitation,
any interest accruing after the commencement of any bankruptcy,
insolvency, receivership or similar proceeding at the rate provided for
in the Credit Agreement, whether or not such interest is an allowed claim
in any such proceeding)), whether now existing or hereafter incurred
under, arising out of or in connection with the Credit Agreement and any
such other Credit Document and the due performance and compliance by the
Borrower with all of the terms, conditions, covenants and agreements
contained in all such Credit Documents (all such principal, premium,
interest, liabilities, indebtedness and obligations under this clause
(i), except to the extent consisting of obligations or liabilities with
respect to Interest Rate Protection Agreements or Other Hedging
Agreements, being herein collectively called the "Credit Document
Obligations"); and
(ii) to each Other Creditor the full and prompt payment when
due (whether at the stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise) of all obligations (including, without
limitation, obligations which, but for the automatic stay under Section
362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness (including, without limitation, any interest accruing after
the commencement of any bankruptcy, insolvency, receivership or similar
proceeding at the rate provided for in the respective Interest Rate
Protection Agreements or Other Hedging Agreements, whether or not such
interest is an allowed claim in any such proceeding) owing by the
Borrower and/or any other Guaranteed Party under any Interest Rate
Protection Agreement and any Other Hedging Agreement to which it is a
party, whether now in existence or hereafter arising, and the due
performance and compliance by the Borrower and each such other Guaranteed
Party with all of the terms, conditions, covenants and agreements
contained therein (all such obligations, liabilities and indebtedness
being herein collectively called the "Other Obligations", and together
with the Credit Document Obligations are herein collectively called the
"Guaranteed Obligations"); provided that if the aggregate notional amount
of all then outstanding Interest Rate Protection Agreements and Other
Hedging Agreements would exceed the Maximum Hedging Obligations Notional
Amount, then amounts owing with respect to such excess shall not
constitute Other Obligations hereunder; provided further that, if at the
time of the entering into of any Interest Rate Protection Agreement or
Other Hedging Agreement the respective Other Creditors obtained an
officer's certificate of the Borrower or a representation by the Borrower
that the aggregate notional amount thereof when added to the aggregate
notional amount of all other then outstanding Interest Rate Protection
Agreements and Other Hedging Agreements which constitute Other
Obligations hereunder, shall not or would not exceed the Maximum Hedging
Obligations Notional Amount, then such Interest Rate Protection Agreement
or Other Hedging Agreement, as the case may be, (and all obligations
thereunder as described above) shall constitute Other Obligations for all
purposes hereof notwithstanding the fact that the Maximum Hedging
Obligations Notional Amount has actually been exceeded.
As used herein, the term (x) "Guaranteed Party" shall mean the Borrower and
each Subsidiary of the Borrower party to any Interest Rate Protection
Agreement or Other Hedging Agreement with an Other Creditor and (y) "Maximum
Hedging Obligations Notional Amount" shall mean an aggregate notional amount
equal to $325 million. Each Guarantor understands, agrees and confirms that
the Secured Creditors may enforce this Guaranty up to the full amount of the
Guaranteed Obligations against such Guarantor without proceeding against any
other Guarantor, the Borrower or any other Guaranteed Party, or against any
security for the Guaranteed Obligations, or under any other guaranty covering
all or a portion of the Guaranteed Obligations. This Guaranty is a guaranty of
prompt payment and performance and not of collection.
(b) Additionally, each Guarantor, jointly and severally,
unconditionally, absolutely and irrevocably, guarantees the payment of any and
all Guaranteed Obligations whether or not due or payable by the Borrower or
any other Guaranteed Party upon the occurrence in respect of the Borrower or
any other Guaranteed Party of any of the events specified in Section 10.05 of
the Credit Agreement, and unconditionally, absolutely and irrevocably, jointly
and severally, promises to pay such Guaranteed Obligations to the Secured
Creditors, or order, on demand.
2. LIABILITY OF GUARANTORS ABSOLUTE. The liability of each
Guarantor hereunder is primary, absolute, joint and several, and unconditional
and is exclusive and independent of any security for or other guaranty of the
indebtedness of the Borrower or any other Guaranteed Party whether executed by
such Guarantor, any other Guarantor, any other guarantor or by any other
party, and the liability of each Guarantor hereunder shall not be affected or
impaired by any circumstance or occurrence whatsoever, including, without
limitation: (a) any direction as to application of payment by the Borrower,
any other Guaranteed Party or any other party, (b) any other continuing or
other guaranty, undertaking or maximum liability of a Guarantor or of any
other party as to the Guaranteed Obligations, (c) any payment on or in
reduction of any such other guaranty or undertaking, (d) any dissolution,
termination or increase, decrease or change in personnel by the Borrower or
any other Guaranteed Party, (e) the failure of the Guarantor to receive any
benefit from or as a result of its execution, delivery and performance of this
Guaranty, (f) any payment made to any Secured Creditor on the indebtedness
which any Secured Creditor repays the Borrower or any other Guaranteed Party
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Guarantor waives any
right to the deferral or modification of its obligations hereunder by reason
of any such proceeding, (g) any action or inaction by the Secured Creditors as
contemplated in Section 5 hereof or (h) any invalidity, rescission,
irregularity or unenforceability of all or any part of the Guaranteed
Obligations or of any security therefor.
3. OBLIGATIONS OF GUARANTORS INDEPENDENT. The obligations of
each Guarantor hereunder are independent of the obligations of any other
Guarantor, any other guarantor, the Borrower or any other Guaranteed Party,
and a separate action or actions may be brought and prosecuted against each
Guarantor whether or not action is brought against any other Guarantor, any
other guarantor, the Borrower or any other Guaranteed Party and whether or not
any other Guarantor, any other guarantor, the Borrower or any other Guaranteed
Party be joined in any such action or actions. Each Guarantor waives (to the
fullest extent permitted by applicable law) the benefits of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by the Borrower or any other Guaranteed Party or other circumstance
which operates to toll any statute of limitations as to the Borrower or such
other Guaranteed Party shall operate to toll the statute of limitations as to
each Guarantor.
4. WAIVERS BY GUARANTORS. (a) Each Guarantor hereby waives
(to the fullest extent permitted by applicable law) notice of acceptance of
this Guaranty and notice of the existence, creation or incurrence of any new
or additional liability to which it may apply, and waives promptness,
diligence, presentment, demand of payment, demand for performance, protest,
notice of dishonor or nonpayment of any such liabilities, suit or taking of
other action by the Administrative Agent or any other Secured Creditor
against, and any other notice to, any party liable thereon (including such
Guarantor, any other Guarantor, any other guarantor, the Borrower or any other
Guaranteed Party) and the Guarantor further hereby waives any and all notice
of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice or proof of reliance by any Secured Creditor upon this
Guaranty, and the Guaranteed Obligations shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended, modified,
supplemented or waived, in reliance upon this Guaranty.
(b) Each Guarantor waives any right to require the Secured
Creditors to: (i) proceed against the Borrower, any other Guaranteed Party,
any other Guarantor, any other guarantor of the Guaranteed Obligations or any
other party; (ii) proceed against or exhaust any security held from the
Borrower, any other Guaranteed Party, any other Guarantor, any other guarantor
of the Guaranteed Obligations or any other party; or (iii) pursue any other
remedy in the Secured Creditors' power whatsoever. Each Guarantor waives any
defense based on or arising out of any defense of the Borrower, any other
Guaranteed Party, any other Guarantor, any other guarantor of the Guaranteed
Obligations or any other party other than payment in full in cash of the
Guaranteed Obligations, including, without limitation, any defense based on or
arising out of the disability of the Borrower, any other Guaranteed Party, any
other Guarantor, any other guarantor of the Guaranteed Obligations or any
other party, or the unenforceability of the Guaranteed Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of
the Borrower or any other Guaranteed Party other than payment in full in cash
of the Guaranteed Obligations. The Secured Creditors may, at their election,
foreclose on any collateral serving as security held by the Administrative
Agent, the Collateral Agent or the other Secured Creditors by one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Secured Creditors may have
against the Borrower, any other Guaranteed Party or any other party, or any
security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid in full in cash. Each Guarantor waives any defense arising out of any
such election by the Secured Creditors, even though such election operates to
impair or extinguish any right of reimbursement, contribution, indemnification
or subrogation or other right or remedy of such Guarantor against the
Borrower, any other Guaranteed Party, any other guarantor of the Guaranteed
Obligations or any other party or any security.
(c) Each Guarantor has knowledge and assumes all
responsibility for being and keeping itself informed of the Borrower's, each
other Guaranteed Party's and each other Guarantor's financial condition,
affairs and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of
the risks which such Guarantor assumes and incurs hereunder, and has adequate
means to obtain from the Borrower, each other Guaranteed Party and each other
Guarantor on an ongoing basis information relating thereto and the Borrower's,
each other Guaranteed Party's and each other Guarantor's ability to pay and
perform its respective Guaranteed Obligations, and agrees to assume the
responsibility for keeping, and to keep, so informed for so long as this
Guaranty is in effect. Each Guarantor acknowledges and agrees that (x) the
Secured Creditors shall have no obligation to investigate the financial
condition or affairs of the Borrower, any other Guaranteed Party or any other
Guarantor for the benefit of such Guarantor nor to advise such Guarantor of
any fact respecting, or any change in, the financial condition, assets or
affairs of the Borrower, any other Guaranteed Party or any other Guarantor
that might become known to any Secured Creditor at any time, whether or not
such Secured Creditor knows or believes or has reason to know or believe that
any such fact or change is unknown to such Guarantor, or might (or does)
increase the risk of such Guarantor as guarantor hereunder, or might (or
would) affect the willingness of such Guarantor to continue as a guarantor of
the Guaranteed Obligations hereunder and (y) the Secured Creditors shall have
no duty to advise any Guarantor of information known to them regarding any of
the aforementioned circumstances or risks.
(d) Each Guarantor hereby acknowledges and affirms that it
understands that to the extent the Guaranteed Obligations are secured by Real
Property located in the State of California, such Guarantor shall be liable
for the full amount of the liability hereunder notwithstanding foreclosure on
such Real Property by trustee sale or any other reason impairing such
Guarantor's or any Secured Creditors' right to proceed against any Borrower,
any other Guaranteed Party or any other guarantor of the Guaranteed
Obligations.
(e) Each Guarantor hereby waives (to the fullest extent
permitted by applicable law) all rights and benefits under Section 580a, 580b,
580d and 726 of the California Code of Civil Procedure. Each Guarantor hereby
further waives (to the fullest extent permitted by applicable law), without
limiting the generality of the foregoing or any other provision hereof, all
rights and benefits which might otherwise be available to such Guarantor under
Sections 2809, 2810, 2815, 2819, 2821, 2839, 2845, 2848, 2849, 2850, 2899 and
3433 of the California Civil Code.
(f) Until the Guaranteed Obligations have been paid in full
in cash, each Guarantor waives its rights of subrogation and reimbursement and
any other rights and defenses available to such Guarantor by reason of
Sections 2787 to 2855, inclusive, of the California Civil Code, including,
without limitation, (1) any defenses such Guarantor may have to this Guaranty
by reason of an election of remedies by the Secured Creditors and (2) any
rights or defenses such Guarantor may have by reason of protection afforded to
any Borrower or any other Guaranteed Party pursuant to the antideficiency or
other laws of California limiting or discharging such Borrower's or such other
Guaranteed Party's indebtedness, including, without limitation, Section 580a,
580b, 580d or 726 of the California Code of Civil Procedure. In furtherance of
such provisions, each Guarantor hereby waives all rights and defenses arising
out of an election of remedies by the Secured Creditors, even though that
election of remedies, such as a nonjudicial foreclosure, destroys such
Guarantor's rights of subrogation and reimbursement against any Borrower or
any other Guaranteed Party by the operation of Section 580d of the California
Code of Civil Procedure or otherwise.
(g) Each Guarantor hereby acknowledges and agrees that no
Secured Creditor nor any other Person shall be under any obligation (a) to
marshal any assets in favor of the Guarantor or in payment of any or all of
the liabilities of any Guaranteed Party under the Documents or the obligation
of the Guarantor hereunder or (b) to pursue any other remedy that the
Guarantor may or may not be able to pursue itself any right to which the
Guarantor hereby waives.
(h) Each Guarantor warrants and agrees that each of the
waivers set forth in Section 3 and in this Section 4 is made with full
knowledge of its significance and consequences and that if any of such waivers
are determined to be contrary to any applicable law or public policy, such
waivers shall be effective only to the maximum extent permitted by applicable
law.
5. RIGHTS OF SECURED CREDITORS. Subject to Sections 4 and
13, any Secured Creditor may (except as shall be required by applicable
statute and cannot be waived) at any time and from time to time without the
consent of, or notice to, any Guarantor, without incurring responsibility to
such Guarantor, without impairing or releasing the obligations or liabilities
of such Guarantor hereunder, upon or without any terms or conditions and in
whole or in part:
(a) change the manner, place or terms of payment of, and/or
change, increase or extend the time of payment of, renew, increase,
accelerate or alter, any of the Guaranteed Obligations (including,
without limitation, any increase or decrease in the rate of interest
thereon or the principal amount thereof), any security therefor, or any
liability incurred directly or indirectly in respect thereof, and the
guaranty herein made shall apply to the Guaranteed Obligations as so
changed, extended, increased, accelerated, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, impair, realize upon
or otherwise deal with in any manner and in any order any property or
other collateral by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, the Guaranteed Obligations or any
liabilities (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against
the Borrower, any other Guaranteed Party, any other Credit Party, any
Subsidiary thereof, any other guarantor of the Borrower or others or
otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
Guarantors, other guarantors, the Borrower, any other Guaranteed Party or
other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower or any other Guaranteed
Party to creditors of the Borrower or such other Guaranteed Party other
than the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized
to any liability or liabilities of the Borrower or any other Guaranteed
Party to the Secured Creditors regardless of what liabilities of the
Borrower or such other Guaranteed Party remain unpaid;
(g) consent to or waive any breach of, or any act, omission
or default under, any of the Interest Rate Protection Agreements or Other
Hedging Agreements, the Credit Documents or any of the instruments or
agreements referred to therein, or otherwise amend, modify or supplement
any of the Interest Rate Protection Agreements or Other Hedging
Agreements, the Credit Documents or any of such other instruments or
agreements;
(h) act or fail to act in any manner which may deprive such
Guarantor of its right to subrogation against the Borrower or any other
Guaranteed Party to recover full indemnity for any payments made pursuant
to this Guaranty; and/or
(i) take any other action or omit to take any other action
which would, under otherwise applicable principles of common law, give
rise to a legal or equitable discharge of such Guarantor from its
liabilities under this Guaranty (including, without limitation, any
action or omission whatsoever that might otherwise vary the risk of the
Guarantor or constitute a legal or equitable defense to or discharge of
the liabilities of a guarantor or surety or that might otherwise limit
recourse against the Guarantor).
No invalidity, illegality, irregularity or unenforceability of all or any part
of the Guaranteed Obligations, the Credit Documents or any other agreement or
instrument relating to the Guaranteed Obligations or of any security or
guarantee therefor shall affect, impair or be a defense to this Guaranty, and
this Guaranty shall be primary, absolute and unconditional notwithstanding the
occurrence of any event or the existence of any other circumstances which
might constitute a legal or equitable discharge of a surety or guarantor
except payment in full in cash of the Guaranteed Obligations.
6. CONTINUING GUARANTY. This Guaranty is a continuing one
and all liabilities to which it applies or may apply under the terms hereof
shall be conclusively presumed to have been created in reliance hereon. No
failure or delay on the part of any Secured Creditor in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein expressly specified are
cumulative and not exclusive of any rights or remedies which any Secured
Creditor would otherwise have. No notice to or demand on any Guarantor in any
case shall entitle such Guarantor to any other further notice or demand in
similar or other circumstances or constitute a waiver of the rights of any
Secured Creditor to any other or further action in any circumstances without
notice or demand. It is not necessary for any Secured Creditor to inquire into
the capacity or powers of the Borrower or any other Guaranteed Party or the
officers, directors, partners or agents acting or purporting to act on its or
their behalf, and any indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
7. SUBORDINATION OF INDEBTEDNESS HELD BY GUARANTORS. Any
indebtedness of the Borrower or any other Guaranteed Party now or hereafter
held by any Guarantor is hereby subordinated to the indebtedness of the
Borrower or such other Guaranteed Party to the Secured Creditors; and such
indebtedness of the Borrower or such other Guaranteed Party to any Guarantor,
if the Administrative Agent or the Collateral Agent, after an Event of Default
has occurred and is continuing, so requests, shall be collected, enforced and
received by such Guarantor as trustee for the Secured Creditors and be paid
over to the Secured Creditors on account of the indebtedness of the Borrower
or such other Guaranteed Party to the Secured Creditors, but without affecting
or impairing in any manner the liability of such Guarantor under the other
provisions of this Guaranty. Prior to the transfer by any Guarantor of any
note or negotiable instrument evidencing any indebtedness of the Borrower or
any other Guaranteed Party to such Guarantor, such Guarantor shall mark such
note or negotiable instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing, each
Guarantor hereby agrees with the Secured Creditors that it will not exercise
any right of subrogation which it may at any time otherwise have as a result
of this Guaranty (whether contractual, under Section 509 of the Bankruptcy
Code or otherwise) until all Guaranteed Obligations have been irrevocably paid
in full in cash; provided, that if any amount shall be paid to the Guarantor
on account of such subrogation rights at any time prior to the irrevocable
payment in full in cash of all the Guaranteed Obligations, such amount shall
be held in trust for the benefit of the Secured Creditors and shall forthwith
be paid to the Secured Creditors to be credited and applied upon the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms of the Credit Documents or, if the Credit Documents do not provide for
the application of such amount, to be held by the Secured Creditors as
collateral security for any Guaranteed Obligations thereafter existing.
8. GUARANTY ENFORCEABLE BY ADMINISTRATIVE AGENT OR
COLLATERAL AGENT. Notwithstanding anything to the contrary contained elsewhere
in this Guaranty, the Secured Creditors agree (by their acceptance of the
benefits of this Guaranty) that this Guaranty may be enforced only by the
action of the Administrative Agent or the Collateral Agent, in each case
acting upon the instructions of the Required Lenders (or, after the date on
which all Credit Document Obligations have been paid in full, the holders of
at least a majority of the outstanding Other Obligations) and that no other
Secured Creditor shall have any right individually to seek to enforce or to
enforce this Guaranty or to realize upon the security to be granted by the
Security Documents, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent or the Collateral Agent
or, after all the Credit Document Obligations have been paid in full, by the
holders of at least a majority of the outstanding Other Obligations, as the
case may be, for the benefit of the Secured Creditors upon the terms of this
Guaranty and the Security Documents. The Secured Creditors further agree that
this Guaranty may not be enforced against any director, officer, employee,
partner, member or stockholder of any Guarantor (except to the extent such
partner, member or stockholder is also a Guarantor hereunder). It is
understood and agreed that the agreement in this Section 8 is among and solely
for the benefit of the Secured Creditors and that, if the Required Lenders
(or, after the date on which all Credit Document Obligations have been paid in
full, the holders of at least a majority of the outstanding Other Obligations)
so agree (without requiring the consent of any Guarantor), this Guaranty may
be directly enforced by any Secured Creditor.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF GUARANTORS.
In order to induce the Lenders to make Loans to, and issue Letters of Credit
for the account of, the Borrower pursuant to the Credit Agreement, and in
order to induce the Other Creditors to execute, deliver and perform the
Interest Rate Protection Agreements and Other Hedging Agreements to which they
are a party, each Guarantor represents, warrants and covenants that:
(a) such Guarantor (i) is a duly organized and validly
existing corporation, partnership or limited liability company, as the
case may be, in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate, partnership or limited liability
company power and authority, as the case may be, to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do
business and is in good standing in each jurisdiction where the conduct
of its business requires such qualification except for failures to be so
qualified which, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect;
(b) such Guarantor has the corporate, partnership or limited
liability company power and authority, as the case may be, to execute,
deliver and perform the terms and provisions of this Guaranty and each
other Credit Document (such term, for purposes of this Guaranty, to mean
each Credit Document (as defined in the Credit Agreement) and each
Interest Rate Protection Agreement and Other Hedging Agreement with an
Other Creditor) to which it is a party and has taken all necessary
corporate, partnership or limited liability company action, as the case
may be, to authorize the execution, delivery and performance by it of
this Guaranty and each such other Credit Document;
(c) such Guarantor has duly executed and delivered this
Guaranty and each other Credit Document to which it is a party, and this
Guaranty and each such other Credit Document constitutes the legal, valid
and binding obligation of such Guarantor enforceable in accordance with
its terms, except to the extent that the enforceability hereof or thereof
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors' rights
and by equitable principles (regardless of whether enforcement is sought
in equity or at law);
(d) neither the execution, delivery or performance by such
Guarantor of this Guaranty or any other Credit Document to which it is a
party, nor compliance by it with the terms and provisions hereof and
thereof, will (i) contravene any provision of any applicable law,
statute, rule or regulation or any applicable order, writ, injunction or
decree of any court or governmental instrumentality, (ii) conflict with
or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation
or imposition of (or the obligation to create or impose) any Lien (except
pursuant to the Security Documents) upon any of the property or assets of
such Guarantor or any of its Subsidiaries pursuant to the terms of any
indenture, material mortgage, material deed of trust, loan agreement,
credit agreement, or any other material agreement, contract or instrument
to which such Guarantor or any of its Subsidiaries is a party or by which
it or any of its property or assets is bound or to which it may be
subject or (iii) violate any provision of the certificate or articles of
incorporation, by-laws, partnership agreement or limited liability
company agreement (or equivalent organizational documents), as the case
may be, of such Guarantor or any of its Subsidiaries;
(e) no order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have
been obtained or made prior to the date when required and which remain in
full force and effect), or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize, or is
required in connection with, (i) the execution, delivery and performance
of this Guaranty by such Guarantor or any other Credit Document to which
such Guarantor is a party or (ii) the legality, validity, binding effect
or enforceability of this Guaranty or any other Document to which such
Guarantor is a party;
(f) there are no actions, suits or proceedings pending or,
to such Guarantor's knowledge, threatened (i) with respect to this
Guaranty or any other Credit Document to which such Guarantor is a party,
(ii) with respect to such Guarantor or any of its Subsidiaries that,
either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect or (iii) that could reasonably be expected
to have a material adverse effect on the rights or remedies of the
Secured Creditors or on the ability of such Guarantor to perform its
obligations to the Secured Creditors hereunder and under the other Credit
Documents to which it is a party;
(g) until the termination of the Total Commitment and all
Interest Rate Protection Agreements and Other Hedging Agreements with an
Other Creditor and until such time as no Note or Letter of Credit remains
outstanding and all Guaranteed Obligations have been paid in full (other
than indemnities described in Section 12.06 of the Credit Agreement and
analogous provisions in the Security Documents which are not then due and
payable), such Guarantor will comply, and will cause each of its
Subsidiaries to comply, with all of the applicable provisions, covenants
and agreements contained in Sections 8 and 9 of the Credit Agreement, and
will take, or will refrain from taking, as the case may be, all actions
that are necessary to be taken or not taken so that no violation of any
provision, covenant or agreement contained in Section 12.06 of the Credit
Agreement, and so that no Default or Event of Default, is caused by the
actions of such Guarantor or any of its Subsidiaries; and
(h) an executed (or conformed) copy of each of the Credit
Documents, the Interest Rate Protection Agreements and the Other Hedging
Agreements has been made available to a senior officer of such Guarantor
and such officer is familiar with the contents thereof.
10. EXPENSES. The Guarantors hereby jointly and severally
agree to pay all reasonable out-of-pocket costs and expenses of the Collateral
Agent, the Administrative Agent and each other Secured Creditor in connection
with the enforcement of this Guaranty and the protection of the Secured
Creditors' rights hereunder and any amendment, waiver or consent relating
hereto (including, in each case, without limitation, the reasonable fees and
disbursements of counsel (including in-house counsel) employed by the
Collateral Agent, the Administrative Agent and each other Secured Creditor).
11. BENEFIT AND BINDING EFFECT. This Guaranty shall be
binding upon each Guarantor and its successors and assigns and shall inure to
the benefit of the Secured Creditors and their successors and assigns.
12. AMENDMENTS; WAIVERS. Neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated except with
the written consent of each Guarantor directly affected thereby (it being
understood that the addition or release of any Guarantor hereunder shall not
constitute a change, waiver, discharge or termination affecting any Guarantor
other than the Guarantor so added or released) and with the written consent of
either (x) the Required Lenders (or, to the extent required by Section 13.12
of the Credit Agreement, with the written consent of each Lender) at all times
prior to the time at which all Credit Document Obligations have been paid in
full or (y) the holders of at least a majority of the outstanding Other
Obligations at all times after the time at which all Credit Document
Obligations have been paid in full; provided, that any change, waiver,
modification or variance affecting the rights and benefits of a single Class
(as defined below) of Secured Creditors (and not all Secured Creditors in a
like or similar manner) shall also require the written consent of the
Requisite Creditors (as defined below) of such Class of Secured Creditors. For
the purpose of this Guaranty, the term "Class" shall mean each class of
Secured Creditors, i.e., whether (x) the Lender Creditors as holders of the
Credit Document Obligations or (y) the Other Creditors as the holders of the
Other Obligations. For the purpose of this Guaranty, the term "Requisite
Creditors" of any Class shall mean (x) with respect to the Credit Document
Obligations, the Required Lenders (or, to the extent required by Section 13.12
of the Credit Agreement, each Lender) and (y) with respect to the Other
Obligations, the holders of at least a majority of all Other Obligations
outstanding from time to time under the Interest Rate Protection Agreements
and Other Hedging Agreements.
13. SET OFF. In addition to any rights now or hereafter
granted under applicable law (including, without limitation, Section 151 of
the New York Debtor and Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default
(such term to mean and include any "Event of Default" as defined in the Credit
Agreement and any payment default under any Interest Rate Protection Agreement
or Other Hedging Agreement with an Other Creditor continuing after any
applicable grace period), each Secured Creditor is hereby authorized, at any
time or from time to time, without notice to any Guarantor or to any other
Person, any such notice being expressly waived, to set off and to appropriate
and apply any and all deposits (general or special) and any other indebtedness
at any time held or owing by such Secured Creditor to or for the credit or the
account of such Guarantor, against and on account of the obligations and
liabilities of such Guarantor to such Secured Creditor under this Guaranty,
irrespective of whether or not such Secured Creditor shall have made any
demand hereunder and although said obligations, liabilities, deposits or
claims, or any of them, shall be contingent or unmatured. Notwithstanding
anything to the contrary contained in this Guaranty, at any time that the
Guaranteed Obligations shall be secured by any Real Property located in the
State of California, no Secured Creditor shall exercise any right of set-off,
lien or counterclaim or take any court or administrative action or institute
any proceedings to enforce any provision of this Guaranty without the prior
consent of the Administrative Agent or the Required Lenders or, to the extent
required by Section 13.12 of the Credit Agreement, all of the Lenders, if such
setoff or action or proceeding would or might (pursuant to Sections 580a,
580b, 580d and 726 of the California Code of Civil Procedure or Section 2924
of the California Civil Code, if applicable, or otherwise) affect or impair
the validity, priority, or enforceability of the liens granted to the
Collateral Agent pursuant to the Security Documents or the enforceability of
the Guaranteed Obligations hereunder, and any attempted exercise by any
Secured Creditor or the Administrative Agent of any such right without
obtaining such consent of the Required Lenders or the Administrative Agent
shall be null and void. It is understood and agreed that the foregoing
sentence of this Section 13 is for the sole benefit of the Secured Creditors
and may be amended, modified or waived in any respect by the Required Lenders
(without any requirement of prior notice to or consent by any Credit Party or
any other Person) and does not constitute a waiver of any rights against any
Credit Party or against any Collateral. Each Secured Creditor (by its
acceptance of the benefits hereof) acknowledges and agrees that the provisions
of this Section 13 are subject to the sharing provisions set forth in Section
13.06 of the Credit Agreement.
14. NOTICE. Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be sent or delivered by mail, telegraph, telex, telecopy,
cable or courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by courier, be
effective when deposited in the mails, delivered to the telegraph company,
cable company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to the Administrative Agent
or any Guarantor shall not be effective until received by the Administrative
Agent or such Guarantor, as the case may be. All notices and other
communications shall be in writing and addressed to such party at (i) in the
case of any Lender Creditor, as provided in the Credit Agreement, (ii) in the
case of any Guarantor, at its address set forth opposite its signature page
below, and (iii) in the case of any Other Creditor, at such address as such
Other Creditor shall have specified in writing to the Guarantors; or in any
case at such other address as any of the Persons listed above may hereafter
notify the others in writing.
15. REINSTATEMENT. If any claim is ever made upon any
Secured Creditor for repayment or recovery of any amount or amounts received
in payment or on account of any of the Guaranteed Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including, without limitation, the Borrower or any other Guaranteed Party),
then and in such event each Guarantor agrees that any such judgment, decree,
order, settlement or compromise shall be binding upon such Guarantor,
notwithstanding any revocation hereof or the cancellation of any Note, any
Interest Rate Protection Agreement, any Other Hedging Agreement or any other
instrument evidencing any liability of the Borrower or any other Guaranteed
Party, and such Guarantor shall be and remain liable to the aforesaid payees
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by any such payee.
16. CONSENT TO JURISDICTION; SERVICE OF PROCESS; AND WAIVER
OF TRIAL BY JURY. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
SECURED CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal
action or proceeding with respect to this Guaranty or any other Credit
Document to which any Guarantor is a party may be brought in the courts of the
State of New York or of the United States of America for the Southern District
of New York, in each case located within the City of New York, and, by
execution and delivery of this Guaranty, each Guarantor hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each Guarantor
hereby further irrevocably waives any claim that any such courts lack
jurisdiction over such Guarantor, and agrees not to plead or claim, in any
legal action or proceeding with respect to this Guaranty or any other Credit
Document to which such Guarantor is a party brought in any of the aforesaid
courts, that any such court lacks jurisdiction over such Guarantor. Each
Guarantor further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to each
Guarantor at its address set forth opposite its signature below, such service
to become effective 30 days after such mailing. Each Guarantor hereby
irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or
proceeding commenced hereunder or under any other Credit Document to which
such Guarantor is a party that such service of process was in any way invalid
or ineffective. Nothing herein shall affect the right of any of the Secured
Creditors to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against each Guarantor in any other
jurisdiction.
(b) Each Guarantor hereby irrevocably waives (to the fullest
extent permitted by applicable law) any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty or any other
Credit Document to which such Guarantor is a party brought in the courts
referred to in clause (a) above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that such action or proceeding
brought in any such court has been brought in an inconvenient forum.
(c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS
ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH
GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
17. RELEASE OF LIABILITY OF GUARANTOR UPON SALE OR
DISSOLUTION. In the event that all of the capital stock or other equity
interests of one or more Guarantors is sold or otherwise disposed of or
liquidated in compliance with the requirements of Section 9.02 of the Credit
Agreement (or such sale, other disposition or liquidation has been approved in
writing by the Required Lenders (or all the Lenders if required by Section
12.06 of the Credit Agreement)) and the proceeds of such sale, disposition or
liquidation are applied in accordance with the provisions of the Credit
Agreement, to the extent applicable, such Guarantor shall, upon consummation
of such sale or other disposition (except to the extent that such sale or
disposition is to the Borrower or another Subsidiary thereof), be released
from this Guaranty automatically and without further action and this Guaranty
shall, as to each such Guarantor or Guarantors, terminate, and have no further
force or effect (it being understood and agreed that the sale of one or more
Persons that own, directly or indirectly, all of the capital stock or other
equity interests of any Guarantor shall be deemed to be a sale of such
Guarantor for the purposes of this Section 17).
18. CONTRIBUTION. At any time a payment in respect of the
Guaranteed Obligations is made under this Guaranty, the right of contribution
of each Guarantor against each other Guarantor shall be determined as provided
in the immediately following sentence, with the right of contribution of each
Guarantor to be revised and restated as of each date on which a payment (a
"Relevant Payment") is made on the Guaranteed Obligations under this Guaranty.
At any time that a Relevant Payment is made by a Guarantor that results in the
aggregate payments made by such Guarantor in respect of the Guaranteed
Obligations to and including the date of the Relevant Payment exceeding such
Guarantor's Contribution Percentage (as defined below) of the aggregate
payments made by all Guarantors in respect of the Guaranteed Obligations to
and including the date of the Relevant Payment (such excess, the "Aggregate
Excess Amount"), each such Guarantor shall have a right of contribution
against each other Guarantor who has made payments in respect of the
Guaranteed Obligations to and including the date of the Relevant Payment in an
aggregate amount less than such other Guarantor's Contribution Percentage of
the aggregate payments made to and including the date of the Relevant Payment
by all Guarantors in respect of the Guaranteed Obligations (the aggregate
amount of such deficit, the "Aggregate Deficit Amount") in an amount equal to
(x) a fraction the numerator of which is the Aggregate Excess Amount of such
Guarantor and the denominator of which is the Aggregate Excess Amount of all
Guarantors multiplied by (y) the Aggregate Deficit Amount of such other
Guarantor. A Guarantor's right of contribution pursuant to the preceding
sentences shall arise at the time of each computation, subject to adjustment
to the time of each computation; provided that no Guarantor may take any
action to enforce such right until the Guaranteed Obligations have been
irrevocably paid in full in cash and the Total Commitment and all Letters of
Credit have been terminated, it being expressly recognized and agreed by all
parties hereto that any Guarantor's right of contribution arising pursuant to
this Section 18 against any other Guarantor shall be expressly junior and
subordinate to such other Guarantor's obligations and liabilities in respect
of the Guaranteed Obligations and any other obligations owing under this
Guaranty. As used in this Section 18: (i) each Guarantor's "Contribution
Percentage" shall mean the percentage obtained by dividing (x) the Adjusted
Net Worth (as defined below) of such Guarantor by (y) the aggregate Adjusted
Net Worth of all Guarantors; (ii) the "Adjusted Net Worth" of each Guarantor
shall mean the greater of (x) the Net Worth (as defined below) of such
Guarantor and (y) zero; and (iii) the "Net Worth" of each Guarantor shall mean
the amount by which the fair saleable value of such Guarantor's assets on the
date of any Relevant Payment exceeds its existing debts and other liabilities
(including contingent liabilities, but without giving effect to any Guaranteed
Obligations arising under this Guaranty or any guaranteed obligations arising
under any guaranty of the Second-Lien Note Indenture) on such date.
Notwithstanding anything to the contrary contained above, any Guarantor that
is released from this Guaranty pursuant to Section 17 hereof shall thereafter
have no contribution obligations, or rights, pursuant to this Section 18, and
at the time of any such release, if the released Guarantor had an Aggregate
Excess Amount or an Aggregate Deficit Amount, same shall be deemed reduced to
$0, and the contribution rights and obligations of the remaining Guarantors
shall be recalculated on the respective date of release (as otherwise provided
above) based on the payments made hereunder by the remaining Guarantors. All
parties hereto recognize and agree that, except for any right of contribution
arising pursuant to this Section 18 each Guarantor who makes any payment in
respect of the Guaranteed Obligations shall have no right of contribution or
subrogation against any other Guarantor in respect of such payment until all
of the Guaranteed Obligations have been irrevocably paid in full in cash. Each
of the Guarantors recognizes and acknowledges that the rights to contribution
arising hereunder shall constitute an asset in favor of the party entitled to
such contribution. In this connection, each Guarantor has the right to waive
its contribution right against any Guarantor to the extent that after giving
effect to such waiver such Guarantor would remain solvent, in the
determination of the Required Lenders.
19. LIMITATION ON GUARANTEED OBLIGATIONS. Each Guarantor and
each Secured Creditor (by its acceptance of the benefits of this Guaranty)
hereby confirms that it is its intention that this Guaranty not constitute a
fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the
Uniform Fraudulent Conveyance Act or any similar Federal or state law. To
effectuate the foregoing intention, each Guarantor and each Secured Creditor
(by its acceptance of the benefits of this Guaranty) hereby irrevocably agrees
that the Guaranteed Obligations guaranteed by such Guarantor shall be limited
to such amount as will, after giving effect to such maximum amount and all
other (contingent or otherwise) liabilities of such Guarantor that are
relevant under such laws (it being understood that it is the intention of the
parties to this Guaranty and the parties to any guaranty of the Second-Lien
Note Indenture that, to the maximum extent permitted under applicable laws,
the liabilities in respect of the guarantees of the Second-Lien Note Indenture
shall not be included for the foregoing purposes and that, if any reduction is
required to the amount guaranteed by any Guarantor hereunder and with respect
to the Second-Lien Note Indenture that its guarantee of amounts owing in
respect of the Second-Lien Note Indenture shall first be reduced) and after
giving effect to any rights to contribution pursuant to any agreement
providing for an equitable contribution among such Guarantor and the other
Guarantors, result in the Guaranteed Obligations of such Guarantor in respect
of such maximum amount not constituting a fraudulent transfer or conveyance.
20. COUNTERPARTS. This Guaranty may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with the Borrower and the Administrative Agent.
21. PAYMENTS. All payments made by any Guarantor hereunder
will be made without setoff, counterclaim or other defense and on the same
basis as payments are made by the Borrower under Sections 4.01 and 4.012 of
the Credit Agreement.
22. ADDITIONAL GUARANTORS. It is understood and agreed that
any Subsidiary of the Borrower that is required to execute a counterpart of
this Guaranty after the date hereof pursuant to the Credit Agreement shall
become a Guarantor hereunder by (x) executing and delivering a counterpart
hereof to the Administrative Agent or (y) executing a joinder agreement and
delivering same to the Administrative Agent, in each case as may be requested
by (and in form and substance satisfactory to) the Administrative Agent and
(y) taking all actions as specified in this Guaranty as would have been taken
by such Guarantor had it been an original party to this Guaranty, in each case
with all documents and actions required to be taken to be taken above to the
reasonable satisfaction of the Administrative Agent.
23. HEADINGS DESCRIPTIVE. The headings of the several
Sections of this Guaranty are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Guaranty.
24. FCC CONSENT. Notwithstanding anything herein which may
be construed to the contrary, no action shall be taken by any of the
Administrative Agent and the Secured Creditors with respect to any license of
the Federal Communications Commission ("FCC") unless and until any applicable
rules and regulations thereunder, requiring the consent to or approval of such
action by the FCC or any governmental or other authority, have been satisfied.
Each Guarantor agrees to use its best efforts, including taking any action
which the Administrative Agent and the Secured Creditors may reasonably
request, to assist in obtaining any required consent or approval of the FCC or
any other governmental or other authority for any sale or transfer of control
of the Collateral contemplated by the security documents pursuant to the
exercise of the rights and remedies of the Administrative Agent and the
Secured Creditors thereunder, including, upon request, to prepare, sign and
file with the FCC the assignor's or transferor's and licensee's portions of
any applications required under the rules of the FCC for consent to the
assignment or transfer of control of any FCC construction permit, license or
other authorization.
Each Guarantor further consents, subject to obtaining any
necessary approvals, to the assignment or transfer of control of any FCC or
other governmental construction permit, license, or other authorization to
operate, to a receiver, trustee, or similar official or to any purchaser of
the Collateral pursuant to any public or private sale, judicial sale,
foreclosure, or exercise of other remedies available to Administrative Agent
and the Secured Creditors as permitted by applicable law.
* * *
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty
to be executed and delivered as of the date first above written.
Address: BRAINSTORM NETWORKS, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: HOT SPOTS PRODUCTIONS, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: ON TV, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN-BECOCOM, LLC, as a Guarantor
105 Carnegie Center By: RCN Telecom Services of Massachusetts, Inc.
Princeton, NJ 08540
Tel: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Fax: (000) 000-0000 ----------------------------------
Attention: Chief Financial Officer Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN CABLE TV OF CHICAGO, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN ENTERTAINMENT, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN FINANCE, LLC, as a Guarantor
105 Carnegie Center By: RCN Corporation, its managing member
Princeton, NJ 08540
Tel: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Fax: (000) 000-0000 ----------------------------------
Attention: Chief Financial Officer Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Address: RCN FINANCIAL MANAGEMENT, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN INTERNATIONAL HOLDINGS, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN INTERNET SERVICES, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF ILLINOIS, LLC, as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF MASSACHUSETTS, INC., as a
Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF PHILADELPHIA, INC., as a
Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF VIRGINIA, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF WASHINGTON D.C., INC., as a
Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RFM 2, LLC, as a Guarantor
105 Carnegie Center By: RCN Corporation, its managing member
Princeton, NJ 08540
Tel: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Fax: (000) 000-0000 ----------------------------------
Attention: Chief Financial Officer Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Address: RLH PROPERTY CORPORATION, as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: TEC AIR, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: 21ST CENTURY TELECOM SERVICES, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: UNET HOLDING, INC., as a Guarantor
105 Carnegie Center
Princeton, NJ 08540 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: STARPOWER COMMUNICATIONS, LLC,
as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Tel: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Fax: (000) 000-0000 ---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
Accepted and Agreed to: Address:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, Tel: (000) 000-0000
as Collateral Agent and Pledgee Fax: (000) 000-0000
By: /s/ Xxxxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
Table of Contents
Page
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1. GUARANTY....................................................................................................2
2. LIABILITY OF GUARANTORS ABSOLUTE............................................................................3
3. OBLIGATIONS OF GUARANTORS INDEPENDENT.......................................................................4
4. WAIVERS BY GUARANTORS.......................................................................................4
5. RIGHTS OF SECURED CREDITORS.................................................................................6
6. CONTINUING GUARANTY.........................................................................................8
7. SUBORDINATION OF INDEBTEDNESS HELD BY GUARANTORS............................................................8
8. GUARANTY ENFORCEABLE BY ADMINISTRATIVE AGENT OR COLLATERAL AGENT............................................9
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF GUARANTORS.....................................................9
10. EXPENSES...................................................................................................11
11. BENEFIT AND BINDING EFFECT.................................................................................11
12. AMENDMENTS; WAIVERS........................................................................................11
13. SET OFF....................................................................................................12
14. NOTICE.....................................................................................................12
15. REINSTATEMENT..............................................................................................13
16. CONSENT TO JURISDICTION; SERVICE OF PROCESS; AND WAIVER OF TRIAL BY JURY...................................13
17. RELEASE OF LIABILITY OF GUARANTOR UPON SALE OR DISSOLUTION.................................................14
18. CONTRIBUTION...............................................................................................14
19. LIMITATION ON GUARANTEED OBLIGATIONS.......................................................................15
20. COUNTERPARTS...............................................................................................16
21. PAYMENTS...................................................................................................16
22. ADDITIONAL GUARANTORS......................................................................................16
23. HEADINGS DESCRIPTIVE.......................................................................................16
24. FCC CONSENT................................................................................................16