SUBSIDIARIES GUARANTY among CERTAIN SUBSIDIARIES OF RCN CORPORATION and DEUTSCHE BANK TRUST COMPANY AMERICAS, as FIRST-LIEN COLLATERAL AGENT
among
CERTAIN
SUBSIDIARIES OF RCN CORPORATION
and
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
FIRST-LIEN COLLATERAL AGENT
Dated
as
of May 30, 2006
SUBSIDIARIES
GUARANTY (as amended, modified, restated and/or supplemented from time to time,
this “Guaranty”),
dated
as of May 30, 2006, 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 Trust Company Americas, 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”),
and
the Administrative Agent, have entered into a Credit Agreement, dated as of
May
30, 2006 (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;
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; and
WHEREAS,
each Guarantor has determined that the guaranties provided in this Guaranty
are
necessary or convenient to the conduct, promotion or attainment of the business
of the Borrower, such Guarantor and the other Guarantors, may reasonably be
expected to benefit, directly or indirectly, such Guarantor, and are in the
best
interests of such Guarantor;
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 un-conditionally
guarantees:
(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 liabil-ities 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 (as defined below) 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
at any time the aggregate notional amount of all then outstanding Interest
Rate
Protection Agreements and Other Hedging Agreements exceeds the Maximum Hedging
Obligations Notional Amount, then amounts owing with respect to such excess
shall not constitute Other Obligations hereunder; provided however
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.
-2-
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 $325,000,000.
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 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 pay-ment 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, ▇▇▇▇-torium 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-
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 pay-ment, 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 each 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 reason-able (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.
-4-
(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.
-5-
(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, might destroy 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 that 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:
-6-
(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
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(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 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 be-half, 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-
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;
-9-
(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) violate
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, mortgage, 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, in the case of
UCC-1
financing statements, will be made within ten days of the Initial Borrowing
Date), 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;
-10-
(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 on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole 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 and all Commitments and Letters of Credit
under the Credit Agreement have been terminated 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 and all Commitments
and Letters of Credit under the Credit Agreement have been terminated;
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 the aggregate notional amount of all Other
Obligations outstanding from time to time under the Interest Rate Protection
Agreements and Other Hedging Agreements.
-11-
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 prior 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. Notwith-standing
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.
The
Administrative Agent or the applicable Secured Party shall promptly notify
the
affected Guarantor of any such set-off and the application made by the
Administrative Agent or such Secured Party of the proceeds thereof; provided,
however,
that
the failure to give such notice shall not affect the validity of such set-off
and application.
-12-
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 com-pany, cable company or over-night 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, c/o RCN Corporation,
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇’▇▇▇▇,
Treasurer, Tel: (▇▇▇) ▇▇▇-▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇, General Counsel, RCN Corporation, ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Tel: (▇▇▇) ▇▇▇-▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇ 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
County 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.
-13-
(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 IRREVOC-ABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY
ACTION, PRO-CEEDING 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 HERE-BY OR THEREBY.
17.
RELEASE
OF LIABILITY OF GUARANTOR.
(a)
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 13.12 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).
-14-
(b) If
the
Borrower designates any Guarantor as an Unrestricted Subsidiary in accordance
with Section 8.17 of the Credit Agreement, then, so long as such Guarantor
has
been released from the Guarantee Agreement under, and as defined in, the
Existing Second-Lien Note Indenture or, if applicable, any and all guarantee
agreements related to any Permitted Refinancing Indebtedness in respect of
the
Existing Second-Lien Notes, such Guarantor shall be released from this Guaranty
automatically and without further action, and this Guaranty shall, as to such
Guarantor and as to any Subsidiary of such Guarantor, terminate, and have not
further force or effect.
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.
-15-
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.
-16-
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 4.03 and 4.04 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 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, following the occurrence and during
the continuance of any Event of Default, 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, the
Collateral 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,
following the occurrence and during the continuance of any Event of Default,
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.
*
* *
-17-
IN
WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and
delivered as of the date first above written.
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BRAINSTORM
NETWORKS, INC., as a Guarantor
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
EVP & Chief Financial Officer
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HOT
SPOTS PRODUCTIONS, INC., as a Guarantor
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
ON
TV, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RCN-BECOCOM,
INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RCN
CABLE TV OF CHICAGO, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
19
|
RCN
ENTERTAINMENT, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RCN
FINANCE, LLC, as a Guarantor
|
|||
|
By:
|
RCN
Corporation, its managing member
|
||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RCN
FINANCIAL MANAGEMENT, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RCN
INTERNATIONAL HOLDINGS, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RCN
INTERNET SERVICES, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
20
|
RCN
NEW YORK COMMUNICATIONS HOLDING COMPANY, INC., as a
Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RCN
NEW YORK COMMUNICATIONS, LLC, as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RCN
TELECOM SERVICES, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RCN
TELECOM SERVICES OF ILLINOIS, LLC, as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RCN
TELECOM SERVICES OF MASSACHUSETTS, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
21
|
RCN
TELECOM SERVICES OF PHILADELPHIA, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RCN
TELECOM SERVICES OF VIRGINIA, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RCN
TELECOM SERVICES OF WASHINGTON D.C., INC., as a
Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RFM
2, LLC, as a Guarantor
|
|||
|
By:
|
RCN
Corporation, its managing member
|
||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
RLH
PROPERTY CORPORATION, as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
22
|
TEC
AIR, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
21ST
CENTURY TELECOM SERVICES, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
UNET
HOLDING, INC., as a Guarantor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
|
|
|||
|
STARPOWER
COMMUNICATIONS, LLC, as an Assignor
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial Officer
|
|||
23
|
Accepted
and Agreed to:
DEUTSCHE
BANK TRUST COMPANY
AMERICAS,
as Administrative Agent
|
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
Director
|
||
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
|
||
|
Title:
Director
|
||
24