EXHIBIT 10.1 EXECUTION COPY
STANDSTILL AGREEMENT AND CONDITIONAL AMENDMENT
TO THE CREDIT AGREEMENT
STANDSTILL AGREEMENT AND CONDITIONAL AMENDMENT TO THE CREDIT
AGREEMENT, dated as of June 30, 2004 (this "AGREEMENT"), to the Third Amended
and Restated Credit Agreement, dated as of September 13, 2002, as amended by a
Letter Amendment and Waiver dated as of November 12, 2002, a Second Amendment
dated as of May 5, 2004, a Third Amendment dated as of May 12, 2004 and a Fourth
Amendment dated as of May 25, 2004 (as so amended, the "CREDIT AGREEMENT"),
among CHOICE ONE COMMUNICATIONS INC., a Delaware corporation (the "GUARANTOR"),
the subsidiaries of the Guarantor listed on the signature pages hereto (each a
"BORROWER" and collectively the "BORROWERS"), the banks, financial institutions
and other institutional lenders parties to the Credit Agreement defined above
(collectively, the "LENDERS"), GENERAL ELECTRIC CAPITAL CORPORATION, as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT"), collateral
agent and syndication agent for the Lenders, and the other agents signatories
hereto.
PRELIMINARY STATEMENTS
1. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
2. Pursuant to the Credit Agreement, the Lenders have agreed to make,
and have made, certain Loans and other extensions of credit to the Borrowers.
3. Pursuant to Section 2.6 of the Credit Agreement, on June 30, 2004,
the Borrowers are obligated to pay to the Revolving Credit Lenders outstanding
Revolving Credit Loans in the principal amount listed on Schedule I hereto (the
"REQUIRED REVOLVING LOAN PAYMENT").
4. Pursuant to Section 4.3 of the Credit Agreement, on June 30, 2004,
the Borrowers are obligated to pay to the Term A Lenders, the Term B Lenders,
and the Term D Lenders outstanding Term A Loans, Term B Loans and Term D Loans
respectively, in the principal amounts listed on Schedule I hereto
(collectively, the "REQUIRED TERM LOAN PAYMENTS", and together with the Required
Revolving Loan Payments, the "REQUIRED PRINCIPAL PAYMENTS").
5. In order to permit the Borrowers, the Guarantor and the Lenders time
to attempt to renegotiate the terms of the indebtedness of the Borrowers and the
Guarantor, the Borrowers and the Guarantor have requested that either (a) all
Lenders consent to an amendment to the Credit Agreement that would postpone the
date on which the Required Principal Payments are required to be made from June
30, 2004 (the "REQUIRED PAYMENT DATE") to July 30, 2004 or (b) the Required
Lenders agree to forebear from exercising any rights or remedies that they may
have under the Credit Agreement and the Loan Documents as a result of the
Borrowers not making the Required Principal Payments on the Required Payment
Date, until July 30, 2004, in each case, on and subject to the terms and
conditions set forth below.
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NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment to Credit Agreement. Upon and subject to the
occurrence (and only the occurrence) of the Amendment Effective Date (as defined
in Section 4 below), the Credit Agreement is hereby amended as follows:
(a) Section 2.6(a) of the Credit Agreement is amended by adding a
sentence to the end of such Section to read as follows: "Notwithstanding the
foregoing, the permanent reduction of the Revolving Credit Commitment that, but
for the terms of this sentence, would otherwise be required to occur on June 30,
2004, shall be required to occur instead on July 30, 2004."
(b) Section 4.3(a) of the Credit Agreement is amended by adding a
sentence to the end of such Section to read as follows: "Notwithstanding the
foregoing, the repayment of outstanding Term A Loans that, but for the terms of
this sentence, would otherwise be required to be made on June 30, 2004, shall be
required to be made instead on July 30, 2004."
(c) Section 4.3(b) of the Credit Agreement is amended by adding a
sentence to the end of such Section to read as follows: "Notwithstanding the
foregoing, the repayment of outstanding Term B Loans that, but for the terms of
this sentence, would otherwise be required to be made on June 30, 2004, shall be
required to be made instead on July 30, 2004."
(d) Section 4.3(d) of the Credit Agreement is amended by adding a
sentence to the end of such Section to read as follows: "Notwithstanding the
foregoing, the repayment of outstanding Term D Loans that, but for the terms
this sentence, would otherwise be required to be made on June 30, 2004, shall be
required to be made instead on July 30, 2004."
SECTION 2. Agreement to Standstill.
(a) Upon and subject to the occurrence of the Standstill Effective Date
(as defined in Section 5 below) and subject to the other terms and conditions
set forth below, each of the undersigned Lenders (each a "STANDSTILL LENDER" and
collectively, the "STANDSTILL LENDERS") and the Administrative Agent agree that,
notwithstanding a failure by the Borrowers to make the Required Principal
Payments on the Required Payment Date, from and after June 30, 2004 until the
first to occur of (i) 10:00 a.m. (New York time) on July 30, 2004 (the
"STANDSTILL PERIOD") or (ii) the date on which a Standstill Termination Event
(as defined below) shall have occurred (the first such date to occur, the
"STANDSTILL TERMINATION DATE"), such Standstill Lender and the Administrative
Agent shall forbear from suing, asking for, demanding, setting off or taking any
action to recover from the Guarantor or the Borrowers any of the Required
Principal Payments and from otherwise enforcing any of its individual or their
collective rights and remedies (including rights of acceleration and
foreclosure) against the Guarantor or the Borrowers under the Loan Documents
that arise as a result of (and only as a result of) the Required Principal
Payments not being made on or before the Required Payment Date, except for any
action to perfect, maintain, or defend any liens granted pursuant to the Loan
Documents against claims of
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third parties, the Borrowers or the Guarantor or any action with respect to
enforcement of this Agreement.
(b) Notwithstanding anything to the contrary contained in Section 2(a)
hereof, on the Standstill Termination Date (i) the forbearance and all
agreements set forth in Section 2(a) hereof shall automatically terminate and be
of no further force or effect, (ii) any breach, Default or Event of Default that
was the subject of or was affected by the forbearance under Section 2(a) hereof
(including the failure of the Borrowers to make the Required Principal Payments)
is, without further action, reinstated and shall have the same force and effect
as if the forbearance had not been agreed to by the parties hereto and (iii)
subject to the terms of the Loan Documents and applicable law, any Lender may
thereafter, without limitation, ▇▇▇, ask for or demand from any Borrower or the
Guarantor, payment of the Obligations due and payable to such Lender, in whole
or in part, and otherwise enforce any of their rights and remedies (including
rights of acceleration and foreclosure) provided for under the Loan Documents
against any party. In furtherance of the foregoing and notwithstanding the
occurrence of the Standstill Effective Date, each of the Guarantor and the
Borrowers agree that, subject to the agreement of the Standstill Lenders to
forbear from exercising certain of their rights and remedies as and to the
extent set forth in this Agreement, all rights and remedies of the Lenders under
the Loan Documents with respect to the Guarantor and the Borrowers shall
continue to be available to the Lenders from and after the Standstill Effective
Date.
(c) It is understood and agreed that interest shall continue to accrue
on and after the Standstill Effective Date on the outstanding Obligations
(including the Obligations represented by the Required Principal Payments) at
the applicable non-default rates provided for pursuant to the Credit Agreement
including those based on the LIBOR Rate; provided that it is also understood and
agreed that from and after the date hereof Interest Periods may not exceed one
month in duration.
SECTION 3. Standstill Events. If any of the following events (each a
"STANDSTILL EVENT") shall occur and be continuing:
(a) Any Borrower or the Guarantor shall (i) fail to pay any interest on
any Obligation, or any other amount payable hereunder or under any Loan Document
(other than the Required Principal Payments), when due in accordance with the
terms of this Agreement or the Credit Agreement, as the case may be or (ii) fail
to comply with or breach any provisions of this Agreement or of any Loan
Document, other than the failure to make the Required Principal Payments during
the Standstill Period, subject (in the case of clauses (i) and (ii) above) to
applicable notice and grace periods, if any, set forth in Section 12.1 of the
Credit Agreement; or
(b) Any representation or warranty made or deemed made by the Borrowers
or the Guarantor herein or any representation or warranty made or deemed made
hereafter by any Borrower or the Guarantor in any Loan Document or which is
contained in any certificate, document or financial or other statement furnished
by it at any time under or in connection with any such Loan Document shall prove
to have been incorrect or misleading in any material respect on or as of the
date made or deemed made; or
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(c) Any of the Security Documents to which a Borrower is a party shall
cease, for any reason (other than any termination in accordance with its terms),
to be in full force and effect, or any Borrower or the Guarantor shall so
assert, or any Lien created by any of such Security Documents shall (except to
the extent released in accordance with the terms of such Security Documents and
the Credit Agreement) cease to be enforceable in accordance with its terms; or
(d) The Guaranty contained in Article XIV of the Credit Agreement shall
cease, for any reason (other than in accordance with the terms of the Credit
Agreement), to be in full force and effect with respect to any Borrower; or
(e) The commencement by or against any Borrower or the Guarantor of (i)
any foreclosure, bankruptcy or similar proceeding, (ii) any proceeding that
threatens or contests the liens in favor of the Administrative Agent or the
Obligations of the Guarantor under the Guaranty, (iii) any proceeding by any
Bridge Lender seeking to enforce any remedy with respect to any Bridge Loans or
related obligations or (iv) any other proceeding that could have a Material
Adverse Effect, or the commencement of a proceeding by or on behalf of any
Borrower or the Guarantor against any Lender or Agent; or
(f) A Wavier Termination Event (as defined in the Bridge Lender Consent
(as defined below in Section 4)) shall occur under the terms of the Bridge
Lender Consent;
then, upon the affirmative vote of Standstill Lenders holding more than 50% of
the aggregate unpaid principal amount of the Loans to all Standstill Lenders
(the "REQUIRED STANDSTILL LENDERS"), such Standstill Event shall constitute a
"STANDSTILL TERMINATION EVENT". The occurrence of a Standstill Termination Event
shall cause the forbearance under Section 2(a) of this Agreement to immediately
and automatically terminate and shall constitute an Event of Default under the
Credit Agreement and entitle the Lenders to exercise all of the rights and
remedies exercisable upon an Event of Default pursuant to the Credit Agreement.
SECTION 4. Conditions to Effectiveness of Amendment. This Agreement
(other than Sections 2, 3 and 10 hereof) shall be effective as of the date first
above written when, and only when, on or before June 30, 2004 all of the
following conditions precedent have been fulfilled in a manner satisfactory to
the Administrative Agent (the "AMENDMENT EFFECTIVE DATE"):
(a) the Administrative Agent shall have signed this Agreement and the
Administrative Agent shall have notified the parties hereto that it has received
counterparts of this Agreement executed by the Guarantor, the Borrowers, and all
Revolving Credit Lenders, Term A Lenders, Term B Lenders, Term D Lenders and the
Required Lenders (collectively, the "AMENDMENT LENDERS") (or advice satisfactory
to the Administrative Agent shall have been received by the Administrative Agent
that all of the Amendment Lenders have executed this Agreement); and
(b) the conditions set forth in Sections 5(b), (d) and (e) have been
satisfied.
SECTION 5. Conditions to Effectiveness of Standstill Agreement. This
Agreement (other than Section 1 hereof, which shall only become effective in
accordance with
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Section 4 above) shall be effective as of the date first above written when, and
only when, on or before June 30, 2004, all of the following conditions precedent
have been fulfilled in a manner satisfactory to the Administrative Agent (the
"STANDSTILL EFFECTIVE DATE"):
(a) the Administrative Agent shall have signed this Agreement and the
Administrative Agent shall have notified the parties hereto that it has received
counterparts of this Agreement executed by the Guarantor, the Borrowers, and the
Required Lenders (or advice satisfactory to the Administrative Agent shall have
been received by the Administrative Agent that the Required Lenders have
executed this Agreement); and
(b) the Administrative Agent shall have received counterparts of the
Consent appended hereto (the "CONSENT") executed by each of the Guarantor and
each of the Grantors and/or Pledgors designated therein; and
(c) the Administrative Agent shall have received evidence of
agreements, in form and substance satisfactory to it, that the requisite lenders
under the Bridge Loan Agreement have agreed to waive any and all of their rights
to take any action with respect to the rights and remedies under the Bridge Loan
Agreement that may arise as a result of a cross-default to a Default under the
Credit Agreement or otherwise until at least the earlier of (i) July 30, 2004
and (ii) the occurrence of a Standstill Termination Event (the "BRIDGE LENDER
CONSENT"); and
(d) the Administrative Agent shall have received duly certified
resolutions or other satisfactory evidence of the authority of the Borrowers and
the Guarantor to enter into and perform this Agreement; and
(e) payment by the Borrowers or the Guarantor to the Administrative
Agent of (i) all interest due on the Loans (as further described on Schedule II
hereto) and all other amounts payable under the Loan Documents as of June 30,
2004 (other than the Required Principal Payments), which interest and other
amounts shall be paid in full notwithstanding any available grace periods and
(ii) all billed and unpaid fees and expenses of the Administrative Agent in
connection with all matters relating to this Agreement and the Loan Documents,
including, without limitation, the reasonable fees and expenses of counsel and
the financial advisor to the Administrative Agent; and
(f) The Administrative Agent shall have received evidence, in form and
substance satisfactory to it, that the conditions precedent set forth in Section
3 of the Bridge Lender Consent have been satisfied.
SECTION 6. Representations and Warranties. To induce the Lenders to
enter into this Agreement, each of the Borrowers and the Guarantor hereby
represents and warrants to the Administrative Agent and the Lenders party hereto
the following:
(a) The execution, delivery and performance by such Borrower and the
Guarantor of this Agreement and the Loan Documents to which it is a party, as
amended hereby, are within such Borrower's and Guarantor's corporate or limited
liability company powers, have been duly authorized by all necessary corporate
or limited liability company action, and do not (i) contravene such Borrower's
or Guarantor's constituent documents, (ii) violate any law (including, without
limitation, the Securities Exchange Act of 1934), rule, regulation (including,
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without limitation, Regulation X of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree, determination or
award applicable to such Borrower and Guarantor, or (iii) subject to the receipt
of the Bridge Lender Consent described in Section 5(c) hereof, conflict with or
result in the breach of, or constitute a default under, any contractual
obligation. As of the Standstill Effective Date or the Amendment Effective Date,
as the case may be, neither the Guarantor nor such Borrower is in violation of
any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or, subject to the receipt of the Bridge Lender Consent
described in Section 5(c) hereof, in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument, the
violation or breach of which could reasonably be expected to have a Material
Adverse Effect.
(b) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or, subject to the
receipt of the Bridge Lender Consent described in Section 5(c) hereof, any other
third party is required to be obtained by such Borrower or the Guarantor in
connection with the execution and delivery, or performance by any such Borrower
or the Guarantor of any of its obligations under, this Agreement and the Credit
Agreement, as amended hereby.
(c) This Agreement has been duly executed and delivered by such
Borrower and the Guarantor, and is the legal, valid and binding obligation of
such Borrower and the Guarantor, enforceable against such Borrower and the
Guarantor in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or limiting creditors' rights or by equitable principles generally.
(d) Other than as expressly contemplated herein, (i) the
representations and warranties made by each of the Borrowers and the Guarantor
in the Security Documents and in Sections 7.1(a), (b), (c), (d), (e), (f), (g),
(h), (i), (j), (k), (l), (m), (n), (o), (r), (s), (t), (u), (v), (w), (x), (z),
(aa), (bb) and, except as may have been disclosed in the Guarantor's public
filings to date, (p) of the Credit Agreement are true and correct in all
material respects on and as of the date hereof, after giving effect to the
effectiveness of this Agreement, as if made on and as of the date hereof (unless
stated to relate solely to an earlier date, in which case such representations
and warranties were true and correct in all material respects as of such earlier
date) and (ii) no Default or Event of Default has occurred and is continuing,
subject to the receipt of the Bridge Lender Consent described in Section 5(c)
hereof and other than, if the Amendment Effective Date shall not have occurred,
any resulting from the failure to pay the Required Principal Payments.
SECTION 7. Reference to and Effect on the Loan Documents.
(a) On and after the Standstill Effective Date or the Amendment
Effective Date, as the case may be, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement, and each reference in the Notes and the other Loan Documents
to "the Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement, as amended or otherwise modified hereby.
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(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended or otherwise modified by this Agreement, are
and shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Agreement shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or any Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 8. Amendments. This Agreement may not be amended, supplemented
or modified except in accordance with the provisions of this Section 8. The
Required Lenders, the Guarantor and each Borrower may, or (with the written
consent of the Required Lenders) the Administrative Agent, the Guarantor and
each Borrower may, subject to the requirements of Section 15.11 of the Credit
Agreement, from time to time, (a) enter into written amendments, supplements or
modifications hereto for the purpose of adding any provisions to this Agreement
or changing in any manner the rights or obligations of the Standstill Lenders or
of the Borrowers and the Guarantor hereunder or (b) waive, on such terms and
conditions as the Required Lenders, or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
any Standstill Event and its consequences; provided, that, no such waiver and no
such amendment, supplement or modification shall amend, modify or waive any
provision of this Section 8 or reduce the percentage specified in the definition
of Required Standstill Lenders without the consent of each Lender party hereto;
and provided, further, that, in the event Section 1 hereof becomes effective in
accordance with Section 4 hereof, no such waiver and no such amendment,
supplement or modification shall extend the July 30, 2004 date contained therein
without the consent of each Lender party hereto. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the
relevant Standstill Lenders and shall be binding upon the Borrowers, the
Guarantor, the Standstill Lenders, the Administrative Agent and all future
Standstill Lenders.
SECTION 9. Costs and Expenses. The Borrowers agree to pay, and the
Guarantor guarantees payment of, all reasonable costs and expenses associated
with the preparation, execution, delivery, administration, and enforcement of
this Agreement and all related matters during the Standstill Period including,
without limitation, the reasonable fees and expenses of the Administrative
Agent's counsel and financial advisor (in each case, whether incurred prior to
or after the Standstill Effective Date or the Amendment Effective Date, as the
case may be, with respect to this Agreement).
SECTION 10. Tolling of Statute of Limitations. Each and every statute
of limitations or other applicable law, rule or regulation governing the time by
which any Standstill Lender must commence legal proceedings or otherwise take
any action with respect to exercising any of its respective rights, powers or
remedies directly or indirectly against any of the Borrowers and the Guarantor
with respect to any breach or default existing on or prior to the Standstill
Termination Date, including, without limitation, actions under or in respect of
any of the Credit Agreement or any Loan Document, shall be tolled during the
Standstill Period. Each of the Borrowers and the Guarantor agree, to the fullest
extent permitted by law, not to include such period of time in any assertion by
it at any time that a statute of limitations or other
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applicable law, rule or regulation bars or otherwise acts as a defense (whether
equitable or legal) to any legal proceeding or other action by any Lender in
exercise of its respective rights, powers or remedies, directly or indirectly,
with respect to any or all of the breaches or defaults referred to in the
immediately preceding sentence.
SECTION 11. Agreement Not a Defense. Each of the Borrowers and the
Guarantor agree that, subject to the agreement of the Standstill Lenders to
forbear as and to the extent set forth herein, the agreements of the Standstill
Lenders under this Agreement shall not constitute a waiver by any of the
Standstill Lenders of, or a defense by any of the Borrowers and the Guarantor
to, the exercise by any of the Standstill Lenders of any right, power or remedy
which any of the Standstill Lenders may have under or in respect of the Credit
Agreement or any Loan Document or any other agreement or document relating
thereto (and including rights, powers and remedies at law, in equity or by
statute).
SECTION 12. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. Acknowledgments and Agreements.
(a) The Collateral. Each of the Borrowers and the Guarantor ratifies
and reaffirms the validity and enforceability (without defense, counterclaim or
offset of any kind) of the liens and security interests granted to secure any of
the Obligations to and for the benefit of the Lenders, pursuant to the Security
Documents. Each of the Borrowers and the Guarantor acknowledges and agrees that
all such liens and security interests granted by it shall continue to secure the
Obligations and the Guaranty from and after the effective date hereof. Each of
the Borrowers and the Guarantor further agrees to take promptly any and all
actions reasonably requested by the Administrative Agent with respect to the
granting, perfection and priority of the liens purported to be granted by the
Security Documents.
(b) Validity of Obligations. Each of the Borrower and the Guarantor
acknowledges and agrees that such party is truly and justly indebted to the
Lenders for the Obligations, without defense, counterclaim or offset of any
kind, and such party ratifies and reaffirms the validity, enforceability and
binding nature of such Obligations.
SECTION 14. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE GUARANTOR,
THE ADMINISTRATIVE AGENT AND THE LENDERS PARTY HERETO IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER PARTY HERETO IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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SECTION 15. Execution in Counterparts. This Agreement may be executed
by one or more of the parties to this Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
BORROWERS:
Choice One Communications of New York Inc.
Choice One Communications of Pennsylvania Inc.
Choice One Communications of Massachusetts Inc.
Choice One Communications International Inc.
Choice One Communications of Rhode Island Inc.
Choice One Communications of Connecticut Inc.
Choice One Communications of Maine Inc.
Choice One of New Hampshire Inc.
Choice One Communications of Ohio Inc.
Choice One Communications of Vermont Inc.
Choice One Online Inc.
Choice One Communications of Virginia Inc.
Choice One Communications Services Inc.
US Xchange Inc.
US Xchange of Indiana, L.L.C.
US Xchange of Illinois, L.L.C.
US Xchange of Wisconsin, L.L.C.
US Xchange of Michigan, L.L.C.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: CFO
for each of the entities set forth above
GUARANTOR:
CHOICE ONE COMMUNICATIONS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: CFO
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GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent,
Collateral Agent, Syndication Agent and Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Credit Officer
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as Documentation Agent
and Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., as Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: AVP
BEAR ▇▇▇▇▇▇▇ INVESTMENT PRODUCTS INC., as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ FINANCIAL SERVICES INTERNATIONAL, INC., as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Portfolio Manager
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Operations Manager
CREDIT SUISSE FIRST BOSTON, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON INTERNATIONAL, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
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DEUTSCHE BANK AND TRUST COMPANY AMERICAS, as Lender
By: DB Services New Jersey, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
FERNWOOD ASSOCIATES, L.P., as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
FIDELITY ADVISORS SERIES II: FIDELITY ADVISORS HIGH INCOME
ADVANTAGE (218), as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
Commonwealth of Massachusetts Pension Reserves Investment
Management Board By: Fidelity Management Trust Company, as
Investment Manager, under Power of Attorney
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS, L.P., as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇▇▇ & COMPANY, INC., as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PRODUCTS, LLC, as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
ORE HILL HUB FUND, LTD, as Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Partner
] 13
QUANTUM PARTNERS LDC, as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
▇▇▇▇▇▇▇ CAPITAL MANAGEMENT, ▇▇ ▇▇, as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
STRATEGIC VALUE MASTER FUND, LTD, as Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
TRIAGE CAPITAL MANAGEMENT, LP, as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Member
VARDE PARTNERS, INC., as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
WACHOVIA BANK, N.A., as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
14
CONSENT
Dated as of June 30, 2004
Each of the undersigned, as a Grantor and/or Pledgor under the
Third Amended and Restated Security Agreement, dated as of September 13, 2002
(as amended, supplemented or otherwise modified through the date hereof, the
"SECURITY AGREEMENT") and/or the Third Amended and Restated Pledge Agreement,
dated as of September 13, 2002 (as amended, supplemented or otherwise modified
through the date hereof, the "PLEDGE AGREEMENT"), in each case, in favor of the
Administrative Agent, for its benefit and the benefit of the Lenders parties to
the Credit Agreement referred to in the foregoing Standstill Agreement and
Conditional Amendment to the Credit Agreement (the "AGREEMENT"), hereby consents
to such Agreement and hereby confirms and agrees that (a) notwithstanding the
effectiveness of such Agreement, each of the Security Agreement and the Pledge
Agreement is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects, except that, on and after the
effectiveness of such Agreement, each reference in the Security Agreement and
the Pledge Agreement to the "Credit Agreement", "thereunder", "thereof" or words
of like import shall mean and be a reference to the Credit Agreement, as amended
by such Agreement, and (b) the Security Documents to which such Grantor or such
Pledgor, as the case may be, is a party and all of the Collateral described
therein do, and shall continue to, secure the payment of all of the Secured
Obligations (in each case, as defined therein).
CHOICE ONE COMMUNICATIONS INC.
CHOICE ONE COMMUNICATIONS OF NEW YORK INC.
CHOICE ONE COMMUNICATIONS OF PENNSYLVANIA INC.
CHOICE ONE COMMUNICATIONS OF MASSACHUSETTS INC.
CHOICE ONE COMMUNICATIONS INTERNATIONAL INC.
CHOICE ONE COMMUNICATIONS OF RHODE ISLAND INC.
CHOICE ONE COMMUNICATIONS OF CONNECTICUT INC.
CHOICE ONE COMMUNICATIONS OF MAINE INC.
CHOICE ONE OF NEW HAMPSHIRE INC.
CHOICE ONE COMMUNICATIONS OF OHIO INC.
CHOICE ONE COMMUNICATIONS OF VERMONT INC.
CHOICE ONE ONLINE INC.
CHOICE ONE COMMUNICATIONS OF VIRGINIA INC.
CHOICE ONE COMMUNICATIONS SERVICES INC.
US XCHANGE INC.
US XCHANGE OF INDIANA, L.L.C.
US XCHANGE OF ILLINOIS, L.L.C.
US XCHANGE OF WISCONSIN, L.L.C.
US XCHANGE OF MICHIGAN, L.L.C.
By: /s/ Ajay Sabherwahl
------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: CFO
LIST OF OMITTED SCHEDULES
-------------------------
The Registrant has omitted from this filing the Schedules listed below. The
Registrant will furnish supplementally to the Commission, upon request, a copy
of any omitted Schedule.
Schedule I - Required Principal Payments
Schedule II - Required Interest Payments
