AMENDMENT, CONSENT AND WAIVER
AMENDMENT, CONSENT AND WAIVER (this "Amendment"), dated as of
September 8, 2000, among USOL HOLDINGS, INC. ("Holdings"), USOL, INC. (the
"Borrower"), the various financial institutions party to the Credit Agreement
referred to below (the "Banks"), BNP PARIBAS (formerly known as Paribas), as
Administrative Agent and Syndication Agent and DEUTSCHE BANK AG, NEW YORK
BRANCH, as Documentation Agent. All capitalized terms used herein and not
otherwise defined shall have the respective meanings provided such terms in the
Credit Agreement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Holdings, the Borrower, the Banks and the Agents are
parties to a Credit Agreement, dated as of December 30, 1999 (as amended,
modified or supplemented through the date hereof, the "Credit Agreement"); and
WHEREAS, the parties hereto wish- to amend the Credit
Agreement and consent to certain provisions as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 3 .OZ(A)(f) of the Credit Agreement is hereby amended by inserting
the text "and, in the case of U.S.-Austin, 50% of cash proceeds received"
immediately after the text "on which Holdings or any Subsidiary of Holdings
(other than Residentclub" appearing in such Section.
2. Section 3.02(A)(g) of the Credit Agreement is hereby amended by inserting the
text "(50% in the case of U.S.-Austin)" immediately after the text "100%"
appearing in such Section.
3. Section 4.04(a) of the Credit Agreement is hereby amended by (I) deleting
such Section in its entirety and (II) inserting in lieu thereof the following
new Section 4.04(a):
"4.04 Corporate Documents; Proceedings. (a) On the Initial
Borrowing Date, the Agents shall have received a certificate,
dated the Initial Borrowing Date, signed by the Chief
Executive Officer, President, Chief Financial Officer,
President, any Vice President or General Partner of each
Credit Party and U.S.-Austin, and attested to by the Secretary
or any Assistant Secretary of such Credit Party and
U.S.-Austin, in the form of Exhibit E with appropriate
insertions, together with copies of the Certificate of
Incorporation, By-Laws, Certificate of Limited Partnership,
Agreement of Limited Partnership or other organizational
documents of such Credit Party and U.S.-Austin and the
resolutions or, consents or similar evidence of authority of
such Credit Party and U.S.-Austin referred to in such
certificate, and the foregoing shall be acceptable to the
Agents and the Required Banks in their sole discretion."
4. Section 4.04(b) of the Credit Agreement is hereby amended by (I) inserting
the text ", partnership" immediately after the text "All corporate" appearing in
such Section and (II) inserting the text "partnership proceedings," immediately
after the text "corporate proceedings," appearing in such Section.
5. Section 4.05 of the Credit Agreement is hereby amended by (I) inserting the
text "Partnership Agreements;" immediately after the text "Shareholders'
Agreements;" appearing in the title to such Section, (II) inserting the text
"Partnership Agreements," immediately after the text "Shareholders' Agreements,"
appearing in the last sentence of such Section, (III) redesignating clauses
(iii), (iv), (v), (vi), (vii), (viii) and (ix) appearing in such Section as
clauses (iv), (v), (vi), (vii), (viii), (ix) and (x) and (IV) inserting the
following new clause (iii):
"(iii) all agreements entered into by the Borrower or any
Subsidiary of the Borrower governing the terms and relative
rights of its partnership interests and any agreements entered
into by the partners relating to any such entity with respect
to their partnership interests (collectively, the "Partnership
Agreements");"
6. Section 4.06 of the Credit Agreement is hereby amended by (I) deleting such
Section in its entirety and (II) inserting in lieu thereof the following new
Section 4.06:
"4.06 Pledge Agreements. (a) On the Initial Borrowing Date,
each Credit Party shall have duly authorized, executed and
delivered a Pledge Agreement in the form of Exhibit F-1 (as
modified, supplemented or amended from time to time, the
"Corporate Pledge Agreement") and shall have delivered to the
Collateral Agent, as Pledgee thereunder, all of the Pledged
Securities referred to therein then owned by each such Credit
Party (x) endorsed in blank in the case of promissory notes
constituting Pledged Securities and (y) together with executed
and undated irrevocable stock powers, in the case of capital
stock constituting Pledged Securities.
(b) On the Initial Borrowing Date, the Borrower shall
have duly authorized, executed and delivered a Partnership
Pledge Agreement substantially in the form of Exhibit F-2 (as
modified, supplemented or amended from time to time, the
"Partnership Pledge Agreement") and shall have delivered to
the Collateral Agent, as Pledgee thereunder, if certificated
all of the Pledged Partnership Interests referred to therein
then owned by the Borrower together with executed and undated
irrevocable stock powers or other acceptable instruments of
transfer and:
(i) evidence that all other actions necessary or, in
the reasonable opinion of counsel to the Agent, appropriate
to perfect and protect the first priority security interest
created by the Partnership Pledge Agreement have been taken;
(ii) acknowledgment copies of all UCC-1 financing
statements filed, registered or recorded (or other evidence
satisfactory to the Agent that there has been filed,
registered or recorded all financing statements necessary
and advisable to perfect the security interest of the
Secured Creditors);
(iii) consents and/or acknowledgments from the
requisite number of limited partners to permit the granting
of the security interests purported to be granted pursuant
to the Partnership Pledge Agreement as the Agent shall have
reasonably requested; and
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(iv) copies of lien and judgment searches as the Agent
shall reasonably request (and such termination statements or
other documents as may be necessary to release any Lien in
favor of any third party not otherwise permitted by Section
8.01)."
7. Section 4.08 of the Credit Agreement is hereby amended by (I) deleting such
Section in its entirety and (II) inserting in lieu thereof the following new
Section 4.08:
"4.08 Subsidiaries Guaranty. On the Initial Borrowing Date,
each Subsidiary of Holdings (other than the Borrower,
Residentclub and U.S.-Austin) shall have duly authorized,
executed and delivered a Guaranty in the form of Exhibit H (as
modified, supplemented or amended from time to time, the
"Subsidiaries Guaranty")."
8. Section 4.09 of the Credit Agreement is hereby amended by (I) deleting the
word "and" appearing immediately after the word "Holdings", (II) inserting in
lieu thereof the text "" and (III) inserting the text "and U.S.-Austin"
immediately after the text "Credit Party" appearing in such Section.
9. Section 4.10 of the Credit Agreement is hereby amended by (I) deleting the
text "1998" and (II) inserting in lieu thereof the text "1999".
10. Section 4.15(a)(i) of the Credit Agreement is hereby amended by inserting
the text "and Holdings as at December 31, 1999 and for the six-month period
ended June 30, 2000" immediately after the text "1999" appearing in such
Section.
11. Section 4.15(a)(ii),of the Credit Agreement is hereby amended by inserting
the text "and Holdings at December 31, 1999 and June 30, 2000" immediately after
each appearance of the text "September 30, 1999" in such Section.
12. Section 4 of the Credit Agreement is hereby amended by inserting the
following new Section 4.17 at the end of such Section:
"4.17 Concentration Account Consent Letters. On or prior to the
Initial Borrowing Date, the Agents shall have received the
Concentration Account Consent Letters in compliance with Section
7.18."
13. Section 6.01(i) of the Credit Agreement is hereby amended by inserting the
text "or limited partnership" immediately after the text "validly existing
corporation" appearing in such Section.
14. Section 6.01(ii) of the Credit Agreement is hereby amended by inserting the
text "or partnership" immediately after the text "has the corporate" appearing
in such Section.
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15. Section 6.02 of the Credit Agreement is hereby amended by (I) inserting the
text "or Partnership" immediately after the word "Corporate" in the title to
such Section and (II) inserting the text "or partnership" immediately after each
appearance of the word "corporate" in such Section.
16. Section 6.03 of the Credit Agreement is hereby amended by inserting the text
"Agreement of Limited Partnership, Certificate of Limited Partnership"
immediately after the text "By-Laws" appearing in such Section.
17. Section 6.05(a) of the Credit Agreement is hereby amended by (1) deleting
such Section in its entirety and (II) inserting in lieu thereof the following
new Section 6.05(a):
"6.05 Financial Statements: Financial Condition: Undisclosed
Liabilities; Projections, etc, (a) (i) The consolidated
balance sheet of U.S. Online Communications, Inc. (or its
successors) and Firstlink as at December 31, 1997, December
1998, and for the nine-month period ended September 30, 1999
and Holdings as at December 31, 1999 and for the six-month
period ended June 30, 2000 and the related statements of
earnings and stockholders' equity and cash flows of such
Person, as applicable for the fiscal periods ended as of said
dates, which, in the case of the annual statements, have been
examined by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP an independent certified
public accountant, who delivered unqualified opinions in
respect thereto, (ii) the consolidated balance sheet of U.S.
Online Communications, Inc. (or its successor) and Firstlink
at March 31, 1999, June 30, 1999 and September 30, 1999 and
Holdings at December 31, 1999 and June 30, 2000 and the
related statements of operations, changes in partners' equity
and cash flows of U. S. Online Communications, Inc. (or its
successor) and Firstlink for each of the three-month periods
ended as of March 31, 1999, June 30, 1999 and September 30,
1999 and Holdings at December 31, 1999 and June 30, 2000 and
(iii) the pro forma (after giving effect to the Transaction
and the related financing thereof) consolidated balance sheet
of Holdings as at the Effective Date, copies of which
financial statements have heretofore been furnished to each
Bank, present a good faith estimate of the pro forma financial
condition of Holdings and its Subsidiaries (after giving
effect to the Transaction) on a consolidated basis at the date
thereof). Such financial statements have been prepared in
accordance with generally accepted accounting principles and
practices consistently applied except to the extent provided
in the notes to said financial statements. Since December 31,
1999, there has been no material adverse change in the
performance, business, assets, nature of assets, liabilities,
operations, properties, condition (financial or otherwise) or
prospects of the Holdings and its Subsidiaries taken as a
whole."
18. Section 6.11 (b) of the Credit Agreement is hereby amended by (I) deleting
each appearance of the word "Agreement" in such Section and (II) inserting in
lieu thereof the word "Agreements".
19. Section 6.14 of the Credit Agreement is hereby amended by (I) deleting the
word "partnership" and (II) inserting in lieu thereof the text "its capital
stock, its partnership interests".
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20. Section 6.15 of the Credit Agreement is hereby amended by inserting the text
."or partnership interests" immediately after the text "capital stock" appearing
in such Section.
21. Section 6.23 of the Credit Agreement is hereby amended by inserting the text
"partnership interests" immediately after the text "capital stock," appearing in
such Section.
22. Section 6 of the Credit Agreement is hereby amended by inserting the
following new Section 6.27:
"U.S.-Austin Value. The Borrowers' 50% ownership interest in
U.S.-Austin has a book value and a fair market value of less
than $750,000."
23. Section 6 of the Credit Agreement is hereby amended by inserting the
following new Section 6.28:
"Fair Market Value of ▇▇▇ Agreements. (a) The fair market
value of all equipment and other assets located at the
locations identified in all of the ▇▇▇ Agreements of Holdings
and the Borrower listed on Schedule IV and Schedule VIII
(without duplication) is not in excess of $3,500,000 in the
aggregate.
(b) The fair market value of all equipment and other
assets located at the locations identified in all of the ▇▇▇
Agreements of Holdings and its Subsidiaries (including,
without limitation, Residentclub and 50% of the equipment and
other assets of U.S.-Austin at such locations) listed on
Schedule IV and Schedule VIII (without duplication) is not in
excess of $4,000,000 in the aggregate."
24. Section 6 of the Credit Agreement is hereby amended by inserting the
following new Section 6.29:
"Tower and Antenna Sites. There are no sites containing either
a stand-alone transmitting tower or stand-alone transmitting
antenna other than those sites which are subject to the
agreements listed under the "Tower Site Agreements" sections
of Schedule IV and Schedule VIII."
25. Section 6 of the Credit Agreement is hereby amended by inserting the
following new Section 6.30:
"Certain Office Leases. The leases with numbers 2 and 7 under
the heading "Real Property Leases of Borrower" on Schedule IV
are not material to the operation of Holdings or any of its
Subsidiaries."
26. Section 7.01(f) of the Credit Agreement is hereby amended by (I) deleting
each appearance of the text "8.01" in such Section and (B) inserting in lieu
thereof the text "7.01".
27. Section 7.18 of the Credit Agreement is hereby amended by inserting the text
"and U.S. -Austin" immediately after the word "Residentclub" appearing in such
Section.
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28. Section 8.03 of the Credit Agreement is hereby amended by (I) deleting the
word "and" appearing immediately after the text "Wholly-Owned Subsidiary of the
Borrower" appearing in such Section, (II) inserting in lieu thereof the text ","
and (III) inserting the text "and (iii) U.S.-Austin may pay Dividends to the
Borrower and its other partners proportionate to their respective interests in
U.S.-Austin" immediately after the text "corporate existence" appearing in such
Section.
29. Section 8.06(ii) of the Credit Agreement is hereby amended by inserting the
text "(except that U.S.-Austin does not have to hold cash and Cash Equivalents
in a Concentration Account)" immediately after the text "Concentration Account"
appearing in such Section.
30. (a) Section 8.08 of the Credit Agreement is hereby amended by (i) inserting
the text "(I)" immediately after the text "except that" appearing therein and
(ii) inserting the following text immediately after the text "ending thereafter"
appearing therein:
"and (II) in addition to any amounts permitted under 8.08(1)
above, the Borrower and its Subsidiaries may make Capital
Expenditures of up to (i) $1,500,000 in the year ending
December 31, 2000, (ii) $1,000,000 in the year ending December
31, 2001 and (iii) $700,000 in the year ending December 31,
2002 and in each calendar year thereafter. In case the
additional Capital Expenditures specified in this Section
8.08(11) are not made or are made at less than the maximum
amount specified therein for each year, the difference between
the maximum amount for the relevant year and the additional
Capital Expenditures made in such year in accordance with such
Section 8.08(11) may be carried over to the following year and
the maximum amount specified for such following year shall be
increased by the amount carried over"
31. Section 8.14 of the Credit Agreement is hereby amended by (I) inserting the
text ", Certificate of Limited Partnership, Agreement of Limited Partnership"
immediately after the text "By-Law" appearing in the title to such Section, (II)
redesignating clauses (iv) (v) and (vi) appearing in such Section as clauses
(v), (vi) and (vii) and (III) inserting the following new clause (iv):
"(iv) amend, modify or change its Certificate of
Limited Partnership or Agreement of Limited Partnership or any
agreement entered into by it, with respect to its partnership
interests, or enter into any new agreement with respect to its
partnership interests;"
32. Section 8.15 of the Credit Agreement is hereby amended by inserting the text
"or partnership interests" immediately after the text "capital stock" appearing
in such Section.
33. Section 8.16 of the Credit Agreement is hereby amended by (I) inserting the
text "and Partnership Interests" after the text "Capital Stock" appearing in the
title to such Section, (II) inserting the text "or partnership interests"
immediately after the text "(including by way of sales of treasury stock)" and
again after the text "into, capital stock" and (III) deleting the word
"Agreement" appearing therein and inserting in lieu thereof the word
"Agreements".
34. Section 8.19 of the Credit Agreement is hereby amended by inserting the text
"(other than Residentclub and U. S.-Austin)" immediately after the word
"Subsidiaries" appearing in such Section.
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35. Section 10.01 of the Credit' Agreement is hereby amended by (I) deleting the
definitions for "Cable Passings," "Cable Television Subscribers", "Change in
Control", "Concentration Account", "Concentration Account Bank", "Consolidated
Current Assets", "Consolidated Current Liabilities'", "Consolidated Interest
Expense", "Consolidated Net Income", "Corporate Overhead Expenditures", "Credit
Party", "Dividend", "Excess Cash Flow", "Firstlink Merger", "Firstlink Merger
Agreement", "Guaranty", "Internet Passings", "Net Consolidated Interest
Expense", "Partnership Pledge Agreement", "Pledge Agreement", '.Pledge Agreement
Collateral", "Pledged Partnership Interests", "Pledged Securities", "Recovery
Event", "Residentclub", "Security Documents'", "Subscriber", "Subsidiary" and
"Telephony Subscribers" in their entirety and (II) inserting the following new
definitions in such Section in appropriate alphabetical order:
" "Cable Passings" shall mean the number of dwelling
units which the Borrower and its Subsidiaries (other than
Residentclub and, in the case of U.S.-Austin, 50% of such
dwelling units) has the opportunity to provide cable
television services pursuant to the ▇▇▇ Agreements whether or
not all such dwelling units subscribe to such cable television
services.
"Cable Television Subscribers" shall mean the number
of dwelling units which the Borrower and its Subsidiaries
(other than Residentclub and, in the case of U.S.-Austin, 50%
of such dwelling units) provide cable television service (as
evidenced by a written agreement), who are not more than 60
days past due on the payment of their cable television ▇▇▇▇.
"Capital Expenditure" shall have the meaning provided
in Section 8.08.
"Change in Control" means the occurrence of one or
more of the following: (i) Holdings shall cease to directly
own 100% on a fully diluted basis of the outstanding capital
stock of the Borrower, (ii) the Borrower shall cease to own
100% of all of the equity of its Subsidiaries (other than
Residentclub and U.S.-Austin), (iii) the Borrower shall cease
to own 50% of the equity of U.S.-Austin or shall cease to be
the sole general partner of U.S. -Austin, (iv) any Person,
entity or "group" (within the meaning of Section 13(d) or
14(d) of the Securities Exchange Act) shall have acquired
beneficial ownership of 51% or more of any outstanding class
of capital stock of Holdings, having ordinary voting power in
the election of directors or (v) the Board of Directors of
Holdings shall cease to consist of Continuing Directors.
"Concentration Account" shall mean a separate account
which shall be established and maintained with the
Concentration Account Bank for the benefit of the Secured
Creditors by Holdings and each of its Subsidiaries (other than
Residentclub and U.S.-Austin) and in which the Collateral
Agent has a security interest pursuant to the Concentration
Account Consent Letter.
"Concentration Account Bank" shall mean ▇▇▇▇▇ Fargo
Bank or such other bank that may become a Concentration
Account Bank in accordance with the provisions of the Security
Agreement.
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"Consolidated Current Assets" shall mean the
consolidated current assets of Holdings and its Subsidiaries
(other than Residentciub and, in the case of U. S.-Austin, 50%
of such current assets).
"Consolidated Current Liabilities" shall mean the
consolidated current liabilities of Holdings and its
Subsidiaries (other than Residentclub and, in the case of
U.S.-Austin, 50% of such current liabilities), but excluding
the current portion of any long-term Indebtedness which would
otherwise be included therein.
"Consolidated Interest Expense" shall mean, for any
period, the total consolidated cash interest expense of
Holdings and its Subsidiaries (other than Residentclub and, in
the case of U.S.-Austin, 50% of its cash interest expense) for
such period (calculated without regard to any limitations on
the payment thereof) payable during such period in respect of
all Indebtedness of Holdings and its Subsidiaries (other than
Residentclub), on a consolidated basis, for such period
(including, without duplication, that portion of Capitalized
Lease Obligations of Holdings and its Subsidiaries (other than
Residentclub) representing the interest factor for such period
and all commitment and similar fees payable with respect to
any Indebtedness).
"Consolidated Net Income" shall mean, for any period,
net income of Holdings and its Subsidiaries (other than
Residentclub and, in the case of U.S.-Austin, 50% of its net
income) for such period determined on a consolidated basis
(after provision for taxes); provided, however, the net income
of any Subsidiary of Holdings, which is not a Wholly-Owned
Subsidiary and for which the investment of Holdings therein is
accounted for by the equity method of accounting, shall have
its net income included in the Consolidated Net Income of
Holdings and its Subsidiaries only to the extent of the amount
of cash dividends or distributions paid by such Subsidiary to
Holdings.
"Corporate Overhead Expenditures" shall mean for any
period of determination all expenses of Holdings and its
Subsidiaries (other than Residentclub) related to corporate
and headquarters operations; provided, however, that Corporate
Overhead Expenditures do not include any direct expenses
related to the provision of cable, telephony or internet
services, field operations expenses at individual markets
(including technical, sales and marketing and maintenance
expenses incurred at the market level), royalties and
commissions, bad debt expenses and customer service expenses.
"Corporate Pledge Agreement" shall have the meaning
provided in Section 4.06(a).
"Credit Party" shall mean Holdings and each of its
Subsidiaries (other than Residentclub and U.S.-Austin),
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"Dividend" with respect to any Person shall mean that
such Person has declared or paid a dividend, distribution or
returned any equity capital to its stockholders or partners or
authorized or made any other distribution, payment or delivery
of property (other than common stock or preferred stock (with
the same terms as the preferred stock outstanding on the
Effective Date) of such Person) or cash to its stockholders or
partners, in their capacity as stockholders or partners, or
redeemed, retired, purchased or otherwise acquired, directly
or indirectly, for a consideration any shares of any class of
its capital stock outstanding or partnership interests on or
after the Effective Date (or any options or warrants issued by
such Person with respect to its capital stock or partnership
interests), or set aside any funds for any of the foregoing
purposes, or shall have permitted any of its Subsidiaries to
purchase or otherwise acquire for a consideration any shares
of any class of the capital stock or partnership interests of
such Person outstanding on or after the Effective Date (or any
options or warrants issued by such Person with respect to ,its
capital stock or partnership interests). Without limiting the
foregoing, "Dividends" with respect to any Person shall also
include all cash payments made or required to be made by such
Person with respect to any stock appreciation rights, Plans,
equity incentive plans, achievement plans or any similar plans
or setting aside of any funds for the foregoing purposes.
"Excess Cash Flow" shall mean, for any period, the
remainder of (i) the sum of (a) Adjusted Consolidated Net
Income for such period, and (b) the decrease, if any, in
Adjusted Working Capital from the first day to the last day of
such period, minus (ii) the sum of (a) the amount of cash
Capital Expenditures (to the extent not financed with
Indebtedness), made by Holdings on a consolidated basis (other
than Residentclub) during such period, (b) the amount of
permanent principal payments of Indebtedness for borrowed
money of Holdings and its Subsidiaries (other than
Residentclub and, in the case of U.S.-Austin, 50% of such
Indebtedness) (other than repayments of Loans); provided that
repayments of Loans shall be deducted in determining Excess
Cash Flow if such repayments were applied to Scheduled
Repayments required to be made during such period, were made
as a voluntary prepayment with internally generated funds (but
in the case of a voluntary prepayment of Loans prior to the
Conversion Date, only to the extent accompanied by a voluntary
reduction to the Total Commitment) during such period, and (c)
the increase, if any, in Adjusted Working Capital from the
first day to the last day of such period.
"Firstlink Merger" shall mean the merger of USOL
Holdings, Inc., a Delaware corporation, with and into
Firstlink with Firstlink as the surviving corporation.
"Firstlink Merger Agreement" shall mean the Merger
Agreement, dated as of July 21, 1999, between USOL Holdings,
Inc., a Delaware corporation, and Firstlink.
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"Guaranty" shall mean and include each of the
Subsidiary Guaranties executed by the Subsidiaries of Holdings
(other than the Borrower, Residentclub and U.S.-Austin) and
the Holdings Guaranty.
"Internet Passings" shall mean the number of dwelling
units which the Borrower and its Subsidiaries (other than
Residentclub and, in the case of U.S.-Austin, 50(degree)/a of
such dwelling units) has the opportunity to provide internet
service pursuant to ▇▇▇ Agreements whether or not all such
dwelling units subscribe to such internet services.
"Net Consolidated Interest Expense" shall mean
Consolidated Interest Expense paid by Holdings and its
Subsidiaries (other than Residentclub and, in the case of U.
S.-Austin, 50% of its cash interest expense) less cash
interest income earned by Holdings and its Subsidiaries (other
than Residentclub and, in the case of U.S.-Austin,
50(degree)/a of its cash interest income).
"Partnership Agreement" shall have the meaning
provided in Section 4.05(iii).
"Partnership Pledge Agreement" shall have the meaning
provided in Section 4.06(b).
"Pledge Agreements" shall mean and include the
Corporate Pledge Agreement and the Partnership Pledge
Agreement.
"Pledge Agreement Collateral" shall mean all
"Collateral" as defined in the Pledge Agreements.
"Pledged Partnership Interests" shall have the
meaning assigned to that term in the Partnership Pledge
Agreement.
"Pledged Securities" shall have the meaning assigned
that term in the Pledge Agreements.
"Recovery Event" shall mean the receipt by Holdings
or any Subsidiary of the Holdings (other than Residentclub
and, in the case of U.S.-Austin, 50% of its receipts) of any
cash insurance proceeds or condemnation awards payable: (i) by
reason of theft, loss, physical destruction, damage or taking
or any other event with respect to any properties or assets of
Holdings or any Subsidiary of Holdings (including without
limitation, business interruption insurance); and, (ii) under
any policy of insurance required to be maintained under
Section 7.03.
"Residentclub" shall mean TheResidentClub, Inc., a
Delaware corporation.
"Security Documents" shall mean the Pledge
Agreements, the Security Agreement, and the Concentration
Account Consent Letter.
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"Subscribers" shall mean the total number of
subscribers to the services of Holdings and its Subsidiaries
(other than Residentclub and, in the case of U.S.-Austin, 50%
of its subscribers), including cable television, internet and
telephony subscribers.
"Subsidiary" shall mean, as to any Person, (i) any
corporation more than 50% of whose stock of any class or
classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class
or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the
time owned by such Person and/or one or more Subsidiaries of
such Person, (ii) any partnership, association, joint venture
or other entity in which such Person and/or one or more
Subsidiaries of such Person has more than a 50% equity
interest at the time and (iii) any partnership in which such
Person or its Subsidiary is the general partner (including,
without limitation, U.S.-Austin in the case of the Borrower or
Holdings).
"Telephony Passings" shall mean the number of
dwelling units which the Borrower and its Subsidiaries (other
than Residentclub and, in the case of U. S. Austin, 50% of
such dwelling units) has the opportunity to provide telephony
services to pursuant to an ▇▇▇ Agreement regardless of whether
all such dwelling units subscribe to such telephone services.
"Telephony Subscribers" shall mean the number of
dwelling units which the Borrower and its Subsidiaries (other
than Residentclub and, in the case of U.S.-Austin, 50% of such
dwelling units) provide telephone service (as evidenced by a
written agreement) who are not more than 60 days past due on
payment of their telephone ▇▇▇▇.
"U.S.-Austin" shall mean U.S.-Austin Cable Assoc. I,
Ltd., a Texas limited partnership."
36. Section 11.03 of the Credit Agreement is hereby amended by deleting the
text," the participation in the Letters of Credit" appearing in such Section.
37. The Table of Contents to the Credit Agreement is hereby amended by (i)
deleting the text "EXHIBIT F Pledge Agreement" appearing therein and (ii)
inserting in lieu thereof the following:
"EXHIBIT F-1 Corporate Pledge Agreement
EXHIBIT F-2 Partnership Pledge Agreement"
38. Notwithstanding anything to the contrary contained in the Credit Agreement,
the undersigned hereby agree that any proceeds from the issuance or sale of
equity by Holdings, raised specifically for the use by Residentciub in the
operations of Residentclub shall be freely transferred to Residentclub. to be
used in the operations of Residentclub and shall not be subject to the mandatory
repayment requirements under the Credit Agreement, including without limitation,
Section 3.02 of the Credit Agreement; provided, that the Borrower provide the
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Administrative Agent with documentation satisfactory to the Administrative Agent
that such issuance of sale of equity will not have. an adverse effect on the
Loan.
39. Notwithstanding anything to the contrary contained in the Credit Agreement,
the undersigned hereby consent to the subordination of the loan from the
Borrower to Residentclub in an amount not to exceed $2,000,000 to the loan from
▇▇▇▇▇▇ Financial Services, Inc. to Residentclub in the amount of $5,000,000.
40. In order to induce the Banks to enter into this Amendment, the Borrower
hereby represents and warrants that on the Amendment Effective Date, both before
and after giving effect to this Amendment and the transactions contemplated
hereby, (i) no Default or Event of Default shall exist .and (ii) all of the
representations and warranties contained in the Credit Documents shall be true
and correct in all material respects, with the same effect as though such
representations and warranties had been made on and as of the Amendment
Effective Date (it being understood that any representation or warranty made as
of a specific date shall be true and correct in all material respects as of such
specified date).
41. This Amendment shall become effective on the date (the "Amendment Effective
Date") when (i) Holdings, the Borrower and the Required Banks shall have signed
a counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile) the same to the Administrative Agent
and (ii) all fees, costs and expenses owing to the Banks, including, without
limitation, the fees of White & Case LLP, shall have been paid.
42. This Amendment is limited as specified and shall not constitute a
modification, acceptance, consent or waiver of any other provision of the Credit
Agreement or any other Credit Document.
43. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
shall be lodged with the Borrower and the Agent.
44. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW
YORK.
45. From and after the Amendment Effective Date all references in the Credit
Agreement and the other Credit Documents to the Credit Agreement shall be deemed
to be references to the Credit Agreement as modified hereby.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
10300 Metric Boulevard USOL HOLDINGS, INC.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ By: //S// ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇ Title CFO
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ By: //S// ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇ Title CFO
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Individually and as Administrative
Attention: ▇▇▇▇ Aizenberg agent and Syndication Agent
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
By: _______________________________
Title
By: _______________________________
Title
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ DEUTSCHE BANK AG, NEW YORK
New York, New York 10019 BRANCH,
Attention: ▇▇▇ ▇▇▇▇▇▇ as Documentation Agent
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇
By: _______________________________
Title
By: _______________________________
Title
13
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ DEUTSCHE BANK AG, NEW YORK
New York, New York 10019 AND/OR CAYMAN ISLANDS BRANCHES
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
By: _______________________________
Title
By: _______________________________
Title
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS CREDIT
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ By: _______________________________
Title
14
