AMENDMENT TO INTERCREDITOR AGREEMENT
Exhibit
(d)(12)
AMENDMENT
TO INTERCREDITOR AGREEMENT
This
AMENDMENT TO THE INTERCREDITOR AGREEMENT dated as of May __, 2007
(this "Amendment"),
is
entered into by and between RCN Corporation (the "Company"),
each
other Grantor, Deutsche Bank Trust Company Americas, in its capacities as
First-Lien Administrative Agent and First-Lien Collateral Agent (the
"First-Lien Collateral Agent"), and HSBC Bank USA, National
Association, in its capacities as Second-Lien Trustee and Second-Lien Collateral
Agent.
RECITALS:
WHEREAS,
the parties hereto and HSBC Bank USA, National Association, as Third-Lien
Collateral Agent, entered into the Intercreditor Agreement, dated as of
December 21, 2004 (the "Intercreditor
Agreement"),
which
governs the rights of the Second-Lien Collateral Agent (as defined therein)
with
respect to the Collateral securing the Notes issued pursuant to the Indenture
between the Company and HSBC Bank USA, National Association, in its
capacity as Indenture Trustee, dated as of December 21, 2004, as
amended by the First Supplemental Indenture, dated as of May 30, 2006
(as amended, the "Indenture");
WHEREAS,
Section 11.2 of the Indenture provides, among other things, that subject to
certain restrictions, the Company, when authorized by a Board Resolution,
may
amend or supplement the Notes, the Security Documents (which includes the
Intercreditor Agreement) or the Indenture with the consent of the holders
of not
less than a majority in aggregate principal amount of the Notes at the time
outstanding;
WHEREAS,
the holders of not less than a majority in aggregate principal amount of
the
Notes outstanding have duly consented to the proposed amendments to the
Intercreditor Agreement set forth in this Amendment, in accordance with the
provisions of Article IX and Section 11.2 of the
Indenture;
WHEREAS,
the Third-Lien Credit Agreement was terminated on May 30, 2006, and
the discharge of the Third-Lien Obligations occurred;
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
set
forth, the parties hereby agree as follows:
1. Capitalized
Terms.
All
capitalized, undefined terms used in this Amendment shall have the meanings
assigned thereto in the Indenture.
2. Amendment
to Section 8.2 to the Intercreditor Agreement.
The
last sentence of Section 8.2 of the Intercreditor Agreement is amended and
restated in its entirety to read as follows:
"This
Agreement shall terminate and be of no further force and effect, (i) with
respect to the Second-Lien Collateral Agent, the Second-Lien Creditors and
the
Second-Lien Obligations, upon the Discharge of Second-Lien Obligations (in
a
manner which is not in contravention of the terms of this Agreement), subject
to
the rights of the First-Lien Creditors and the Second-Lien Creditors under
Section 6.5, (ii) with respect to the First-Lien Collateral Agent, the
First-Lien Creditors and the First-Lien Obligations, the date of the Discharge
of First-Lien Obligations, subject to the rights of the First-Lien Creditors
under Section 6.5(c), and (iii) with respect to all parties hereto
(including without limitation the Second-Lien Collateral Agent, the Second-Lien
Creditors, the First-Lien Collateral Agent and the First-Lien Creditors
upon the effective date of the Second Supplemental Indenture, dated as of
May __, 2007, by and between the Company and the Second-Lien
Trustee."
3. No
breach or violation:
For the
avoidance of doubt, the Company hereby represents and warrants that (i) the
entry into the First-Lien Credit Agreement, dated May __, 2007,
between the Company, various lenders party thereto, Deutsche Bank Trust Company
Americas, as Administrative Agent, Deutsche Bank Securities, Inc., as Sole
Lead
Arranger, Deutsche Bank Securities, Inc. and Citigroup Global Markets, Inc.,
as
Joint Book Running Managers, Citicorp USA, Inc. as Syndication Agent, and
Societe Generale, as Documentation Agent (the "First-Lien
Facility"),
and
(ii) the incurrence of any obligation under the First-Lien Facility for the
purpose of financing to pay the purchase price for the Notes accepted for
purchase and payment by the Company pursuant to the Offer to Purchase and
Consent Solicitation Statement, dated April 27, 2007
(the "Offer
to Purchase")
and
the related Consent and Letter of Transmittal (which, together with the Offer
to
Purchase, constitute the "Offer")
and
for any other purpose provided therein, shall not be a breach or violation
of
the Intercreditor Agreement.
4. Recitals.
The
recitals contained herein shall be taken as the statements of the Company
and
the Trustee assumes no responsibility for their correctness. The Trustee
makes
no representations as to the validity or sufficiency of this
Amendment.
5. Effective
Date.
This
Amendment is effective immediately upon written notice to the First-Lien
Collateral Agent and the Second-Lien Collateral Agent by the Company of the
Company's acceptance for purchase of the Notes pursuant to the terms and
conditions of the Offer.
6. Governing
Law.
This
Amendment shall be interpreted and construed in accordance with the laws
of the
State of New York.
7. Counterparts.
This
Amendment may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all
such
counterparts shall together constitute but one and the same
instrument.
8. Descriptive
Headings.
Descriptive headings hereof are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions
hereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Intercreditor Agreement to be executed and delivered by their duly authorized
officers as of the date first above written.
First-Lien
Collateral Agent: DEUTSCHE BANK TRUST COMPANY AMERICAS, in its
capacities
as First-Lien Administrative Agent and First-Lien Collateral
Agent
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By:
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Name:
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Title:
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Second-Lien
Collateral Agent: HSBC BANK USA, NATIONAL ASSOCIATION, in its capacities
as Second-Lien Trustee and Second-Lien Collateral Agent
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By:
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Name:
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Title:
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RCN
CORPORATION, as an Assignor
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By:
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Name:
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Title:
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BRAINSTORM
NETWORKS, INC., as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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HOT
SPOTS PRODUCTIONS, INC., as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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ON
TV, INC., as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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RCN-BECOCOM,
LLC, as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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RCN
CABLE TV OF CHICAGO, INC., as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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RCN
ENTERTAINMENT, INC., as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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RCN
FINANCE, LLC, as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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RCN
FINANCIAL MANAGEMENT, INC., as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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RCN
INTERNATIONAL HOLDINGS, INC., as a Subsidiaries
Guarantor
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By:
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Name:
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Title:
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RCN
INTERNET SERVICES, INC., as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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RCN
NEW YORK COMMUNICATIONS HOLDING COMPANY, INC., as a Subsidiaries
Guarantor
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By:
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Name:
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Title:
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RCN
NEW YORK COMMUNICATIONS, LLC, as a Subsidiaries
Guarantor
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By:
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Name:
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Title:
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RCN
TELECOM SERVICES, INC., as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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RCN
TELECOM SERVICES OF ILLINOIS, LLC, as a Subsidiaries
Guarantor
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By:
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Name:
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Title:
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RCN
TELECOM SERVICES OF MASSACHUSETTS, INC., as a Subsidiaries
Guarantor
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By:
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Name:
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Title:
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RCN
TELECOM SERVICES OF PHILADELPHIA, INC., as a Subsidiaries
Guarantor
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By:
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Name:
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Title:
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RCN
TELECOM SERVICES OF VIRGINIA, INC., as a Subsidiaries
Guarantor
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By:
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Name:
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Title:
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RCN
TELECOM SERVICES OF WASHINGTON D.C., INC., as a Subsidiaries
Guarantor
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By:
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Name:
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Title:
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RFM
2, LLC, as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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RLH
PROPERTY CORPORATION, as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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TEC
AIR, INC., as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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21ST
CENTURY TELECOM SERVICES, INC., as a Subsidiaries
Guarantor
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By:
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Name:
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Title:
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UNET
HOLDING, INC., as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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STARPOWER
COMMUNICATIONS, LLC, as a Subsidiaries Guarantor
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By:
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Name:
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Title:
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