EXHIBIT 10.1
THIRD STANDSTILL AGREEMENT AND AMENDMENT TO THE CREDIT AGREEMENT
THIRD STANDSTILL AGREEMENT AND AMENDMENT TO THE CREDIT AGREEMENT,
dated as of August 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, a Fourth
Amendment dated as of May 25, 2004, a Standstill Agreement and Conditional
Amendment to the Credit Agreement (the "FIRST STANDSTILL AMENDMENT") dated as of
June 30, 2004 and a Second Standstill and Conditional Amendment ("THE SECOND
STANDSTILL AMENDMENT") dated as of July 30, 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, as amended by this 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 (including after
giving effect to the First Standstill Amendment), on July 30, 2004, the
Borrowers were 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"), and pursuant to the Second Standstill
Amendment, the Lenders agreed, subject to the terms and conditions of the Second
Standstill Amendment, to forbear from demanding the Required Revolving Loan
Payment until August 30, 2004.
4. Pursuant to Section 4.3 of the Credit Agreement (including after
giving effect to the First Standstill Amendment), on July 30, 2004, the
Borrowers were 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"), and pursuant to the
Second Standstill Amendment, the Lenders agreed, subject to the terms and
conditions of the Second Standstill Amendment, to forbear from demanding the
Required Term Loan Payments until August 30, 2004.
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5. Pursuant to Section 5.1(e) of the Credit Agreement (including after
giving effect to the First Standstill Amendment), on July 30, 2004, the
Borrowers were obligated to pay to the Lenders interest on the outstanding LIBOR
Rate Loans in such amounts listed on Schedule II hereto (collectively, the
"REQUIRED JULY INTEREST PAYMENTS"), and pursuant to the Second Standstill
Amendment, the Lenders agreed, subject to the terms and conditions of the Second
Standstill Amendment, to forbear from demanding the Required July Interest
Payments until August 30, 2004.
6. Pursuant to Section 5.1(e) of the Credit Agreement (including after
giving effect to the First Standstill Amendment and the Second Standstill
Amendment), on August 30, 2004, the Borrowers are obligated to pay to the
Lenders interest on the outstanding LIBOR Rate Loans in such amounts listed on
Schedule II hereto (collectively, the "REQUIRED AUGUST INTEREST PAYMENTS" and
together with the Required July Interest Payments, the "REQUIRED INTEREST
PAYMENTS"; the Required Interest Payments together with the Required Principal
Payments being collectively referred to hereinafter as the "REQUIRED PAYMENTS").
7. In order to permit the Borrowers, the Guarantor and the Lenders time
to implement a possible restructuring of the indebtedness of the Borrowers and
the Guarantor, the Borrowers and the Guarantor have requested that the Required
Lenders agree to forbear 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 Payments on July 30, 2004 or August 30, 2004,
as the case may be (collectively, the "REQUIRED PAYMENT DATE"), until September
30, 2004, in each case, on and subject to the terms and conditions set forth
below.
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. Agreement to Standstill and Amendment.
(a) Upon and subject to the occurrence of the Standstill Effective
Date (as defined in Section 3 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
Payments on the Required Payment Date, from and after August 30, 2004 until the
first to occur of (i) September 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 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
Payments not being made on or before the Required Payment Date (it being
acknowledged and agreed by the Borrowers and the Guarantor that the failure to
make the Required Payments by the Required Payment Date constitutes an Event of
Default notwithstanding such agreement by the Standstill Lenders to forbear),
except for any action to perfect, maintain, or defend any liens granted pursuant
to the Loan Documents
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against claims of 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
1(a) hereof, on the Standstill Termination Date (i) the forbearance and all
agreements set forth in Section 1(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 1(a) hereof
(including the failure of the Borrowers to make any of the Required 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 its 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 expressly 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 all subsequent Interest Periods will
not exceed one day in duration.
(d) Upon and subject to the occurrence of the Standstill Effective
Date, the Credit Agreement is hereby amended as follows:
(i) Section 10.1(a) of the Credit Agreement is amended by amending
and restating clause (ii) thereof in its entirety to read as follows: "(ii)(a)
at any time from and including May 11, 2004 through and including August 31,
2004, permit available cash of the Company and its Subsidiaries to be less than
$6,000,000, (b) at any time from and including September 1, 2004 through and
including September 14, 2004, permit available cash of the Company and its
Subsidiaries to be less than $4,000,000 and (c) at any time from and including
September 15, 2004 through and including November 15, 2004, permit available
cash of the Company and its Subsidiaries to be less than $3,500,000; it being
understood that, notwithstanding any provisions contained in Article XII to the
contrary, the failure by the Company and its Subsidiaries to be in compliance
with the foregoing amounts of Available Cash at any time during the foregoing
periods referred to in clauses (a) and (c) hereof, shall become an immediate
Event of Default if such failure shall continue for three days and no notice
requirement or additional grace period shall be applicable, and it being further
understood that the failure by the Company and its Subsidiaries to be in
compliance with the foregoing amounts of Available Cash at any time during the
foregoing period referred to in clause (b) hereof, shall
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become an immediate Event of Default and no notice or additional grace period
shall be applicable."
(ii) Section 15.10(f)(i) of the Credit Agreement is amended by
deleting the amount "$5,000,000" and substituting therefor the amount
"$1,000,000".
(iii) Section 15.10(f)(vi) of the Credit Agreement is amended by
deleting the word "and" at the end thereof and substituting therefor the
following proviso: " provided, however, that notwithstanding the foregoing, in
any event, no participant shall have any right to approve any "lockup" or other
voting agreement, or any amendment thereto, to be entered into by such Lender
and certain other secured creditors of the Company and its Subsidiaries in
connection with a proposed plan of reorganization in bankruptcy for the Company
and its Subsidiaries, and such Lender shall specifically disclose such
requirement in writing to such participant in the agreement entered into by such
Lender and such participant with respect to such participation; and".
SECTION 2. 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 amount
payable hereunder or under any Loan Document (other than the Required 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 provision of this
Agreement or of any Loan Document or the occurrence of any event of default
under any Loan Document or Related Transactions Documents, other than the
failure to make the Required Payments during the Standstill Period, subject in
the case of clause (ii) above only (other than the failure to make the Required
Payments, for which notwithstanding anything to the contrary in Section 12.1 of
the Credit Agreement no grace period or notice requirement shall be applicable)
to applicable notice and grace periods, if any, set forth in Section 12.1 of the
Credit Agreement;
(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;
(c) Any of the Security Documents to which a Borrower or the
Guarantor 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;
(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 the Guarantor
or any Borrower;
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(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 the
Senior Lender Steering Committee;
(f) A Waiver Termination Event (as defined in the Bridge Lender
Consent (as defined in Section 3 below)) shall occur under the terms of the
Bridge Lender Consent; or
(g) The exercise of any remedies against any Borrower or the
Guarantor pursuant to a Hedging Agreement permitted or required under the Credit
Agreement;
then, upon the affirmative vote of the Required Lenders or, with respect to
clauses (e)(i) and (f) above, automatically upon the occurrence of any such
event described in such clauses without any further action, such Standstill
Event shall constitute a "STANDSTILL TERMINATION EVENT". The occurrence of a
Standstill Termination Event shall cause the forbearance under Section 1(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 3. Conditions to Effectiveness of this Agreement. This
Agreement shall be effective as of the date first above written when, and only
when, on or before August 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);
(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;
(c) the Administrative Agent and the Senior Lender Steering
Committee shall have received evidence of agreements, in form and substance
satisfactory to them, 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) September 30, 2004 and (ii) the occurrence of
a Standstill Termination Event (the "BRIDGE LENDER CONSENT");
(d) payment by the Borrowers or the Guarantor to the Administrative
Agent of all billed and unpaid fees and expenses of the Administrative Agent and
the Senior Lender Steering Committee in connection with all matters relating to
this Agreement, the Loan
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Documents and the restructuring of the Borrowers and the Guarantor, including,
without limitation, the reasonable fees and expenses of the financial advisor to
the Administrative Agent, counsel to the Administrative Agent and counsel to the
Senior Lender Steering Committee; and
(e) 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 4. 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,
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 3(c) hereof, conflict with or
result in the breach of, or constitute a default under, any contractual
obligation. As of the Standstill Effective Date, 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 3(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 3(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
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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 3(c) hereof and other
than any resulting from the failure to pay the Required Payments.
(e) After giving effect to the Bridge Lender Consent referred to in
Section 3(c) above, no default has occurred and is continuing under or in
connection with the Bridge Loan Agreement.
SECTION 5. Reference to and Effect on the Loan Documents.
(a) On and after the Standstill Effective Date 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.
(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 6. Amendments. This Agreement may not be amended,
supplemented or modified except in accordance with the provisions of this
Section 6. 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 6 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.
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SECTION 7. 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 financial advisor to
the Administrative Agent, counsel to the Administrative Agent and counsel to the
Senior Lender Steering Committee (in each case, whether incurred prior to or
after the Standstill Effective Date with respect to this Agreement).
SECTION 8. 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 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 9. 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 expressly 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 10. 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 11. 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.
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(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 12. 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.
SECTION 13. 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.
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: Chief Financial Officer
for each of the entities set forth above
GUARANTOR:
CHOICE ONE COMMUNICATIONS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name:
Title: Chief Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent, Collateral Agent, Syndication
Agent and Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President,
Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Documentation Agent and Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Bank of America, N.A., as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
BEAR ▇▇▇▇▇▇▇ INVESTMENT PRODUCTS INC.,
as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
CARGILL FINANCIAL SERVICES INTERNATIONAL, INC.,
as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Portfolio Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Controller
CREDIT SUISSE FIRST BOSTON INTERNATIONAL,
as Lender
By: /s/
-------------------------------------------
Name:
Title:
DEUTSCHE BANK AND TRUST COMPANY AMERICAS,
as Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
FIDELITY ADVISORS SERIES II: FIDELITY ADVISORS
HIGH INCOME ADVANTAGE (218), as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Asst Treasurer
Persian Investment Committee of General Motors for
General Motors Employees Domestic Group Pension
Trust
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
▇▇▇▇▇▇ CAPITAL, L.P.
P&S Capital Partners, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: CFO
LITESPEED MASTER FUND LTD
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Partner
▇▇▇▇▇▇▇ ▇▇▇▇▇ 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:
QUANTUM PARTNERS LDC, as Lender
By: /s/ ▇▇▇▇▇▇▇ Belly
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Name: ▇▇▇▇▇▇▇ Belly
Title: Attorney-in-fact
SATELLITE SENIOR INCOME FUND, LLC, as Lender
By: Satellite Asset Management, L.P., its manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel
▇▇▇▇▇▇▇ CAPITAL MANAGEMENT, ▇▇ ▇▇, as Lender
By: S&F Partners, LP its: general partner
▇▇▇▇▇▇▇, Inc. its: general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President of ▇▇▇▇▇▇▇, Inc.
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: Partner
VARDE PARTNERS, INC., as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Partner
WAYLAND DISTRESSED OPPORTUNITIES FUND I-B, LLC.,
as Lender
By: Wayzata Investment Partners, LLC
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
WAYLAND DISTRESSED OPPORTUNITIES FUND I-C, LLC.,
as Lender
By: Wayzata Investment Partners, LLC
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
CONSENT
Dated as of August 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 Third Standstill Agreement and
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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
Title: Chief Financial Officer
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
