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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
November 9, 1999
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Cincinnati Bell Inc.
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(Exact name of registrant as specified in its charter)
Ohio 1-8519 31-1056105
(State or other (Commission File Number) (IRS Employer Identification
jurisdiction of No.)
incorporation
201 East Fourth Street,
P.O. Box 2301
Cincinnati, Ohio 45201-2301
(Address of principal executive offices) (Zip Code)
(513) 397-9900
(Registrant's Telephone Number)
None
(Former Name, or Former Address, if Changed Since Last Report)
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<PAGE>
2
Item 2. Acquisition or Disposition of Assets.
On November 9, 1999, Cincinnati Bell Inc., an Ohio corporation
("Cincinnati Bell"), and IXC Communications, Inc., a Delaware corporation
("IXC"), completed a merger (the "Merger") whereby a subsidiary of Cincinnati
Bell merged with and into IXC pursuant to an Agreement and Plan of Merger (the
"Merger Agreement") dated as of July 20, 1999, as amended by Amendment No. 1
thereto dated as of October 13, 1999. As a result of the Merger, IXC has
become a subsidiary of Cincinnati Bell.
Also on November 9, 1999, Cincinnati Bell completed a $1.8 billion bank
credit facility pursuant to a Credit Agreement dated as of November 9, 1999,
among Cincinnati Bell and IXC Communications Services, Inc. ("IXCS"), a
subsidiary of IXC, as Borrowers, Cincinnati Bell as Parent Guarantor, the
Initial Lenders, Initial Issuing Banks and Swing Line Banks named therein,
Bank of America, N.A., as Syndication Agent, Citicorp USA, Inc., as
Administrative Agent, Credit Suisse First Boston and The Bank of New York, as
Co-Documentation Agents, PNC Bank, N.A., as Agent and Salomon Smith Barney
Inc. and Banc of America Securities LLC, as Joint Lead Arrangers (the "Credit
Agreement"). The Credit Agreement is being used to refinance certain debt of
Cincinnati Bell and IXC and for general corporate purposes of Cincinnati Bell.
A copy of the Credit Agreement is attached hereto as Exhibit 10.1 and is
incorporated herein by reference.
Pursuant to the Merger and the other transactions contemplated by the
Merger Agreement, each share of IXC common stock, par value $0.01 per share,
was converted into the right to receive 2.0976 shares of Cincinnati Bell
common stock. Cincinnati Bell will issue approximately 79,101,085 shares of
Cincinnati Bell common stock in exchange for the shares of IXC common stock.
Cincinnati Bell issued a press release announcing the completion of the
Merger and the Credit Agreement on November 9, 1999, a copy of which is
attached hereto as Exhibit 99.1.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
10.1 Credit Agreement dated as of November 9, 1999, among Cincinnati Bell
and IXCS as Borrowers, Cincinnati Bell as Parent Guarantor, the
Initial Lenders, Initial Issuing Banks and Swing Line Banks named
herein, Bank of America, N.A., as Syndication Agent, Citicorp USA,
Inc., as Administrative Agent, Credit Suisse First Boston and The
Bank of New York, as Co-Documentation Agents, PNC Bank, N.A., as
Agent and Salomon Smith Barney Inc. and Banc of America Securities
LLC, as Joint Lead Arrangers.
99.1 Press Release dated November 9, 1999, announcing the completion of
the Merger.
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3
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Cincinnati Bell Inc.
/s/ Thomas E .Taylor
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Thomas E. Taylor
General Counsel and Secretary
Date: November 12, 1999
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4
File No. 1-8519
INDEX TO EXHIBITS
Exhibit
Exhibit 10.1 Credit Agreement dated as of November 9, 1999, among
Cincinnati Bell and IXCS as Borrowers, Cincinnati Bell as
Parent Guarantor, the Initial Lenders, Initial Issuing
Banks and Swing Line Banks named therein, Bank of America,
N.A., as Syndication Agent, Citicorp USA, Inc., as
Administrative Agent, Credit Suisse First Boston and The
Bank of New York, as Co-Documentation Agents, PNC Bank,
N.A., as Agent and Salomon Smith Barney Inc. and Banc of
America Securities LLC, as Joint Lead Arrangers.
Exhibit 99.1 Press Release dated November 9, 1999, announcing the
completion of the Merger.
$1,800,000,000
CREDIT AGREEMENT
Dated as of November 9, 1999
Among
CINCINNATI BELL INC.
and
IXC COMMUNICATIONS SERVICES, INC.
as Borrowers
and
CINCINNATI BELL INC.
as Parent Guarantor
THE INITIAL LENDERS, INITIAL ISSUING BANKS AND
SWING LINE BANKS NAMED HEREIN
as Initial Lenders, Initial Issuing Banks and Swing Line Banks
and
BANK OF AMERICA, N.A.
as Syndication Agent
and
CITICORP USA, INC.
as Administrative Agent
and
CREDIT SUISSE FIRST BOSTON
and
THE BANK OF NEW YORK
as Co-Documentation Agents
and
PNC BANK, N.A.
as Agent
and
SALOMON SMITH BARNEY INC.
BANC OF AMERICA SECURITIES LLC
as Joint Lead Arrangers and Joint Book Managers
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms.........................................2
1.02. Computation of Time Periods; Other Definitional
Provisions................................................35
1.03. Accounting Terms.............................................35
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
2.01. The Advances and the Letters of Credit.......................35
2.02. Making the Advances..........................................37
2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit.........................................40
2.04. Repayment of Advances........................................42
2.05. Termination or Reduction of the Commitments; Increase
of the Commitments........................................44
2.06. Prepayments..................................................46
2.07. Interest.....................................................48
2.08. Fees ........................................................49
2.09. Conversion of Advances.......................................50
2.10. Increased Costs, Etc.........................................50
2.11. Payments and Computations....................................52
2.12. Taxes........................................................54
2.13. Sharing of Payments, Etc.....................................56
2.14. Use of Proceeds..............................................57
2.15. Defaulting Lenders...........................................57
2.16. Evidence of Debt.............................................60
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
3.01. Conditions Precedent to Initial Extension of Credit..........61
3.02. Conditions Precedent to Each Borrowing and Issuance
and Renewal...............................................68
3.03. Determinations Under Section 3.01............................68
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrowers..............69
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants........................................76
5.02. Negative Covenants...........................................83
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5.03. Reporting Requirements.......................................95
5.04. Financial Covenants..........................................99
ARTICLE VI
CBI GUARANTY
SECTION 6.01. CBI Guaranty........................................101
SECTION 6.02. Guarantee Absolute..................................102
SECTION 6.03. Waivers and Acknowledgments.........................104
SECTION 6.04. Subrogation.........................................104
SECTION 6.05. Continuing Guarantee; Assignments...................105
ARTICLE VII
EVENTS OF DEFAULT
7.01. Events of Default...........................................106
7.02. Actions in Respect of the Letters of Credit upon Default....109
ARTICLE VIII
THE AGENTS
8.01. Authorization and Action....................................109
8.02. Agents' Reliance, Etc.......................................110
8.03. The Administrative Agent, the Syndication Agent,
the Co-Arrangers and Affiliates..........................111
8.04. Lender Party Credit Decision................................111
8.05. Indemnification.............................................111
8.06. Successor Agents............................................113
ARTICLE IX
MISCELLANEOUS
9.01. Amendments, Etc.............................................114
9.02. Notices, Etc................................................116
9.03. No Waiver; Remedies.........................................116
9.04. Costs and Expenses..........................................116
9.05. Right of Set-off............................................119
9.06. Binding Effect..............................................119
9.07. Assignments and Participations..............................120
9.08. Execution in Counterparts...................................124
9.09. No Liability of the Issuing Banks...........................124
9.10. Confidentiality.............................................125
9.11. Release of Collateral.......................................125
9.12. Jurisdiction, Etc...........................................125
9.13. Integration.................................................126
9.14. Governing Law...............................................127
9.15. Waiver of Jury Trial........................................127
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SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Subsidiary Guarantors
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(c)(iii) - Conflicts
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices
and Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(q) - Environmental
Schedule 4.01(s) - Existing Debt
Schedule 4.01(t) - Surviving Debt
Schedule 4.01(u) - Liens
Schedule 4.01(v) - Investments
Schedule 4.01(x) - Material Contracts
Schedule 5.02(b)(iii)(J) - Cash Management
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Term Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Shared Collateral Security Agreement
Exhibit D-2 - Form of Non-Shared Collateral Security Agreement
Exhibit E - Form of Subsidiary Guaranty
<PAGE>
EXHIBIT 10.1
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of November 9, 1999 among CINCINNATI BELL
INC., an Ohio corporation ("CBI"), and IXC COMMUNICATIONS SERVICES, INC., a
Delaware corporation ("IXCS", and together with CBI, each a "Borrower" and
collectively the "Borrowers"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the Initial
Lenders (the "Initial Lenders"), the banks listed on the signature pages
hereof as the Initial Issuing Banks (the "Initial Issuing Banks" and, together
with the Initial Lenders, the "Initial Lender Parties") and the Swing Line
Banks (as hereinafter defined), BANK OF AMERICA, N.A. ("Bank of America"), as
syndication agent (together with any successor syndication agent appointed
pursuant to Article VII, the "Syndication Agent"), CITICORP USA, INC.
("CUSA"), as administrative agent (together with any successor administrative
agent appointed pursuant to Article VII, the "Administrative Agent", together
with the Syndication Agent, the "Agents"), Credit Suisse First Boston ("CSFB")
and The Bank of New York ("BNY"), as co- documentation agents (collectively,
the "Co-Documentation Agents") and PNC Bank, N.A. ("PNC," and collectively
with CSFB and BNY, the "Co-Arrangers") for the Lender Parties (as hereinafter
defined), SALOMON SMITH BARNEY INC. ("SSBI") and BANC OF AMERICA SECURITIES
LLC ("BAS"), as joint lead arrangers and joint book managers (collectively,
the "Arrangers").
PRELIMINARY STATEMENTS:
(1) Pursuant to the Agreement Governing the IXC Internal
Reorganization dated as of August 16, 1999, between IXC Communications, Inc.,
a Delaware corporation and an Affiliate of IXCS ("IXC"), and IXC Merger Sub,
Inc., a Delaware corporation and a wholly owned subsidiary of IXC
("Reorganization Sub"), Reorganization Sub shall be merged (the
"Reorganization Merger") with and into IXC with IXC being the surviving
corporation.
(2) Pursuant to the Agreement and Plan of Merger dated as of July
20, 1999, as amended by Amendment No. 1 dated as of October 13, 1999 (as
amended to the extent permitted in accordance with the Loan Documents (as
hereinafter defined), the "Merger Agreement"), by and among CBI, Ivory Merger
Inc., a Delaware corporation and wholly owned Subsidiary of CBI ("Sub"), and
IXC, immediately after the Reorganization Merger Sub shall be merged (the
"Merger") with and into IXC with IXC being the surviving corporation (the
"Company").
(3) At consummation of the Merger, (a) each issued and outstanding
share of common stock, par value $.01 per share, of IXC (the "IXC Common
Stock"), other than any such shares directly owned by CBI, Sub or IXC, will be
converted into the right to receive the Common Stock Merger Consideration (as
defined in the Merger Agreement); (b) each issued and outstanding share of
7 1/4% Junior Convertible Preferred Stock Due 2007, par value $.01 per share,
of IXC (the "IXC 7 1/4% Preferred Stock"), other than any such shares directly
owned by CBI, Sub or IXC, will be converted into the right to receive the
7 1/4% Preferred Stock Merger Consideration (as defined in the Merger
Agreement); and (c) each issued and outstanding share of 6 3/4% Cumulative
Convertible Preferred Stock, par value $.01 per share, of IXC (the "IXC 6 3/4%
Preferred Stock"), other than any such shares directly owned by CBI, Sub or
IXC, will be converted into the right to receive the 6 3/4% Preferred Stock
Merger Consideration (as defined in
<PAGE>
the Merger Agreement). Upon consummation of the Merger and related
transactions, other than the Exchangeable Preferred Stock, the Company will be
a direct, wholly owned Subsidiary of CBI.
(4) The Borrowers have requested that, immediately upon the
consummation of the Merger, the Lender Parties lend to the Borrowers up to
$1.8 billion to pay transaction fees and expenses to repurchase the IXC Senior
Subordinated Notes (as hereinafter defined) to refinance certain Existing Debt
(as hereinafter defined) of the Company, IXCS, CBI and certain Subsidiaries,
to pay the cash consideration for the Company's shares in the Merger (solely
to the extent the proceeds of the Oak Hill Debt (as hereinafter defined) and
cash on hand are insufficient therefore) and that, from time to time, the
Lender Parties lend to the Borrowers and issue Letters of Credit for the
account of the Borrowers to provide Revolving Credit for IXCS, CBI and its
Subsidiaries. The Lender Parties have indicated their willingness to agree to
lend such amounts on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with
Citibank, N.A. at its office at 399 Park Avenue, New York, New York
10043, Account No. 36852248, Attention: Townsend V. Weekes, Jr., or such
other account as the Administrative Agent shall specify in writing to the
Lender Parties.
"Advance" means a Term Advance, a Revolving Credit Advance, a Swing
Line Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Interests of such Person or to direct or cause the direction of
the management and
<PAGE>
policies of such Person, whether through the ownership of Voting Interests, by
contract or otherwise.
"Agents" has the meaning specified in the recital of parties to this
Agreement.
"Agreement Value" means, for each Hedge Agreement, on any date of
determination, an amount determined by the Administrative Agent equal to:
(a) in the case of a Hedge Agreement documented pursuant to the Master
Agreement (Multicurrency-Cross Border) published by the International
Swap and Derivatives Association, Inc. (the "Master Agreement"), the
amount, if any, that would be payable by any Loan Party or any of its
Subsidiaries to its counterparty to such Hedge Agreement, as if (i) such
Hedge Agreement was being terminated early on such date of determination,
(ii) such Loan Party or Subsidiary was the sole "Affected Party", and
(iii) the Administrative Agent was the sole party determining such
payment amount (with the Administrative Agent making such determination
pursuant to the provisions of the form of Master Agreement); or (b) in
the case of a Hedge Agreement traded on an exchange, the mark-to-market
value of such Hedge Agreement, which will be the unrealized loss on such
Hedge Agreement to the Loan Party or Subsidiary of a Loan Party party to
such Hedge Agreement determined by the Administrative Agent based on the
settlement price of such Hedge Agreement on such date of determination,
or (c) in all other cases, the mark-to-market value of such Hedge
Agreement, which will be the unrealized loss on such Hedge Agreement to
the Loan Party or Subsidiary of a Loan Party party to such Hedge
Agreement determined by the Administrative Agent as the amount, if any,
by which (i) the present value of the future cash flows to be paid by
such Loan Party or Subsidiary exceeds (ii) the present value of the
future cash flows to be received by such Loan Party or Subsidiary
pursuant to such Hedge Agreement; capitalized terms used and not
otherwise defined in this definition shall have the respective meanings
set forth in the above described Master Agreement.
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a Base
Rate Advance and such Lender Party's Eurodollar Lending Office in the
case of a Eurodollar Rate Advance.
"Applicable Margin" means a percentage per annum set forth below
under the caption "Eurodollar Rate Advances" or "Base Rate Advances"
based upon the ratings established by S&P and Moody's for the Index Debt
as of the most recent determination date:
<PAGE>
Applicable Margin Pricing Grid
Applicable Margin
Revolving and
Term
S&P Moody's Facilities
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Eurodollar
Rate Base Rate
Advances Advances
I:
At least BBB and Baa2 1.00% 0.00%
II:
Below I, but at least
BBB- and Baa3 1.25% 0.25%
III:
Below II, but at least
BB+ and Ba1 1.50% 0.50%
IV:
Below III, but at least
BB+ and Ba2 or BB and Ba1 1.75% 0.75%
V:
Below IV, but at least
BB and Ba2 2.00% 1.00%
VI:
Below V 2.25% 1.25%
For purposes of the foregoing (i) if either Moody's or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence hereof), then such rating
agency shall be deemed to have established a rating in Level VI; (ii)
except as set forth in the Pricing Grid above, if the ratings established
or deemed to have been established by Moody's or S&P for the Index Debt
shall fall within different levels, the applicable percentage will be
based on the lower of the two ratings unless one of the two ratings is
two or more levels lower than the other, in which case the applicable
percentage shall be determined by reference to the level next above that
of the lower of the two ratings; and (iii) if the ratings established or
deemed to have been established by Moody's or S&P for the Index Debt
shall be changed (other than as a result of a change in the rating system
of Moody's or S&P), such change shall be effective as of the date on
which it is first announced by the applicable
<PAGE>
rating agency. Each change in the applicable percentage shall apply
during the period commencing on the effective date of such change
and ending on the date immediately preceding the effective date of
the next such change. If the rating system of Moody's or S&P shall
change, or if either such rating agency shall cease to be in the
business of rating corporate debt obligations, or if either such
rating agency shall cease rating the Index Debt (other than by
reason of any action or nonaction by any Borrowers following or in
anticipation of a ratings downgrade), the Borrowers and the Lender
Parties shall negotiate in good faith to amend this provision to
reflect such changed rating system or the unavailability of ratings
from such rating agency (including by way of substituting another
rating agency mutually acceptable to the Borrowers and the Agents
for the rating agency with respect to which the rating system has
changed or for which no rating is then in effect) and, pending the
effectiveness of any such amendment, the applicable percentage shall
be determined by reference to the rating most recently in effect
prior to such change or cessation.
"Appropriate Lender" means, at any time, with respect to (a) either
of the Term or Revolving Credit Facilities, a Lender that has a
Commitment with respect to such Facility at such time, (b) the Letter of
Credit Facility, (i) any Issuing Bank and (ii) if the other Revolving
Credit Lenders have made Letter of Credit Advances pursuant to Section
2.03(c) that are outstanding at such time, each such other Revolving
Credit Lender and (c) the Swing Line Facility, (i) any Swing Line Bank
and (ii) if the other Revolving Credit Lenders have made Swing Line
Advances pursuant to Section 2.02(b) that are outstanding at such time,
each such other Revolving Credit Lender.
"Approved Fund" means, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and
is advised or managed by the same investment advisor as such Lender or by
an Affiliate of such investment advisor.
"Arrangers" means each of SSBI and BAS.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted by
the Administrative Agent, in accordance with Section 9.07 and in
substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Backbone Fiber" means a fiber connecting Los Angeles, California
and New York, New York.
"Bank of America" has the meaning specified in the recital of
parties to this Agreement.
<PAGE>
"BAS" has the meaning specified in the recital of parties to this
Agreement.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"BNY" has the meaning specified in the recital of parties to this
Agreement.
"BofA Credit Agreement" means the 364-Day Credit Agreement dated as
of September 27, 1999 among CBI, as borrower, the lenders party thereto,
CUSA, as administrative agent, Bank of America, as syndication agent, and
SSBI and BAS, as joint lead arrangers and joint book managers.
"BofA Letters of Credit" means the letters of credit listed under
paragraph III. D. of Schedule 4.01(t).
"Borrower" and "Borrowers" have the meaning specified in the recital
of parties to this Agreement.
"Borrower's Account" means (a) with respect to CBI, an account
maintained by CBI with Citibank at its office at 399 Park Avenue, New
York, New York 10043, (b) with respect to IXCS, an account maintained by
IXCS with Citibank at its office at 399 Park Avenue, New York, New York
10043, or (c) with respect to any of the Borrowers, such other account as
the Borrower shall specify in writing to the Administrative Agent.
"Borrowing" means a Term Borrowing, a Revolving Credit Borrowing or
a Swing Line Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"Capital Expenditures" means, for any Person for any period, the sum
of, without duplication, (a) all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such period
for equipment, fixed assets, real property or improvements, or for
replacements or substitutions therefor or additions thereto, that
<PAGE>
have been or should be, in accordance with GAAP, reflected as additions
to property, plant or equipment on a Consolidated balance sheet of such
Person or have a useful life of more than one year plus (b) the aggregate
principal amount of all Obligations under Capitalized Leases assumed or
incurred in connection with any such expenditures. For purposes of this
definition, the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment or with insurance
proceeds shall be included in Capital Expenditures only to the extent of
the gross amount of such purchase price less the credit granted by the
seller of such equipment for the equipment being traded in at such time
or the amount of such proceeds, as the case may be.
"Capitalization" means, as of any date, the sum, without
duplication, as of such date, of Consolidated Debt, the liquidation
preference of preferred stock and common shareholders equity for CBI and
the Subsidiaries on a Consolidated basis.
"Capitalized Leases" means all leases that have been or should be,
in accordance with GAAP, recorded as capitalized leases.
"Cash Equivalents" means any of the following, to the extent owned
by CBI or any of its Subsidiaries free and clear of all Liens other than
Liens created under the Collateral Documents and having a maturity of not
greater than 90 days from the date of acquisition thereof:
(a) readily marketable direct obligations of the Government of
the United States or any agency or instrumentality thereof or
obligations unconditionally guaranteed by the full faith and credit
of the Government of the United States,
(b) insured certificates of deposit of or time deposits with
any commercial bank that is a Lender Party or a member of the
Federal Reserve System, issues (or the parent of which issues)
commercial paper rated as described in clause (c) below, is
organized under the laws of the United States or any State thereof
and has combined capital and surplus of at least $1 billion,
(c) commercial paper issued by any corporation organized under
the laws of any State of the United States and rated at least
"Prime-1" (or the then equivalent grade) by Moody's or "A-1" (or the
then equivalent grade) by S&P's, or
(d) Investments in money market funds registered under the
Investment Company Act of 1940, as amended, that satisfy the
requirements of Rule 2a-7 of such Act.
"CBI" has the meaning specified in the recital of parties to this
Agreement.
"CBI Guaranty" has the meaning specified in Section 6.01.
<PAGE>
"CBI 7 1/4% Notes" means the CBI $50 Million 7 1/4% Notes due June
15, 2023.
"CBI Subsidiary Guaranty" has the meaning specified in Section
3.01(a)(iii).
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation, and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"Certificate of Designation" means the Certificate of Designation
for the Exchangeable Preferred Stock.
"CFC" means a "controlled foreign corporation" under Section 957 of
the Internal Revenue Code of 1968, as amended from time to time.
"Change of Control" means the occurrence of any of the following:
(a) any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Interests of CBI (or other
securities convertible into such Voting Interests) representing 20% or
more of the combined voting power of all Voting Interests of CBI; or (b)
during any period of up to 24 consecutive months, commencing before or
after the date of this Agreement, individuals who at the beginning of
such 24-month period were, or who were nominated by individuals who were,
directors of CBI shall cease for any reason to constitute a majority of
the board of directors of CBI; or (c) any Person or two or more Persons
acting in concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon consummation, will
result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of
CBI; or (d) CBI shall cease to own 100% of the Equity Interests in IXCS
or the Company (other than, in the case of the Company, the Exchangeable
Preferred Stock); or (e) any "change of control" as defined in the CBI 7
1/4% Notes or in the Oak Hill Indenture.
"Citibank" means Citibank, N.A., a national banking association.
"Co-Arrangers" has the meaning specified in the recital of parties
to this Agreement.
"Coastal Debt" means the Promissory Notes dated May 10, 1999 in the
aggregate original principal amount of $10,000,000.
"Co-Documentation Agents" has the meaning specified in the recital
of parties to this Agreement.
<PAGE>
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to
any Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.
"Collateral Account" has the meaning specified in the Security
Agreements.
"Collateral Documents" means, collectively, the Shared Collateral
Security Agreement, the Non-Shared Collateral Security Agreement, the
Collateral Trust Agreement and any other agreement that creates or
purports to create a Lien in favor of the Administrative Agent for the
benefit of the Secured Parties.
"Collateral Trust Agreement" means the Collateral Trust Agreement
dated as of November 9, 1999 by and between CBI and Wilmington Trust
Company, and John M. Beeson, as collateral trustees.
"Commitment" means a Term Commitment, a Revolving Credit Commitment
or a Letter of Credit Commitment.
"Commitment Fee Rate" means, for any day, the applicable percentage
rate per annum specified under the applicable utilization column below
based on the percentage obtained by dividing (a) the sum of (i) the
aggregate principal amount of the Term Advances outstanding at such time
plus (ii) the sum of (x) the aggregate principal amount of all Revolving
Credit Advances, Swing Line Advances and Letter of Credit Advances
outstanding at such time plus (y) the aggregate Available Amount of all
Letters of Credit outstanding at such time by (b) the sum of the
aggregate (i) Commitment and (ii) the aggregate outstanding principal
amount of the Term Advances:
Less than 33% of 33% to 66% of Greater than 66% of
Facilities Utilized Facilities Utilized Facilities Utilized
0.75% 0.50% 0.375%
"Company" has the meaning specified in the Preliminary Statements.
"Confidential Information" means any information that is furnished
to any of the Agents or any of the Lender Parties by or on behalf of any
Borrower or any of its Subsidiaries in a writing that either is
conspicuously marked as confidential or that a reasonable person would
believe is confidential or proprietary in nature, but does not include
any such information that (a) is or becomes generally available to the
public (other than as a result of a breach by any such Agent or any such
Lender Party of its confidentiality obligations under this Agreement) or
(b) is or becomes available to any of the Agents or any of the Lender
Parties from a source other than any Borrower or any of its Subsidiaries
that is not, to the knowledge of such Agent or such Lender Party, acting
in violation of a confidentiality agreement with such Borrower or any
such Subsidiary.
<PAGE>
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated EBITDA" means, with respect to any Person for any
period, the sum of (a) net income (or net loss) of such Person and its
Subsidiaries, plus (b) the sum of the following expenses that have been
deducted from the determination of consolidated net income of such Person
and its Subsidiaries for such period: (i) all interest expense of such
Person and its Subsidiaries for such period, (ii) income tax expense of
such Person and its Subsidiaries for such period, (iii) all depreciation
expense of such Person and its Subsidiaries for such period, (iv) all
amortization expense of such Person and its Subsidiaries for such period,
and (v) all extraordinary losses deducted in determining the consolidated
net income of such Person and its Subsidiaries for such period less all
extraordinary gains added in determining the consolidated net income of
such Person and its Subsidiaries for such period (other than
restructuring or merger-related charges incurred in 1999), in each case
determined in accordance with GAAP for such period.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the interest expense paid or payable on all Debt
(excluding all indebtedness and payment Obligations referred to in
clauses (g) and (h) of the definition of "Debt" herein) of such Person
and its Subsidiaries for such period, determined on a Consolidated basis
and in accordance with GAAP, including, without limitation, (a) in the
case of the Borrowers, (i) interest expense paid or payable in respect of
Debt resulting from Advances and (ii) all fees paid or payable pursuant
to Section 2.08(a), (b) the interest component of all Obligations in
respect of Capitalized Leases, (c) commissions, discounts and other fees
and charges paid or payable in connection with letters of credit
(including, without limitation, the Letters of Credit), (d) the net
payment, if any, paid or payable in connection with Hedge Agreements less
the net credit, if any, received in connection with Hedge Agreements, and
(e) dividends paid in cash in respect of preferred stock, but excluding
(A) any amortization of original issue discount, (B) the interest portion
of any deferred payment obligation, (C) any other interest not payable in
cash and (D) to the extent included in "interest expense" in accordance
with GAAP, any penalties paid or payable in connection with the
prepayment of any Debt.
"Contingent Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("primary obligations") of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without
limitation, (a) the direct or indirect guarantee, endorsement (other than
for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the
Obligation of a primary obligor, (b) the Obligation to make take-or-pay
or similar payments, if required, regardless of nonperformance by any
other party or parties to an agreement or (c) any Obligation of such
Person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (A) for the purchase or payment
of any such primary obligation or (B) to maintain Revolving Credit or
equity capital of the primary obligor or otherwise to maintain the net
worth or
<PAGE>
solvency of the primary obligor, (iii) to purchase property, assets,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect
thereof. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made (or, if
less, the maximum amount of such primary obligation for which such Person
may be liable pursuant to the terms of the instrument evidencing such
Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person
is required to perform thereunder), as determined by such Person in good
faith.
"Conversion", "Convert" and "Converted" each refer to a conversion
of Advances of one Type into Advances of the other Type pursuant to
Section 2.09 or 2.10.
"Convertible Certificate of Designation" means the Certificate of
Designation for the Convertible Preferred Stock.
"Convertible Preferred Stock" means the 6 3/4% Cumulative
Convertible Preferred Stock of CBI.
"CSFB" has the meaning specified in the recital of parties to this
Agreement.
"CUSA" has the meaning specified in the recital of parties to this
Agreement.
"Debt" of any Person means, without duplication for purposes of
calculating financial ratios, (a) all indebtedness of such Person for
borrowed money, (b) all Obligations of such Person for the deferred
purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such
Person's business), (c) all Obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
Obligations of such Person created or arising under any conditional sale
or other title retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession
or sale of such property), (e) all Obligations of such Person as lessee
under Capitalized Leases, (f) all Obligations of such Person under
acceptance, letter of credit or similar facilities, (g) all Obligations
of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interests in such Person or any other
Person or any warrants, rights or options to acquire such capital stock,
valued, in the case of Redeemable Preferred Interests, at the greater of
its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends, (h) all Obligations of such Person in respect of Hedge
Agreements, valued at the Agreement Value thereof, (i) all Contingent
Obligations of such Person and (j) all indebtedness and other payment
Obligations referred to in clauses (a) through (i) above of another
Person secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by)
<PAGE>
any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such indebtedness or other
payment Obligations.
"Debt/EBITDA Ratio" means, at any date of determination, the ratio
of Consolidated Debt of CBI and its Subsidiaries (excluding (x) Debt of
CBI under the Oak Hill Indenture for so long as interest payable
thereunder is paid in kind and (y) all indebtedness and payment
Obligations referred to in clauses (g) and (h) of the definition of
"Debt" herein) as at the end of the most recently ended fiscal quarter of
CBI for which financial statements are required to be delivered to the
Lender Parties pursuant to Section 5.03(b) or (c), as the case may be, to
Consolidated EBITDA of CBI and its Subsidiaries for the period of four
consecutive fiscal quarters of CBI ended on or immediately prior to such
date.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Default Termination Notice" has the meaning specified in Section
2.01(d).
"Defaulted Advance" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party
to any Borrower pursuant to Section 2.01 or 2.02 at or prior to such time
that has not been made by such Lender Party or by the Administrative
Agent for the account of such Lender Party pursuant to Section 2.02(e) as
of such time. In the event that a portion of a Defaulted Advance shall be
deemed made pursuant to Section 2.15(a), the remaining portion of such
Defaulted Advance shall be considered a Defaulted Advance originally
required to be made pursuant to Section 2.01 on the same date as the
Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or
any other Lender Party hereunder or under any other Loan Document at or
prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender Party
to (a) any Swing Line Bank pursuant to Section 2.02(b) to purchase a
portion of a Swing Line Advance made by such Swing Line Bank, (b) any
Issuing Bank pursuant to Section 2.03(c) to purchase a portion of a
Letter of Credit Advance made by such Issuing Bank, (c) the
Administrative Agent pursuant to Section 2.02(e) to reimburse the
Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender Party, (d) any other
Lender Party pursuant to Section 2.13 to purchase any participation in
Advances owing to such other Lender Party and (e) any Agent or any
Issuing Bank pursuant to Section 8.05 to reimburse such Agent or such
Issuing Bank for such Lender Party's ratable share of any amount required
to be paid by the Lender Parties to such Agent or such Issuing Bank as
provided therein. In the event that a portion of a Defaulted Amount shall
be deemed paid pursuant to Section 2.15(b), the remaining portion of such
Defaulted Amount shall be considered a
<PAGE>
Defaulted Amount originally required to be paid hereunder or under any
other Loan Document on the same date as the Defaulted Amount so deemed
paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at
such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of a
type described in Section 7.01(f).
"Deferred Revenue" means, at any date, amounts appearing as a
liability on the financial statements of CBI and its Subsidiaries as
prepared according to GAAP classified a deferred revenue to the extent of
cash received in connection therewith.
"Domestic Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party, as the case may
be, or such other office of such Lender Party as such Lender Party may
from time to time specify to the Borrowers and the Administrative Agent.
"Domestic Subsidiary" means any Subsidiary other than a Foreign
Subsidiary.
"Eclipse Debt" means the Amended and Restated Loan and Security
Agreement dated as of May 10, 1999 between Eclipse Telecommunications,
Inc., a Delaware corporation, and NationsBank, N.A., as amended by
Amendment No. 1 dated as of September 7, 1999.
"Effective Date" means the first date on which the conditions set
forth in Article III shall have satisfied.
"Eligible Assignee" means (a) with respect to any Facility (other
than the Letter of Credit Facility), (i) a Lender; (ii) an Affiliate or
an Approved Fund of a Lender; or (iii) any other Person approved by the
Administrative Agent and, so long as no Default has occurred and is
continuing at the time any assignment is effected pursuant to Section
9.07, the Borrowers, such approval not to be unreasonably withheld or
delayed and, in the case of the Borrowers, such approval to be deemed to
have been given if no objection thereto is received by the Administrative
Agent and the assigning Lender within two Business Days after the date on
which notice of the proposed assignment is sent to the Borrowers; and (b)
with respect to the Letter of Credit Facility, a Person that is an
Eligible Assignee under clause (a) of this definition and is a commercial
bank organized under the laws of the United States of America or any
state thereof; provided, however, that neither any Loan Party nor any
Affiliate of a Loan Party shall qualify as an Eligible Assignee under
this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability
or potential liability, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law, any
Environmental Permit or Hazardous Material or arising from
<PAGE>
alleged injury or threat to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any applicable Federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, writ,
judgment, injunction, decree or judicial interpretation relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equity Interests" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition
from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase
or other acquisition from such Person of such shares (or such other
interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise
existing on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30 days;
(b) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan, pursuant to Section 4041(a)(2) of
<PAGE>
ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the incurrence by any Loan
Party or any ERISA Affiliate of any liability under Title IV of ERISA
with respect to any Plan; (e) the conditions for imposition of a lien
under Section 302(f) of ERISA shall have been met with respect to any
Plan; (f) the adoption of an amendment to a Plan requiring the provision
of security to such Plan pursuant to Section 307 of ERISA; or (g) the
institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect
from time to time.
"Eurodollar Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office
of such Lender Party as such Lender Party may from time to time specify
to the Borrowers and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
obtained by dividing (a) the rate per annum appearing on Telerate Page
3750 (or any successor page) as the London interbank offered rate for
deposits in U.S. dollars at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period for a period equal to such
Interest Period (provided that, if for any reason such rate is not
available, the term "Eurodollar Rate" shall mean, for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing,
the rate per annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in Dollars at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates) by (b) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement)
<PAGE>
for a member bank of the Federal Reserve System in New York City with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 7.01.
"Excess Cash Flow" means, for any period (without duplication),
(a) the sum of:
(i) Consolidated net income (or loss) of CBI and its
Subsidiaries for such period; plus
(ii) the aggregate amount of depreciation, amortization
and all other non-cash charges deducted in arriving at such
Consolidated net income (or loss); plus
(iii) the sum of (i) the amount, if any, by which Net
Working Capital decreased plus (ii) the net amount, if any, by
which Deferred Revenues increased; minus
(b) the sum of:
(i) the sum of (A) the aggregate amount of all non-cash
credits included in arriving at such Consolidated net income
(or loss) plus (B) the amount, if any, by which Net Working
Capital increased plus (c) the net amount, if any, by which
Deferred Revenues decreased; plus
(ii) the sum of (A) the aggregate amount of Capital
Expenditures of CBI paid in cash during such period to the
extent permitted by this Agreement (except to the extent
attributable to the incurrence of Capital Lease Obligations or
otherwise financed by long term Debt or with funds that would
have constituted Net Proceeds) plus (B) cash consideration paid
during such fiscal year by CBI and its Subsidiaries to make
acquisitions or other capital investments (except to the extent
financed by incurring long-term Debt or with funds that would
otherwise have constituted Net Cash Proceeds); plus
(iii) the aggregate amount of all regularly scheduled
principal payments of Funded Debt made during such period; plus
(iv) the aggregate principal amount of all optional
prepayments of Term Advances made during such period pursuant
to Section 2.06(a); plus
<PAGE>
(v) the aggregate principal amount of all cash payments or
prepayments of the Revolving Credit Advances that permanently
reduce the Revolving Credit Commitments.
"Exchangeable Preferred Stock" means the 12 1/2% Series B Junior
Exchangeable Preferred Stock Due 2009 of the Company.
"Excluded Entities" means Cincinnati Bell Wireless L.L.C.,
Cincinnati Bell Foundation, Inc., Mutual Signal Corporation, Mutual
Signal Corporation of Michigan, MSM Associates, Limited Partnership and
Progress International, LLC.
"Existing Debt" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before giving effect to the consummation of the
Transaction.
"Extraordinary Receipt" means any cash received by or paid to or for
the account of any Person not in the ordinary course of business,
including, without limitation, tax refunds, pension plan reversions,
proceeds of insurance (including, without limitation, any key man life
insurance but excluding proceeds of business interruption insurance to
the extent such proceeds constitute compensation for lost earnings),
condemnation awards (and payments in lieu thereof), indemnity payments
and any purchase price adjustment received in connection with any
purchase agreement; provided, however, that an Extraordinary Receipt
shall not include cash receipts received from proceeds of insurance,
condemnation awards (or payments in lieu thereof) or indemnity payments
to the extent that such proceeds, awards or payments (A) in respect of
loss or damage to equipment, fixed assets or real property are applied
(or in respect of which expenditures were previously incurred) to replace
or repair the equipment, fixed assets or real property in respect of
which such proceeds were received in accordance with the terms of the
Loan Documents, so long as the applicable Borrower or its Subsidiaries
have entered into a legal, valid and binding agreement with respect
thereto within 12 months after the occurrence of such damage or loss and
with a closing thereunder and application of such proceeds within 6
months thereafter or (B) are received by any Person in respect of any
third party claim against such Person and applied to pay (or to reimburse
such Person for its prior payment of) such claim and the costs and
expenses of such Person with respect thereto.
"Facility" means the Term Facility, the Revolving Credit Facility,
the Swing Line Facility, the Letter of Credit Facility or the Incremental
Facility, if any.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day for such transactions received by
the
<PAGE>
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fee Letter" means the fee letter dated as of October 20, 1999
between CBI and the Agents.
"Fiscal Year" means a fiscal year of CBI and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
"Foreign Subsidiary" means a Subsidiary organized under the laws of
a jurisdiction other than the United States or any State thereof or the
District of Columbia.
"Funded Debt" of any Person means Debt in respect of the Advances,
in the case of the Borrowers, and all other Debt of such Person that by
its terms matures more than one year after the date of determination or
matures within one year from such date but is renewable or extendible, at
the option of such Person, to a date more than one year after such date
or arises under a revolving credit or similar agreement that obligates
the lender or lenders to extend credit during a period of more than one
year after such date, excluding, however, all amounts of Funded Debt of
such Person required to be paid or prepaid within one year after the date
of determination.
"GAAP" has the meaning specified in Section 1.03.
"Granting Lender" has the meaning specified in Section 9.07(j).
"Guaranties" means the CBI Guaranty and the Subsidiary Guaranties.
"Guarantors" means CBI and the Subsidiary Guarantors.
"Guaranty Supplement" has the meaning specified in the Subsidiary
Guaranties.
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging
agreements.
"Hedge Bank" means any Lender Party or an Affiliate of a Lender
Party in its capacity as a party to a Secured Hedge Agreement.
"Incremental Facility" and "Incremental Facilities" have the meaning
specified in Section 2.05(c).
<PAGE>
"Indemnified Party" has the meaning specified in Section 9.04(b).
"Index Debt" means long-term senior unsecured Indebtedness of CBI
that is not guaranteed or otherwise credit enhanced.
"Information Memorandum" means the information memorandum dated
October 1999 used by the Arrangers in connection with the syndication of
the Commitments.
"Initial Extension of Credit" means the earlier to occur of the
initial Borrowing and the initial issuance of a Letter of Credit
hereunder.
"Initial Issuing Banks", "Initial Lender Parties" and "Initial
Lenders" each has the meaning specified in the recital of parties to this
Agreement.
"Interest Coverage Ratio" means, at any date of determination, the
ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Expense, in
each case, of or by CBI and its Subsidiaries during the four consecutive
fiscal quarters most recently ended for which financial statements are
required to be delivered to the Lender Parties pursuant to Section
5.03(b) or (c), as the case may be; provided, that for the fiscal quarter
ended December 31, 1999 and the fiscal quarter ended March 31, 2000, the
period of determination shall be such fiscal quarter, and commencing,
January 1, 2000 to the extent less than four consecutive fiscal quarters
have been completed since such date, during the fiscal quarters that have
been completed).
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of
the period selected by either Borrower pursuant to the provisions below
and, thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, and, subject to clause (c) of this definition, nine or twelve
months as such Borrower may, upon notice received by the Administrative
Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(a) such Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance under a Facility that ends
after any principal repayment installment date for such Facility
unless, after giving effect to such selection, the aggregate
principal amount of Base Rate Advances and of Eurodollar Rate
Advances having Interest Periods that end on or prior to such
principal repayment installment date for such Facility shall be at
least equal to the aggregate principal amount of Advances under such
Facility due and payable on or prior to such date;
<PAGE>
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Borrowing shall be of the
same duration;
(c) no Borrower shall be entitled to select an Interest Period
having a duration of nine or twelve months unless, by 3:00 P.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, each of the Appropriate Lenders notifies the
Administrative Agent that such Lender Party will be providing
funding for such Borrowing with such Interest Period (the failure of
any of the Appropriate Lenders to so respond by such time being
deemed for all purposes of this Agreement as an objection by such
Lender Party to the requested duration of such Interest Period);
provided that if any of the Appropriate Lenders objects (or is
deemed to have objected) to the requested duration of such Interest
Period, the duration of the Interest Period for such Borrowing shall
be one, two, three or six months, as specified by such Borrower in
the applicable Notice of Borrowing or Notice of Conversion as the
desired alternative to the requested Interest Period of nine or
twelve months therefor;
(d) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(e) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any Equity Interests or Debt or the
assets comprising a division or business unit or a substantial part or
all of the business of such Person, any capital contribution to such
Person or any other direct or indirect investment in such Person,
including, without limitation, any acquisition by way of a merger or
consolidation and any arrangement pursuant to which the investor incurs
Debt of the types referred to in clause (i) or (j) of the definition of
"Debt" in respect of such Person.
"Investment Grade Date" means the first day on which the ratings
established by both S&P and Moody's for the Index Debt are, respectively,
BBB- or better and Baa3 or better.
"IRU" means an indefeasible right to use fiber or telecommunications
capacity.
<PAGE>
"Issuing Banks" means each Initial Issuing Bank and any other
Revolving Credit Lender approved as an Issuing Bank by the Administrative
Agent and the Borrowers and any Eligible Assignee to which a Letter of
Credit Commitment hereunder has been assigned pursuant to Section 9.07 so
long as each such Revolving Credit Lender or each such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Administrative Agent
of its Applicable Lending Office and the amount of its Letter of Credit
Commitment (which information shall be recorded by the Administrative
Agent in the Register), for so long as such Initial Issuing Bank,
Revolving Credit Lender or Eligible Assignee, as the case may be, shall
have a Letter of Credit Commitment.
"IXC" has the meaning specified in the Preliminary Statements.
"IXC Common Stock" has the meaning specified in the Preliminary
Statements.
"IXC 9% Indenture" means the Indenture dated as of April 21, 1998
between the Company and The Bank of New York (as successor to IBJ
Schroder Bank & Trust Company), as trustee pursuant to which the IXC
Senior Subordinated Notes were issued.
"IXC Senior Subordinated Notes" means the 9% Senior Subordinated
Notes due 2008 of the Company issued pursuant to the Indenture dated as
of April 21, 1998 between the Company and The Bank of New York (as
successor to IBJ Schroder Bank & Trust Company), as trustee.
"IXC 7 1/4% Preferred Stock" has the meaning specified in the
Preliminary Statements.
"IXC 6 3/4% Preferred Stock" has the meaning specified in the
Preliminary Statements.
"IXCS" has the meaning specified in the recital of parties to this
Agreement.
"IXCS Subsidiary Guaranty" has the meaning specified in Section
3.01(a)(iii).
"June IXCS Agreement" means the First Amended and Restated Credit
Agreement, as amended, among IXCS, as borrower, the lenders party
thereto, NationsBank, N.A., as administrative agent, Credit Suisse First
Boston, TD Securities (USA), Inc. and Export Development Corporation, as
co-syndication agents and BAS as sole lead arranger and sole book runner.
"Junior Certificate of Designation" means the Certificate of
Designation for the Junior Convertible Preferred Stock.
"Junior Convertible Preferred Stock" means the 7 1/4% Junior
Convertible Preferred Stock Due 2007 of CBI.
<PAGE>
"L/C Cash Collateral Account" has the meaning specified in the
Security Agreements.
"L/C Related Documents" has the meaning specified in Section
2.04(d)(ii).
"Lender Party" means any Lender, any Issuing Bank or any Swing Line
Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 9.07 for so long as such
Initial Lender or Person, as the case may be, shall be a party to this
Agreement.
"Letter of Credit Advance" means an advance made by any Issuing Bank
or any Revolving Credit Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to any Issuing
Bank Lender at any time, the amount set forth opposite such Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if such Issuing Bank has entered into one or more
Assignment and Acceptances, set forth for such Issuing Bank such Lender
in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Issuing Bank's "Letter of Credit Commitment", as
such amount may be reduced at or prior to such time pursuant to Section
2.05.
"Letter of Credit Facility" means, at any time, an amount equal to
the lesser of (a) the aggregate amount of the Issuing Banks' Letter of
Credit Commitments at such time and (b) $20,000,000, as such amount may
be reduced at or prior to such time pursuant to Section 2.05.
"Letters of Credit" has the meaning specified in Section 2.01(d).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Documents" means (a) for purposes of this Agreement and the
Notes and any amendment, supplement or modification hereof or thereof,
(i) this Agreement, (ii) the Notes, (iii) the Guaranties, (iv) the
Collateral Documents, (v) the Fee Letter, and (vi) each Letter of Credit
Agreement and (b) for purposes of the Guaranties and the Collateral
Documents and for all other purposes other than for purposes of this
Agreement and the Notes, (i) this Agreement, (ii) the Notes, (iii) the
Guaranties, (iv) the Collateral Documents, (v) the Fee Letter, (vi) each
Letter of Credit Agreement, and (vii) each Secured Hedge Agreement, in
each case as amended.
"Loan Parties" means the Borrowers and each of the Guarantors.
<PAGE>
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means (a) on or prior to the date of the
Initial Extension of Credit, any material adverse change in the business,
assets, condition (financial or otherwise), operations or prospects of
CBI, IXC and their respective Subsidiaries, in each case, taken as a
whole, and (b) after the date of the Initial Extension of Credit, any
material adverse change in the business, assets, condition (financial or
otherwise), operations, or prospects of CBI and its Subsidiaries, taken
as a whole.
"Material Adverse Effect" means a material adverse effect on (a)(i)
on or prior to the date of the Initial Extension of Credit, the business,
assets, condition (financial or otherwise), operations or prospects of
CBI, IXC and their respective Subsidiaries, in each case, taken as a
whole, and (ii) after the date of the Initial Extension of Credit, the
business, assets, condition (financial or otherwise), operations or
prospects of CBI and its Subsidiaries, taken as a whole, (b) the rights
and remedies of any Agent or any Lender Party under any Transaction
Document or (c) the ability of any Loan Party to perform its material
Obligations under the Related Documents and its Obligations under the
Loan Documents to which it is or is to be a party.
"Material Contract" means with respect to any Person, each contract
or other arrangement to which such Person is a party for which breach,
nonperformance, cancellation or failure to renew could be expected to
have a Material Adverse Effect.
"Merger" has the meaning specified in the Preliminary Statements.
"Merger Agreement" has the meaning specified in the Preliminary
Statements.
"Moody's" means Moody's Investors Service Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the
Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any asset or the incurrence or issuance of any
Debt or the sale or issuance of any Equity Interests (including, without
limitation, any capital contribution) by any Person, or any Extraordinary
Receipt received by or paid to or for the account of any Person, the
aggregate amount of cash received from time to time (whether as initial
<PAGE>
consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication):
(a) reasonable and customary brokerage commissions,
underwriting fees and discounts, legal fees, finder's fees and other
similar fees and commissions;
(b) the amount of taxes payable in connection with or as a
result of such transaction;
(c) the amount of any Debt secured by a Lien on such asset
that, by the terms of the agreement or instrument governing such
Debt, is required to be repaid upon such disposition; and
(d) in the case of any sale, lease, transfer or other
disposition of any property or asset, the amount required to be
reserved, in accordance with GAAP as in effect on the date on which
the Net Cash Proceeds from such sale, lease, transfer or other
disposition are determined, and so reserved, against liabilities
under indemnification obligations, pension and other post-employment
benefit liabilities or other similar contingent liabilities
associated with the property and assets subject to such sale, lease,
transfer or other disposition that are required to be so provided
for under the terms of the documentation for such sale, lease,
transfer or other disposition;
in each case to the extent, but only to the extent, that the amounts so
deducted are properly attributable to such transaction or to the property
or asset that is the subject thereof and (i) in the case of clauses (a)
and (c) of this definition, are actually paid substantially
contemporaneously with the receipt of such cash to a Person that is not
an Affiliate of such Person or any of the Loan Parties or of any
Affiliate of any of the Loan Parties and (ii) in the case of clauses (b)
and (d) of this definition, are actually paid substantially
contemporaneously with the receipt of such cash to a Person that is not
an Affiliate of such Person or any of the Loan Parties or any Affiliate
of any of the Loan Parties or, so long as such Person is not otherwise
indemnified therefor, are reserved for in accordance with GAAP at the
time of receipt of such cash, based upon such Person's reasonable
estimate of such taxes or contingent liabilities, as the case may be (as
determined reasonably and in good faith by the treasurer or chief
financial officer of such Person); provided, however, that if, at the
time such taxes or such contingent liabilities are actually paid or
otherwise satisfied, the amount of the reserve therefor exceeds the
amount paid or otherwise satisfied, then the Borrowers shall reduce the
Commitments in accordance with the terms of Section 2.05(b), and shall
prepay the outstanding Advances in accordance with the terms of Section
2.06(b)(ii) and (iii), in an amount equal to the amount of such excess
reserve.
"Net Tangible Assets" means, at any date, the assets of CBI and its
Subsidiaries at such date minus the intangible assets of CBI and its
Subsidiaries, all determined on a consolidated basis in accordance with
GAAP.
<PAGE>
"Net Working Capital" means, at any date, (a) the consolidated
current assets of CBI and its Subsidiaries as of such date (excluding
cash and cash equivalents) minus (b) the consolidated current liabilities
of CBI and its Subsidiaries as of such date (excluding current
liabilities in respect of Debt).
"Nonratable Assignment" means an assignment by a Lender Party
pursuant to Section 9.07(a) of a portion of its rights and obligations
under this Agreement, other than an assignment of a uniform, and not a
varying, percentage of all of the rights and obligations of such Lender
Party under and in respect of all of the Facilities (other than the
Letter of Credit Facility and the Swing Line Facility).
"Non-Shared Collateral Security Agreement" has the meaning specified
in Section 3.01(a)(ii).
"Note" means a Term Note or a Revolving Credit Note or an
Incremental Note.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Renewal" has the meaning specified in Section 2.01(d).
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"Notice of Termination" has the meaning specified in Section
2.01(d).
"NPL" means the National Priorities List under CERCLA.
"Oak Hill Debt" means the Obligations of CBI under the Oak Hill
Indenture.
"Oak Hill Indenture" has the meaning specified in Section 5.01(q).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise affected
by any proceeding referred to in Section 7.01(f). Without limiting the
generality of the foregoing, the Obligations of any Loan Party under the
Loan Documents include (a) the obligation to pay principal, interest,
Letter of Credit commissions, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by such Loan
Party under any Loan Document and (b) the obligation of such Loan Party
to reimburse any amount in respect of any of the foregoing that any
Lender Party, in its sole discretion, may elect to pay or advance on
behalf of such Loan Party.
<PAGE>
"OECD" means the Organization for Economic Cooperation and
Development.
"Other Taxes" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies not yet due and payable; (b) Liens imposed by law, such
as materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that (i) are not overdue for a period of more than
30 days and (ii) individually or together with all other Permitted Liens
outstanding on any date of determination do not materially adversely
affect the use of the property to which they relate; (c) pledges or
deposits to secure obligations under workers' compensation laws or
similar legislation or to secure public or statutory obligations; and (d)
easements, rights of way and other encumbrances on title to real property
that do not render title to the property encumbered thereby unmarketable
or materially adversely affect the use of such property for its present
purposes.
"Permitted Preferred Stock" means the Convertible Preferred Stock,
the Junior Convertible Preferred Stock and the Exchangeable Preferred
Stock.
"Permitted Preferred Stock Documents" means, collectively, the
Certificate of Designation, the Convertible Certificate of Designation
and the Junior Convertible Certificate of Designation, any subscription
agreements therefor and all of the other agreements, instruments and
other documents pursuant to which the Permitted Preferred Stock will be
or has been issued or otherwise setting forth the terms of the Permitted
Preferred Stock, in each case as such agreement, instrument or other
document may be amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof, but only to the extent
permitted under the terms of the Loan Documents.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledged Debt" has the meaning specified in Section 1(a)(iv) of the
Shared Collateral Security Agreement and Section 1(a)(iv) of the
Non-Shared Collateral Security Agreement.
"Pledged Shares" has the meaning specified in Section 1(a)(iii) of
the Shared Collateral Security Agreement and Section 1(a)(iii) of the
Non-Shared Collateral Security Agreement.
<PAGE>
"PNC" has the meaning specified in the recital of parties to this
Agreement.
"Preferred Interests" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or
upon liquidation.
"Pro Rata Share" of any amount means, with respect to any Revolving
Credit Lender at any time, the product of such amount times a fraction
the numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time (or, if the Commitments shall have been
terminated pursuant to Section 2.05 or 7.01, such Lender's Revolving
Credit Commitment as in effect immediately prior to such termination) and
the denominator of which is the Revolving Credit Facility at such time
(or, if the Commitments shall have been terminated pursuant to Section
2.05 or 7.01, the Revolving Credit Facility as in effect immediately
prior to such termination).
"Redeemable" means, with respect to any Equity Interest, any Debt or
any other right or Obligation, any such Equity Interest, Debt, right or
Obligation that (a) the issuer has undertaken to redeem at a fixed or
determinable date or dates, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely within the
control of the issuer or (b) is redeemable at the option of the holder.
"Register" has the meaning specified in Section 9.07(d).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Related Documents" means the Merger Agreement, the Oak Hill
Indenture, the Subordinated Debt Documents, any intercompany notes issued
pursuant to Section 5.02(b)(ii), documents related to the Surviving Debt
and the Permitted Preferred Stock Documents.
"Reorganization Sub" has the meaning specified in the Preliminary
Statements.
"Reorganization Merger" has the meaning specified in the Preliminary
Statements.
"Required Lenders" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of (a) the aggregate principal
amount of the Advances outstanding at such time, (b) the aggregate
Available Amount of all Letters of Credit outstanding at such time, (c)
the aggregate unused Commitments under the Term Facilities at such time
and (d) the aggregate Unused Revolving Credit Commitments at such time;
provided, however, that if any Lender shall be a Defaulting Lender at
such time, there shall be excluded from the determination of Required
Lenders at such time (A) the aggregate principal amount of the Advances
owing to such Lender (in its capacity as a Lender) and outstanding at
such time, (B) such Lender's Pro Rata Share of the
<PAGE>
aggregate Available Amount of all Letters of Credit outstanding at such
time, (C) the aggregate unused Term Commitments of such Lender at such
time and (D) the Unused Revolving Credit Commitment of such Lender at
such time. For purposes of this definition, the aggregate principal
amount of Swing Line Advances owing to any Swing Line Bank and of Letter
of Credit Advances owing to any Issuing Bank and the Available Amount of
each Letter of Credit shall be considered to be owed to the Revolving
Credit Lenders ratably in accordance with their respective Revolving
Credit Commitments.
"Responsible Officer" means the chief executive officer, the
president, the chief financial officer, the principal accounting officer
or the treasurer (or the equivalent of any of the foregoing) of the
Borrower or any of its Subsidiaries or any other officer, partner or
member (or person performing similar functions) of the Borrower or any of
its Subsidiaries responsible for overseeing the administration of, or
reviewing compliance with, all or any portion of this Agreement and the
other Loan Documents.
"Revolving Credit Advance" has the meaning specified in Section
2.01(b).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"Revolving Credit Commitment" means, with respect to any Revolving
Credit Lender at any time, the amount set forth opposite such Lender's
name on Schedule I hereto under the caption "Revolving Credit Commitment"
or, if such Lender has entered into one or more Assignment and
Acceptances, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 9.07(d) as such Lender's
"Revolving Credit Commitment", as such amount may be reduced at or prior
to such time pursuant to Section 2.05(b)(iv).
"Revolving Credit Facility" means, at any time, the aggregate amount
of the Revolving Credit Lenders' Revolving Credit Commitments at such
time.
"Revolving Credit Lender" means any Lender that has a Revolving
Credit Commitment.
"Revolving Credit Note" means a promissory note of a Borrower
payable to the order of any Revolving Credit Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the aggregate indebtedness of such
Borrower to such Lender resulting from the Revolving Credit Advances,
Letter of Credit Advances and Swing Line Advances made by such Lender, as
amended.
"Secured Hedge Agreement" means any Hedge Agreement required or
permitted under Article V that is entered into by and between any
Borrower and any Hedge Bank.
"Secured Obligations" has the meaning specified in Section 2 of the
Security Agreements.
<PAGE>
"Secured Parties" means the Agents and the Lender Parties.
"Security Agreements" means the Shared Collateral Security Agreement
or the Non-Shared Collateral Security Agreement.
"Senior Secured Debt/EBITDA Ratio" means, at any date of
determination, the ratio of Consolidated Senior Secured Debt of CBI and
its Subsidiaries as at the end of the most recently ended fiscal quarter
of CBI for which financial statements are required to be delivered to the
Lender Parties pursuant to Section 5.03(b) or (c), as the case may be, to
Consolidated EBITDA of CBI and its Subsidiaries for the period of four
consecutive fiscal quarters of CBI ended on or immediately prior to such
date.
"Senior Secured Debt" means, as of any date, the Advances and that
portion of Debt (excluding all indebtedness and payment Obligations
referred to in clauses (g) and (h) of the definition of "Debt" herein)
that ranks pari passu with the Advances and is secured by any collateral,
including, without limitation, the CBI 7 1/4% Notes.
"Shared Collateral Security Agreement" has the meaning specified in
Section 3.01(a)(ii).
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and no Person other than the Loan
Parties and the ERISA Affiliates or (b) was so maintained, and in respect
of which any Loan Party or any ERISA Affiliate could have liability under
Section 4069 of ERISA in the event such plan has been or were to be
terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay such debts and
liabilities as they mature and (d) such Person is not engaged in business
or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"SPC" has the meaning specified in Section 9.07(j).
"S&P" means Standard & Poor's, a division of the McGraw-Hill
Companies, Inc.
"SSBI" has the meaning specified in the recital of parties to this
Agreement.
<PAGE>
"Sub" has the meaning specified in the Preliminary Statements.
"Subordinated Debt" means any Debt of any Loan Party that is
subordinated to the Obligations of such Loan Party under the Loan
Documents on, and that otherwise contains terms and conditions reasonably
satisfactory to the Required Lenders.
"Subordinated Debt Documents" means all agreements, indentures and
instruments pursuant to which Subordinated Debt is issued and that
otherwise contains terms and conditions reasonably satisfactory to the
Required Lenders, in each case as amended, to the extent permitted under
the Loan Documents.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in
which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such partnership, joint venture or
limited liability company or (c) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person's other Subsidiaries.
"Subsidiary Guaranties" has the meaning specified in Section
3.01(a)(iii).
"Subsidiary Guarantors" means the Subsidiaries of CBI listed on
Schedule II hereto and each other Subsidiary of CBI that shall be
required to execute and deliver a guaranty pursuant to Section 5.01(j).
"Surviving Debt" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before and after giving effect to the
Transaction.
"Swing Line Advance" means an advance made by (a) any Swing Line
Bank pursuant to Section 2.01(c) or (b) any Revolving Credit Lender
pursuant to Section 2.02(b).
"Swing Line Bank" means each of CUSA and Bank of America.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by any Swing Line Bank pursuant to Section 2.01(c) or the
Revolving Credit Lenders pursuant to Section 2.02(b).
"Swing Line Facility" has the meaning specified in Section 2.01(c).
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
<PAGE>
"Taxes" has the meaning specified in Section 2.12(a).
"Term Advance" has the meaning specified in Section 2.01(a).
"Term Borrowing" means a borrowing consisting of simultaneous Term
Advances of the same Type made by the Term Lenders.
"Term Commitment" means, with respect to any Term Lender at any
time, the amount set forth opposite such Lender's name on Schedule I
hereto under the caption "Term Commitment" or, if such Lender has entered
into one or more Assignment and Acceptances, set forth for such Lender in
the Register maintained by the Administrative Agent pursuant to Section
9.07(d) as such Lender's "Term Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
"Term Facility" means, at any time, the aggregate amount of the Term
Lenders' Term Commitments at such time.
"Term Lender" means any Lender that has a Term Commitment.
"Term Note" means a promissory note of a Borrower payable to the
order of any Term Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from the Term Advance made by such Lender, as amended.
"Termination Date" means the earlier of November 9, 2004 and the
date of termination in whole of the Revolving Credit Commitments, the
Letter of Credit Commitments and the Term Commitments pursuant to Section
2.05 or 7.01.
"Total Debt/Capitalization Ratio" means, at any date of
determination, the ratio (expressed as a percentage) of Consolidated Debt
of CBI and its Subsidiaries (excluding (x) Debt of CBI under the Oak Hill
Indenture for so long as interest payable thereunder is paid in kind and
(y) all indebtedness and payment Obligations referred to in clauses (g)
and (h) of the definition of "Debt" herein) as at the end of the most
recently ended fiscal quarter of CBI for which financial statements are
required to be delivered to the Lender Parties pursuant to Section
5.03(b) or (c), as the case may be, to Capitalization of CBI and its
Subsidiaries (for avoidance of doubt, including Debt of CBI under the Oak
Hill Indenture) as at the end of such fiscal quarter (or if less than
four consecutive fiscal quarters have been completed since the Initial
Extension of Credit, during the fiscal quarters that have been
completed).
"Transaction" means the Merger and the other transactions
contemplated by the Transaction Documents.
"Transaction Documents" means, collectively, the Loan Documents and
the Related Documents.
<PAGE>
"2004 Letters of Credit" means (i) the $47,742 letter of credit
issued to Utah State Retirement Investment Fund issued by Bank of America
that expires April 20, 2004 and (ii) the $138,112 letter of credit issued
to Overseas Partners (333), Inc. issued by Bank of America that expires
July 14, 2004.
"Type" refers to the distinction between Advances bearing interest
at the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unused Revolving Credit Commitment" means, with respect to any
Revolving Credit Lender at any time, (a) such Lender's Revolving Credit
Commitment at such time minus (b) the sum of (i) the aggregate principal
amount of all Revolving Credit Advances, Swing Line Advances and Letter
of Credit Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time plus (ii) such Lender's Pro Rata Share of (A)
the aggregate Available Amount of all Letters of Credit outstanding at
such time, (B) the aggregate principal amount of all Letter of Credit
Advances made by the Issuing Banks pursuant to Section 2.03(c) and
outstanding at such time and (C) the aggregate principal amount of all
Swing Line Advances made by the Swing Line Banks pursuant to Section
2.01(c) and outstanding at such time.
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of any Loan Party or in respect
of which any Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding". References in the Loan Documents to any agreement or contract
"as amended" shall mean and be a reference to such agreement or contract as
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(g)
("GAAP").
<PAGE>
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) The Term
Advances. Each Term Lender severally agrees, on the terms and conditions
hereinafter set forth, to make advances (each a "Term Advance") to the
Borrowers on any Business Day during the period from the date hereof until the
date that is one year from the date hereof in an aggregate amount not to
exceed such Lender's Term Commitment at such time. The Term Borrowing shall
consist of Term Advances made simultaneously by the Term Lenders ratably
according to their Term Commitments. Amounts borrowed under this Section
2.01(a) and repaid or prepaid may not be reborrowed.
(b) The Revolving Credit Advances. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "Revolving Credit Advance") to the Borrowers from time to
time on any Business Day during the period from the date hereof until the
Termination Date in an amount for each such Advance not to exceed such
Lender's Unused Revolving Credit Commitment at such time. Each Revolving
Credit Borrowing shall be in an aggregate amount of (i) $10,000,000 or an
integral multiple of $1,000,000 in excess thereof in respect of Eurodollar
Rate Advances and (ii) $10,000,000 or an integral multiple of $1,000,000 in
excess thereof in respect of Base Rate Advances (in each case, other than a
Borrowing the proceeds of which shall be used solely to repay or prepay in
full outstanding Swing Line Advances or outstanding Letter of Credit Advances)
and shall consist of Revolving Credit Advances made simultaneously by the
Revolving Credit Lenders ratably according to their Revolving Credit
Commitments. Within the limits of each Revolving Credit Lender's Unused
Revolving Credit Commitment in effect from time to time, the Borrowers may
borrow under this Section 2.01(b), prepay pursuant to Section 2.06(a) and
reborrow under this Section 2.01(b).
(c) The Swing Line Advances. The Borrowers may request any Swing
Line Bank to make, and such Swing Line Bank may, if in its sole discretion it
elects to do so, make, on the terms and conditions hereinafter set forth,
Swing Line Advances to such Borrower from time to time on any Business Day
during the period from the date hereof until the Termination Date (i) in an
aggregate amount owing to all Swing Line Banks not to exceed at any time
outstanding $75,000,000 (the "Swing Line Facility") and (ii) in an amount for
each such Swing Line Borrowing not to exceed the aggregate of the Unused
Revolving Credit Commitments of the Revolving Credit Lenders at such time. No
Swing Line Advance shall be used for the purpose of funding the payment of
principal of any other Swing Line Advance. Each Swing Line Borrowing shall be
in an amount of $500,000 or an integral multiple of $100,000 in excess thereof
and shall be made as a Base Rate Advance. Within the limits of the Swing Line
Facility and within the limits referred to in clause (ii) above, so long as
any Swing Line Bank, in its sole discretion, elects to make Swing Line
Advances, the Borrowers may borrow under this Section 2.01(c), repay pursuant
to Section 2.04(c) or prepay pursuant to Section 2.06(a) and reborrow under
this Section 2.01(c).
<PAGE>
(d) The Letters of Credit. Each Issuing Bank severally agrees, on
the terms and conditions hereinafter set forth, to issue (or cause its
Affiliate that is a commercial bank to issue on its behalf) letters of credit
(the "Letters of Credit") for the account of a Borrower from time to time on
any Business Day during the period from the date hereof until 5 Business Days
before the Termination Date in an aggregate Available Amount (i) for all
Letters of Credit issued by such Issuing Bank not to exceed at any time the
lesser of (x) the Letter of Credit Facility at such time and (y) such Issuing
Bank's Letter of Credit Commitment at such time and (ii) for each such Letter
of Credit not to exceed an amount equal to the Unused Revolving Credit
Commitments of the Revolving Credit Lenders at such time. The BofA Letters of
Credit shall for all purposes be deemed to have been issued hereunder and
shall constitute use of the Letter of Credit Facility. No Letter of Credit,
other than the 2004 Letters of Credit, shall have an expiration date
(including all rights of the Borrower or the beneficiary to require renewal)
later than the earlier of 5 Business Days before the Termination Date and one
year after the date of issuance thereof, but may by its terms be renewable
annually upon notice (a "Notice of Renewal") given to the Issuing Bank that
issued such Letter of Credit and the Administrative Agent on or prior to any
date for notice of renewal set forth in such Letter of Credit but in any event
at least three Business Days prior to the date of the proposed renewal of such
Letter of Credit and upon fulfillment of the applicable conditions set forth
in Article III unless such Issuing Bank has notified such Borrower (with a
copy to the Administrative Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit but in any event at least 30
Business Days prior to the date of automatic renewal of its election not to
renew such Letter of Credit (a "Notice of Termination"). If either a Notice of
Renewal is not given by such Borrower or a Notice of Termination is given by
the relevant Issuing Bank pursuant to the immediately preceding sentence, such
Letter of Credit shall expire on the date on which it otherwise would have
been automatically renewed; provided, however, that even in the absence of
receipt of a Notice of Renewal the relevant Issuing Bank may in its
discretion, unless instructed to the contrary by the Administrative Agent or
such Borrower, deem that a Notice of Renewal had been timely delivered and in
such case, a Notice of Renewal shall be deemed to have been so delivered for
all purposes under this Agreement. Each Letter of Credit shall contain a
provision authorizing the Issuing Bank that issued such Letter of Credit to
deliver to the beneficiary of such Letter of Credit, upon the occurrence and
during the continuance of an Event of Default, a notice (a "Default
Termination Notice") terminating such Letter of Credit and giving such
beneficiary 15 days to draw such Letter of Credit. Within the limits of the
Letter of Credit Facility, and subject to the limits referred to above, such
Borrower may request the issuance of Letters of Credit under this Section
2.01(d), repay any Letter of Credit Advances resulting from drawings
thereunder pursuant to Section 2.04(d) and request the issuance of additional
Letters of Credit under this Section 2.01(d).
SECTION 2.02. Making the Advances. (a) Except as otherwise provided
in Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or the first Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate
Advances, by a Borrower to the Administrative Agent, which shall give to each
Appropriate Lender prompt notice thereof by telex or telecopier. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be by telephone,
confirmed immediately in writing,
<PAGE>
or telex or telecopier, in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Facility
under which such Borrowing is to be made, (iii) Type of Advances comprising
such Borrowing, (iv) aggregate amount of such Borrowing and (v) in the case of
a Borrowing consisting of Eurodollar Rate Advances, initial Interest Period
for each such Advance. Each Appropriate Lender shall, before 11:00 A.M. (New
York City time) on the date of such Borrowing, make available for the account
of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable
portion of such Borrowing in accordance with the respective Commitments under
the applicable Facility of such Lender and the other Appropriate Lenders.
After the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to such Borrower by crediting such Borrower's
Account; provided, however, that, in the case of any Revolving Credit
Borrowing, the Administrative Agent shall first make a portion of such funds
equal to the aggregate principal amount of any Swing Line Advances and Letter
of Credit Advances made by any Swing Line Bank or any Issuing Bank, as the
case may be, and by any other Revolving Credit Lender and outstanding on the
date of such Revolving Credit Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to such Swing Line Bank or such
Issuing Bank, as the case may be, and such other Revolving Credit Lenders for
repayment of such Swing Line Advances and Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given not
later than 1:00 P.M. (New York City time) on the date of the proposed Swing
Line Borrowing, by a Borrower to any Swing Line Bank and the Administrative
Agent. Each such notice of a Swing Line Borrowing (a "Notice of Swing Line
Borrowing") shall be by telephone, confirmed immediately in writing, or telex
or telecopier, specifying therein the requested (i) date of such Borrowing,
(ii) amount of such Borrowing and (iii) maturity of such Borrowing (which
maturity shall be no later than the seventh day after the requested date of
such Borrowing). If, in its sole discretion, it elects to make the requested
Swing Line Advance, such Swing Line Bank will make the amount thereof
available to the Administrative Agent at the Administrative Agent's Account,
in same day funds. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to such Borrower by
crediting such Borrower's Account. Upon written demand by any Swing Line Bank
with an outstanding Swing Line Advance, with a copy of such demand to the
Administrative Agent, each other Revolving Credit Lender shall purchase from
such Swing Line Bank, and such Swing Line Bank shall sell and assign to each
such other Revolving Credit Lender, such other Lender's Pro Rata Share of such
outstanding Swing Line Advance as of the date of such demand, by making
available for the account of its Applicable Lending Office to the
Administrative Agent for the account of such Swing Line Bank, by deposit to
the Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Swing Line Advance to be
purchased by such Lender. Such Borrower hereby agrees to each such sale and
assignment. Each Revolving Credit Lender agrees to purchase its Pro Rata Share
of an outstanding Swing Line Advance on (i) the Business Day on which demand
therefor is made by the Swing Line Bank that made such Advance, provided that
notice of such demand is given not later than 11:00 A.M. (New York City time)
on such Business Day or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. Upon any such
assignment by a Swing Line
<PAGE>
Bank to any other Revolving Credit Lender of a portion of a Swing Line
Advance, such Swing Line Bank represents and warrants to such other Lender
that such Swing Line Bank is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or warranty and
assumes no responsibility with respect to such Swing Line Advance, the Loan
Documents or any Loan Party. If and to the extent that any Revolving Credit
Lender shall not have so made the amount of such Swing Line Advance available
to the Administrative Agent, such Revolving Credit Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by such Swing Line Bank until
the date such amount is paid to the Administrative Agent, at the Federal Funds
Rate. If such Lender shall pay to the Administrative Agent such amount for the
account of such Swing Line Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Swing Line Advance made by such Lender
on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Swing Line Advance made by such Swing Line Bank shall
be reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) no Borrower may select Eurodollar Rate Advances for the
initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $10,000,000 or if the obligation of the
Appropriate Lenders to make Eurodollar Rate Advances shall then be suspended
pursuant to Section 2.09 or 2.10, (ii) until the closing of the general
syndication of the Facility but in any event no later than November 30, 1999,
no Borrower may select an Interest Period of more than 1 month for Eurodollar
Rate Advances and (iii) the Term Advances may not be outstanding as part of
more than five separate Borrowings and the Revolving Credit Advances may not
be outstanding as part of more than five separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing
shall be irrevocable and binding on the Borrower that requested such
Borrowing. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower that
requested such Borrowing shall indemnify each Appropriate Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for such
Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Advance to be made by such
Lender as part of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from
an Appropriate Lender prior to the date of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower
that requested such Borrowing on such date a corresponding amount. If and to
the extent that such Lender shall not have so made such ratable portion
available to the Administrative Agent, such Lender and the
<PAGE>
Borrower that requested such Borrowing severally agree to repay or pay to the
Administrative Agent forthwith on demand such corresponding amount and to pay
interest thereon, for each day from the date such amount is made available to
such Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of such Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lender's Advance as part of such
Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on
the fifth Business Day prior to the date of the proposed issuance of such
Letter of Credit, by a Borrower to any Issuing Bank, which shall give to the
Administrative Agent and each Revolving Credit Lender prompt notice thereof by
telex or telecopier. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of such Letter
of Credit, (C) expiration date of such Letter of Credit, (D) name and address
of the beneficiary of such Letter of Credit and (E) form of such Letter of
Credit, and shall be accompanied by such application and agreement for letter
of credit as such Issuing Bank may specify to such Borrower for use in
connection with such requested Letter of Credit (a "Letter of Credit
Agreement"). If (x) the requested form of such Letter of Credit is acceptable
to such Issuing Bank in its sole discretion and (y) it has not received notice
of objection to such issuance from Lenders holding at least 50% of the
Revolving Credit Commitments such Issuing Bank will, upon fulfillment of the
applicable conditions set forth in Article III, make such Letter of Credit
available to such Borrower at its office referred to in Section 9.02 or as
otherwise agreed with such Borrower in connection with such issuance. In the
event and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.
(b) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to
the Administrative Agent on the first Business Day of each week a written
report summarizing issuance and expiration dates of Letters of Credit issued
by such Issuing Bank during the previous week and drawings during such week
under all Letters of Credit issued by such Issuing Bank, (B) to each Revolving
Credit Lender on the first Business Day of each month a written report
summarizing issuance and expiration dates of Letters of Credit issued by such
Issuing Bank during the preceding month and drawings during such month under
all Letters of Credit issued by such Issuing Bank and (C) to the
Administrative Agent and each Revolving Credit Lender on the first Business
Day of each calendar quarter a written report setting forth the
<PAGE>
average daily aggregate Available Amount during the preceding calendar quarter
of all Letters of Credit issued by such Issuing Bank.
(c) Drawing and Reimbursement. The payment by any Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by such Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft. Upon written
demand by any Issuing Bank with an outstanding Letter of Credit Advance, with
a copy of such demand to the Administrative Agent, each Revolving Credit
Lender shall purchase from such Issuing Bank, and such Issuing Bank shall sell
and assign to each such Revolving Credit Lender, such Lender's Pro Rata Share
of such outstanding Letter of Credit Advance as of the date of such purchase,
by making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of such Issuing Bank, by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit Advance
to be purchased by such Lender. Promptly after receipt thereof, the
Administrative Agent shall transfer such funds to such Issuing Bank. Each
Borrower hereby agrees to each such sale and assignment. Each Revolving Credit
Lender agrees to purchase its Pro Rata Share of an outstanding Letter of
Credit Advance on (i) the Business Day on which demand therefor is made by the
Issuing Bank which made such Advance, provided that notice of such demand is
given not later than 11:00 A.M. (New York City time) on such Business Day, or
(ii) the first Business Day next succeeding such demand if notice of such
demand is given after such time. Upon any such assignment by an Issuing Bank
to any Revolving Credit Lender of a portion of a Letter of Credit Advance,
such Issuing Bank represents and warrants to such other Lender that such
Issuing Bank is the legal and beneficial owner of such interest being assigned
by it, free and clear of any liens, but makes no other representation or
warranty and assumes no responsibility with respect to such Letter of Credit
Advance, the Loan Documents or any Loan Party. If and to the extent that any
Revolving Credit Lender shall not have so made the amount of such Letter of
Credit Advance available to the Administrative Agent, such Revolving Credit
Lender agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
such Issuing Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate for its account or the account of such
Issuing Bank, as applicable. If such Lender shall pay to the Administrative
Agent such amount for the account of such Issuing Bank on any Business Day,
such amount so paid in respect of principal shall constitute a Letter of
Credit Advance made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by such Issuing Bank shall be reduced by such amount on such
Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of any
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Term Advances. The
Borrowers shall repay to the Administrative Agent for the ratable account of
the Term Lenders the
<PAGE>
aggregate outstanding principal amount of the Term Advances on the following
dates in an amount equal to the percentage of the aggregate principal amount
of all of the Term Advances outstanding on the date that is one year from the
date hereof (after giving effect to all Term Borrowings, if any, made during
such period) set forth opposite such dates (in each case which amounts shall
be reduced as a result of the application of prepayments in accordance with
the order of priority set forth in Section 2.06):
Date Percentage
- ---- ----------
March 28, 2002 3.75%
June 27, 2002 3.75%
September 27, 2002 3.75%
December 30, 2002 3.75%
March 29, 2003 6.25%
June 27, 2003 6.25%
September 29, 2003 6.25%
December 30, 2003 6.25%
March 30, 2004 15.00%
June 29, 2004 15.00%
September 29, 2004 15.00%
provided, however, that, notwithstanding the foregoing provisions of this
Section 2.04(a), the final principal repayment installment of the Term
Advances shall be repaid in full on the Termination Date and in any event
shall be in an amount equal to the aggregate principal amount of all Term
Advances outstanding on such date.
(b) Revolving Credit Advances. Each of the Borrowers shall repay to
the Administrative Agent for the ratable account of the Revolving Credit
Lenders on the Termination Date the aggregate principal amount of the
Revolving Credit Advances made to such Borrower and outstanding on such date.
(c) Swing Line Advances. Each of the Borrowers shall repay to the
Administrative Agent for the account of each Swing Line Bank and each other
Revolving Credit Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made to such Borrower by each of
them on the earlier of the maturity date specified in the applicable Notice of
Swing Line Borrowing (which maturity shall be no later than the seventh day
after the requested date of such Borrowing) and the Termination Date.
(d) Letter of Credit Advances. (i) Each of the Borrowers shall repay
to the Administrative Agent for the account of each Issuing Bank and each
other Revolving Credit Lender that has made a Letter of Credit Advance on the
earlier of the day on which such Advance was made and the Termination Date,
the outstanding principal amount of each Letter of Credit Advance made to such
Borrower by each of them; provided, that to the extent not promptly repaid by
such Borrower, a Base Rate Advance shall be deemed made automatically by
<PAGE>
each Issuing Bank and each other Revolving Credit Lender, in an amount equal
to such Issuing Bank's or Lender's Pro Rata Share of such outstanding Letter
of Credit Advance, on the date on which such repayment is required in the
aggregate amount of such Letter of Credit Advance, without regard to minimum
borrowing amounts or to the conditions set forth in Section 3.02.
(ii) The Obligations of each of the Borrowers under this Agreement,
any Letter of Credit Agreement and any other agreement or instrument relating
to any Letter of Credit shall be unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement, such Letter of
Credit Agreement and such other agreement or instrument under all
circumstances, including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other agreement
or instrument relating thereto (all of the foregoing being, collectively,
the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of such Borrower in respect
of any L/C Related Document or any other amendment or waiver of or any
consent to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that
such Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(E) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral or
other collateral, or any release or amendment or waiver of or consent to
departure from the Guaranties or any other guarantee, for all or any of
the Obligations of such Borrower in respect of the L/C Related Documents;
or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, such Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments; Increase
of the Commitments. (a) Optional. The Borrowers may, upon at least three
Business Days' notice to
<PAGE>
the Administrative Agent, terminate in whole or reduce in part the unused
portions of the Term Commitments, the Letter of Credit Facility and the Unused
Revolving Credit Commitments; provided, however, that each partial reduction
of a Facility shall be in an aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof. Each reduction of the unused
portions of the Term Commitment pursuant to this Section 2.05(a) shall be
applied to the remaining principal installments of the Term Facility on a pro
rata basis and shall be made ratably among the Appropriate Lenders in
accordance with their Commitments with respect to such Facility. Each
reduction of the Unused Revolving Credit Commitments pursuant to this Section
2.05(a) shall be applied to the scheduled commitment reduction installments of
the Revolving Credit Facility on a pro rata basis.
(b) Mandatory. (i) The Term Facility shall be automatically and
permanently reduced, on a pro rata basis, on each date on which the Term
Advances outstanding thereunder are repaid or prepaid by an amount equal to
the amount by which the aggregate Term Commitments immediately prior to such
reduction exceed the aggregate unpaid principal amount of the Term Advances
then outstanding.
(ii) The Letter of Credit Facility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by
the amount, if any, by which the amount of the Letter of Credit Facility
exceeds the Revolving Credit Facility after giving effect to such reduction of
the Revolving Credit Facility.
(iii) The Swing Line Facility shall be permanently reduced from time
to time on the date of each reduction in the Revolving Credit Facility by the
amount, if any, by which the amount of the Swing Line Facility exceeds the
Revolving Credit Facility after giving effect to such reduction of the
Revolving Credit Facility.
(iv) The Revolving Credit Facility shall be automatically and
permanently reduced, on the following dates in an amount equal to the
percentage of the aggregate Revolving Credit Commitments of the Revolving
Credit Lenders set forth opposite such dates (after giving effect to all
reductions in such amounts on or prior to any such date as a result of the
application of commitment reductions in accordance with the order of priority
set forth in subsection (a) of this Section 2.05 or prepayments in accordance
with clause (i), (ii), (iii) or (iv) of Section 2.06(b)), provided that each
such reduction of the Revolving Credit Facility shall be made ratably among
the Revolving Credit Lenders in accordance with their Revolving Credit
Commitments:
Date Percentage
- ---- ----------
March 28, 2002 3.75%
June 27, 2002 3.75%
September 27, 2002 3.75%
December 30, 2002 3.75%
March 29, 2003 6.25%
<PAGE>
Date Percentage
- ---- ----------
June 27, 2003 6.25%
September 29, 2003 6.25%
December 30, 2003 6.25%
March 30, 2004 15.00%
June 29, 2004 15.00%
September 29, 2004 15.00%
provided, however, that notwithstanding the foregoing provisions of this
clause (iv), all of the Revolving Credit Commitments of the Revolving Credit
Lenders shall be terminated in whole on the Termination Date.
(c) Incremental Facility. At any time prior to the second
anniversary of the date hereof, the Borrowers may, by written notice
("Incremental Facility Notice") to the Administrative Agent (which shall
promptly deliver a copy to each of the Lender Parties), request the addition
of one or more additional term facilities (each an "Incremental Facility" and
together, the "Incremental Facilities"). Each Incremental Facility shall be in
an aggregate principal amount of not less than $100 million and all of which
together shall be in an aggregate principal not to exceed $500 million. The
Incremental Facilities (i) shall be a Term Facility for all purposes hereunder
(and references to the Term Facility and Term Advances shall be deemed as the
context requires to include reference to the Incremental Facilities) and (ii)
shall have such pricing as may be agreed by the Borrowers and the Lender
Parties providing such Incremental Facilities and shall otherwise have the
same terms as the Term Advances (and references to the Term Facility and Term
Advances shall be deemed as the context requires to include reference to the
Incremental Facilities) including the same Termination Date and the same
proportional amortization as the remaining Term Advances. Any such Incremental
Facility shall be offered, first, on a pro rata basis to existing Lenders, and
to the extent that such Lenders do not commit within 30 days of the
Incremental Facility Notice for any such Incremental Facility, the Borrowers
shall have the right to arrange for one or more banks or other financial
institutions acceptable to the Agents (any such bank or other financial
institution, an "Additional Lender") to extend commitments to provide the
Incremental Facility in an aggregate amount equal to the amount, if any, by
which the commitments by the Lenders to provide such Incremental Facility is
less than the amount thereof requested by the Borrowers pursuant to the terms
of this Section 2.05(c). Commitments in respect of an Incremental Facility
shall become "Commitments" under this Agreement pursuant to an amendment
hereto executed by each of the Borrowers, each Lender Party agreeing to
provide such Commitment, each Additional Lender, if any, the Issuing Banks and
the Agents and such amendments to the other Loan Documents as the Agents shall
reasonably deem appropriate to effect such purpose. The effectiveness of such
amendment and the commitments in respect of each Incremental Facility shall be
subject to the satisfaction on the date thereof and, if different, on the date
on which Advances under the Incremental Facility are made, of each of the
conditions set forth in Section 3.02.
SECTION 2.06. Prepayments. (a) Optional. Each Borrower may,
upon at least one Business Day's notice in the case of Base Rate Advances and
three Business Days' notice in
<PAGE>
the case of Eurodollar Rate Advances, in each case to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment,
and if such notice is given the Borrower shall, prepay the outstanding
aggregate principal amount of the Advances comprising part of the same
Borrowing made by such Borrower in whole or ratably in part, together with
accrued interest to the date of such prepayment on the aggregate principal
amount prepaid; provided, however, that (x) each partial prepayment shall be
in an aggregate principal amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and (y) if any prepayment of a Eurodollar Rate
Advance is made on a date other than the last day of an Interest Period for
such Advance, such Borrower shall also pay any amounts owing pursuant to
Section 9.04(c). Each such prepayment of any Term Advances shall be applied to
the installments thereof pro rata to the remaining installments thereof.
(b) Mandatory. (i) Following the end of each Fiscal Year of CBI,
commencing with the Fiscal Year ending December 31, 2002, in the event that
either (A) the rating of the Index Debt by S&P or Moody's is lower than BBB-
or Baa3, respectively, or (B) the Debt/EBITDA Ratio of CBI and its
Subsidiaries as of the last day of such Fiscal Year is greater than 4:00 to
1:00, the Borrowers shall, on the 90th day following the end of such Fiscal
Year, prepay an aggregate principal amount of the Advances comprising part of
the same Borrowings made by such Borrower in an amount equal to 50% of the
Excess Cash Flow for such Fiscal Year. Each such prepayment shall be applied
ratably first to the Term Facility and to the installments thereof pro rata to
the remaining installments thereof, and second to the Revolving Credit
Facility as set forth in clause (vi) below.
(ii) So long as the rating of the Index Debt by S&P or Moody's is
lower than BBB or Baa2, respectively, the Borrowers shall, on the date of
receipt of the Net Cash Proceeds by any Loan Party or any of its Subsidiaries
from (A) the sale, lease, transfer or other disposition of any assets of any
Loan Party or any of its Subsidiaries (other than any sale, lease, transfer or
other disposition of assets pursuant to (x) clauses (i) through (vii) of
Section 5.02(e) or (y) pursuant to clause (viii) of Section 5.02(e) if the
proceeds are being reinvested in the business of the Borrowers and their
Subsidiaries in accordance with such clause (viii)) or (B) any Extraordinary
Receipt received by or paid to or for the account of any Loan Party or any of
its Subsidiaries and not otherwise included in clause (A) above, prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings in an amount equal to the amount of such Net Cash Proceeds. Each
such prepayment shall be applied ratably first to the Term Facility and to the
installments thereof pro rata to the remaining installments thereof and second
to the Revolving Credit Facility as set forth in clause (vi) below.
(iii) The Borrowers shall, on the date of the incurrence or issuance
by any Loan Party or any of its Subsidiaries of any Debt (other than Debt
incurred or issued pursuant to Section 5.02(b)), prepay an aggregate principal
amount of the Advances comprising part of the same Borrowings in an amount
equal to the amount of such Net Cash Proceeds. Each such prepayment shall be
applied ratably first to the Term Facility and to the installments thereof pro
rata to the remaining installments thereof and second to the Revolving Credit
Facility as set forth in clause (vi) below; provided that in the event (A) the
rating of the Index Debt is BBB- by S&P and Baa3 by Moody's or greater or (B)
the Debt/EBITDA Ratio of CBI and its Subsidiaries as of the last day of the
most recently ended fiscal quarter (after giving pro forma effect to such
Debt)
<PAGE>
is less than 4:00 to 1:00, the amount of such prepayment shall be equal to 50%
of the amount of such Net Cash Proceeds.
(iv) The Borrowers shall, on each Business Day, prepay an aggregate
principal amount of the Revolving Credit Advances comprising part of the same
Borrowings, the Letter of Credit Advances and the Swing Line Advances in an
amount equal to the amount by which (A) the sum of the aggregate principal
amount of (x) the Revolving Credit Advances, (y) the Letter of Credit Advances
and (z) the Swing Line Advances then outstanding plus the aggregate Available
Amount of all Letters of Credit then outstanding exceeds (B) the Revolving
Credit Facility on such Business Day.
(v) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral
Account to equal the amount by which the aggregate Available Amount of all
Letters of Credit then outstanding exceeds the Letter of Credit Facility on
such Business Day.
(vi) Prepayments of the Revolving Credit Facility made pursuant to
clause (i), (ii), (iii) or (iv) above shall be first applied to prepay Letter
of Credit Advances then outstanding until such Advances are paid in full,
second applied to prepay Swing Line Advances then outstanding until such
Advances are paid in full, third applied to prepay Revolving Credit Advances
then outstanding comprising part of the same Borrowings until such Advances
are paid in full and fourth deposited in the L/C Cash Collateral Account to
cash collateralize 100% of the Available Amount of the Letters of Credit then
outstanding. Upon the drawing of any Letter of Credit for which funds are on
deposit in the L/C Cash Collateral Account, such funds shall be applied to
reimburse the relevant Issuing Bank or Revolving Credit Lenders, as
applicable.
(vii) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
SECTION 2.07. Interest. (a) Scheduled Interest. Each Borrower shall
pay interest on the unpaid principal amount of each Advance owing to each
Lender from such Borrower from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of (A)
the Base Rate in effect from time to time plus (B) the Applicable Margin
in effect from time to time, payable in arrears quarterly on the last day
of each month March, June, September and December during such periods and
on the date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (A) the Eurodollar
Rate for such Interest Period for such
<PAGE>
Advance plus (B) the Applicable Margin in effect from time to time,
payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day
that occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurodollar Rate Advance
shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of a Default under 7.01(a), (e) or (f), the Borrowers shall pay interest on
(i) the unpaid principal amount of each Advance owing to each Lender, payable
in arrears on the dates referred to in clause (a)(i) or (a)(ii) above and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the amount of
any interest, fee or other amount payable under the Loan Documents that is not
paid when due, from the date such amount shall be due until such amount shall
be paid in full, payable in arrears on the date such amount shall be paid in
full and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid, in the case of interest, on the
Type of Advance on which such interest has accrued pursuant to clause (a)(i)
or (a)(ii) above and, in all other cases, on Base Rate Advances pursuant to
clause (a)(i) above.
(c) Notice of Interest Period and Interest Rate. Promptly after
receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.09 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the
Administrative Agent shall give notice to the appropriate Borrower and each
Appropriate Lender of the applicable Interest Period and the applicable
interest rate determined by the Administrative Agent for purposes of clause
(a)(i) or (a)(ii) above.
SECTION 2.08. Fees. (a) Commitment Fee. The Borrowers shall pay to
the Administrative Agent for the account of the Lenders a commitment fee, from
the date hereof in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date, payable in
arrears on the date of the initial Borrowing hereunder, thereafter quarterly
on the last day of each March, June, September and December, and on the
Termination Date, at the Commitment Fee Rate on the average daily unused
portion of each Lender's Term Commitment and on the sum of the average daily
Unused Revolving Credit Commitment of such Lender plus its Pro Rata Share of
the average daily outstanding Swing Line Advances during such quarter;
provided, however, that no commitment fee shall accrue on any of the
Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrowers shall pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last day of each March, June,
September and December, commencing December 31, 1999, and on the earliest to
occur of the full drawing, expiration, termination or cancellation of any
Letter of Credit and on the Termination Date, on such Lender's Pro Rata Share
of the average daily aggregate Available Amount during such quarter of all
Letters of Credit outstanding from time to time at the Applicable Margin from
time to time on Eurodollar Rate Advances.
<PAGE>
(ii) The Borrowers shall pay to each Issuing Bank, for its own
account, (A) a commission, payable in arrears quarterly on the last day of
each March, June, September and December, commencing December 31, 1999, and on
the Termination Date, on the average daily amount of its Letter of Credit
Commitment during such quarter, from the date hereof until the Termination
Date, at the rate of 0.25% per annum, (B) customary fees for issuance of
letters of credit for each Letter of Credit issued by such Issuing Bank in an
amount to be agreed upon between the Borrower and such Issuing Bank on the
date of issuance of such Letter of Credit, payable on such date and (C) such
other commissions, transfer fees and other fees and charges in connection with
the issuance or administration of each Letter of Credit as the Borrowers and
such Issuing Bank shall agree.
(c) Agents' Fees. The Borrowers shall pay to each Agent for its own
account such fees as may from time to time be agreed between the Borrowers and
such Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. Each Borrower
may on any Business Day, upon notice given to the Administrative Agent not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Conversion and subject to the provisions of Sections
2.07 and 2.10, Convert all or any portion of the Advances of one Type
comprising the same Borrowing made by such Borrower into Advances of the other
Type; provided, however, that any Conversion of Eurodollar Rate Advances into
Base Rate Advances shall be made only on the last day of an Interest Period
for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(c), no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(c) and
each Conversion of Advances comprising part of the same Borrowing under any
Facility shall be made ratably among the Appropriate Lenders in accordance
with their Commitments under such Facility. Each such notice of Conversion
shall, within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
such Advances. Each notice of Conversion shall be irrevocable and binding on
such Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $10,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If a Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify such Borrower and the
Appropriate Lenders, whereupon each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any Default,
(x) each Eurodollar Rate Advance will automatically, on the last day of the
then existing Interest Period
<PAGE>
therefor, Convert into a Base Rate Advance and (y) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall
be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender Party of
agreeing to make or of making, funding or maintaining Eurodollar Rate Advances
or of agreeing to issue or of issuing or maintaining or participating in
Letters of Credit or of agreeing to make or of making or maintaining Letter of
Credit Advances (excluding, for purposes of this Section 2.10, any such
increased costs resulting from (x) Taxes or Other Taxes (as to which Section
2.12 shall govern) and (y) changes in the basis of taxation of overall net
income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender Party is organized
or has its Applicable Lending Office or any political subdivision thereof),
then the Borrower shall from time to time, upon demand by such Lender Party
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost; provided,
however, that a Lender Party claiming additional amounts under this Section
2.10(a) agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need for,
or reduce the amount of, such increased cost that may thereafter accrue and
would not, in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party. A certificate as to the amount of such
increased cost, submitted to the Borrowers by such Lender Party, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender Party or any corporation controlling such Lender Party and that
the amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder and other commitments of such type or the issuance or
maintenance of or participation in the Letters of Credit (or similar
contingent obligations), then, upon demand by such Lender Party or such
corporation (with a copy of such demand to the Administrative Agent), the
Borrowers shall pay to the Administrative Agent for the account of such Lender
Party, from time to time as specified by such Lender Party, additional amounts
sufficient to compensate such Lender Party in the light of such circumstances,
to the extent that such Lender Party reasonably determines such increase in
capital to be allocable to the existence of such Lender Party's commitment to
lend or to issue or participate in Letters of Credit hereunder or to the
issuance or maintenance of or participation in any Letters of Credit. A
certificate as to such amounts submitted to the Borrowers by such Lender Party
shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed or holding not less than a majority in interest of the
then aggregate unpaid principal amount thereof notify the Administrative Agent
that the Eurodollar Rate for any
<PAGE>
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrowers and the Appropriate Lenders, whereupon (i) each such Eurodollar Rate
Advance under such Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii)
the obligation of the Appropriate Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative
Agent shall notify the Borrowers that such Lenders have determined that the
circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances
hereunder, then, on notice thereof and demand therefor by such Lender to the
Borrowers through the Administrative Agent, (i) each Eurodollar Rate Advance
under each Facility under which such Lender has a Commitment will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrowers that such Lender has determined that the
circumstances causing such suspension no longer exist; provided, however,
that, before making any such demand, such Lender agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Eurodollar Lending Office if the making
of such a designation would allow such Lender or its Eurodollar Lending Office
to continue to perform its obligations to make Eurodollar Rate Advances or to
continue to fund or maintain Eurodollar Rate Advances and would not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.11. Payments and Computations. (a) The Borrowers shall
make each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.15), not
later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at the Administrative Agent's Account in same day
funds, with payments being received by the Administrative Agent after such
time being deemed to have been received on the next succeeding Business Day.
The Administrative Agent will promptly thereafter cause like funds to be
distributed (i) if such payment by such Borrower is in respect of principal,
interest, commitment fees or any other Obligation then payable hereunder and
under the Notes to more than one Lender Party, to such Lender Parties for the
account of their respective Applicable Lending Offices ratably in accordance
with the amounts of such respective Obligations then payable to such Lender
Parties and (ii) if such payment by such Borrower is in respect of any
Obligation then payable hereunder to one Lender Party, to such Lender Party
for the account of its Applicable Lending Office, in each case to be applied
in accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 9.07(d), from and after the effective date
of such Assignment and Acceptance, the Administrative Agent shall make all
payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender Party assignee thereunder, and the
<PAGE>
parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) Each Borrower hereby authorizes each Lender Party and
each of its Affiliates, if and to the extent payment owed to such Lender Party
is not made when due hereunder or, in the case of a Lender, under the Note
held by such Lender, to charge from time to time, to the fullest extent
permitted by law, against any or all of such Borrower's accounts with such
Lender Party or such Affiliate any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate
or the Federal Funds Rate and of fees and Letter of Credit commissions shall
be made by the Administrative Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Administrative Agent of an
interest rate, fee or commission hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment
fee, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances to be
made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from
the applicable Borrower prior to the date on which any payment is due to any
Lender Party hereunder that such Borrower will not make such payment in full,
the Administrative Agent may assume that such Borrower has made such payment
in full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each such
Lender Party on such due date an amount equal to the amount then due such
Lender Party. If and to the extent such Borrower shall not have so made such
payment in full to the Administrative Agent, each such Lender Party shall
repay to the Administrative Agent forthwith on demand such amount distributed
to such Lender Party together with interest thereon, for each day from the
date such amount is distributed to such Lender Party until the date such
Lender Party repays such amount to the Administrative Agent, at the Federal
Funds Rate.
(f) If the Administrative Agent receives funds for application to
the Obligations under the Loan Documents under circumstances for which the
Loan Documents do not specify the Advances or the Facility to which, or the
manner in which, such funds are to be applied, the Administrative Agent may,
but shall not be obligated to, elect to distribute such funds to each Lender
Party ratably in accordance with such Lender Party's proportionate share of
the principal amount of all outstanding Advances and the Available Amount of
all Letters of Credit then outstanding, in repayment or prepayment of such of
the outstanding Advances or
<PAGE>
other Obligations owed to such Lender Party, and for application to such
principal installments, as the Administrative Agent shall direct.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrowers
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender Party
and each Agent, (i) taxes that are imposed on its overall net income
(including franchise taxes imposed in lieu thereof) by the United States and
taxes that are imposed on its overall net income (and franchise taxes imposed
in lieu thereof) by the state or foreign jurisdiction under the laws of which
such Lender Party or such Agent, as the case may be, is organized or in which
its principal office is located or any political subdivision thereof, (ii) in
the case of each Lender Party, taxes that are imposed on its overall net
income (and franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction of such Lender Party's Applicable Lending Office or any political
subdivision thereof and (iii) any branch profits taxes imposed by the United
States or any similar tax imposed by any other jurisdiction described in
clauses (i) or (ii) above (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If any
Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under any Note to any Lender Party or any Agent,
(i) the sum payable by such Borrower shall be increased as may be necessary so
that after such Borrower and the Administrative Agent have made all required
deductions (including deductions applicable to additional sums payable under
this Section 2.12) such Lender Party or such Agent, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make all such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performance under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrowers shall indemnify each Lender Party and each Agent
for and hold them harmless against the full amount of Taxes and Other Taxes
(including Taxes or Other Taxes imposed on amounts payable under this Section
2.12) imposed on or paid by such Lender Party or such Agent (as the case may
be) and any liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender Party or such Agent (as
the case may be) makes written demand therefor.
(d) Promptly after the date of any payment of Taxes, the Borrowers
shall furnish to the Administrative Agent, at its address referred to in
Section 9.02, the original or a certified copy of a receipt evidencing such
payment, a copy of the return reporting such payment or other evidence of such
payment reasonably satisfactory to the Administrative Agent.
<PAGE>
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender Party, on or
prior to the date of its designation of a new lending office and on the date
of the Assignment and Acceptance pursuant to which it becomes a Lender Party
in the case of each other Lender Party, and from time to time thereafter as
requested in writing by the Borrower (but only so long thereafter as such
Lender Party remains lawfully able to do so), provide each of the
Administrative Agent and the Borrower with two properly completed original
Internal Revenue Service forms 1001 or 4224 or (in the case of a Lender Party
that has certified in writing to the Administrative Agent that it is not a
"bank" as defined in Section 881(c)(3)(A) of the Internal Revenue Code)
properly completed form W-8 (and, if such Lender Party delivers a form W-8, a
properly completed certificate representing that such Lender Party is not a
"bank" for purposes of Section 881(c) of the Internal Revenue Code, is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of either Borrower and is not a controlled foreign
corporation related to such Borrower (within the meaning of Section 864(d)(4)
of the Internal Revenue Code)), as appropriate, or any properly completed
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender Party is exempt from or entitled to a reduced rate of United
States withholding tax on payments pursuant to this Agreement or the Notes or,
in the case of a Lender Party providing a form W-8, certifying that such
Lender Party is a foreign corporation, partnership, estate or trust. If the
forms provided by a Lender Party at the time such Lender Party first becomes a
party to this Agreement (or designates a new lending office) accurately
indicate a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless
and until such Lender Party provides the appropriate forms accurately
certifying that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes for periods governed
by such forms; provided, however, that if, at the effective date of the
Assignment and Acceptance pursuant to which a Lender Party becomes a party to
this Agreement, the Lender Party assignor was entitled to payments under
subsection (a) of this Section 2.12 in respect of United States withholding
tax with respect to interest paid at such date, then, to such extent, the term
Taxes shall include (in addition to withholding taxes that may be imposed in
the future or other amounts otherwise includable in Taxes) United States
withholding tax, if any, applicable with respect to the Lender Party assignee
on such date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by
Internal Revenue Service form 1001, 4224 or W-8 (or the related certificate
described above), that the applicable Lender Party reasonably considers to be
confidential, such Lender Party shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender Party has failed
to provide such Borrower with the appropriate form described in subsection (e)
above (other than if such failure is due to a change in law occurring after
the date on which a form originally was required to be provided (but only so
long as such Lender Party is not lawfully able to provide such form) or if
such form otherwise is not required under subsection (e) above), such Lender
Party shall not be entitled to indemnification under subsection (a) or (c) of
this Section 2.12 with respect to Taxes imposed by the United States by reason
of such failure; provided, however, that should a
<PAGE>
Lender Party become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as such Lender Party
shall reasonably request to assist such Lender Party to recover such Taxes.
(g) In the event that an additional payment is made under Section
2.12 for the account of any Lender Party and such Lender Party, in its sole
opinion, determines that it has finally and irrevocably received or been
granted a refund in respect of any Taxes or Other Taxes paid pursuant to this
Section 2.12, such Lender Party shall promptly remit such refund to the
Borrowers, net of all out-of-pocket expenses of Lender Party; provided,
however, that the Borrowers, upon request of such Lender Party, agree to
promptly return such refund to such Lender Party in the event such Lender
Party is required to repay such refund to the relevant taxing authority.
Nothing contained herein shall interfere with the right of a Lender Party to
arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender
Party to apply for any refund or to disclose any information relating to its
tax affairs or any computations in respect thereof.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 9.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder and under the
Notes at such time obtained by all the Lender Parties at such time or (b) on
account of Obligations owing (but not due and payable) to such Lender Party
hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations owing to
such Lender Party at such time to (ii) the aggregate amount of the Obligations
owing (but not due and payable) to all Lender Parties hereunder and under the
Notes at such time) of payments on account of the Obligations owing (but not
due and payable) to all Lender Parties hereunder and under the Notes at such
time obtained by all of the Lender Parties at such time, such Lender Party
shall forthwith purchase from the other Lender Parties such interests or
participating interests in the Obligations due and payable or owing to them,
as the case may be, as shall be necessary to cause such purchasing Lender
Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender
Party's ratable share (according to the proportion of (i) the purchase price
paid to such Lender Party to (ii) the aggregate purchase price paid to all
Lender Parties) of such recovery together with an amount equal to such Lender
Party's ratable share (according to the proportion of (i) the amount of such
other Lender Party's required repayment to (ii) the total amount so recovered
from the purchasing Lender Party) of any interest or other amount paid or
payable by the purchasing Lender Party in respect of the total amount so
recovered; provided further that, so long as the Obligations under the Loan
Documents shall not have been accelerated, any excess payment received by any
Appropriate Lender shall be shared on a pro rata basis only with other
Appropriate Lenders. Each Borrower
<PAGE>
agrees that any Lender Party so purchasing an interest or participating
interest from another Lender Party pursuant to this Section 2.13 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such interest or participating interest,
as the case may be, as fully as if such Lender Party were the direct creditor
of such Borrower in the amount of such interest or participating interest, as
the case may be.
SECTION 2.14. Use of Proceeds. The proceeds of the Term Advances
shall be available (and each Borrower agrees that it shall use such proceeds)
as follows: (i) by IXCS solely to refinance Existing Debt, including the June
IXCS Agreement, to fund Capital Expenditures, to pay transaction fees and
expenses and other general corporate purposes, in each case, to the extent
permitted hereunder and under applicable Surviving Debt documents and to
repurchase the IXC Senior Subordinated Notes; and (ii) by CBI solely to
refinance the BofA Credit Agreement, to pay transaction fees and expenses, to
make equity contributions and intercompany loans to the Company and its
Subsidiaries, to enable the Company to refinance certain Existing Debt and to
repurchase the IXC Senior Subordinated Notes and for other general corporate
purposes, in each case, to the extent permitted hereunder and under applicable
Surviving Debt documents. The proceeds of the Revolving Credit Advances and
issuances of Letters of Credit shall be available (and each Borrower agrees
that it shall use such proceeds and Letters of Credit) solely to fund Capital
Expenditures, to make equity contributions and intercompany loans to the
Company and its Subsidiaries and for other general corporate purposes, in each
case, to the extent permitted hereunder and under the applicable Surviving
Debt documents. Each Borrower agrees that any Advances under this Agreement to
finance Capital Expenditures of IXCS or any of its Subsidiaries shall be
financed with Advances made to IXCS under this Agreement instead of Advances
to CBI, subject to availability hereunder and, with respect to "Unrestricted
Subsidiaries" (as defined in the Certificate of Designation or the IXC 9%
Indenture), to the extent covenants in agreements governing existing
indebtedness and charter provisions permit such Capital Expenditure to be
financed by borrowings of IXCS and not CBI.
SECTION 2.15. Defaulting Lenders. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to any Borrower and (iii) such Borrower
shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then such Borrower
may, so long as no Default shall occur or be continuing at such time and to
the fullest extent permitted by applicable law, set off and otherwise apply
the Obligation of such Borrower to make such payment to or for the account of
such Defaulting Lender against the obligation of such Defaulting Lender to
make such Defaulted Advance. In the event that, on any date, the applicable
Borrower shall so set off and otherwise apply its obligation to make any such
payment against the obligation of such Defaulting Lender to make any such
Defaulted Advance on or prior to such date, the amount so set off and
otherwise applied by such Borrower shall constitute for all purposes of this
Agreement and the other Loan Documents an Advance by such Defaulting Lender
made on the date of such setoff under the Facility pursuant to which such
Defaulted Advance was originally required to have been made pursuant to
Section 2.01. Such Advance shall be considered, for all purposes of this
Agreement, to comprise part of the Borrowing in connection with which such
Defaulted Advance was originally required to have been made pursuant to
Section 2.01, even if the other Advances comprising such Borrowing
<PAGE>
shall be Eurodollar Rate Advances on the date such Advance is deemed to be
made pursuant to this subsection (a). Such Borrower shall notify the
Administrative Agent at any time such Borrower exercises its right of set-off
pursuant to this subsection (a) and shall set forth in such notice (A) the
name of the Defaulting Lender and the Defaulted Advance required to be made by
such Defaulting Lender and (B) the amount set off and otherwise applied in
respect of such Defaulted Advance pursuant to this subsection (a). Any portion
of such payment otherwise required to be made by such Borrower to or for the
account of such Defaulting Lender which is paid by such Borrower, after giving
effect to the amount set off and otherwise applied by such Borrower pursuant
to this subsection (a), shall be applied by the Administrative Agent as
specified in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to any Agent or any of the other Lender Parties and (iii) the
applicable Borrower shall make any payment hereunder or under any other Loan
Document to the Administrative Agent for the account of such Defaulting
Lender, then the Administrative Agent may, on its behalf or on behalf of such
other Agents or such other Lender Parties and to the fullest extent permitted
by applicable law, apply at such time the amount so paid by such Borrower to
or for the account of such Defaulting Lender to the payment of each such
Defaulted Amount to the extent required to pay such Defaulted Amount. In the
event that the Administrative Agent shall so apply any such amount to the
payment of any such Defaulted Amount on any date, the amount so applied by the
Administrative Agent shall constitute for all purposes of this Agreement and
the other Loan Documents payment, to such extent, of such Defaulted Amount on
such date. Any such amount so applied by the Administrative Agent shall be
retained by the Administrative Agent or distributed by the Administrative
Agent to such other Agents or such other Lender Parties, ratably in accordance
with the respective portions of such Defaulted Amounts payable at such time to
the Administrative Agent, such other Agents and such other Lender Parties and,
if the amount of such payment made by such Borrower shall at such time be
insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent, such other Agents and such other Lender Parties, in the
following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to
them, in their capacities as such, ratably in accordance with such
respective Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Banks and the Swing Line Banks for any
Defaulted Amounts then owing to them, in their capacities as such,
ratably in accordance with such respective Defaulted Amounts then owing
to the Issuing Banks and the Swing Line Banks; and
(iii) third, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by such Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this
<PAGE>
subsection (b), shall be applied by the Administrative Agent as specified in
subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) any Borrower, any Agent or any other
Lender Party shall be required to pay or distribute any amount hereunder or
under any other Loan Document to or for the account of such Defaulting Lender,
then the Borrower or such Agent or such other Lender Party shall pay such
amount to the Administrative Agent to be held by the Administrative Agent, to
the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable law,
hold in escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this subsection (c) shall be deposited by
the Administrative Agent in an account with Citibank, in the name and under
the control of the Administrative Agent, but subject to the provisions of this
subsection (c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time
to time, shall be Citibank's standard terms applicable to escrow accounts
maintained with it. Any interest credited to such account from time to time
shall be held by the Administrative Agent in escrow under, and applied by the
Administrative Agent from time to time in accordance with the provisions of,
this subsection (c). The Administrative Agent shall, to the fullest extent
permitted by applicable law, apply all funds so held in escrow from time to
time to the extent necessary to make any Advances required to be made by such
Defaulting Lender and to pay any amount payable by such Defaulting Lender
hereunder and under the other Loan Documents to the Administrative Agent or
any other Lender Party, as and when such Advances or amounts are required to
be made or paid and, if the amount so held in escrow shall at any time be
insufficient to make and pay all such Advances and amounts required to be made
or paid at such time, in the following order of priority:
(i) first, to the Agents for any amounts then due and payable by
such Defaulting Lender to them hereunder, in their capacities as such,
ratably in accordance with such respective amounts then due and payable
to the Agents;
(ii) second, to the Issuing Banks and the Swing Line Banks for any
amounts then due and payable to them hereunder, in their capacities as
such, by such Defaulting Lender, ratably in accordance with such
respective amounts then due and payable to the Issuing Banks and the
Swing Line Banks;
(iii) third, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable
to such other Lender Parties; and
(iv) fourth, to the Borrowers for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender
<PAGE>
Party and applied by such Lender Party to the Obligations owing to such Lender
Party at such time under this Agreement and the other Loan Documents ratably
in accordance with the respective amounts of such Obligations outstanding at
such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that any Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and that any Agent or any Lender Party may have against such Defaulting Lender
with respect to any Defaulted Amount.
SECTION 2.16. Evidence of Debt. (a) Each Lender Party shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Advance owing
to such Lender Party from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder. Each
Borrower agrees that upon notice by any Lender Party to such Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a
promissory note or other evidence of indebtedness is required or appropriate
in order for such Lender Party to evidence (whether for purposes of pledge,
enforcement or otherwise) the Advances owing to, or to be made by, such Lender
Party, such Borrower shall promptly execute and deliver to such Lender Party,
with a copy to the Administrative Agent, a Revolving Credit Note and a Term
Note, as applicable, in substantially the form of Exhibits A-1 and A-2 hereto,
respectively, payable to the order of such Lender Party in a principal amount
equal to the Revolving Credit Commitment and the Term Commitment,
respectively, of such Lender Party. All references to Notes in the Loan
Documents shall mean Notes, if any, to the extent issued hereunder.
(b) The Register maintained by the Administrative Agent pursuant to
Section 9.07(d) shall include a control account, and a subsidiary account for
each Lender Party, in which accounts (taken together) shall be recorded (i)
the Borrower and the date and amount of each Borrowing made hereunder, the
Type of Advances comprising such Borrowing and, if appropriate, the Interest
Period applicable thereto, (ii) the terms of each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or interest
due and payable or to become due and payable from such Borrower to each Lender
Party hereunder, and (iv) the amount of any sum received by the Administrative
Agent from such Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender Party in its
account or accounts pursuant to subsection (a) above, shall be prima facie
evidence of the amount of principal and interest due and payable or to become
due and payable from each Borrower to, in the case of the Register, each
Lender Party and, in the case of such account or accounts, such Lender Party,
under this Agreement, absent manifest error; provided, however, that the
failure of the Administrative Agent or such Lender Party to make an entry, or
any finding that an entry is incorrect, in the Register or such account or
accounts shall not limit or otherwise affect the obligations of the Borrowers
under this Agreement.
<PAGE>
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit.
The obligation of each Lender to make an Advance or of any Issuing Bank to
issue a Letter of Credit on the occasion of the Initial Extension of Credit
hereunder is subject to the satisfaction of the following conditions precedent
before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the
day of the Initial Extension of Credit the following, each dated such day
(unless otherwise specified), in form and substance satisfactory to the
Agents (unless otherwise specified) and (except for the Notes) in
sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders that have
requested Notes prior to the Effective Date.
(ii) A security agreement from (a) CBI in substantially the
form of Exhibit D-1 hereto (the "Shared Collateral Security
Agreement") and (b) the other Loan Parties in substantially the form
of Exhibit D-2 hereto (the "Non-Shared Collateral Security
Agreement"; together with the Shared Collateral Security Agreement,
each other security agreement and security agreement supplement
delivered pursuant to Section 5.01(j), in each case as amended, the
"Security Agreements"), duly executed by each Loan Party party
thereto, together with:
(A) certificates representing the Pledged Shares referred
to therein accompanied by undated stock powers executed in
blank and instruments evidencing the Pledged Debt referred to
therein indorsed in blank,
(B) proper financing statements (Form UCC-1 or a
comparable form) or the equivalent thereof under the Uniform
Commercial Code to be filed in the legal name of each required
Loan Party with the Secretary of State in the state where such
Loan Party maintains its chief executive office in order to
perfect and protect the first priority liens and security
interests created under the Security Agreements, covering the
Collateral described in the Security Agreements, in each case
completed in a manner satisfactory to Agents and duly executed
by the required Loan Party,
(C) completed requests for information, dated on or before
the date of the Initial Extension of Credit, listing all
effective financing statements filed in the jurisdictions
referred to in clause (B) above that name any Loan Party as
debtor, together with copies of such other financing
statements,
<PAGE>
(D) evidence of the completion of all other recordings and
filings of or with respect to the Security Agreements that the
Administrative Agent may deem necessary or desirable in order
to perfect and protect the Liens created thereby,
(E) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and
protect the first priority liens and security interests created
under the Security Agreements has been taken (including,
without limitation, receipt of duly executed payoff letters and
UCC-3 termination statements).
(iii) A guaranty from (a) the Subsidiary Guarantors who have
guaranteed the Obligations of IXCS and its Subsidiaries under the
Loan Documents (the "IXCS Subsidiary Guaranty") and (b) the
Subsidiary Guarantors who have guaranteed the Obligations of CBI and
its Subsidiaries under the Loan Documents (the "CBI Subsidiary
Guaranty"), in each case, in substantially the form of Exhibit E
hereto (together with each other guaranty and guaranty supplement
delivered pursuant to Section 5.01(j), in each case as amended, the
"Subsidiary Guaranties"), duly executed by each Subsidiary Guarantor
party thereto.
(iv) Certified copies of the resolutions of the Board of
Directors (or persons performing similar functions), or, in the case
of wholly owned Subsidiaries, action by unanimous written consent of
the sole shareholder, of each Loan Party approving the Transaction
and each Transaction Document to which it is or is to be a party,
the consummation of each aspect of the Transaction involving or
affecting such Loan Party and the other transactions contemplated by
any of the foregoing, and of all documents evidencing other
necessary corporate action and governmental and other third party
approvals, consents, authorizations, notices and filings of actions
with respect to the Transaction and each Transaction Document to
which it is or is to be a party (other than the approvals by certain
state public utility commissions listed in the attached Schedule
4.01(d) that have not been obtained as of the date hereof but the
failure to obtain such approvals either individually or in the
aggregate could not be expected to have a Material Adverse Effect).
(v) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation (or organization) of each Loan Party,
dated reasonably near the date of the Initial Extension of Credit,
certifying (A) as to a true and correct copy of the charter (or
similar constitutive document) of such Loan Party and each amendment
thereto on file in such Secretary's office and (B) that (1) such
amendments are the only amendments to such Loan Party's charter on
file in such Secretary's office, (2) such Loan Party has paid all
franchise taxes to the date of such certificate and (C) such Loan
Party is duly incorporated (or organized) and in good standing or
presently subsisting under the laws of the State of the jurisdiction
of its incorporation (or organization).
<PAGE>
(vi) A copy of a certificate of the Secretary of State of each
jurisdiction in which a Loan Party is qualified or licensed as a
foreign corporation or limited liability company, dated reasonably
near the date of the Initial Extension of Credit, stating that such
Loan Party is duly qualified and in good standing as a foreign
corporation or limited liability company, as the case may be, in
such State and has filed all annual reports required to be filed to
the date of such certificate.
(vii) A certificate of each Loan Party, signed on behalf of
such Loan Party by its President or a Vice President or Treasurer
and its Secretary or any Assistant Secretary (or persons performing
similar functions), dated the date of the Initial Extension of
Credit (the statements made in which certificate shall be true on
and as of the date of the Initial Extension of Credit), certifying
as to (A) the absence of any amendments to the charter, articles of
incorporation or certificate of formation, as applicable, of such
Loan Party since the date of the Secretary of State's certificate
referred to in Section 3.01(a)(v), (B) a true and correct copy of
the bylaws or limited liability company agreement, as applicable, of
such Loan Party as in effect on the date on which the resolutions,
or actions by written consent, as applicable, referred to in Section
3.01(a)(iv) were adopted and on the date of the Initial Extension of
Credit, (C) no proceeding for dissolution or liquidation of such
Loan Party has been commenced by such Loan Party, (D) the truth of
the representations and warranties contained in the Loan Documents
as they relate to such Loan Party as though made on and as of the
date of the Initial Extension of Credit (except to the extent they
expressly relate to an earlier date, in which case certifying that
such representations and warranties are true and correct as of such
earlier date) and (E) the absence of any event relating to such Loan
Party occurring and continuing, or reasonably expected to result
from the Initial Extension of Credit, that constitutes a Default.
(viii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers, partners, members or equivalent persons of such Loan Party
authorized to sign each Transaction Document to which it is or is to
be a party and the other documents to be delivered hereunder and
thereunder.
(ix) Certified copies of each of the Related Documents, duly
executed by the parties thereto and in form and substance
satisfactory to the Lender Parties, together with all agreements,
instruments and other documents delivered in connection therewith as
the Administrative Agent shall request.
(x) Certified copies of a certificate of merger or other
confirmation satisfactory to the Agents of the consummation of the
Merger from the Secretary of State of the State of Delaware.
(xi) Certificates and letters, in form and substance reasonably
satisfactory to the Lender Parties, attesting to the Solvency of CBI
and its Subsidiaries on a Consolidated basis before and after giving
effect to the
<PAGE>
Transaction (and the incurrence of indebtedness related thereto)
from the Chief Financial Officer of CBI.
(xii) Certified copies of all of the agreements, instruments
and other documents evidencing or setting forth the terms and
conditions of Surviving Debt that is outstanding or has commitments
for the extension of credit on the Effective Date in an aggregate
amount of at least $1,000,000 in each case, duly executed by the
parties thereto together with all Exhibits and Schedules thereto.
(xiii) Such financial, business and other information regarding
each Loan Party and its Subsidiaries as the Agents shall have
reasonably requested, including, without limitation, information as
to possible contingent liabilities, tax matters, environmental
matters, obligations under Plans, Multiemployer Plans and Welfare
Plans, collective bargaining agreements and other arrangements with
employees, and copies, certified by a Responsible Officer of the
Borrower of
(A) audited consolidated balance sheets and related
statements of income, stockholders equity and cash flows of
each Borrower for the fiscal years ended December 31, 1994,
December 31, 1995, December 31, 1996, December 31, 1997,
December 31, 1998,
(B) the unaudited consolidated and, to the extent
available, consolidating balance sheets and related financial
statements of each Borrower for each completed fiscal quarter
since the date of the audited financial statements,
(C) pro forma consolidated and, to the extent available,
consolidating balance sheet of CBI as of September 30, 1999
after giving effect to the Merger and the making of the
Advances hereunder, together and
(D) forecasts prepared by management of the CBI, in form
and substance satisfactory to the Lender Parties, of balance
sheets, income statements and cash flow statements on a
quarterly and annual basis for the Company and CBI for the
first year following the day of the Initial Extension of Credit
and on an annual basis for each year thereafter until the
Termination Date.
(xiv) A certificate of a Responsible Officer of CBI that
shortly before and immediately after giving pro forma effect to the
Transaction, CBI and its Subsidiaries will be in compliance with
Section 5.04.
(xv) Certified copies of all Material Contracts of each Loan
Party and its Subsidiaries.
<PAGE>
(xvi) A Notice of Borrowing or Notice of Issuance, as
applicable, relating to the Initial Extension of Credit.
(xvii) Favorable opinions of Cravath, Swaine & Moore, with
respect to the Loan Documents, Frost & Jacobs, with respect to the
CBI entities (excluding those issues addressed in the Steptoe &
Johnson opinion), Steptoe & Johnson, with respect to certain
regulatory issues related to the CBI entities, Riordan & McKinzie,
with respect to the IXC entities (excluding those issues addressed
in the Reboul, MacMurray, Hewitt, Maynard & Kristol opinion),
Reboul, MacMurray, Hewitt, Maynard & Kristol, with respect to
regulatory issues related to the IXC entities, and Graves,
Doughterty, Hearn & Moody, with respect to issues relating to the
Uniform Commercial Code of the State of Texas, in the form
reasonably acceptable to the Agents.
(xviii) A favorable tax opinion of Riordan & McKinzie, counsel
for IXC, and a favorable opinion Thomas E. Taylor, Esq., General
Counsel to CBI, delivered in connection with the Merger, which
opinion is either (A) addressed to the Agents and the Lender Parties
and expressly states that the Agents and the Lender Parties may rely
on such opinion or (B) accompanied by a reliance letter from such
counsel addressed to the Agents and the Lender Parties that
expressly states that the Agents and the Lender Parties may rely on
such opinion.
(xix) A favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
(b) The Lender Parties shall be reasonably satisfied with the
organizational and legal structure and capitalization of each Loan Party
and each of its Subsidiaries in which the Equity Interest in such
Subsidiaries is being pledged pursuant to the Loan Documents, including
the terms and conditions of the charter, bylaws and each class of Equity
Interest in each Loan Party and each such Subsidiary and of each
agreement or instrument relating to such structure or capitalization.
(c) The Lender Parties shall be satisfied that all Existing Debt
listed on Schedule 4.01(s) has been prepaid, redeemed or defeased in full
(or scheduled for payment, redemption or defeasance as set forth on
Schedule 4.01(s)) or otherwise satisfied and extinguished and that all
Surviving Debt shall be on terms and conditions reasonably satisfactory
to the Lender Parties.
(d) Before giving effect and immediately after giving pro forma
effect to the Transaction, there shall have occurred no Material Adverse
Change since December 31, 1998, except as disclosed in the Form S-4 of
CBI filed with the Securities and Exchange Commission on September 13,
1999.
(e) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending
or, to the best knowledge of
<PAGE>
any Loan Party or any of its Subsidiaries, threatened before any court,
governmental agency or arbitrator that (i) could be reasonably likely to
have a Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of any Transaction Document except for the
matters described in Schedule 4.01(f) hereto (the "Disclosed
Litigation"), as they relate to the Merger or the consummation of the
Transaction; and there shall have been no material adverse change in the
status, or the reasonably anticipated financial effect on any Loan Party
or any of its Subsidiaries, of such Disclosed Litigation from that
described on Schedule 4.01(f) hereto.
(f) All governmental and third party consents and approvals and
authorizations of, notices and filings to or with, and other actions by
any other Person necessary in connection with any aspect of the
Transaction, any of the Loan Documents or the Related Documents or any of
the other transactions contemplated thereby, shall have been obtained
(without the imposition of any conditions that are not acceptable to the
Lender Parties) and shall remain in effect (other than the approvals by
certain state public utility commissions listed in the attached Schedule
4.01(d) that have not been obtained as of the date hereof but the failure
to obtain such approvals either individually or in the aggregate could
not be expected to have a Material Adverse Effect); all applicable
waiting periods in connection with the Transaction shall have expired
without any action being taken by any competent authority, and no law or
regulation shall be applicable in the judgment of the Lender Parties, in
each case that restrains, prevents or imposes materially adverse
conditions upon the Transaction or the rights of the Loan Parties or
their Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by any
of them.
(g) The Lender Parties shall have completed a due diligence
investigation of CBI, the Company and their respective Subsidiaries in
scope, and with results, satisfactory to the Lender Parties, and nothing
shall have come to the attention of the Lender Parties during the course
of such due diligence investigation to lead them to believe (i) that the
Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect, (ii) that, following the consummation
of the Merger, the Borrower and its Subsidiaries would not have good and
marketable title to all material assets of the Company and its
Subsidiaries reflected in the Information Memorandum and (iii) that the
Merger will not have a Material Adverse Effect on any Loan Party or any
of its Subsidiaries; without limiting the generality of the foregoing,
the Lender Parties shall have been given such access to the management,
records, books of account, contracts and properties of CBI, the Company
and their respective Subsidiaries as they shall have requested.
(h) The Borrower shall have paid all accrued fees of the Agents and
the Lender Parties and all accrued expenses of the Agents (including the
reasonable accrued fees and expenses of counsel to the Administrative
Agent to the Lender Parties).
(i) The Merger shall have been consummated on terms and conditions
reasonably satisfactory to the Lenders and in compliance with applicable
law and regulatory approvals, and each of the Lenders shall be satisfied
in all respects with the
<PAGE>
structure, terms and conditions of the Merger, and there shall not have
been any material modification, amendment, supplement or waiver to the
Merger Agreement, that could adversely affect the Lenders in any material
respect including, without limitation, any modification, amendment,
supplement or waiver relating to (A) the amount or type of consideration
to be paid in connection with the Merger and the other parts of the
Transaction and all related tax, legal and accounting matters and (B) the
capitalization, structure and equity ownership of CBI, the Company and
its Subsidiaries after giving effect to the Transaction.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance
and Renewal. The obligation of each Appropriate Lender to make an Advance
(other than a Letter of Credit Advance made by an Issuing Bank or a Revolving
Credit Lender pursuant to Section 2.03(c) and a Swing Line Advance made by a
Revolving Credit Lender pursuant to Section 2.02(b)) on the occasion of each
Borrowing (including the initial Borrowing), and the obligation of each
Issuing Bank to issue a Letter of Credit (including the initial issuance) or
renew a Letter of Credit and the right of any Borrower to request a Swing Line
Borrowing, shall be subject to the further conditions precedent that on the
date of such Borrowing or issuance or renewal (a) the following statements
shall be true (and each of the giving of the applicable Notice of Borrowing,
Notice of Swing Line Borrowing, Notice of Issuance or Notice of Renewal and
the acceptance by such Borrower of the proceeds of such Borrowing or of such
Letter of Credit or the renewal of such Letter of Credit shall constitute a
representation and warranty by such Borrower that both on the date of such
notice and on the date of such Borrowing or issuance or renewal such
statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date, before and after giving
effect to such Borrowing or issuance or renewal as though made on and as
of such date; and
(ii) no Default has occurred and is continuing, or would result from
such Borrowing or issuance or renewal or from the application of the
proceeds therefrom;
and (b) the Administrative Agent shall have received such other certificates,
opinions and other documents as any Appropriate Lender through the
Administrative Agent may reasonably request in order to confirm (i) the
accuracy of such Borrower's representations and warranties, (ii) such
Borrower's timely compliance with the terms, covenants and agreements set
forth in this Agreement and (iii) the absence of any Default.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to
be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender
Parties unless an officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice
from such Lender Party prior to the Initial Extension of Credit specifying its
objection thereto and, if the Initial Extension of Credit consists of a
Borrowing, such Lender Party shall not have made available to the
Administrative Agent such Lender Party's ratable portion of such Borrowing.
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is a
corporation or limited liability company duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
organization, (ii) is duly qualified and in good standing as a foreign
corporation or limited liability company in each other jurisdiction in
which it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so
qualify or be licensed could not be reasonably likely to have a Material
Adverse Effect and (iii) has all requisite power and authority
(including, without limitation, all governmental licenses, permits and
other approvals) to own or lease and operate its properties and to carry
on its business as now conducted and as proposed to be conducted. Each of
the Loan Parties has all of the requisite power and authority, and the
legal right, to execute and deliver each of the Loan Documents and the
Related Documents to which it is or is to be a party, to perform all of
its Obligations hereunder and thereunder and to consummate the
Transaction and all of the other transactions contemplated hereby and
thereby.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party, showing as of the date
hereof (as to each such Subsidiary) the jurisdiction of its organization,
the number and type of each class of its Equity Interests authorized, and
the number outstanding, on the date hereof and the percentage of each
such class of its Equity Interests owned (directly or indirectly) by such
Loan Party and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the date
hereof. All of the outstanding Equity Interests in each Loan Party's
Subsidiaries has been validly issued, are fully paid and non-assessable
and are owned by such Loan Party or one or more of its Subsidiaries free
and clear of all Liens, except those created under the Collateral
Documents.
(c) The execution, delivery and performance by each Loan Party of
each Transaction Document to which it is or is to be a party, and the
consummation of the Transaction, are within such Loan Party's corporate
powers, have been duly authorized by all necessary corporate action, and
do not (i) contravene such Loan Party's charter or bylaws, (ii) violate
any law, 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, (iii) other than
Debt scheduled for repayment on the date of the Initial Extension of
Credit, conflict with or result in the breach of, or constitute a default
or, except as set forth in the attached Schedule 4.01(c)(iii), require
any payment to be made under, any contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or
affecting any Loan Party, any of its
<PAGE>
Subsidiaries or any of their properties or (iv) except for the Liens
created under the Loan Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of
any Loan Party or any of its Subsidiaries. No Loan Party or any of its
Subsidiaries is in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or in breach
of any such contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument, the violation or breach of which could have a
Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for (i) the due execution, delivery,
recordation, filing or performance by any Loan Party of any Transaction
Document to which it is or is to be a party, or for the consummation of
the Transaction, (ii) the grant by any Loan Party of the Liens granted by
it pursuant to the Collateral Documents, (iii) the perfection or
maintenance of the Liens created under the Collateral Documents
(including the first priority nature thereof) or (iv) the exercise by any
Agent or any Lender Party of its rights under the Loan Documents or the
remedies in respect of the Collateral pursuant to the Collateral
Documents, except for the authorizations, approvals, actions, notices and
filings listed on Schedule 4.01(d) hereto, all of which have been duly
obtained, taken, given or made and are in full force and effect (other
than the approvals by certain state public utility commissions listed in
the attached Schedule 4.01(d) that have not been obtained as of the date
hereof but the failure to obtain such approvals either individually or in
the aggregate could not be expected to have a Material Adverse Effect).
Notwithstanding the foregoing, it is understood that (i) no regulatory
approvals have been obtained in connection with (x) the pledge of shares
of any regulated entity or (y) the granting of additional collateral in
certain circumstances as contemplated by Section 5.01(j)(I) and (ii) as
of the date hereof no regulatory approvals have been obtained or are
being sought in connection with the possible exercise of remedies under
this Agreement or any of the Collateral Documents. All applicable waiting
periods in connection with the Transaction have expired without any
action having been taken by any competent authority restraining,
preventing or imposing materially adverse conditions upon the Transaction
or the rights of the Loan Parties or their Subsidiaries freely to
transfer or otherwise dispose of, or to create any Lien on, any
properties now owned or hereafter acquired by any of them. The
acquisition and the Merger have been consummated in accordance with the
Merger Agreement and applicable law.
(e) This Agreement has been, and each other Transaction Document
when delivered hereunder will have been, duly executed and delivered by
each Loan Party party thereto. This Agreement is, and each other
Transaction Document when delivered hereunder will be, the legal, valid
and binding obligation of each Loan Party party thereto, enforceable
against such Loan Party in accordance with its terms.
(f) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending
or, to the best knowledge of any Loan Party, threatened before any court,
governmental agency or arbitrator of any kind that (i) either
individually or in the aggregate, could be reasonably likely to have a
Material
<PAGE>
Adverse Effect or (ii) in which there is a reasonable likelihood of an
adverse determination and which purports to affect the legality, validity
or enforceability of any Transaction Document or the consummation of the
Transaction, any of the Loan Documents or the Related Documents or any of
the other transactions contemplated hereby.
(g) The Consolidated balance sheets of CBI, the Company and their
respective Subsidiaries as at December 31, 1998, and the related
Consolidated and consolidating, if any, statements of income and
Consolidated statement of cash flows of the CBI, the Company and their
respective Subsidiaries for the fiscal year then ended, accompanied by an
unqualified opinion of PriceWaterhouseCoopers, LLP independent public
accountants, and the Consolidated and consolidating, if any, balance
sheets of CBI, the Company and their respective Subsidiaries as at June
30, 1999, and the related Consolidated and consolidating statements of
income and Consolidated statement of cash flows of CBI, the Company and
their respective Subsidiaries for the six months then ended, duly
certified by the Chief Financial Officer of CBI and the Company,
respectively, copies of which have been furnished to each Lender Party,
fairly present the Consolidated and consolidating financial condition of
CBI, the Company and their respective Subsidiaries as at such dates and
the Consolidated and consolidating results of operations of CBI, the
Company and their respective Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accounting principles
applied on a consistent basis, and since December 31, 1998, there has
been no Material Adverse Change except as disclosed in the Form S-4 of
CBI filed with the Securities and Exchange Commission on September 13,
1999.
(h) The Consolidated pro forma balance sheet of CBI and its
Subsidiaries as at the Closing Date, and the related Consolidated and
consolidating pro forma statements of income and cash flows of CBI and
its Subsidiaries for the nine months then ended, certified by the Chief
Financial Officer of CBI, copies of which have been furnished to each
Lender Party, fairly present the Consolidated and consolidating pro forma
financial condition of CBI and its Subsidiaries as at such date and the
Consolidated and consolidating pro forma results of operations of CBI and
its Subsidiaries for the period ended on such date, in each case giving
effect to the Transaction, all in accordance with GAAP.
(i) The Consolidated and consolidating forecasted balance sheets,
statements of income and statements of cash flows of CBI and its
Subsidiaries delivered to the Lender Parties pursuant to Section
3.01(a)(xiii) or 5.03 were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, CBI's best estimate of its future
financial performance.
(j) Neither the Information Memorandum nor any other information,
exhibit or report furnished by or on behalf of any Loan Party to any
Agent or any Lender Party in connection with the negotiation and
syndication of the Loan Documents or pursuant to the terms of the Loan
Documents contained any untrue statement of a material fact or
<PAGE>
omitted to state a material fact necessary to make the statements made
therein not misleading.
(k) No Borrower is engaged in the business of extending credit for
the purpose of purchasing or carrying Margin Stock, and following the
application of the proceeds of each Advance or drawing under each Letter
of Credit, not more than 25% of the value of the assets (of CBI and its
Subsidiaries on a Consolidated basis) subject to the provisions of
Section 5.02(a) or 5.02(e) or subject to any restriction contained in any
agreement or instrument between CBI and any Lender Party or any Affiliate
of any Lender Party relating to Debt within the scope of 7.01(e) will be
Margin Stock. For purposes of this Section 4.01(k), "assets" of CBI or
any of its Subsidiaries includes, without limitation, treasury stock of
CBI that has not been retired.
(l) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any
Loan Party nor any of its Subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935,
as amended. Neither the making of any Advances, nor the issuance of any
Letters of Credit, nor the application of the proceeds or repayment
thereof by such Borrower, nor the consummation of the other transactions
contemplated by the Transaction Documents, will violate any provision of
any such Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder.
(m) Neither any Loan Party nor any of its Subsidiaries is a party to
any indenture, loan or credit agreement or any lease or other agreement
or instrument or subject to any charter or corporate restriction that
could have a Material Adverse Effect.
(n) All filings and other actions necessary or desirable to perfect
and protect the security interest in the Collateral created under the
Collateral Documents have been duly made or taken and are in full force
and effect, and the Collateral Documents create in favor of the
Administrative Agent for the benefit of the Secured Parties a valid and,
together with such filings and other actions, perfected first priority
security interest in the Collateral, securing the payment of the Secured
Obligations, and all filings and other actions necessary or desirable to
perfect and protect such security interest have been duly taken. The Loan
Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the liens and security interests created or
permitted under the Loan Documents.
(o) Each of the Borrowers and CBI together with its Subsidiaries, on
a consolidated basis, is Solvent.
<PAGE>
(p) (i) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan that has resulted in or is reasonably
expected to have a Material Adverse Effect on any Loan Party or any ERISA
Affiliate.
(ii) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed
with the Internal Revenue Service and furnished or made available to the
Lender Parties, is complete and accurate in all material respects and
fairly presents the funding status of such Plan, and since the date of
such Schedule B there has been no material adverse change in such funding
status.
(iii) Neither any Loan Party nor any ERISA Affiliate has incurred or
to the best knowledge of any Loan Party or any ERISA Affiliate is
reasonably expected to incur any Withdrawal Liability in respect of any
Multiemployer Plan.
(iv) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan to the best knowledge
of any Loan Party or any ERISA Affiliate is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
(q) Except for such matters that could not be reasonably likely to
have a Material Adverse Effect (i) the operations and properties of each
Loan Party and each of its Subsidiaries comply in all respects with all
Environmental Laws and Environmental Permits, all past non-compliance
with such Environmental Laws and Environmental Permits has been resolved
without ongoing obligations or costs, and no circumstances exist that
could be reasonably likely to (A) form the basis of an Environmental
Action against any Loan Party or any of its Subsidiaries or any of their
properties or (B) cause any such property to be subject to any liens
and/or environmental transfer act restrictions under any Environmental
Law. In addition to the foregoing, it is understood and agreed that the
Borrowers will comply with regulatory requirements set forth in Schedule
4.01(q);
(ii) none of the properties currently or formerly owned or operated
by any Loan Party or any of its Subsidiaries is listed or, to the
knowledge of any Loan Party or any of their Subsidiaries, proposed for
listing on the NPL or on the CERCLIS or any analogous foreign, state or
local list; and during the ownership or operation thereof by any Loan
Party or any of their Subsidiaries, Hazardous Materials were not and have
not been released, discharged or disposed of on any property currently or
formerly owned or operated by any Loan Party or any of its Subsidiaries;
and
(iii) neither any Loan Party nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together with
other potentially responsible parties, any investigation or assessment or
remedial or response action relating to any actual or threatened release,
discharge or disposal of Hazardous Materials at any site, location or
<PAGE>
operation, either voluntarily or pursuant to the order of any
governmental or regulatory authority or the requirements of any
Environmental Law; and during the ownership or operation thereof by any
Loan Party or any of their Subsidiaries, all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or
from, any property currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries were and have been disposed of in a
manner not reasonably expected to result in liability to any Loan Party
or any of its Subsidiaries.
(r) Each Loan Party and each of its Subsidiaries and Affiliates has
filed, has caused to be filed or has been included in all material tax
returns (Federal, state, local and foreign) required to be filed and has
paid all taxes shown thereon to be due, together with applicable interest
and penalties, except any taxes that are being contested in good faith by
appropriate proceedings and for which the Loan Party, its Subsidiaries or
its Affiliates, as the case may be, has set aside on its books adequate
reserves;
(ii) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal, state, local and foreign income tax liability
of each Loan Party and each of its Subsidiaries and Affiliates proposed
by the Internal Revenue Service or by any state, local and foreign taxing
authorities with respect to any years for which the expiration of the
applicable statute of limitations for assessment or collection has not
occurred by reason of extension or otherwise along with any issues raised
by the Internal Revenue Service in respect of such years could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(iii) The Merger will not be taxable to CBI, the Company or any of
their respective Subsidiaries or Affiliates and will not, taken either
alone or in conjunction with any other transaction, result in CBI being
required to recognize gain under Section 355(e) of the Internal Revenue
Code.
(s) Set forth on Schedule 4.01(s) hereto is a complete and accurate
list of all Existing Debt (other than Surviving Debt), showing as of the
date hereof the obligor and the principal amount outstanding thereunder.
(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate
list of all Surviving Debt, showing as of the date hereof the obligor and
the principal amount outstanding thereunder, the maturity date thereof
and the amortization schedule therefor.
(u) Set forth on Schedule 4.01(u) hereto is a complete and accurate
list of all Liens on the property or assets of any Loan Party or any of
its Subsidiaries, showing as of the date hereof the lienholder thereof,
the principal amount of the obligations secured thereby and the property
or assets of such Loan Party or such Subsidiary subject thereto.
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate
list of all Investments held by any Loan Party or any of its Subsidiaries
on the date hereof, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
<PAGE>
(w) [Intentionally omitted]
(x) Set forth on Schedule 4.01(x) hereto is a complete and accurate
list of all Material Contracts of each Loan Party and its Subsidiaries,
showing as of the date hereof the parties, subject matter and term
thereof. Each such Material Contract has been duly authorized, executed
and delivered by all parties thereto, has not been amended or otherwise
modified, is in full force and effect and is binding upon and enforceable
against all parties thereto in accordance with its terms, and there
exists no default under any Material Contract by any party thereto.
(y) Each Borrower and its Subsidiaries are Year 2000 Compliant and,
to the best knowledge of each Borrower and its Subsidiaries, their
respective suppliers will be Year 2000 Compliant at January 1, 2000,
except, in each case, for such failures to be Year 2000 Compliant that
individually or in the aggregate are not reasonably likely to have a
Material Adverse Effect. The term "Year 2000 Compliant", with respect to
a computer system or software program, means that such computer system or
program: (A) is capable of recognizing, processing, managing,
representing, interpreting and manipulating correctly date-related data
for dates earlier and later than January 1, 2000; (B) has the ability to
provide date recognition for any data element without limitation; (C) has
the ability to function automatically into and beyond the Year 2000
without human intervention and without any change in operations
associated with the advent of the Year 2000; (D) has the ability to
interpret data, dates and time correctly into and beyond the Year 2000;
(E) has the ability not to produce noncompliance in existing data, nor
otherwise corrupt such data, into and beyond the Year 2000; (F) has the
ability to process correctly after January 1, 2000, data containing dates
and times before that date; and (G) has the ability to recognize all
"leap year" dates, including February 29, 2000.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall
have any Commitment hereunder, each Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of 1970
and (ii) except as provided in Section 5.01(e), obtain and maintain in
effect all Governmental Authorizations that are necessary (A) to own or
lease and operate their respective property and assets and to conduct
their respective businesses as now conducted and as proposed to be
conducted, except where and to the extent that the failure to obtain or
maintain in effect any such Governmental Authorization, either
<PAGE>
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, or (B) for the due execution, delivery or
performance by CBI or any of its Subsidiaries of any of the Loan
Documents or the Related Documents to which it is or is to be a party, or
for the consummation of any aspect of the Transaction or any of the other
transactions contemplated hereby and thereby. This Section 5.01(a) shall
not apply to compliance with Environmental Laws or Environmental Permits
(which is the subject of Section 5.01(c)).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however,
that neither CBI nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Compliance with Environmental Laws. Comply, cause each of its
Subsidiaries and use its best efforts (which efforts shall include
ensuring that all applicable leases, licenses or other such agreements
include provisions requiring such compliance) to cause all lessees and
other Persons operating or occupying its properties to comply, in all
material respects, with all Environmental Laws and Environmental Permits;
obtain and renew and cause each of its Subsidiaries to obtain and renew
all Environmental Permits necessary for its operations and properties;
and conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up
Hazardous Materials from any of its properties, to the extent required by
Environmental Laws, except where and to the extent that the failure to
comply with Environmental Laws, obtain or renew Environmental Permits or
to conduct such cleanup, removal, remedial or other action, individually
or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect; provided, however, that neither the Loan Parties nor any
of their respective Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to
such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which each
Borrower or such Subsidiary operates (it being understood that, to the
extent consistent with prudent business practice of persons carrying on a
similar business in a similar location, a program of self-insurance for
first or other loss layers may be utilized in an aggregate amount not to
exceed $50,000,000).
<PAGE>
(e) Preservation of Corporate Existence, Etc. Except as otherwise
permitted under Section 5.02(d), preserve and maintain, and cause each of
its Subsidiaries to preserve and maintain, its existence, legal
structure, legal name (it being understood that legal name changes may be
made so long as the Borrowers make arrangements acceptable to the Agents
to timely refile financing statements and other filings relating to
security interests), rights (charter and statutory), permits, licenses,
approvals, privileges and franchises; provided, however, that CBI and its
Subsidiaries may consummate the Merger and the Reorganization Merger.
(f) Visitation Rights. Upon reasonable notice, at any reasonable
time and from time to time, permit any of the Agents or any of the Lender
Parties (coordinated through the Administrative Agent), or any agents or
representatives thereof, to examine and, with the consent of CBI, which
consent shall not be unreasonably withheld, make copies of and abstracts
from the records and books of account of, and visit the properties of,
each Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of each Borrower and any of its Subsidiaries with
any of their officers or directors and, together with an authorized
representative of a Loan Party, with their independent certified public
accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of each Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to each Borrower or such Subsidiary than
it would obtain in a comparable arm's-length transaction with a Person
not an Affiliate.
(j) Covenant to Guarantee Obligations and Give Security. (I) Upon
(A) the occurrence and during the continuance of a Default or (B) the
Index Debt of CBI being rated lower than BB- by S&P or Ba3 by Moody's,
then each Borrower shall, in each case at such Borrower's expense and to
the fullest extent permitted under the Certificate of Designation and the
IXC 9% Indenture:
(1) as soon as practicable but in any event within 20 days
thereafter, furnish to the Administrative Agent a description of the
real and personal properties of each of the Loan Parties and their
respective Subsidiaries (by street
<PAGE>
address and property type maintained at such address) in detail
reasonably satisfactory to the Administrative Agent;
(2) within 10 days thereafter, cause each Subsidiary (other
than a CFC) (to the extent it has not already done so), to duly
execute and deliver to the Administrative Agent a guaranty or
Guaranty Supplement, in form and substance satisfactory to the
Administrative Agent, guaranteeing the other Loan Parties'
obligations under the Loan Documents,
(3) within 15 days thereafter duly execute and deliver, and
cause each such Subsidiary and each direct and indirect parent of
such Subsidiary (if it has not already done so) to duly execute and
deliver, to the Administrative Agent mortgages, pledges,
assignments, security agreement supplements and other security
agreements, as specified by and in form and substance satisfactory
to the Administrative Agent, securing payment of all the Obligations
of the applicable Loan Party, such Subsidiary or such parent, as the
case may be, under the Loan Documents and constituting Liens on all
such real and personal properties (other than fiber in which an IRU
has been granted prior to the date hereof or pursuant to 5.02(e)(i)
or 5.02(e)(viii)(B)),
(4) within 30 days thereafter, take, and cause such Subsidiary
or such parent to take, whatever action (including, without
limitation, the recording of mortgages, the filing of Uniform
Commercial Code financing statements, the giving of notices and the
endorsement of notices on title documents) may be necessary or
advisable in the opinion of the Administrative Agent to vest in the
Administrative Agent (or in any representative of the Administrative
Agent designated by it) valid and subsisting Liens on and security
interests in the real and personal properties purported to be
subject to the mortgages, pledges, assignments, security agreement
supplements and security agreements delivered pursuant to this
Section 5.01(j), enforceable against all third parties in accordance
with their terms,
(5) within 35 days thereafter, deliver to the Administrative
Agent, upon the request of the Administrative Agent in its sole
discretion, a signed copy of a favorable opinion, addressed to the
Administrative Agent and the other Secured Parties, of counsel for
the Loan Parties acceptable to the Administrative Agent (x) as to
the matters contained in clauses (1) through (4) above, as to such
guaranties, guaranty supplements, mortgages, pledges, assignments,
security agreement supplements and security agreements being legal,
valid and binding obligations of each Loan Party party thereto
enforceable in accordance with their terms, (y) as to the matters
contained in clause (4) above, as to such recordings, filings,
notices, endorsements and other actions being sufficient to create
valid perfected Liens on such properties, and (z) as to such other
matters as the Administrative Agent may reasonably request,
<PAGE>
(6) as promptly as practicable thereafter, deliver, upon the
request of the Administrative Agent in its sole discretion, to the
Administrative Agent with respect to each parcel of real property
owned or held by the entity that is the subject of such request,
formation or acquisition title reports, surveys and engineering,
soils and other reports, and environmental assessment reports, each
in scope, form and substance satisfactory to the Administrative
Agent, provided, however, that to the extent that any Loan Party or
any of its Subsidiaries shall have otherwise received any of the
foregoing items with respect to such real property, such items
shall, promptly after the receipt thereof, be delivered to the
Administrative Agent,
(7) upon the occurrence and during the continuance of a
Default, promptly cause to be deposited any and all cash dividends
paid or payable to it or any of its Subsidiaries from any of its
Subsidiaries from time to time into the Administrative Agent's
Account, and with respect to all other dividends paid or payable to
it or any of its Subsidiaries from time to time, promptly execute
and deliver, or cause such Subsidiary to promptly execute and
deliver, as the case may be, any and all further instruments and
take or cause such Subsidiary to take, as the case may be, all such
other action as the Administrative Agent may deem necessary or
desirable in order to obtain and maintain from and after the time
such dividend is paid or payable a perfected, first priority lien on
and security interest in such dividends,
(8) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as the Administrative Agent may deem necessary or
desirable in obtaining the full benefits of, or in perfecting and
preserving the Liens of, such guaranties, mortgages, pledges,
assignments, security agreement supplements and security agreements;
and
(II) Upon (A) the formation or acquisition of any new direct or
indirect Subsidiaries by any Loan Party (other than CBT or any of CBT's
Subsidiaries) or (B) the date on which (x) all contracts or indentures or
the Certificate of Designation, in effect on the date hereof that limit,
restrict or prohibit the creation, pledge or assignment of a security
interest in the Excluded Equity Interests (as defined in the Security
Agreements) are no longer in effect or (y) the creation, pledge or
assignment of such security interest is no longer prohibited, then each
Borrower shall, in each case at such Borrower's expense:
(1) within 10 days thereafter, cause each Subsidiary, to duly
execute and deliver to the Administrative Agent a guaranty or
Guaranty Supplement, in form and substance satisfactory to the
Administrative Agent, guaranteeing the other Loan Parties'
obligations under the Loan Documents,
(2) within 15 days thereafter duly execute and deliver, and
cause each such Subsidiary and each direct and indirect parent of
such Subsidiary (if it has
<PAGE>
not already done so) to duly execute and deliver, to the
Administrative Agent pledges, assignments, security agreement
supplements and other security agreements, as specified by and in
form and substance satisfactory to the Administrative Agent,
securing payment of all the Obligations of the applicable Loan
Party, such Subsidiary or such parent, as the case may be, under the
Loan Documents and constituting Liens on all such personal property;
(3) within 30 days thereafter, take, and cause such Subsidiary
or such parent to take, whatever action (including, without
limitation, the filing of Uniform Commercial Code financing
statements) may be necessary or advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid
and subsisting Liens on and security interests in the personal
property purported to be subject to the pledges, assignments,
security agreement supplements and security agreements delivered
pursuant to this Section 5.01(j) enforceable against all third
parties in accordance with their terms,
(4) within 35 days thereafter, deliver to the Administrative
Agent, upon the request of the Administrative Agent in its sole
discretion, a signed copy of a favorable opinion, addressed to the
Administrative Agent and the other Secured Parties, of counsel for
the Loan Parties acceptable to the Administrative Agent (x) as to
the matters contained in clauses (1) through (3) above, as to such
guaranties, Guaranty Supplements, pledges, assignments, security
agreement supplements and security agreements being legal, valid and
binding obligations of each Loan Party party thereto enforceable in
accordance with their terms, (y) as to the matters contained in
clause (3) above, as to such recordings, filings, and other actions
being sufficient to create valid perfected Liens on such properties,
and (z) as to such other matters as the Administrative Agent may
reasonably request, and
(5) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as the Administrative Agent may deem necessary or
desirable in obtaining the full benefits of, or in perfecting and
preserving the Liens of, such guaranties, pledges, assignments,
security agreement supplements and security agreements.
(k) Further Assurances. (i) Promptly upon request by any Agent, or
any Lender Party through the Administrative Agent, correct, and cause
each of its Subsidiaries promptly to correct, any material defect or
error that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof, and
(ii) Promptly upon request by any Agent, or any Lender Party through
the Administrative Agent, do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such
further acts, deeds, conveyances, pledge agreements, mortgages, deeds of
trust, trust deeds, assignments, financing statements
<PAGE>
and continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments as any Agent,
or any Lender Party through the Administrative Agent, may reasonably
require from time to time in order to (A) carry out more effectively the
purposes of the Loan Documents, (B) to the fullest extent permitted by
applicable law, subject any Loan Party's or any of its Subsidiaries'
properties, assets, rights or interests to the Liens now or hereafter
intended to be covered by any of the Collateral Documents, (C) perfect
and maintain the validity, effectiveness and priority of any of the
Collateral Documents and any of the Liens intended to be created
thereunder and (D) assure, convey, grant, assign, transfer, preserve,
protect and confirm more effectively unto the Secured Parties the rights
granted or now or hereafter intended to be granted to the Secured Parties
under any Loan Document or under any other instrument executed in
connection with any Loan Document to which any Loan Party or any of its
Subsidiaries is or is to be a party, and cause each of its Subsidiaries
to do so.
(l) Performance of Related Documents. Perform and observe, and cause
each of its Subsidiaries to perform and observe, all of the terms and
provisions of each Related Document to be performed or observed by it,
maintain each such Related Document in full force and effect, enforce
such Related Document in accordance with its terms, take all such action
to such end as may be from time to time requested by the Administrative
Agent and, upon request of the Administrative Agent, make to each other
party to each such Related Document such demands and requests for
information and reports or for action as any Loan Party or any of its
Subsidiaries is entitled to make under such Related Document.
(m) Preparation of Environmental Reports. Upon the occurrence of a
Default or other circumstances that may reasonably be likely to have a
Material Adverse Effect, at the request of the Administrative Agent,
provide to the Lender Parties within 60 days after such request, at the
expense of the Borrowers, an environmental site assessment report in
connection with such Default or other circumstances for any of its or its
Subsidiaries' properties described in such request, prepared by an
environmental consulting firm acceptable to the Administrative Agent,
indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance, removal or remedial action in
connection with any Hazardous Materials on such properties; without
limiting the generality of the foregoing, if the Administrative Agent
determines at any time that a material risk exists that any such report
will not be provided within the time referred to above, the
Administrative Agent may retain an environmental consulting firm to
prepare such report at the expense of the Borrowers, and the Borrowers
hereby grants and agrees to cause any Subsidiary that owns any property
described in such request to grant at the time of such request to the
Agents, the Lender Parties, such firm and any agents or representatives
thereof an irrevocable non-exclusive license, subject to the rights of
tenants, to enter onto their respective properties to undertake such an
assessment.
(n) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which each
<PAGE>
Borrower or any of its Subsidiaries is a party, keep such leases in full
force and effect and not allow such leases to lapse or be terminated or
any rights to renew such leases to be forfeited or cancelled, notify the
Administrative Agent of any default by any party with respect to such
leases and cooperate with the Administrative Agent in all respects to
cure any such default, and cause each of its Subsidiaries to do so,
except, in any case, where the failure to do so, either individually or
in the aggregate, could not be reasonably likely to have a Material
Adverse Effect.
(o) Interest Rate Hedging. Enter into prior to 120 days after the
date hereof, and maintain at all times thereafter, interest rate Hedge
Agreements with Persons acceptable to the Agents, covering a notional
amount of not less than 50% of Funded Debt and providing for such Persons
to make payments thereunder for a period of no less than two years on
terms acceptable to the Agents the effect of which will be to
substantially mitigate the effect of interest rate variation.
(p) Performance of Material Contracts. Perform and observe all the
terms and provisions of each Material Contract to be performed or
observed by it, maintain each such Material Contract in full force and
effect, enforce each such Material Contract in accordance with its terms,
take all such action to such end as may be from time to time requested by
the Administrative Agent and, upon request of the Administrative Agent,
make to each other party to each such Material Contract such demands and
requests for information and reports or for action as any Loan Party or
any of its Subsidiaries is entitled to make under such Material Contract,
and cause each of its Subsidiaries to do so, except, in any case, where
the failure to do so, either individually or in the aggregate, could not
be reasonably likely to have a Material Adverse Effect.
(q) Performance and Compliance with Other Agreements. Perform and
comply with each of the covenants to be performed by CBI under (x) the
Indenture, dated as of July 21, 1999, between CBI, as Issuer, and The
Bank of New York, as Trustee (the "Oak Hill Indenture") and (y) the
6 3/4% Convertible Subordinated Notes issued thereunder.
SECTION 5.02. Negative Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall
have any Commitment hereunder, no Borrower will, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement that names any
Borrower or any of its Subsidiaries as debtor, or sign or suffer to
exist, or permit any of its Subsidiaries to sign or suffer to exist, any
security agreement authorizing any secured party thereunder to
<PAGE>
file such financing statement, or assign, or permit any of its
Subsidiaries to assign, any accounts or other right to receive income,
except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on
Schedule 4.01(u) hereto;
(iv) purchase money Liens upon or in real property or equipment
acquired or held by CBI or any of its Subsidiaries in the ordinary
course of business to secure the purchase price of such property or
equipment or to secure Debt incurred solely for the purpose of
financing the acquisition, construction or improvement of any such
property or equipment to be subject to such Liens, or Liens existing
on any such property or equipment at the time of acquisition (other
than any such Liens created in contemplation of such acquisition
that do not secure the purchase price), or extensions, renewals,
refundings or replacements of any of the foregoing for the same or a
lesser amount; provided, however, that no such Lien shall extend to
or cover any property other than the property or equipment being
acquired, constructed or improved, and no such extension, renewal,
refunding or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed, refunded or
replaced (except to the extent of financed construction or
improvement); and provided further that the aggregate principal
amount of the Debt secured by Liens permitted by this clause (iv)
shall not exceed the amount permitted under Section 5.02(b)(iii)(B)
at any time outstanding;
(v) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(iii)(C); provided that no such Lien
shall extend to or cover any Collateral or assets other than the
assets subject to such Capitalized Leases;
(vi) Liens (including financing statements and undertakings to
file financing statements) arising solely from precautionary filings
of financing statements under the Uniform Commercial Code of the
applicable jurisdiction in respect of equipment leases under which
the Borrowers or any of their Subsidiaries is the lessee; provided
that any such Lien in respect of any equipment lease is limited to
the equipment being leased under such lease and the proceeds
thereof;
(vii) Leases, subleases, licenses and sublicenses of the type
referred to in Section 5.02(e)(vii) granted to third parties in the
ordinary course of business, in each case not interfering in any
respect with the Liens of the Administrative Agent or the Lenders
granted by the Loan Documents and not otherwise prohibited by the
terms of the Loan Documents;
<PAGE>
(viii) banker's liens and rights of offset of the holders of
Debt of the Borrowers or any Subsidiary on monies deposited by the
Borrowers or any Subsidiary with such holders of Debt in the
ordinary course of business of the Borrowers or any such Subsidiary;
(ix) other Liens that do not, in the aggregate, attach to a
material portion of the assets of the Borrowers or any of their
Subsidiaries and do not secure obligations in an aggregate amount in
excess of $5,000,000;
(x) Liens for judgments not in excess of $30,000,000 for which
appropriate reserves have been maintained in accordance with GAAP
and Liens for judgments in excess of $30,000,000 in respect of which
(i) no enforcement proceedings have been commenced by any creditor
upon such judgment or (ii) there has been no period of 30
consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, has not been
in effect; and
(xi) Liens, leases and grants of indefeasible rights of use,
rights of use and similar rights in respect of capacity, dark fiber
and similar assets of CBI and its Subsidiaries in the ordinary
course of business either existing as of the date hereof or as
permitted under Section 5.02(e)(i) or 5.02(e)(viii)(B).
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt,
except:
(i) in the case of CBI,
(A) Debt in respect of Hedge Agreements maintained under
Section 5.01(o) and other Hedge Agreements not in violation of
Section 5.02(n); provided that no Hedge Agreement with any
Person other than a Lender Party (or Affiliate of a Lender
Party) may be a Secured Hedge Agreement,
(B) Subordinated Debt of CBI evidenced by the Subordinated
Debt Documents not to exceed the aggregate principal amount of
the sum of (x) the principal amount of Debt permitted by
Section 5.02(b)(iii)(D) which constitutes Subordinated Debt and
(y) $500 million principal amount of additional Subordinated
Debt issued after the date hereof at any time outstanding, and
(C) Paid in kind interest under the Oak Hill Indenture as
in effect on the date hereof;
(ii) in the case of any Subsidiary of CBI, Debt owed to CBI or
to a wholly owned Subsidiary of CBI, provided that, in each case,
such Debt (x) shall constitute Pledged Debt, (y) shall be on terms
acceptable to the Agents and (z) if
<PAGE>
evidenced by promissory notes, in form and substance satisfactory to
the Agents and such promissory notes shall be pledged as security
for the Obligations of the holder thereof under the Loan Documents
to which such holder is a party and delivered to the Administrative
Agent pursuant to the terms of the Security Agreements; and
(iii) in the case of CBI and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv)
not to exceed $70,000,000 in aggregate principal amount at any
time outstanding,
(C) Capitalized Leases not to exceed in the aggregate
$75,000,000 at any time outstanding, and to the extent included
in "Capitalized Leases" for purposes of GAAP, IRUs incurred in
the ordinary course of business,
(D) the Surviving Debt (other than Debt under (iii)(C)
above), and any Debt extending the maturity of, or refunding,
renewal or refinancing, in whole or in part, any Surviving
Debt, provided that the terms of any such extending, refunding,
renewal or refinancing Debt, and of any agreement entered into
and of any instrument issued in connection therewith, are
otherwise permitted by the Loan Documents, provided further
that (1) the principal amount of such Surviving Debt shall not
be increased above the principal amount thereof outstanding
(plus accrued interest and fees thereon) immediately prior to
such extension, refunding, renewal or refinancing, (2) the
direct and contingent obligors therefor shall not be changed,
as a result of or in connection with such extension, refunding,
renewal or refinancing, (3) such Surviving Debt as so refunded,
refinanced or renewed shall not mature prior to the stated
maturity date or mandatory redemption date of the Surviving
Debt being so extended, refunded, refinanced or renewed and (4)
if the Surviving Debt being so extended, refunded, refinanced
or renewed is subordinated in right of payment or otherwise to
the Obligations of the Borrowers or any of their Subsidiaries
under and in respect of the Loan Documents, such extended,
refunded, renewed or refinanced Surviving Debt shall be
subordinated to such Obligations to at least the same extent,
(E) unsecured Debt incurred in the ordinary course of
business for borrowed money or for the deferred purchase price
of property or services, maturing after the Termination Date,
and aggregating, on a Consolidated basis, not more than
$65,000,000 in aggregate principal amount at any one time
outstanding,
<PAGE>
(F) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business,
(G) [Intentionally Omitted]
(H) unsecured short-term Debt in an aggregate principal
amount not to exceed $10,000,000,
(I) Contingent Obligations of any of the Borrowers or any
of the Subsidiary Guarantors guaranteeing all or any portion of
the outstanding Obligations of any of the other Loan Parties;
provided that such Obligations are not otherwise prohibited
under the terms of the Loan Documents and such Contingent
Obligations are unsecured,
(J) Debt consisting of debits and credits between CBI and
its Subsidiaries arising under CBI's centralized cash
management system more particularly described in the attached
Schedule 5.02(b)(iii)(J); and
(K) Debt of one or more Foreign Subsidiaries arising in
the ordinary course of business in an aggregate principal
amount not to exceed $5,000,000 at any time outstanding;
provided that all such Debt incurred pursuant to this subclause
(K) shall be nonrecourse in all respects to the property and
assets of the Loan Parties and their Subsidiaries (other than
one or more of the Foreign Subsidiaries).
(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
as carried on at the date hereof.
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries to
do so, except that:
(i) CBI and its Subsidiaries and IXC and its Subsidiaries may
consummate the Reorganization Merger and the Merger; and
(ii) any Subsidiary of CBI may merge into or consolidate with
any other Subsidiary of CBI, provided that, in the case of any such
merger or consolidation, the Person formed by such merger or
consolidation shall be a wholly owned Subsidiary of CBI, provided
further that, in the case of any such merger or consolidation to
which a Subsidiary Guarantor is a party, the Person formed by such
merger or consolidation shall be a Subsidiary Guarantor (or, any
transaction to which IXCS is a party, a Borrower); and
(iii) CBI may merge with or into any wholly owned Subsidiary of
CBI that is formed solely for the purpose of effecting a corporate
name change and the transfer of related intellectual property,
provided that CBI is the surviving corporation in respect of such
merger;
<PAGE>
provided, however, that in each case, immediately after giving
effect thereto, no event shall occur and be continuing that
constitutes a Default and, in the case of any such merger to which
IXCS is a party, IXCS is the surviving corporation.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets, or grant any option or other right to
purchase, lease or otherwise acquire any assets other than Inventory to
be sold in the ordinary course of its business, except:
(i) dispositions of inventory in the ordinary course of its
business, including, without limitation, fiber swaps and capacity
swaps in the ordinary course of business;
(ii) dispositions of equipment which, in the aggregate during
any Fiscal Year, have a fair market value or book value, whichever
is greater, of $250,000 or less;
(iii) dispositions of property that is substantially worn,
damaged, obsolete or, in the reasonable judgment of the applicable
Borrower, no longer best used or useful in the conduct of its
business or operations or that of any of its Subsidiaries;
(iv) transfers of assets necessary to give effect to merger or
consolidation transactions permitted by Section 5.02(d); provided,
however, that no assets shall be transferred hereunder by any Loan
Party to CBT or its Subsidiaries in an amount exceeding $1,000,000
in book value of assets;
(v) the disposition of cash or investment securities in the
ordinary course of management of the investment portfolio of the
applicable Borrower and its Subsidiaries;
(vi) the sale or discount without recourse of delinquent
accounts receivable or notes receivable for collection purposes, or
the conversion or exchange of delinquent accounts receivable into or
for notes receivable in connection with the compromise or collection
thereof, each in the ordinary course of business and not intended to
constitute a financing arrangement;
(vii) operating leases entered into in the ordinary course of
business and subleases of real property and licenses of intellectual
property in the ordinary course of its business, in each case, not
intended to constitute a financing arrangement;
(viii) so long as immediately before and after giving effect to
such asset sale, no event shall occur and be continuing that
constitutes a Default, Restricted Asset Dispositions. "Restricted
Asset Dispositions" means
<PAGE>
(A) any sale of assets not otherwise permitted to be sold,
leased, transferred or disposed of pursuant to this Section
5.02(e) so long as the fair market value of all of the property
and assets of the Borrower and its Subsidiaries so sold,
leased, transferred or otherwise disposed of pursuant to this
clause (viii) does not exceed $75,000,000 per annum, provided,
that (x) the gross proceeds received from any such sale shall
be at least equal to the fair market value of the property and
assets so sold, leased, transferred or otherwise disposed of,
determined at the time of such sale, lease, transfer or other
disposition and (y) at least 80% of the value of the aggregate
consideration received from any such sale, lease, transfer or
other disposition shall be in cash and shall be received within
5 Business Days after the date of consummation of such
transaction;
(B) any sale of or granting of any interest in dark fiber
or IRUs in dark fiber or fiber capacity, provided (i) that such
sale or granting would not result in CBI and its Subsidiaries
having the cumulative indefeasible right to use the
telecommunications capacity on less than 12 Backbone Fibers,
and (ii) that the Responsible Officers or Board of Directors,
as the case may be, of CBI has determined in good faith that
the disposition of the fiber capacity involved in such sale or
granting would not cause a shortage of fiber capacity to CBI or
any of its Subsidiaries that would interfere with CBI's or any
of its Subsidiaries' ability to continue to provide
telecommunications services at the then current level and those
levels projected over the term of this Agreement; or
(C) sales with respect to any asset used exclusively in
connection with the microwave relay system of the Company or
100% of the capital stock of any Subsidiary of the Company
exclusively engaged in the microwave business,
provided that, in the event of any asset sale pursuant to this
subclause (viii), the Borrowers shall, on the date of receipt by any
Loan Party or any of its Subsidiaries of the Net Cash Proceeds from
such sale, prepay the Advances pursuant to, and in the amount and
order of priority set forth in, Section 2.06(b)(ii), as specified
therein unless a Responsible Officer of CBI certifies at the time of
such sale, lease, transfer or other disposition, to the
Administrative Agent that the proceeds are being reinvested in the
business of the Borrowers and their Subsidiaries with reasonable
promptness and, in any event, not later than 12 months from the date
of sale.
(f) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person, unless such
investment satisfies the requirements of one or more of (i) through (x)
below:
(i) equity Investments by CBI and its Subsidiaries in their
Subsidiaries outstanding on the date hereof and (A) additional
investments in
<PAGE>
wholly owned Subsidiaries, (B) additional investments in Excluded
Entities in an aggregate amount invested from the date hereof not to
exceed $10,000,000, (C) additional investments in Foreign
Subsidiaries in an aggregate amount invested from the date hereof
not to exceed $2,000,000 and (D) additional investments in
Cincinnati Bell Wireless L.L.C. in an aggregate amount invested from
the date hereof not to exceed $25,000,000;
(ii) loans and advances to employees in the ordinary course of
the business of CBI and its Subsidiaries as presently conducted in
an aggregate principal amount not to exceed $25,000,000 at any time
outstanding less the aggregate amount of loans and advances that
constitute Debt under Section 5.02(b)(iii)(G); provided, however,
for purposes of this Section, "advances" will not restrict advances
for travel expenses to employees advanced and repaid in the ordinary
course of business;
(iii) Investments by CBI and its Subsidiaries in Cash
Equivalents;
(iv) Investments existing on the date hereof and described on
Schedule 4.01(v) hereto;
(v) Investments by CBI in Hedge Agreements permitted under
Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted
under Section 5.02(b)(ii);
(vii) other Investments in an aggregate amount invested not to
exceed 10% of Net Tangible Assets at the time of any determination
with Investments valued, in the case of each Investment, at the time
such Investment is made less the aggregate amount of Investments
made under Section 5.02(f)(viii) (it being understood that any
Investment may continue to be held if permitted when made
notwithstanding subsequent changes in Net Tangible Assets or the
value of such Investment), provided that with respect to Investments
made under this clause (vii): (1) any newly acquired or organized
Subsidiary of CBI or any of its Subsidiaries shall be a wholly owned
Subsidiary thereof; (2) immediately before and after giving effect
thereto, no Default shall have occurred and be continuing or would
result therefrom; (3) any company or business acquired or invested
in pursuant to this clause (vii) shall be in the same line of
business (or a related line of business) as the business of CBI or
any of its Subsidiaries; (4) immediately after giving effect to the
acquisition of a company or business pursuant to this clause (vii),
CBI shall be in pro forma compliance with the covenants contained in
Section 5.04, calculated based on the financial statements most
recently delivered to the Lender Parties pursuant to Section 5.03
and as though such acquisition had occurred at the beginning of the
four-quarter period covered thereby, as evidenced by a certificate
of the Chief Financial Officer of CBI delivered to the Lender
Parties demonstrating such compliance; and (5) the
<PAGE>
applicable Borrower and/or its Subsidiaries and such newly created
or acquired Subsidiary shall comply with the requirements of
5.01(j);
(viii) an aggregate amount of $50,000,000 for any investments
valued as of the date such Investment is made, including, without
limitation, joint ventures; provided, however, that with respect to
any joint venture, such Investment shall be (1) made through a newly
organized bankruptcy remote special purpose vehicle, wholly owned by
CBI or any of its Subsidiaries; (2) immediately before and after
giving effect thereto, no Default shall have occurred and be
continuing or would result therefrom; (3) any company or business
acquired or invested in pursuant to this clause (viii) shall be in
the same line of business (or related line of business) as the
business of CBI or any of its Subsidiaries; (4) the applicable
Borrower and/or its Subsidiaries and such newly created or acquired
Subsidiary shall comply with the requirements of 5.01(j); and (5)
neither the Borrowers nor any Subsidiary (other than such special
purpose vehicle) shall become liable for the Debt of the joint
venture except to the extent the Borrowers or such Subsidiary would
be permitted under Section 5.02(b) to incur such Debt;
(ix) Investments consisting of debits and credits between CBI
and its Subsidiaries arising pursuant to CBI's centralized cash
management system; and
(x) Investments consisting of loans, advances and payables due
from suppliers or customers made by the Borrowers or their
Subsidiaries in the ordinary course of business.
(g) Restricted Payments. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its Equity
Interests now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent Persons thereof) as
such, make any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent
Persons thereof) as such or issue or sell any Equity Interests or accept
any capital contributions, or permit any of its Subsidiaries to do any of
the foregoing, or permit any of its Subsidiaries to purchase, redeem,
retire, defease or otherwise acquire for value any Equity Interests in
CBI or to issue or sell any Equity Interests therein, except that, so
long as no Default shall have occurred and be continuing at the time of
any action described below or would result therefrom:
(i) CBI may declare and pay dividends and distributions payable
only in common stock of CBI or issue common stock of CBI to
officers, directors and employees as part of compensation
arrangements,
(ii) any Subsidiary of CBI may (A) declare and pay cash
dividends to CBI, (B) declare and pay cash dividends to any other
wholly owned Subsidiary of CBI of which it is a Subsidiary and (C)
accept capital contributions from its parent to the extent permitted
under Section 5.02(f)(i),
<PAGE>
(iii) the Company may declare and pay scheduled dividend
payments on the 12 1/2% Exchangeable Preferred Stock,
(iv) CBI may declare and pay scheduled dividend payments on the
Convertible Preferred Stock and the Junior Convertible Preferred
Stock,
(v) payments pursuant to stock option plans or other stock
related benefit plans approved by the Board of Directors of the
Borrowers and in the ordinary course of business made to directors,
officers, and employees of the Borrowers to repurchase capital stock
of the Borrowers or equity equivalents of the Borrowers held by such
Persons in case of resignation, the cessation of the employment or
retirement of such Person (by death, disability or otherwise), and
(vi) CBI may repurchase shares of CBI common stock pursuant to
the open market share repurchase program of CBI announced on July
21, 1999 with an aggregate purchase price not to exceed $200,000,000
(including repurchases made on or prior to the date hereof).
(h) Amendments of Constitutive Documents. Amend, or permit any of
its Subsidiaries to amend, its certificate of incorporation or bylaws or
other constitutive documents, except where such amendment could not
reasonably be expected to have a Material Adverse Effect or to adversely
affect the rights or interests of the Lender Parties; provided that
copies of any such amendment to the certificate of incorporation, by-laws
or other constitutive documents of any Borrower or any Subsidiary shall
be delivered promptly to the Administrative Agent.
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as required by generally accepted accounting
principles and except as required in connection with the Merger and the
realignment of business units of the Borrowers after the Merger, with
respect to segmented reporting and other changes related thereto, or (ii)
Fiscal Year.
(j) Prepayments, Etc., of Debt. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner,
or make any payment in violation of any subordination terms of, any Debt,
except (i) the prepayment of the Advances in accordance with the terms of
this Agreement, (ii) the repurchase of the IXC Senior Subordinated Notes
in accordance with the terms thereof and the repurchase of the 12 1/2%
Senior Notes of the Company due 2005 in an aggregate amount not to exceed
$825,000, and (iii) regularly scheduled or required repayments or
redemptions of Surviving Debt, or amend, modify or change in any manner
any term or condition of any Surviving Debt or Subordinated Debt, or
permit any of its Subsidiaries to do any of the foregoing other than to
prepay any Debt payable to the Borrowers.
(k) Amendment, Etc., of Related Documents. Cancel or terminate any
Related Document or consent to or accept any cancellation or termination
thereof,
<PAGE>
amend, modify or change in any manner any term or condition of any
Related Document or give any consent, waiver or approval thereunder,
waive any default under or any breach of any term or condition of any
Related Document, agree in any manner to any other amendment,
modification or change of any term or condition of any Related Document
or take any other action in connection with any Related Document that
would impair the value of the interest or rights of any Loan Party
thereunder or that would impair the rights or interests of any Agent or
any Lender Party, or permit any of its Subsidiaries to do any of the
foregoing.
(l) Negative Pledge. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets except (i) in favor of the Secured Parties
or (ii) in connection with (A) any Surviving Debt to the extent such
agreement is in effect on the date hereof (and any extension, renewal,
refunding or replacement thereof), (B) any purchase money Debt permitted
by Section 5.02(b)(iii)(B) solely to the extent that the agreement or
instrument governing such Debt prohibits a Lien on the property acquired
with the proceeds of such Debt, and (C) any agreement setting forth
customary restrictions on the subletting, assignment or transfer of any
property or asset that is a lease, license or conveyance of similar
property or assets.
(m) Partnerships, Etc. Become a general partner in any general or
limited partnership or joint venture, or permit any of its Subsidiaries
to do so except to the extent that the investment in any such partnership
or joint venture is an investment permitted by Section 5.02(f) and the
indebtedness of any such entity (to the extent CBI or any Subsidiary is
liable therefor) is permitted pursuant to Section 5.02(b).
(n) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction speculative in nature, except
those entered into in the ordinary course of business to eliminate or
mitigate risks to which any Borrower or any of its Subsidiaries is
exposed in the conduct of its business or the management of its
liabilities.
(o) Formation of Subsidiaries. Organize or invest, or permit any
Subsidiary to organize or invest, in any new Subsidiary except as
permitted under Sections 5.02(d) and 5.02(f)(i).
(p) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare or
pay dividends or other distributions in respect of its Equity Interests
or repay or prepay any Debt owed to, make loans or advances to, or
otherwise transfer assets to or invest in, CBI or any of its Subsidiaries
(whether through a covenant restricting dividends, loans, asset transfers
or investments, a financial covenant or otherwise), except (i) the Loan
Documents, (ii) any agreement or instrument evidencing Surviving Debt as
in effect on the date hereof and (iii) any Permitted Preferred Stock
Documents.
<PAGE>
(q) Section 355(e). Take any action that could reasonably be
expected to result in CBI being required to recognize gain under Section
355(e) of the Code.
SECTION 5.03. Reporting Requirements. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall
have any Commitment hereunder, the Borrowers will furnish to the Agents and
the Lender Parties:
(a) Default Notice. As soon as possible and in any event within two
days after the occurrence of each Default or any event, development or
occurrence reasonably likely to have a Material Adverse Effect continuing
on the date of such statement, a statement of the chief financial officer
of CBI setting forth details of such Default and the action that the
Borrowers have taken and proposes to take with respect thereto.
(b) Annual Financials. As soon as available and in any event within
95 days after the end of each Fiscal Year, a copy of the annual audit
report for such year for CBI and its Subsidiaries, including therein a
Consolidated balance sheet of CBI and its Subsidiaries as of the end of
such Fiscal Year and Consolidated and consolidating statements of income
and Consolidated and consolidating statements of cash flows of CBI and
its Subsidiaries for such Fiscal Year, in each case accompanied by an
opinion acceptable to the Required Lenders of PriceWaterhouseCoopers LLC
or other independent public accountants of recognized standing acceptable
to the Required Lenders, together with (i) a certificate of such
accounting firm to the Lender Parties stating that in the course of the
regular audit of the business of CBI and its Subsidiaries, which audit
was conducted by such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has obtained no
knowledge that a Default has occurred and is continuing, or if, in the
opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by such
accountants in determining, as of the end of such Fiscal Year, compliance
with the covenants contained in Section 5.04, provided that in the event
of any change in GAAP used in the preparation of such financial
statements, CBI shall also provide, if necessary for the determination of
compliance with Section 5.04, a statement of reconciliation conforming
such financial statements to GAAP and (iii) a certificate of the Chief
Financial Officer of CBI stating that no Default has occurred and is
continuing or, if a default has occurred and is continuing, a statement
as to the nature thereof and the action that CBI has taken and proposes
to take with respect thereto.
(c) Quarterly Financials. As soon as available and in any event
within 50 days after the end of each of the first three quarters of each
Fiscal Year, Consolidated and consolidating balance sheets of CBI and its
Subsidiaries as of the end of such quarter and Consolidated and
consolidating statements of income and a Consolidated and consolidating
statement of cash flows of CBI and its Subsidiaries for the period
commencing at the end of the previous fiscal quarter and ending with the
end of such fiscal quarter and Consolidated and consolidating statements
of income and a Consolidated and consolidating statement of cash flows of
CBI and its Subsidiaries for
<PAGE>
the period commencing at the end of the previous Fiscal Year and ending
with the end of such quarter, setting forth in each case in comparative
form the corresponding figures for the corresponding date or period of
the preceding Fiscal Year, all in reasonable detail and duly certified
(subject to normal year-end audit adjustments) by the Chief Financial
Officer of CBI as having been prepared in accordance with GAAP, together
with (i) a certificate of said officer stating that no Default has
occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that CBI
has taken and proposes to take with respect thereto and (ii) a schedule
in form satisfactory to the Administrative Agent of the computations used
by CBI in determining compliance with the covenants contained in Section
5.04, provided that in the event of any change in GAAP used in the
preparation of such financial statements, CBI shall also provide, if
necessary for the determination of compliance with Section 5.04, a
statement of reconciliation conforming such financial statements to GAAP.
(d) Annual Forecasts. As soon as available and in any event no later
than 15 days before the end of each Fiscal Year, forecasts prepared by
management of CBI in form satisfactory to the Administrative Agent, of
balance sheets, income statements and cash flow statements on a quarterly
basis for the Fiscal Year following such Fiscal Year and on an annual
basis for each Fiscal Year thereafter until the Termination Date.
(e) Litigation. Promptly after the commencement thereof, notice of
all actions, suits, investigations, litigation and proceedings before any
court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of
its Subsidiaries of the type described in Section 4.01(f).
(f) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports
that any Loan Party or any of its Subsidiaries sends to its stockholders,
and copies of all regular, periodic and special reports, and all
registration statements, that any Loan Party or any of its Subsidiaries
files with the Securities and Exchange Commission or any governmental
authority that may be substituted therefor, or with any national
securities exchange (or, unless any Lender Party requests otherwise, if
any mailing or filing is available electronically on Edgar, any website
maintained by CBI or any other electronic source generally accessible, in
lieu of providing physical copies, a notice of such mailing or filing may
be given to each Lender Party together with instructions for the
electronic retrieval thereof).
(g) Creditor Reports. Promptly after the furnishing thereof, copies
of any statement or report furnished to any holder of Debt securities of
any Loan Party or of any of its Subsidiaries pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Lender Parties pursuant to any other clause of
this Section 5.03.
<PAGE>
(h) Agreement Notices. Promptly upon receipt thereof, copies of all
notices, requests and other documents received by any Loan Party or any
of its Subsidiaries under or pursuant to any Related Document or
instrument, indenture, loan or credit or similar agreement and copies of
all notices of default or termination under or related to any Material
Contract and, from time to time upon request by the Administrative Agent,
such information and reports regarding the Related Documents, the
Material Contracts and such instruments, indentures and loan and credit
and similar agreements as the Administrative Agent may reasonably
request.
(i) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and
in any event within 10 days after any Loan Party or any ERISA
Affiliate knows or has reason to know that any ERISA Event has
occurred, a statement of the Chief Financial Officer of CBI
describing such ERISA Event and the action, if any, that such Loan
Party or such ERISA Affiliate has taken and proposes to take with
respect thereto and (B) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA, a copy of such records, documents
and information;
(ii) Plan Terminations. Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention
to terminate any Plan or to have a trustee appointed to administer
any Plan;
(iii) Plan Annual Reports. Promptly upon the request of either
Agent, copies of each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) with respect to each Plan; and
(iv) Multiemployer Plan Notices. Promptly and in any event
within five Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies
of each notice concerning (A) the imposition of Withdrawal Liability
by any such Multiemployer Plan, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan or (C) the amount of liability incurred, or that
may be incurred, by such Loan Party or any ERISA Affiliate in
connection with any event described in clause (A) or (B);
provided, however, that the statement under Section 5.03(h)(i)(A) and the
notice under Section 5.03(h)(iv) are required to be given only if the
event or circumstance identified in such statement or notice, when
aggregated with any other events or circumstances required to be reported
under this Section 5.03(h) could reasonably be expected to result in a
Material Adverse Effect.
(j) Environmental Conditions. Promptly and in any event within five
Business Days after a Responsible Officer becomes aware of the assertion
or occurrence thereof, notice of:
<PAGE>
(i) any condition or occurrence on or arising from any property
owned or operated by any of the Loan Parties or any of their
respective Subsidiaries that resulted or is alleged to have resulted
in noncompliance by any such Loan Party or any such Subsidiary with
any Environmental Law or Environmental Permit in such a manner as,
either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect; and
(ii) any condition or occurrence on any property owned or
operated by any of the Loan Parties or any of their respective
Subsidiaries that could reasonably be expected to cause such
property to be subject to any restrictions on the ownership,
occupancy, use or transferability by any such Loan Party or any such
Subsidiary of such property under any Environmental Law which,
either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
All such notices shall set forth in reasonable detail the nature of the
condition, occurrence, removal or remedial action described therein and,
in the case of each such condition or occurrence, the action that such
Loan Party or such Subsidiary has taken and/or proposes to take with
respect thereto.
(k) Insurance. As soon as available and in any event within 30 days
after the end of each Fiscal Year, a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for each Loan
Party and its Subsidiaries and containing such additional information as
any Agent, or any Lender Party through the Administrative Agent, may
reasonably specify.
(l) Year 2000 Compliance. Promptly after CBI's discovery or
determination thereof, notice (in reasonable detail) that any computer
application (including those of its suppliers, vendors and customers)
that is material to its or any of its Subsidiaries' business and
operations will not be Year 2000 Compliant (as defined in Section
4.01(y)), except to the extent that such failure could not reasonably be
expected to have a Material Adverse Effect.
(m) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as
any Agent, or any Lender Party through the Administrative Agent, from
time to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall
have any Commitment hereunder:
<PAGE>
(a) Debt to EBITDA Ratio. CBI and its Subsidiaries, on a
consolidated basis, will maintain at all times a Debt/EBITDA Ratio of not
more than the amount set forth below for each period set forth below:
Period Ending Ratio
============================== ==============================
December 31, 1999 5.90
============================== ==============================
March 31, 2000 5.90
============================== ==============================
June 30, 2000 5.90
============================== ==============================
September 30, 2000 5.90
============================== ==============================
December 31, 2000 5.90
============================== ==============================
March 31, 2001 5.75
============================== ==============================
June 30, 2001 5.50
============================== ==============================
September 30, 2001 5.25
============================== ==============================
December 31, 2001 5.00
============================== ==============================
March 31, 2002 4.75
============================== ==============================
June 30, 2002 4.50
============================== ==============================
September 30, 2002 4.00
============================== ==============================
December 31, 2002 3.75
============================== ==============================
March 31, 2003 3.75
============================== ==============================
June 30, 2003 3.75
============================== ==============================
September 30, 2003 3.75
============================== ==============================
December 31, 2003 3.75
============================== ==============================
March 31, 2004 3.75
============================== ==============================
June 30, 2004 3.75
============================== ==============================
September 30, 2004 3.75
============================== ==============================
December 31, 2004 3.75
============================== ==============================
it being understood and agreed that for purposes of the calculation of a
Debt/EBITDA Ratio, the Consolidated Debt of CBI and its Subsidiaries and
the
<PAGE>
Consolidated EBITDA of CBI and its Subsidiaries for each fiscal quarter
for the period from January 1, 1999 through December 31, 1999 included in
any such calculation shall be based upon pro forma Consolidated financial
statements of CBI and its Subsidiaries, reasonably acceptable to the
Administrative Agent after giving effect to the Merger;
(b) Senior Secured Debt to EBITDA Ratio. CBI and its Subsidiaries,
on a consolidated basis, will maintain at all times a Senior Secured
Debt/EBITDA Ratio of not more than the amount set forth below for each
period set forth below:
Period Ending Ratio
============================ ==============================
December 31, 1999 5.10
============================ ==============================
March 31, 2000 5.10
============================ ==============================
June 30, 2000 5.10
============================ ==============================
September 30, 2000 5.10
============================ ==============================
December 31, 2000 5.00
============================ ==============================
March 31, 2001 4.75
============================ ==============================
June 30, 2001 4.50
============================ ==============================
September 30, 2001 4.00
============================ ==============================
December 31, 2001 3.75
============================ ==============================
March 31, 2002 3.50
============================ ==============================
June 30, 2002 3.25
============================ ==============================
September 30, 2002 3.00
============================ ==============================
December 31, 2002 3.00
============================ ==============================
March 31, 2003 3.00
============================ ==============================
June 30, 2003 3.00
============================ ==============================
September 30, 2003 3.00
============================ ==============================
December 31, 2003 3.00
============================ ==============================
March 31, 2004 3.00
============================ ==============================
June 30, 2004 3.00
============================ ==============================
September 30, 2004 3.00
============================ ==============================
December 31, 2004 3.00
============================ ==============================
it being understood and agreed that for purposes of the calculation of a
Senior Secured Debt/EBITDA Ratio, the Senior Secured Debt of CBI and its
Subsidiaries and the
<PAGE>
Consolidated EBITDA of CBI and its Subsidiaries for each fiscal quarter
for the period from January 1, 1999 through December 31, 1999 included in
any such calculation shall be based upon pro forma consolidated financial
statements of CBI and its Subsidiaries, reasonably acceptable to the
Administrative Agent after giving effect to the Merger;
(c) Total Debt to Capitalization Ratio. CBI and its Subsidiaries, on
a consolidated basis, will maintain at all times a Total
Debt/Capitalization Ratio of not more than 55% for each period ending on
each fiscal quarter; it being understood and agreed that for purposes of
the calculation of a Total Debt/Capitalization Ratio, the Consolidated
Debt and Capitalization of CBI and its Subsidiaries for the fiscal
quarter ending December 31, 1999 included in any such calculation shall
be based upon pro forma consolidated financial statements of CBI and its
Subsidiaries, reasonably acceptable to the Administrative Agent after
giving effect to the Merger; and
(d) Interest Coverage Ratio. CBI and its Subsidiaries, on a
consolidated basis, will maintain at all times an Interest Coverage Ratio
of not less than the amount set forth below for each period set forth
below:
Period Ending Ratio
============================== ==============================
December 31, 1999 1.75
============================== ==============================
March 31, 2000 1.75
============================== ==============================
June 30, 2000 1.75
============================== ==============================
September 30, 2000 1.75
============================== ==============================
December 31, 2000 1.75
============================== ==============================
March 31, 2001 1.90
============================== ==============================
June 30, 2001 1.90
============================== ==============================
September 30, 2001 2.00
============================== ==============================
December 31, 2001 2.00
============================== ==============================
March 31, 2002 2.00
============================== ==============================
June 30, 2002 2.25
============================== ==============================
September 30, 2002 2.50
============================== ==============================
December 31, 2002 2.50
============================== ==============================
March 31, 2003 2.50
============================== ==============================
June 30, 2003 2.50
============================== ==============================
September 30, 2003 2.50
============================== ==============================
<PAGE>
December 31, 2003 3.50
============================== ==============================
March 31, 2004 3.50
============================== ==============================
June 30, 2004 3.50
============================== ==============================
September 30, 2004 3.50
============================== ==============================
December 31, 2004 3.50
============================== ==============================
it being understood and agreed that for purposes of the calculation of an
Interest Coverage Ratio, the Consolidated EBITDA and Consolidated
Interest Expense of CBI and its Subsidiaries for the fiscal quarter
ending December 31, 1999 included in any such calculation shall be based
upon pro forma consolidated financial statements of CBI and its
Subsidiaries, reasonably acceptable to the Administrative Agent after
giving effect to the Merger.
ARTICLE VI
CBI GUARANTY
SECTION 6.01. CBI Guaranty. (a) CBI hereby unconditionally and
irrevocably guarantees (the undertaking by CBI under this Article VI being the
"CBI Guaranty") the punctual payment when due, whether at scheduled maturity
or at a date fixed for prepayment or by acceleration, demand or otherwise, of
all of the Obligations of each of the other Loan Parties now or hereafter
existing under or in respect of the Loan Documents (including, without
limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing Obligations), whether direct or
indirect, absolute or contingent, and whether for principal, interest,
premium, fees, indemnification payments, contract causes of action, costs,
expenses or otherwise (such Obligations being the "Guaranteed Obligations"),
and agrees to pay any and all expenses (including, without limitation,
reasonable fees and expenses of counsel) incurred by the Administrative Agent
or any of the other Secured Parties in enforcing any rights under this CBI
Guaranty. Without limiting the generality of the foregoing, the liability of
CBI shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by any of the other Loan Parties to the
Administrative Agent or any of the other Secured Parties under or in respect
of the Loan Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.
(b) CBI and, by its acceptance of this CBI Guaranty, the
Administrative Agent and each of the other Secured Parties, hereby confirm
that it is the intention of all such Persons that this CBI Guaranty and the
Obligations of CBI hereunder not constitute a fraudulent transfer or
conveyance for purposes of the United States Federal Bankruptcy Code, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state Requirements of Law covering the protection of
creditors' rights or the relief of debtors to the extent applicable to this
CBI Guaranty and the CBI Obligations hereunder. To effectuate the foregoing
intention, CBI, the Administrative Agent and each of the other Secured Parties
<PAGE>
hereby irrevocably agree that, solely with respect to the Guaranteed
Obligations and the other liabilities of CBI under this CBI Guaranty which
result from or arise out of its guarantee under subsection (a) of this Section
6.01 of the Obligations of the Loan Parties under or in respect of the Loan
Documents, such Guaranteed Obligations and other liabilities shall be limited
to the maximum amount as will, after giving effect to such maximum amount and
all other contingent and fixed liabilities of CBI that are relevant under such
Requirements of Law, and after giving effect to any collections from, any
rights to receive contributions from, or payments made by or on behalf of, any
of the Subsidiaries of CBI in respect of the Obligations of such Subsidiary
under the Subsidiaries Guarantees and, in the case of this CBI Guaranty,
result in the Guaranteed Obligations and all other liabilities of CBI under
this CBI Guarantee not constituting a fraudulent transfer or conveyance.
(c) CBI hereby unconditionally and irrevocably agrees that, in the
event any payment shall be required to be made to the Secured Parties under
this CBI Guaranty or the Subsidiary Guaranties or any other guarantee, CBI
will contribute, to the maximum extent permitted by law, such amounts to each
other guarantor as would maximize the aggregate amount payable to the Secured
Parties under or in respect of the Loan Documents.
SECTION 6.02. Guarantee Absolute. (a) CBI guarantees that all of the
Guaranteed Obligations will be paid strictly in accordance with the terms of
the Loan Documents, regardless of any Requirements of Law now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any of the other Secured Parties with respect thereto.
The Obligations of CBI under this CBI Guaranty are independent of the
Guaranteed Obligations or any other Obligations of any of the other Loan
Parties under or in respect of the Loan Documents, and a separate action or
actions may be brought and prosecuted against CBI to enforce this CBI
Guaranty, irrespective of whether any action is brought against any of the
other Loan Parties or whether any of the other Loan Parties is joined in any
such action or actions. The liability of CBI under this CBI Guaranty shall be
absolute, unconditional and irrevocable irrespective of, and CBI hereby
irrevocably waives any defenses it may now have or may hereafter acquire in
any way relating to, any and all of the following:
(i) any lack of validity or enforceability of any of the Loan
Documents or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
Obligations of any of the Loan Parties under or in respect of the Loan
Documents, or any other amendment or waiver of, or any consent to
departure from, any of the Loan Documents (including, without limitation,
any increase in the Guaranteed Obligations resulting from the extension
of additional credit to any of the other Loan Parties or any of their
respective Subsidiaries or otherwise);
(iii) any taking, exchange, release or nonperfection of any of the
Collateral, or any taking, release or amendment or waiver of, or consent
to departure from, the
<PAGE>
Subsidiary Guaranties or any other guarantee, for all or any of the
Guaranteed Obligations;
(iv) any manner of application of Collateral, or proceeds thereof,
to all or any of the Guaranteed Obligations, or any manner of sale or
other disposition of any Collateral for all or any of the Guaranteed
Obligations or any other Obligations of any of the other Loan Parties
under or in respect of the Loan Documents, or any other property and
assets of any of the other Loan Parties or any of their respective
Subsidiaries;
(v) any change, restructuring or termination of the legal structure
or existence of any of the other Loan Parties or any of their respective
Subsidiaries;
(vi) any failure of any of the Secured Parties to disclose to any of
the Loan Parties any information relating to the business, condition
(financial or otherwise), operations, performance, properties or
prospects of any of the other Loan Parties now or hereafter known to such
Secured Party;
(vii) the failure of any other Person to execute the Subsidiary
Guaranties or any other guarantee or agreement or the release or
reduction of liability of any of the other Loan Parties or any other
guarantor or surety with respect to the Guaranteed Obligations; or
(viii) any other circumstance (including, without limitation, any
statute of limitations or any existence of or reliance on any
representation by the Administrative Agent or any of the other Secured
Parties) that might otherwise constitute a defense available to, or a
discharge of, CBI, such Borrower, any of the other Loan Parties or any
other guarantor or surety.
This CBI Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Administrative Agent or any of
the other Secured Parties or by any other Person upon the insolvency,
bankruptcy or reorganization of any of the other Loan Parties or otherwise,
all as though such payment had not been made, and CBI hereby unconditionally
and irrevocably agrees that it will indemnify the Administrative Agent and
each of the other Secured Parties, upon demand, for all of the costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by the Administrative Agent or such other Secured Party in
connection with any such rescission or restoration, including any such costs
and expenses incurred in defending against any claim alleging that such
payment constituted a preference, a fraudulent transfer or a similar payment
under any bankruptcy, insolvency or similar Requirements of Law.
(b) CBI hereby further agrees that, as between CBI on the one hand,
and the Administrative Agent and the Secured Parties, on the other hand, (i)
the Guaranteed Obligations of CBI may be declared to be forthwith due and
payable as provided in Section 7.01 (and shall be deemed to have become
automatically due and payable in the circumstances provided in
<PAGE>
Section 7.01) for purposes of Section 6.01, notwithstanding any stay,
injunction or other prohibition preventing such declaration in respect of the
Obligations of any of the Loan Parties guaranteed hereunder (or preventing
such Guaranteed Obligations from becoming automatically due and payable) as
against any other Person and (ii) in the event of any declaration of
acceleration of such Guaranteed Obligations (or such Guaranteed Obligations
being deemed to have become automatically due and payable) as provided in
Section 7.01, such Guaranteed Obligations (whether or not due and payable by
any other Person) shall forthwith become due and payable by CBI for all
purposes of this Guarantee.
SECTION 6.03. Waivers and Acknowledgments. (a) CBI hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, protest, dishonor and any other notice with respect to any of the
Guaranteed Obligations and this CBI Guaranty, and any requirement that the
Administrative Agent or any of the other Secured Parties protect, secure,
perfect or insure any Lien or any property or assets subject thereto or
exhaust any right or take any action against any of the other Loan Parties or
any other Person or any of the Collateral.
(b) CBI hereby waives (i) any defense arising by reason of any claim
or defense based upon an election of remedies by the Administrative Agent or
the other Secured Parties which in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of CBI or any other rights of CBI to
proceed against any of the other Loan Parties, any other guarantor or any
other Person or any of the Collateral, and (ii) any defense based on any right
of setoff or counterclaim against or in respect of the Obligations of CBI
under this CBI Guaranty.
(c) CBI hereby unconditionally and irrevocably waives any duty on
the part of the Administrative Agent or any of the other Secured Parties to
disclose to CBI any matter, fact or thing relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects of
any of the other Loan Parties or any of their respective Subsidiaries or the
property and assets thereof now or hereafter known by the Administrative Agent
or such other Secured Party.
(d) CBI hereby unconditionally waives any right to revoke this CBI
Guaranty, and acknowledges that this CBI Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
(e) CBI hereby acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated by the Loan
Documents and that the waivers set forth in Section 6.02 and in this Section
6.03 are knowingly made in contemplation of such benefits.
SECTION 6.04. Subrogation. CBI hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or may
hereafter acquire against any of the other Loan Parties or any other insider
guarantor that arise from the existence, payment, performance or enforcement
of the Obligations of CBI under this CBI Guaranty or any of the
<PAGE>
other Loan Documents, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Administrative Agent or any of the
other Secured Parties against such other Loan Party or any other insider
guarantor or any Collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute, common law or any other Requirements of
Law, including, without limitation, the right to take or receive from such
other Loan Party or any other insider guarantor, directly or indirectly, in
cash or other property or by set-off or in any other manner, payment or
security on account of such claim, remedy or right, unless and until such time
as all of the Guaranteed Obligations and all of the other amounts payable
under this CBI Guaranty shall have been paid in full in cash, all of the Bank
Hedge Agreements shall have expired or been terminated and the Commitments
shall have expired or terminated. If any amount shall be paid to CBI in
violation of the immediately preceding sentence at any time prior to the
latest of (a) the payment in full in cash of all of the Guaranteed Obligations
and all of the other amounts payable under this CBI Guaranty, (b) the
expiration or termination of all of the Bank Hedge Agreements and (c) the
Termination Date, such amount shall be received and held in trust for the
benefit of the Administrative Agent and the other Secured Parties, shall be
segregated from the other property and funds of CBI and shall be delivered
forthwith to the Administrative Agent in the same form as so received (with
any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and the other amounts payable under this CBI Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any of the Guaranteed Obligations
or any of the other amounts payable under this CBI Guaranty thereafter
arising. If (i) CBI shall pay to the Administrative Agent all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all of
the other amounts payable under this CBI Guaranty shall have been paid in full
in cash, (iii) all of the Bank Hedge Agreements shall have expired or been
terminated and (iv) the Termination Date shall have occurred, the
Administrative Agent and the other Secured Parties will, at CBI's request and
expense, execute and deliver to CBI appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer of
subrogation to CBI of an interest in the Guaranteed Obligations resulting from
the payment made by CBI under this CBI Guaranty.
SECTION 6.05. Continuing Guarantee; Assignments. This CBI Guaranty
is a continuing guarantee and shall (a) remain in full force and effect until
the latest of (i) the payment in full in cash of all of the Guaranteed
Obligations and all of the other amounts payable under this CBI Guaranty, (ii)
the expiration or termination of all of the Bank Hedge Agreements and (iii)
the Termination Date, (b) be binding upon CBI and its respective successors
and assigns and (c) inure to the benefit of, and be enforceable by, the
Administrative Agent and the other Secured Parties and their respective
successors, transferees and assigns. Without limiting the generality of clause
(c) of the immediately preceding sentence, any of the Lenders may assign or
otherwise transfer all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or any portion of its Commitment
or Commitments, the Advances owing to it and the Note or Notes held by it) to
any other Person, and such other Person shall thereupon become vested with all
the benefits in respect thereof granted to such Lender under this Article VI
or otherwise, in each case as provided in Section 9.07.
<PAGE>
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) (i) either Borrower shall fail to pay any principal of any
Advance made to it when the same shall become due and payable, whether by
scheduled maturity or at a date fixed for prepayment or by acceleration,
demand or otherwise, or (ii) either Borrower shall fail to pay any
interest on any Advance made to it, or any Loan Party shall fail to make
any other payment under or in respect of any Loan Document required to
have been made by it, whether by scheduled maturity or at a date fixed
for prepayment or by acceleration, demand or otherwise in each case under
this clause (ii) within three Business Days after the same becomes due
and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove
to have been incorrect in any material respect on the date as of which it
was made or deemed made; or
(c) either Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 2.14, 5.01(e), (f), (i), (j),
(m) or (o), 5.02, 5.03 or 5.04; or
(d) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after the earlier of the date on which (i) a Responsible Officer becomes
aware of such failure or (ii) written notice thereof shall have been
given to the Borrower by any Agent or any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in
respect of any Debt of such Loan Party or such Subsidiary (as the case
may be) that is outstanding in a principal amount (or, in the case of any
Hedge Agreement, an Agreement Value) of at least $20,000,000 either
individually or in the aggregate (but excluding Debt outstanding
hereunder), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt or otherwise to
cause, or to permit the holder thereof to cause, such Debt to mature; or
any such Debt shall be declared to be due and payable or required to be
<PAGE>
prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to be made, in
each case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against any Loan Party or any of its Subsidiaries seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee or other
similar official for it or for any substantial part of its property and,
in the case of any such proceeding instituted against it (but not
instituted by it) that is being diligently contested by it in good faith,
either such proceeding shall remain undismissed or unstayed for a period
of 30 days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or any substantial part of its property) shall occur; or any Loan
Party or any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(g) any judgments or orders, either individually or in the
aggregate, for the payment of money in excess of $30,000,000 shall be
rendered against any Loan Party or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could have a Material Adverse
Effect, and there shall be any period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be
valid and binding on or enforceable against any Loan Party party to it,
or any such Loan Party shall so state in writing; or
(j) any Collateral Document or financing statement after delivery
thereof pursuant to Section 3.01 or 5.01(j) shall for any reason (other
than pursuant to the terms thereof) cease to create a valid and perfected
first priority lien on and security interest in the Collateral purported
to be covered thereby; or
(k) a Change of Control shall occur; or
<PAGE>
(l) any ERISA Event shall have occurred with respect to a Plan that
could reasonably be expected to have a Material Adverse Effect; or
(m) any Loan Party or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification) could reasonably be expected to have
a Material Adverse Effect; or
(n) any Loan Party or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the
aggregate annual contributions of the Loan Parties and the ERISA
Affiliates to all Multiemployer Plans that are then in reorganization or
being terminated have been or will be increased over the amounts
contributed to such Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount that could reasonably
be expected to have a Material Adverse Effect; or
(o) an "Event of Default" (as defined in the Oak Hill Indenture)
shall have occurred and be continuing under the Oak Hill Indenture;
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the Commitments of each Lender Party and the obligation of
each Lender Party to make Advances (other than Letter of Credit Advances by an
Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c) and
Swing Line Advances by a Revolving Credit Lender pursuant to Section 2.02(b))
and of each Issuing Bank to issue Letters of Credit to be terminated,
whereupon the same shall forth terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, (A) by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under
this Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower
and (B) by notice to each Issuing Bank, direct such Issuing Bank to deliver a
Default Termination Notice to the beneficiary of each Letter of Credit issued
by it, and each Issuing Bank shall deliver such Default Termination Notices;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to the Borrower under the Federal Bankruptcy Code, (x)
the Commitments of each Lender Party and the obligation of each Lender Party
to make Advances (other than Letter of Credit Advances by an Issuing Bank or a
Revolving Credit Lender pursuant to Section 2.03(c) and Swing Line Advances by
a Revolving Credit Lender pursuant to Section 2.02(b)) and of each Issuing
Bank to issue Letters of Credit shall automatically be terminated and (y) the
Notes, all such interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Borrowers.
<PAGE>
SECTION 7.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
7.01 or otherwise, make demand upon the Borrowers to, and forthwith upon such
demand the Borrowers will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office
designated in such demand, for deposit in the L/C Cash Collateral Account, an
amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding. If at any time the Administrative Agent determines that any funds
held in the L/C Cash Collateral Account are subject to any right or claim of
any Person other than the Agents and the Lender Parties or that the total
amount of such funds is less than the aggregate Available Amount of all
Letters of Credit, the Borrowers will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to
be deposited and held in the L/C Cash Collateral Account, an amount equal to
the excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit
in the L/C Cash Collateral Account, such funds shall be applied to reimburse
the relevant Issuing Bank or Revolving Credit Lenders, as applicable, to the
extent permitted by applicable law.
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action. (a) Each Lender Party (in
its capacities as a Lender, a Swing Line Bank (if applicable), an Issuing Bank
(if applicable) and on behalf of itself and its Affiliates as potential Hedge
Banks) hereby appoints and authorizes each Agent to take such action as agent
on its behalf and to exercise such powers and discretion under this Agreement
and the other Loan Documents as are delegated to such Agent by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of the
Notes), no Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions
of the Required Lenders, and such instructions shall be binding upon all
Lender Parties and all holders of Notes; provided, however, that no Agent
shall be required to take any action that exposes such Agent to personal
liability or that is contrary to this Agreement or applicable law. Each Agent
agrees to give to each Lender Party prompt notice of each notice given to it
by the Borrower pursuant to the terms of this Agreement.
(b) The Administrative Agent shall also act as the "collateral
agent" under the Loan Documents, and each Lender Party (in its capacity as a
Lender and a Secured Party) hereby appoints and authorizes the Administrative
Agent to act as the agent of such Lender Party for purposes of acquiring,
holding and enforcing any and all Liens on Collateral granted by any of the
Loan Parties to secure any of the Secured Obligations, together with such
powers
<PAGE>
and discretion as are reasonably incidental thereto. The Administrative Agent
may from time to time in its discretion appoint any of the other Lender Party
or any of the Affiliates of a Lender Party to act as its co-agent or sub-agent
for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the Collateral Documents or of exercising any
rights and remedies thereunder at the direction of the Administrative Agent.
In this connection, the Administrative Agent, as "collateral agent", and such
co-agents and sub-agents shall be entitled to the benefits of all provisions
of this Article VIII (including, without limitation, Section 8.05, as though
such co-agents or sub-agents were the "collateral agent" under the Loan
Documents) as if set forth in full herein with respect thereto.
(c) Each of the Co-Arrangers shall have no powers or discretion
under this Agreement or any of the other Loan Documents other than those
bestowed upon it as a co-agent or sub-agent from time to time by the
Administrative Agent pursuant to subsection (b) of this Section 8.01, and each
Lender Party hereby acknowledges that none of the Co-Arrangers have any
liability under this Agreement or any of the other Loan Documents.
SECTION 8.02. Agents' Reliance, Etc. Neither any Agent nor any of
their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing,
each Agent: (a) may treat the payee of any Note as the holder thereof until,
in the case of the Administrative Agent, the Administrative Agent receives and
accepts an Assignment and Acceptance entered into by the Lender that is the
payee of such Note, as assignor, and an Eligible Assignee, as assignee, or, in
the case of any other Agent, such Agent has received notice from the
Administrative Agent that it has received and accepted such Assignment and
Acceptance, in each case as provided in Section 9.07; (b) may consult with
legal counsel (including counsel for any Loan Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (c) makes no warranty or
representation to any Lender Party and shall not be responsible to any Lender
Party for any statements, warranties or representations (whether written or
oral) made in or in connection with the Loan Documents; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of any Loan Document on the part of any
Loan Party or to inspect the property (including the books and records) of any
Loan Party; (e) shall not be responsible to any Lender Party for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, any Loan
Document or any other instrument or document furnished pursuant thereto; and
(f) shall incur no liability under or in respect of any Loan Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, telecopy or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 8.03. The Administrative Agent, the Syndication Agent, the
Co- Arrangers and Affiliates. With respect to its Commitments, the Advances
made by it and the Notes issued to it, CUSA, Bank of America, SSBI and BAS
shall have the same rights and powers under the Loan Documents as any other
Lender Party and may exercise the same as
<PAGE>
though it were not an Agent; and the term "Lender Party", "Lender Parties",
"Secured Party" or "Secured Parties" shall, unless otherwise expressly
indicated, include CUSA, Bank of America, SSBI and BAS in their respective
individual capacities. CUSA, Bank of America, SSBI and BAS and their
respective affiliates (whether or not parties hereto) may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with,
any Loan Party, any of its Subsidiaries and any Person that may do business
with or own securities of any Loan Party or any such Subsidiary, all as if
CUSA, Bank of America, SSBI and BAS were not Agents and without any duty to
account therefor to the Lender Parties.
SECTION 8.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 8.05. Indemnification. (a) Each Lender Party severally
agrees to indemnify each Agent (to the extent not promptly reimbursed by the
Borrowers) from and against such Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of the Loan Documents
or any action taken or omitted by such Agent under the Loan Documents
(collectively, the "Lender Indemnified Costs"); provided, however, that no
Lender Party shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's gross negligence or willful
misconduct as found in a final, non-appealable judgment by a court of
competent jurisdiction. In the case of any claim, investigation, litigation or
proceeding giving rise to any Lender Indemnified Costs, the indemnification
provided by the Lender Parties under this Section 8.05 shall apply whether or
not any such claim, investigation, litigation or proceeding is brought by such
Agent, any of the Lender Parties or a third party. Without limiting any of the
provisions of the immediately preceding sentence, each of the Lender Parties
hereby agrees to reimburse the Agents promptly upon demand for its ratable
share of any costs and expenses (including, reasonable fees and expenses of
counsel) incurred by such Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement or any of the
other Loan Documents, to the extent that such Agent is not promptly reimbursed
for such costs and expenses by the Borrowers.
(b) Each Lender Party severally agrees to indemnify each Issuing
Bank (to the extent not promptly reimbursed by the Borrowers) from and against
such Lender Party's ratable share (determined as provided below) of any and
all liabilities, obligations, losses,
<PAGE>
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against such Issuing Bank in any way relating to or
arising out of the Loan Documents or any action taken or omitted by such
Issuing Bank under the Loan Documents; provided, however, that no Lender Party
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Issuing Bank's gross negligence or willful
misconduct as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender Party
agrees to reimburse such Issuing Bank promptly upon demand for its ratable
share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by such Borrower under Section 9.04, to the
extent that such Issuing Bank is not promptly reimbursed for such costs and
expenses by such Borrower.
(c) For purposes of this Section 8.05, the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (i) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender Parties, (ii)
their respective Pro Rata Shares of the aggregate Available Amount of all
Letters of Credit outstanding at such time, (iii) the aggregate unused
portions of their respective Term Commitments at such time and (iv) their
respective Unused Revolving Credit Commitments at such time; provided that the
aggregate principal amount of Swing Line Advances owing to any Swing Line Bank
and of Letter of Credit Advances owing to any Issuing Bank shall be considered
to be owed to the Revolving Credit Lenders ratably in accordance with their
respective Revolving Credit Commitments. The failure of any Lender Party to
reimburse any Agent or any Issuing Bank, as the case may be, promptly upon
demand for its ratable share of any amount required to be paid by the Lender
Parties to such Agent or such Issuing Bank, as the case may be, as provided
herein shall not relieve any other Lender Party of its obligation hereunder to
reimburse such Agent or such Issuing Bank, as the case may be, for its ratable
share of such amount, but no Lender Party shall be responsible for the failure
of any other Lender Party to reimburse such Agent or such Issuing Bank, as the
case may be, for such other Lender Party's ratable share of such amount.
Without prejudice to the survival of any other agreement of any Lender Party
hereunder, the agreement and obligations of each Lender Party contained in
this Section 8.05 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the other Loan Documents.
SECTION 8.06. Successor Agents. Any Agent may resign as to any or
all of the Facilities at any time by giving written notice thereof to the
Lender Parties and the Borrower and may be removed as to all of the Facilities
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent as to such of the Facilities as to which such Agent has
resigned or been removed. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Lender Parties, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $250,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent as to all
<PAGE>
of the Facilities and upon the execution and filing or recording of such
financing statements, or amendments thereto, and such amendments or
supplements to the mortgages, if any, and such other instruments or notices,
as may be necessary or desirable, or as the Required Lenders may request, in
order to continue the perfection of the Liens granted or purported to be
granted by the Collateral Documents, such successor Administrative Agent shall
succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent as to less than all of the
Facilities and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such amendments or supplements to the
mortgages, if any, and such other instruments or notices, as may be necessary
or desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent as to such Facilities, other than with respect
to funds transfers and other similar aspects of the administration of
Borrowings under such Facilities, issuances of Letters of Credit
(notwithstanding any resignation as Administrative Agent with respect to the
Letter of Credit Facility) and payments by the Borrowers in respect of such
Facilities, and the retiring Administrative Agent shall be discharged from its
duties and obligations under this Agreement as to such Facilities, other than
as aforesaid. If within 45 days after written notice is given of the retiring
Agent's resignation or removal under this Section 8.06 no successor Agent
shall have been appointed and shall have accepted such appointment, then on
such 45th day (a) the retiring Agent's resignation or removal shall become
effective, (b) the retiring Agent shall thereupon be discharged from its
duties and obligations under the Loan Documents and (c) the Required Lenders
shall thereafter perform all duties of the retiring Agent under the Loan
Documents until such time, if any, as the Required Lenders appoint a successor
Agent as provided above. After any retiring Agent's resignation or removal
hereunder as Agent as to any of the Facilities shall have become effective,
the provisions of this Article VIII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent as to such
Facilities under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, the Notes or any of the other Loan Documents, nor
consent to any departure by any of the Loan Parties therefrom, shall in any
event be effective unless the same shall be in writing and signed by each of
the Loan Parties party to such Loan Document and directly affected by such
amendment, waiver or consent and signed (or in the case of the Collateral
Documents, consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that:
<PAGE>
(a) no amendment, waiver or consent shall, unless in writing and
signed by the Borrowers and all of the Lenders (other than any of the
Lenders that is, at such time, a Defaulting Lender), do any of the
following at any time:
(i) waive any of the conditions specified in Section 3.01 or,
in the case of the Initial Extension of Credit, Section 3.02;
(ii) change the number of Lenders or the percentage of the
Commitments or the aggregate outstanding principal amount of
Advances or the aggregate Available Amount of outstanding Letters of
Credit that, in each case, shall be required for the Lender Parties
or any of them to take any action hereunder;
(iii) release all or substantially all of the value of the
guarantees of the Subsidiaries under the Subsidiaries Guarantee
(other than in connection with a disposition or sale of assets
permitted by this Agreement);
(iv) release all or substantially all of the Collateral in any
transaction or series of related transactions (other than in
connection with a disposition or sale of assets permitted by this
Agreement); or
(v) amend this Section 9.01;
(b) no amendment, waiver or consent shall, unless in writing and
signed by the Borrowers and the Required Lenders and each of the Lenders
(other than any of the Lenders that is, at such time, a Defaulting
Lender) that has a Commitment under the Term Facility or the Revolving
Credit Facility if such Lender is directly affected by such amendment,
waiver or consent:
(i) increase the Commitments of such Lender;
(ii) reduce the principal of, or stated rate of interest on,
the Notes held by such Lender or any fees or other amounts payable
hereunder to such Lender; or
(iii) postpone any date scheduled for any payment of principal
of, or interest on, the Notes held by such Lender pursuant to
Section 2.04 or 2.07 or any date fixed for any payment of fees or
the Guaranteed Obligations payable hereunder or thereunder to such
Lender; and
(c) no amendment, waiver or consent shall, unless in writing and
signed by the Borrowers and the Required Lenders and, if the Lenders
under any such Facility are directly affected by such amendment, waiver
or consent, Lenders holding more than 50% of the aggregate Commitments
under the Term Facility or the Revolving Credit Facility, change the
order of application of any reduction in the Commitments in any manner
that materially affects the Lender Party under such Facility at any time
when all
<PAGE>
or a portion of the Term Facility remains in effect or permanently reduce
the Revolving Credit Facility;
and provided further that no amendment, waiver or consent shall, unless in
writing and signed by each Swing Line Bank or each Issuing Bank, as the case
may be, in addition to the Lenders required above to take such action, affect
the rights or duties of such Swing Line Bank or such Issuing Bank under this
Agreement or any of the other Loan Documents; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lender Parties required above to take
such action, affect the rights or duties of the Administrative Agent under
this Agreement or any of the other Loan Documents. Notwithstanding any of the
foregoing provisions of this Section 9.01, none of the defined terms set forth
in Section 1.01 shall be amended, supplemented or otherwise modified hereafter
in any manner that would change the meaning, purpose or effect of this Section
9.01 or any section referred to herein unless such amendment, supplement or
modification is agreed to in writing by the number and percentage of Lenders
(and each Swing Line Bank, each Issuing Bank and the Administrative Agent, in
each case, if applicable) otherwise required to amend such section under the
terms of this Section 9.01.
SECTION 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or
delivered, if to any of the Borrowers, at its address at 201 East Fourth
Street, 102-760, P.O. Box 2301, Cincinnati, Ohio 45201-2301, Attention:
Treasurer, Telecopier No.: 513-397-4177; if to any Initial Lender Party, at
its Domestic Lending Office specified opposite its name on Schedule I hereto;
if to any other Lender Party, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender Party; if to
the Syndication Agent, at its address at 901 Main Street, 66th Floor, Dallas,
Texas 75202, Attention: Roselyn Drake and Sharon Evans; Telecopier No.:
214-209- 9390; and if to the Administrative Agent, at its address at 390
Geenwich Street, 1st Floor, New York, NY 10013, Attention: Townsend Weekes;
Telecopier No.: 212-723-8547; or, as to the Borrower or the Administrative
Agent, at such other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the Borrower and
the Administrative Agent. All such notices and other communications shall,
when mailed, telegraphed, telecopied or telexed, be effective when deposited
in the mails, delivered to the telegraph company, transmitted by telecopier or
confirmed by telex answerback, respectively, except that notices and
communications to any Agent pursuant to Article II, III or VIII shall not be
effective until received by such Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or
the Notes or of any Exhibit hereto to be executed and delivered hereunder
shall be effective as delivery of an original executed counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender Party or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
<PAGE>
SECTION 9.04. Costs and Expenses. (a) Each of the Borrowers hereby
agrees to pay on demand (i) all costs and expenses of each Agent in connection
with the preparation, execution, delivery, administration, modification and
amendment of the Loan Documents (including, without limitation, (A) all due
diligence, collateral review, syndication, transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the reasonable fees and expenses of
counsel for the Agents with respect thereto, with respect to advising the
Agents as to their rights and responsibilities, or the perfection, protection
or preservation of rights or interests, under the Loan Documents, with respect
to negotiations with any Loan Party or with other creditors of any Loan Party
or any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy,
insolvency or other similar proceeding involving creditors' rights generally
and any proceeding ancillary thereto) and (ii) all costs and expenses of each
Agent and each Lender Party in connection with the enforcement of the Loan
Documents, whether in any action, suit or litigation, or any bankruptcy,
insolvency or other similar proceeding affecting creditors' rights generally
(including, without limitation, the reasonable fees and expenses of counsel
for the Administrative Agent and each Lender Party with respect thereto).
(b) Each of the Borrowers hereby jointly and severally agrees to
indemnify, defend and save and hold harmless each Agent, each Lender Party and
each of their Affiliates and their respective officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against, and shall
pay on demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) (i) the
Transaction (or any aspect thereof), (ii) the Facilities, the actual or
proposed use of the proceeds of the Advances or the Letters of Credit, the
Transaction Documents or any of the transactions contemplated thereby,
including, without limitation, any acquisition or proposed acquisition
(including, without limitation, the Transaction) by CBI or any of its
Subsidiaries or Affiliates of all or any portion of the Equity Interests in or
Debt securities or substantially all of the property or assets of any other
Person or (iii) the actual or alleged presence of Hazardous Materials on any
property of any Loan Party or any of its Subsidiaries or any Environmental
Action relating in any way to any Loan Party or any of its Subsidiaries,
except to the extent such claim, damage, loss, liability or expense is found
in a final, non-appealable judgment by a court of competent jurisdiction to
have resulted from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or other proceeding to
which the indemnity in this Section 9.04(b) applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is
brought by any Loan Party, its directors, shareholders or creditors or an
Indemnified Party, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the Transaction is consummated. Each Borrower also
agrees not to assert any claim against any Agent, any Lender Party or any of
their Affiliates, or any of their respective officers, directors, employees,
agents and advisors, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Facilities, the actual or proposed use
<PAGE>
of the proceeds of the Advances or the Letters of Credit, the Transaction
Documents or any of the transactions contemplated by the Transaction
Documents.
It is understood and agreed that, unless (i) a conflict of interest
between such Indemnified Party and any Loan Party or any of their respective
Affiliates may exist in respect of such Indemnifiable Matter in the reasonable
opinion of counsel for such Indemnified Party or (ii) there may be one or more
legal defenses available to such Indemnified Party that are different from or
in addition to, but in any such case are adverse to, any other Loan Parties or
any of their respective Affiliates, each Indemnified Party shall reasonably
endeavor to work cooperatively with each of the Borrowers with a view toward
minimizing the legal and other expenses associated with any defense and any
potential settlement or judgment; provided that no Indemnified Party shall be
required to disclose information of a type that lenders do not generally
disclose to borrowers or that such Indemnified Party would be prohibited from
disclosing based on any Federal, state or foreign authority or examiner
regulating such Indemnified Party. To the extent reasonably practicable and
not disadvantageous to any Indemnified Party, it is anticipated that a single
counsel selected by the Borrowers and reasonably satisfactory to such
Indemnified Party may be used and such Borrowers shall be responsible for all
fees and expenses of each such counsel. Notwithstanding the foregoing, such
Indemnified Party shall have the right (but not any obligation) to retain
separate co-counsel and shall have the right, but not the obligation, to
assert any and all defenses, cross-claims and counterclaims that it may have,
and the fees and expenses of any such co-counsel shall be at the expense of
such Indemnified Party (except that such Borrower or Borrowers shall be
responsible for the fees and expenses of the separate co-counsel (x) to the
extent such Indemnified Party reasonably concludes that any of the counsel
chosen by such Borrower or Borrowers to participate in the defense of any such
Indemnifiable Matter has a conflict of interest, (y) if such Borrower or
Borrowers do not employ counsel reasonably satisfactory to such Indemnified
Party or (z) if such Borrower or Borrowers or its counsel does not at all
times defend such Indemnifiable Matter vigorously and in good faith.
Settlement of any claim or litigation involving any material indemnified
amount will require the approval of the Borrowers (not to be unreasonably
withheld).
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by any Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or
2.10(d), acceleration of the maturity of the Notes pursuant to Section 7.01 or
for any other reason, or by an Eligible Assignee to a Lender Party other than
on the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 9.07 as a
result of a demand by such Borrower pursuant to Section 9.07(a), or if such
Borrower fails to make any payment or prepayment of an Advance for which a
notice of prepayment has been given or that is otherwise required to be made,
whether pursuant to Section 2.04, 2.06 or 7.01 or otherwise, such Borrower
shall, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result
of such payment or Conversion or such failure to pay or prepay, as the case
may be, including, without limitation, any loss (including loss of
<PAGE>
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender Party to fund
or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of each Borrower contained in Sections 2.10 and 2.12 and this
Section 9.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or
the granting of the consent specified by Section 7.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 7.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and otherwise apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Agent, such Lender
Party or such Affiliate to or for the credit or the account of each Borrower
against any and all of the Obligations of the Borrowers now or hereafter
existing under the Loan Documents, irrespective of whether such Agent or such
Lender Party shall have made any demand under this Agreement or such Note or
Notes and although such Obligations may be unmatured. Each Agent and each
Lender Party agrees promptly to notify the Borrowers after any such set-off
and application; provided, however, that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of each
Agent and each Lender Party and their respective Affiliates under this Section
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Agent, such Lender Party and their
respective Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by each Borrower and each Agent and the
Administrative Agent shall have been notified by each Initial Lender Party
that such Initial Lender Party has executed it and thereafter shall be binding
upon and inure to the benefit of each Borrower, each Agent and each Lender
Party and their respective successors and assigns, except that no Borrower
shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lender Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
and, so long as no Default shall have occurred and be continuing, if demanded
by the Borrowers (following a demand by such Lender pursuant to Section 2.10
or 2.12) upon at least five Business Days' notice to such Lender and the
Administrative Agent, will assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment or Commitments, the Advances
owing to
<PAGE>
it and the Note or Notes held by it); provided, however, that (i) each such
assignment shall be of a uniform, and not a varying, percentage of all rights
and obligations under and in respect of one or more Facilities, (ii) except in
the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of
any Lender or an assignment of all of a Lender's rights and obligations under
this Agreement, the aggregate amount of the Commitments being assigned to such
Eligible Assignee pursuant to such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in no
event be less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof (or such lesser amount as shall be approved by the Administrative
Agent and, so long as no Default shall have occurred and be continuing at the
time of effectiveness of such assignment, the Borrowers) under each Facility
for which a Commitment is being assigned, (iii) each such assignment shall be
to an Eligible Assignee, (iv) each such assignment made as a result of a
demand by the Borrowers pursuant to this Section 9.07(a) shall be arranged by
the Borrowers after consultation with the Administrative Agent and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to
make any such assignment as a result of a demand by the Borrowers pursuant to
this Section 9.07(a) unless and until such Lender shall have received one or
more payments from either the Borrowers or one or more Eligible Assignees in
an aggregate amount at least equal to the aggregate outstanding principal
amount of the Advances owing to such Lender, together with accrued interest
thereon to the date of payment of such principal amount and all other amounts
payable to such Lender under this Agreement, (vi) no such assignments shall be
permitted without the consent of the Administrative Agent until the
Administrative Agent shall have notified the Lender Parties that syndication
of the Commitments hereunder has been completed and (vii) the parties to each
such assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with any Note or Notes subject to such assignment and a processing
and recordation fee of $3,500; provided, however, that for each such
assignment made as a result of a demand by any Borrower pursuant to this
Section 9.07(a), such Borrower shall pay to the Administrative Agent the
applicable processing and recordation fee.
(b) Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in such Assignment and Acceptance, (i)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender or Issuing Bank,
as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights (other than its rights under Sections 2.10, 2.12 and 9.04 to the extent
any claim thereunder relates to an event arising prior to such assignment) and
be released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the remaining portion of an
assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
<PAGE>
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning
Lender Party makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies
of the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon any Agent, such
assigning Lender Party or any other Lender Party and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (v)
such assignee confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Loan Documents as are
delegated to such Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed
by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred
to in Section 9.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses
of the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and each Borrower, the
Agents and the Lender Parties may treat each Person whose name is recorded in
the Register as a Lender Party hereunder for all purposes of this Agreement.
The Register shall be available for inspection by any Borrower or any Agent or
any Lender Party at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the form of Exhibit
C hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrowers and each other Agent. In the case of any assignment
by a Lender, within five Business Days after its receipt of such notice, each
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered
<PAGE>
Note or Notes a new Note to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it under each Facility pursuant to such
Assignment and Acceptance and, if any assigning Lender has retained a
Commitment hereunder under such Facility, a new Note to the order of such
assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes,
shall be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1 or A-2 hereto, as the
case may be.
(f) Each Issuing Bank may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under the undrawn portion of
its Letter of Credit Commitment at any time; provided, however, that (i)
except in the case of an assignment to a Person that immediately prior to such
assignment was an Issuing Bank or an assignment of all of an Issuing Bank's
rights and obligations under this Agreement, the amount of the Letter of
Credit Commitment of the assigning Issuing Bank being assigned pursuant to
each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than
$5,000,000 and shall be in an integral multiple of $1,000,000 in excess
thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii)
the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such
Lender Party's obligations under this Agreement (including, without
limitation, its Commitments) shall remain unchanged, (ii) such Lender Party
shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender Party shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the
Borrowers, the Agents and the other Lender Parties shall continue to deal
solely and directly with such Lender Party in connection with such Lender
Party's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of any Loan Document, or any consent to any departure
by any Loan Party therefrom, except to the extent that such amendment, waiver
or consent would reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, in each case to the extent subject to
such participation, postpone any date fixed for any payment of principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or release all or
substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers furnished to such Lender
Party by or on behalf of the Borrowers; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or
participant
<PAGE>
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
(j) Notwithstanding anything to the contrary contained herein, any
Lender Party, (a "Granting Lender") may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrowers (an "SPC") the option to provide
all or any part of any Advance that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to fund any Advance, and (ii) if an
SPC elects not to exercise such option or otherwise fails to make all or any
part of such Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof. The making of an Advance by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Advance were made by such Granting Lender. Each party
hereto hereby agrees that (i) no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement for which a Lender Party would
otherwise be liable for so long as, and to the extent, the Granting Lender
provides such indemnity or makes such payment and (ii) no SPC shall be
entitled to the benefits of Sections 2.10 and 2.12 (or any other increased
costs protection provision). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior Debt of
any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or
any State thereof. Notwithstanding anything to the contrary contained in this
Agreement, any SPC may (i) with notice to, but without prior consent of, the
Borrower, the Syndication Agent and the Administrative Agent and without
paying any processing fee therefor, assign all or any portion of its interest
in any Advance to the Granting Lender and (ii) disclose on a confidential
basis any non-public information relating to its funding of Advances to any
rating agency, commercial paper dealer or provider of any surety or guarantee
or credit or liquidity enhancement to such SPC. This subsection 9.07(j) may
not be amended without the prior written consent of each Granting Lender, all
or any part of whose Advances are being funded by the SPC at the time of such
amendment. For the avoidance of doubt, with respect to the Agents, the other
Lender Parties and the Borrowers, the Granting Bank shall for all purposes,
including, without limitation, the approval of any amendment or waiver of any
provision of any Loan Document, be the Lender Party of record hereunder.
SECTION 9.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page
<PAGE>
to this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
SECTION 9.09. No Liability of the Issuing Banks. Each Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit issued on behalf of such Borrower with respect to its use
of such Letter of Credit. Neither any Issuing Bank nor any of its officers or
directors shall be liable or responsible for: (a) the use that may be made of
any Letter of Credit or any acts or omissions of any beneficiary or transferee
in connection therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged; (c)
payment by such Issuing Bank against presentation of documents that do not
comply with the terms of a Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the Letter of Credit;
or (d) any other circumstances whatsoever in making or failing to make payment
under any Letter of Credit, except that such Borrower shall have a claim
against such Issuing Bank, and such Issuing Bank shall be liable to such
Borrower, to the extent of any direct, but not consequential, damages suffered
by such Borrower that such Borrower proves were caused by (i) such Issuing
Bank's willful misconduct or gross negligence as determined in a final,
non-appealable judgment by a court of competent jurisdiction in determining
whether documents presented under any Letter of Credit comply with the terms
of the Letter of Credit or (ii) such Issuing Bank's willful failure to make
lawful payment under a Letter of Credit after the presentation to it of a
draft and certificates strictly complying with the terms and conditions of the
Letter of Credit. In furtherance and not in limitation of the foregoing, such
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 9.10. Confidentiality. Neither any Agent nor any Lender
Party shall disclose any Confidential Information to any Person without the
consent of the Borrowers, other than (a) to such Agent's or such Lender
Party's Affiliates and their officers, directors, employees, agents and
advisors and to actual or prospective Eligible Assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process (in which case, to the extent practicable, the
applicable Borrower shall be given notice and an opportunity to object to such
disclosure, unless such notification is prohibited by applicable law, judicial
or legal process), and (c) as requested or required by any state, Federal or
foreign authority or examiner regulating such Lender Party.
SECTION 9.11. Release of Collateral. Upon (a) the Investment Grade
Date or (b) the sale, lease, transfer or other disposition of any item of
Collateral of any Loan Party (including, without limitation, as a result of
the sale, in accordance with the terms of the Loan Documents, of the Loan
Party that owns such Collateral) in accordance with the terms of the Loan
Documents, the Administrative Agent will, at the Borrowers' expense, execute
and deliver to such Loan Party such documents as such Loan Party may
reasonably request to evidence the release of such item of Collateral from the
assignment and security interest granted under the Collateral Documents in
accordance with the terms of the Loan Documents.
<PAGE>
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or Federal court
of the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any of the other Loan Documents to which it is a party,
or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any
such New York State court or, to the fullest extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or any of
the other Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or any
of the other Loan Documents to which it is a party in any New York State or
Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 9.13. Integration. This Agreement and the other Loan
Documents represent the entire agreement of the Borrowers, the Guarantors, the
Administrative Agent and the Lenders with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by any Borrower, any Guarantor, the Administrative Agent or any Lender
relative to the subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
<PAGE>
SECTION 9.14. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.15. Waiver of Jury Trial. Each of the Borrowers, the
Agents and the Lender Parties 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 any of the Loan Documents, the
Advances, the Letters of Credit or the actions of any Agent or any Lender
Party in the negotiation, administration, performance or enforcement thereof.
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.
CINCINNATI BELL INC.
By /s/ Mark Peterson
----------------------------
Title: Treasurer
IXC COMMUNICATIONS SERVICES, INC.
By /s/ Jeffrey C. Smith
----------------------------
Title: Senior Vice President
CITICORP USA, INC.,
as Administrative Agent, Initial
Lender, Initial Issuing Bank and
Swing Line Lender
By /s/ Townsend U. Weekes, Jr.
----------------------------
Title: Attorney-In-Fact
BANK OF AMERICA, N.A.,
as Syndication Agent, Initial
Lender, Initial Issuing Bank
and Swing Line Lender
By /s/ Roselyn Drake
----------------------------
Title: Principal
<PAGE>
Initial Lenders
CREDIT SUISSE FIRST BOSTON
By /s/ Joel Glodowski
----------------------------
Title: Managing Director
CREDIT SUISSE FIRST BOSTON
By /s/ Bill O'Daly
----------------------------
Title: Vice President
THE BANK OF NEW YORK
By /s/ Debra M. Ritchie
----------------------------
Title: Assistant Vice President
PNC BANK, N.A.
By /s/ Bruce Kintner
----------------------------
Title: Vice President
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
<S> <C> <C> <C> <C> <C>
Revolving Letter of Domestic Eurodollar
Term Credit Credit Lending Lending
Name of Initial Lender Commitment Commitment Commitment Office Office
Citicorp USA, Inc. 360,000,000.00 360,000,000.00 12,000,000.00
Bank of America, N.A. 240,000,000.00 240,000,000.00 8,000,000.00
Credit Suisse First Boston 100,000,000.00 100,000,000.00 0
The Bank of New York 100,000,000.00 100,000,000.00 0
PNC Bank, N.A. 100,000,000.00 100,000,000.00 0
Total: 900,000,000.00 900,000,000.00 20,000,000.00
</TABLE>
<PAGE>
EXHIBIT A-1
FORM OF
REVOLVING CREDIT NOTE
$ Dated: ,
FOR VALUE RECEIVED, the undersigned, [CINCINNATI BELL INC.] [IXCS
COMMUNICATIONS SERVICES, INC.], [an Ohio] [a Delaware] corporation (the
"Borrower"), HEREBY PROMISES TO PAY to the order of
(the "Lender") for the account of its Applicable Lending Office (as defined in
the Credit Agreement referred to below) the aggregate principal amount of the
Revolving Credit Advances, the Letter of Credit Advances and the Swing Line
Advances (each as defined below) owing to the Lender by the Borrower pursuant
to the Credit Agreement dated as of November , 1999 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"; terms defined therein, unless otherwise defined herein, being used
herein as therein defined) among the Borrower, [CINCINNATI BELL INC.] [IXCS
COMMUNICATIONS SERVICES, INC.], the Lender and certain other lender parties
party thereto, Bank of America, N.A., as Syndication Agent, First Boston
("CSFB") and The Bank of New York ("BNY"), as Co-Documentation Agents, PNC
Bank, N.A. ("PNC", and collectively with CSFB and BNY, the "Co-Arrangers") and
Citicorp USA, Inc., as Administrative Agent for the Lender and such other
lender parties on the Termination Date.
The Borrower promises to pay to the Lender interest on the unpaid
principal amount of each Revolving Credit Advance, Letter of Credit Advance
and Swing Line Advance from the date of such Revolving Credit Advance, Letter
of Credit Advance or Swing Line Advance, as the case may be, until such
principal amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citicorp USA, Inc., as Administrative Agent, at [2
Penns Way, Suite 200, New Castle, Delaware 19720] in same day funds. Each
Revolving Credit Advance, Letter of Credit Advance and Swing Line Advance
owing to the Lender by the Borrower and the maturity thereof, and all payments
made on account of principal thereof, shall be recorded by the Lender and,
prior to any transfer hereof, endorsed on the grid attached hereto, which is
part of this Promissory Note; provided, however, that the failure of the
Lender to make any such recordation or endorsement shall not affect the
Obligations of the Borrower under this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of advances (variously, the
"Revolving Credit Advances", the "Letter of Credit Advances" or the "Swing
Line Advances") by the Lender to or for the benefit of the Borrower from time
to time in an aggregate amount not to exceed at any time outstanding the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Revolving Credit Advance, Letter of Credit Advance
and Swing Line Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified. The obligations of the Borrower under this Promissory Note and the
other Loan Documents, and the obligations of the other Loan Parties under the
Loan Documents, are secured by the Collateral as provided in the Loan
Documents.
<PAGE>
[CINCINNATI BELL INC.]
[IXCS COMMUNICATIONS SERVICES,
INC.]
By
----------------------------
Title:
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
<PAGE>
EXHIBIT A-2
FORM OF
TERM NOTE
$ Dated: ,
FOR VALUE RECEIVED, the undersigned, [CINCINNATI BELL INC.] [IXCS
COMMUNICATIONS SERVICES, INC.], [an Ohio] [a Delaware] corporation (the
"Borrower"), HEREBY PROMISES TO PAY to the order of
the "Lender") for the account of its Applicable Lending Office (as defined in
the Credit Agreement referred to below) the principal amount of the Term
Advances (as defined below) owing to the Lender by the Borrower pursuant to
the Credit Agreement dated as of November , 1999 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"; terms defined therein, unless otherwise defined herein, being used
herein as therein defined) among the Borrower, [CINCINNATI BELL INC.] [IXCS
COMMUNICATIONS SERVICES, INC.], the Lender and certain other lender parties
party thereto, Bank of America, N.A., as Syndication Agent, Credit Suisse
First Boston ("CSFB") and The Bank of New York ("BNY"), as Co-Documentation
Agents, PNC Bank, N.A. ("PNC", and collectively with CSFB and BNY, the
"Co-Arrangers") and Citicorp USA, Inc., as Administrative Agent for the Lender
and such other lender parties on the dates and in the amounts specified in the
Credit Agreement.
The Borrower promises to pay to the Lender interest on the unpaid
principal amount of each Term Advance from the date of such Term Advance until
such principal amount is paid in full, at such interest rates, and payable at
such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citicorp USA, Inc., as Administrative Agent, at [2
Penns Way, Suite 200, New Castle, Delaware 19720] in same day funds. The Term
Advances owing to the Lender by the Borrower and the maturity thereof, and all
payments made on account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached hereto, which
is part of this Promissory Note; provided, however, that the failure of the
Lender to make any such recordation or endorsement shall not affect the
Obligations of the Borrower under this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of advances (the "Term Advances") by
the Lender to the Borrower from time to time in an amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from such Term Advance being evidenced
by this Promissory Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the
<PAGE>
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified. The obligations of the Borrower under this Promissory Note
and the other Loan Documents, and the obligations of the other Loan Parties
under the Loan Documents, are secured by the Collateral as provided in the
Loan Documents.
[CINCINNATI BELL INC.]
[IXCS COMMUNICATIONS SERVICES
INC.]
By ___________________________________
Title:
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
<PAGE>
EXHIBIT B
FORM OF
NOTICE OF BORROWING
Citicorp USA, Inc.,
as Administrative Agent
under the Credit Agreement
referred to below
2 Penns Way, Suite 200
New Castle, Delaware 19720
[Date]
Attention: Jackie Roman
Ladies and Gentlemen:
The undersigned, [CINCINNATI BELL INC.] [IXCS COMMUNICATIONS
SERVICES, INC.], refers to the Credit Agreement dated as of November 9, 1999
(as amended, amended and restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined), among the undersigned, [CINCINNATI BELL INC.]
[IXCS COMMUNICATIONS, INC.], the Lender Parties party thereto, Bank of
America, N.A., as Syndication Agent, Credit Suisse First Boston ("CSFB") and
The Bank of New York ("BNY"), as Co-Documentation Agents, PNC Bank, N.A.
("PNC", and collectively with CSFB and BNY, the "Co-Arrangers") and Citicorp
USA, Inc., as Administrative Agent for the Lender Parties, and hereby gives
you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that
the undersigned hereby requests a Borrowing under the Credit Agreement, and in
that connection sets forth below the information relating to such Borrowing
(the "Proposed Borrowing") as required by Section 2.02(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is ,
.
(ii) The Facility under which the Proposed Borrowing is requested is
the Facility.
(iii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iv) The aggregate amount of the Proposed Borrowing is $ .
[(v) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Borrowing:
<PAGE>
(A) The representations and warranties contained in each Loan
Document are correct on and as of the date of the Proposed Borrowing,
before and after giving effect to the Proposed Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date.
(B) No Default has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds
therefrom.
Delivery of an executed counterpart of this Notice of Borrowing by
telecopier shall be effective as delivery of an original executed counterpart
of this Notice of Borrowing.
Very truly yours,
[CINCINNATI BELL INC.]
[IXCS COMMUNICATIONS SERVICES,
INC.]
By
----------------------------
Title:
<PAGE>
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of November 9,
1999 (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"; the terms defined therein, unless
otherwise defined herein, being used herein as therein defined) among
Cincinnati Bell Inc., an Ohio corporation, IXCS Communications Services, Inc.,
a Delaware corporation (collectively, the "Borrowers"), the Lender Parties
party thereto, Bank of America, N.A., as Syndication Agent, Credit Suisse
First Boston ("CSFB") and The Bank of New York ("BNY"), as Co-Documentation
Agents, PNC Bank, N.A. ("PNC", and collectively with CSFB and BNY, the
"Co-Arrangers") and Citicorp USA, Inc., as Administrative Agent for the Lender
Parties.
Each "Assignor" referred to on Schedule 1 hereto (each, an
"Assignor") and each "Assignee" referred to on Schedule 1 hereto (each, an
"Assignee") agrees severally with respect to all information relating to it
and its assignment hereunder and on Schedule 1 hereto as follows:
1. Such Assignor hereby sells and assigns, without recourse except
as to the representations and warranties made by it herein, to such Assignee,
and such Assignee hereby purchases and assumes from such Assignor, an interest
in and to such Assignor's rights and obligations under the Credit Agreement as
of the date hereof equal to the percentage interest specified on Schedule 1
hereto of all outstanding rights and obligations under the Credit Agreement
Facility or Facilities specified on Schedule 1 hereto. After giving effect to
such sale and assignment, such Assignee's Commitments and the amount of the
Advances owing to such Assignee will be as set forth on Schedule 1 hereto.
2. Such Assignor (i) represents and warrants that its name set forth
on Schedule 1 hereto is its legal name, that it is the legal and beneficial
owner of the interest or interests being assigned by it hereunder and that
such interest or interests are free and clear of any adverse claim; (ii) makes
no representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
any Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any
lien or security interest created or purported to be created under or in
connection with, any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any Loan
Party or the performance or observance by any Loan Party of any of its
obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Note or Notes held by such
Assignor and requests that the Administrative Agent exchange such Note or
Notes for a new Note or Notes payable to the order of such Assignee in an
amount equal to the Commitments assumed by such Assignee pursuant hereto or
new Notes payable to the order of such Assignee in an amount equal to the
Commitments assumed by such Assignee pursuant hereto and such Assignor in an
amount equal to the Commitments retained by such Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
3. Such Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof
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and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance upon
any Agent, any Assignor or any other Lender Party and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit
Agreement; (iii) represents and warrants that its name set forth on Schedule 1
hereto is its legal name; (iv) confirms that it is an Eligible Assignee; (v)
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Loan Documents as are
delegated to such Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (vi) agrees that it will
perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it as a Lender
Party; and (vii) attaches any U.S. Internal Revenue Service forms required
under Section 2.12 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and
Acceptance (the "Effective Date") shall be the date of acceptance hereof by
the Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, (i) such Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender Party thereunder and (ii) such Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Credit Agreement
(other than its rights and obligations under the Loan Documents that are
specified under the terms of such Loan Documents to survive the payment in
full of the Obligations of the Loan Parties under the Loan Documents to the
extent any claim thereunder relates to an event arising prior to the Effective
Date of this Assignment and Acceptance) and, if this Assignment and Acceptance
covers all of the remaining portion of the rights and obligations of such
Assignor under the Credit Agreement, such Assignor shall cease to be a party
thereto.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to such Assignee. Such
Assignor and such Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Notes for periods prior to the Effective
Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment
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and Acceptance by telecopier shall be effective as delivery of an original
executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, each Assignor and each Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
<PAGE>
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
ASSIGNORS:
Revolving Credit Facility
Percentage interest assigned % % % % %
Revolving Credit Commitment
assigned $ $ $ $ $
Aggregate outstanding principal
amount of Revolving Credit
Advances assigned $ $ $ $ $
Principal amount of Revolving
Credit Note payable to Assignor $ $ $ $ $
Term Facility
Percentage interest assigned % % % % %
Term Commitment assigned $ $ $ $ $
Outstanding principal amount of
Term Advance assigned $ $ $ $ $
Principal amount of Term Note
payable to Assignor $ $ $ $ $
Letter of Credit Facility
Letter of Credit Commitment assigned $ $ $ $ $
Letter of Credit Commitment retained $ $ $ $ $
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ASSIGNEES:
Revolving Credit Facility
Percentage interest assumed % % % % %
Revolving Credit Commitment
assumed $ $ $ $ $
Aggregate outstanding principal
amount of Revolving Credit
Advances assumed $ $ $ $ $
Principal amount of Revolving
Credit Note payable to Assignee $ $ $ $ $
Term Facility
Percentage interest assumed % % % % %
Term Commitment assumed $ $ $ $ $
Outstanding principal amount of
Term Advance assumed $ $ $ $ $
Principal amount of Term Note
payable to Assignee $ $ $ $ $
Letter of Credit Facility
Letter of Credit Commitment assumed $ $ $ $ $
<PAGE>
Effective Date (if other than date of acceptance by Administrative Agent):
1 ,
Assignors
, as Assignor
[Type or print legal name of Assignor]
By
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Title:
Dated: ,
, as Assignor
[Type or print legal name of Assignor]
By
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Title:
Dated: ,
, as Assignor
[Type or print legal name of Assignor]
By
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Title:
Dated: ,
, as Assignor
[Type or print legal name of Assignor]
By
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Title:
Dated: ,
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1 This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
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, as Assignor
[Type or print legal name of Assignor]
By
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Title:
Dated: ,
Assignees
, as Assignee
[Type or print legal name of Assignee]
By
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Title:
Dated: ,
Domestic Lending Office:
Eurodollar Lending Office:
, as Assignee
[Type or print legal name of Assignee]
By
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Title:
Dated: ,
Domestic Lending Office:
Eurodollar Lending Office:
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, as Assignee
[Type or print legal name of Assignee]
By
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Title:
Dated: ,
Domestic Lending Office:
Eurodollar Lending Office:
, as Assignee
[Type or print legal name of Assignee]
By
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Title:
Dated: ,
Domestic Lending Office:
Eurodollar Lending Office:
, as Assignee
[Type or print legal name of Assignee]
By
Title:
Dated: ,
Domestic Lending Office:
Eurodollar Lending Office:
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Accepted 1[and Approved] this
day of ,
CITICORP USA, INC.,
as Administrative Agent
By
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Title:
2[Approved this day
of ,
[CINCINNATI BELL INC.] [IXCS COMMUNICATIONS SERVICES, INC.]
By
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Title: ]
1 Required if the Assignee is an Eligible Assignee solely by reason of
clause (a)(iii) or (b) of the definition of "Eligible Assignee".
2 See footnote 8.
Exhibit 99.1
CINCINNATI BELL INC.
COMPLETES ACQUISITION OF IXC COMMUNICATIONS, INC.
Cincinnati, Ohio - November 9, 1999 - Cincinnati Bell Inc. (NYSE:CSN)
announced today that it has completed its previously announced acquisition of
IXC Communications, Inc.
Cincinnati Bell will exchange 2.0976 Cincinnati Bell common shares for each
share of IXC common stock. IXC had approximately 37 million shares outstanding
prior to the closing.
Cincinnati Bell also announced the completion of a $1.8 billion bank credit
facility. This facility is being used to refinance certain debt of Cincinnati
Bell and IXC and for general corporate purposes of Cincinnati Bell.
Cincinnati Bell is a full service, integrated communications company that
provides competitive local communications as well as data, internet, wireless,
entertainment, directory, long distance and data networking services to
customers in the Cincinnati, Ohio, metropolitan area and in many other
Midwestern cities. Cincinnati Bell is on the World Wide Web at
cincinnatibell.com.
IXC's network-based delivery solutions are designed to address the speed and
capacity requirements of the global communications market. IXC offerings
include private line, fast packet (ATM and frame relay), Internet and long
distance switched and dedicated services. IXC is at the forefront of the
industry's new class of emerging domestic and international carriers.
Certain statements herein are "forward-looking statements" made pursuant to
the safe harbor provisions of the Private Securities Litigation Reform Act of
1995. Such forward-looking statements represent Cincinnati Bell's expectations
or beliefs concerning future events that involve risks and uncertainties,
including the strength of the economy and the overall level of consumer
spending, the performance of Cincinnati Bell's products within the prevailing
retail environment, and other factors which are set forth in Cincinnati Bell's
1998 Form 10-K and in all filings with the SEC made by Cincinnati Bell
subsequent to the filing of the Form 10-K. Cincinnati Bell does not undertake
to publicly update or revise its forward-looking statements, whether as a
result of new information, future events or otherwise.
