<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
--- SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2000
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
--- OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________ to ________.
Commission File Number 1-8519
BROADWING INC.
Incorporated under the laws of the State of Ohio
201 East Fourth Street, Cincinnati, Ohio 45202
I.R.S. Employer Identification Number 31-1056105
Telephone - Area Code 513 397-9900
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
Yes X . No .
--- ---
At April 30, 2000, 213,513,638 common shares were outstanding.
<PAGE>
TABLE OF CONTENTS
PART I. Financial Information
<TABLE>
<CAPTION>
Description Page
- ----------- ----
<S> <C>
Item 1. Financial Statements
Condensed Consolidated Statements of Income, Comprehensive Income and
Retained Earnings (Unaudited)
Three Months Ended March 31, 2000 and 1999 3
Condensed Consolidated Balance Sheets (Unaudited)
March 31, 2000 and December 31, 1999 4
Condensed Consolidated Statements of Cash Flows (Unaudited)
Three Months Ended March 31, 2000 and 1999 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition
And Results of Operations 13
Item 3. Quantitative and Qualitative Disclosures About Market Risk 23
</TABLE>
PART II. Other Information
<TABLE>
<CAPTION>
Description Page
- ----------- ----
<S> <C>
Item 1. Legal Proceedings 24
Item 2. Changes in Securities and Use of Proceeds 24
Item 3. Defaults Upon Senior Securities 24
Item 4. Submission of Matters to a Vote of Security Holders 24
Item 5. Other Information 25
Item 6. Exhibits and Reports on Form 8-K 25
Signature 26
</TABLE>
<PAGE>
Form 10-Q Part I Broadwing Inc.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME, COMPREHENSIVE INCOME AND
RETAINED EARNINGS
(Millions of Dollars, Except Per Common Share Amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three Months
Ended March 31,
----------------------
2000 1999
------- -------
<S> <C> <C>
Revenues............................................................................
Broadband......................................................................... $213.0 $ 17.2
Local communications.............................................................. 192.8 179.1
Wireless.......................................................................... 36.6 15.2
Other communications.............................................................. 39.1 35.8
Intersegment...................................................................... (11.3) (5.1)
------- -------
Total Revenues ................................................................ 470.2 242.2
Costs and Expenses..................................................................
Cost of providing services and products sold...................................... 226.2 107.9
Selling, general and administrative............................................... 158.9 56.7
Depreciation and amortization..................................................... 110.6 32.3
------- -------
Total Costs and Expenses........................................................ 495.7 196.9
------- -------
Operating Income (Loss)............................................................. (25.5) 45.3
Other Income........................................................................ 7.0 ---
Minority Interest Expense (Income).................................................. 10.9 (2.3)
Equity Loss in Unconsolidated Entities.............................................. 2.0 ---
Interest Expense.................................................................... 36.4 8.7
------- -------
Income (Loss) Before Income Taxes................................................... (67.8) 38.9
Income Tax Provision (Benefit)...................................................... (12.4) 14.2
------- -------
Net Income (Loss)................................................................... (55.4) 24.7
Dividends and Accretion Applicable to Preferred Stock............................... 0.3 -
------- -------
Net Income (Loss) Applicable to Common Shareholders................................. $(55.7) $ 24.7
======= =======
Other Comprehensive Income (Loss), Net of Tax:
Unrealized loss on investments.................................................... 16.3 -
------- -------
Comprehensive Income (Loss)......................................................... $(72.0) $ 24.7
======= =======
Earnings (Loss) Per Common Share
Basic ............................................................................ $ (.28) $ .18
Diluted .......................................................................... $ (.28) $ .18
Dividends Declared Per Common Share................................................. $ - $ .10
Average Common Shares Used for Earnings Per Share Calculations
Basic............................................................................. 202.3 136.4
Diluted.......................................................................... 202.3 140.1
Retained Earnings ..................................................................
Beginning of period .............................................................. $ - $ -
Net income (loss)................................................................. (55.7) 24.7
Common share dividends declared................................................... - (13.7)
Other............................................................................. - .2
------- -------
End of period..................................................................... $(55.7) $ 11.2
======= =======
Accumulated Other Comprehensive Income (Loss)
Beginning of period............................................................... $ 166.9 $(6.7)
Unrealized loss on investments.................................................... 16.3 -
------- -------
End of period.................................................................... $ 150.6 $(6.7)
======= =======
</TABLE>
See Notes to Financial Statements.
3
<PAGE>
CONDENSED CONSOLIDATED BALANCE SHEETS
(Millions of Dollars, Except Per Share Amounts)
<TABLE>
<CAPTION>
(Unaudited)
March 31, December 31,
2000 1999
------------ ------------
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents......................................................... $ 19.7 $ 80.0
Receivables, less allowances of $54.5 and $53.6................................... 250.5 231.0
Material and supplies............................................................. 31.7 30.3
Deferred income tax benefits...................................................... 32.9 35.9
Prepaid expenses and other current assets......................................... 23.8 36.2
------------ ------------
Total current assets...................................................... 358.6 413.4
Property, plant and equipment, net.................................................. 2,526.3 2,500.9
Goodwill and other intangibles, net................................................. 2,637.3 2,679.9
Investments in other entities....................................................... 866.3 843.3
Deferred charges and other assets................................................... 72.9 71.1
------------ ------------
Total Assets.............................................................. $ 6,461.4 $ 6,508.6
============ ============
LIABILITIES, REDEEMABLE PREFERRED STOCK AND SHAREOWNERS' EQUITY
Current Liabilities
Short-term debt................................................................... $ 10.5 $ 9.2
Accounts payable.................................................................. 162.5 230.5
Current portion of unearned revenue and customer deposits......................... 80.2 82.6
Accrued taxes..................................................................... 4.2 88.3
Other current liabilities......................................................... 163.8 157.5
------------ ------------
Total current liabilities................................................. 421.2 568.1
Long-term debt, less current portion................................................ 2,209.1 2,136.0
Unearned revenue, less current portion.............................................. 634.7 633.5
Deferred income taxes............................................................... 264.1 221.8
Other long-term liabilities......................................................... 155.2 153.8
------------ ------------
Total liabilities......................................................... 3,684.3 3,713.2
------------ ------------
Minority interest................................................................... 425.9 434.0
7 1/4% Convertible Preferred Stock, redeemable, $.01 par value, 5,000,000
shares authorized, aggregate liquidation preference of $105.8, 1,058,380
shares issued and outstanding at March 31, 2000 and December 31, 1999 224.5 228.6
Commitments and Contingencies
Shareowners' Equity
6 3/4% Cumulative Convertible Preferred Stock, $.01 par value, 5,000,000
shares authorized, 155,250 shares issued and outstanding at March 31,
2000 and December 31, 1999...................................................... 129.4 129.4
Common shares, $.01 par value; 480,000,000 shares authorized;
211,493,352 and 208,678,058 shares issued at March 31, 2000
and December 31, 1999.......................................................... 2.1 2.1
Additional paid-in capital........................................................ 2,045.4 1,979.5
Retained earnings (deficit)....................................................... (55.7) -
Accumulated other comprehensive income ........................................... 150.6 166.9
Common stock in treasury, at cost: 7,805,800 shares issued and
outstanding at March 31, 2000 and December 31, 1999............................. (145.1) (145.1)
------------- ------------
Total shareowners' equity................................................. 2,126.7 2,132.8
------------- ------------
Total Liabilities, Redeemable Preferred Stock and Shareowners' Equity............... $ 6,461.4 $ 6,508.6
============= ============
</TABLE>
See Notes to Financial Statements.
4
<PAGE>
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Millions of Dollars)
(Unaudited)
<TABLE>
<CAPTION>
Three Months
Ended March 31,
-------------------
2000 1999
---- ----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss)................................................................................ $ (55.7) $ 24.7
Adjustments to reconcile net income (loss) to net cash provided by operating activities:
Depreciation and amortization................................................................. 110.6 32.3
Provision for loss on receivables............................................................. 11.3 3.7
Non-cash interest expense..................................................................... 8.5 --
Realized gain from the sale of marketable securities.......................................... (7.3) --
Other, net.................................................................................... 3.4 (2.3)
Changes in assets and liabilities:
Increase in receivables....................................................................... (30.1) (1.1)
Decrease (increase) in other current assets................................................... (.1) 4.8
Decrease in accounts payable.................................................................. (38.4) (16.5)
Increase (decrease) in other current liabilities.............................................. (53.2) 5.0
Decrease in unearned revenues................................................................. (1.2) --
Increase (decrease) in deferred income taxes and unamortized investment tax credits........... 50.5 .1
Decrease (increase) in other assets and liabilities-net....................................... 6.5 (10.0)
-------- ---------
Net cash provided by operating activities................................................... 4.8 40.7
--------- --------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures.......................................................................... (153.9) (37.1)
Proceeds from sale of marketable securities and ownership interest in joint venture........... 15.7 --
Purchase of equity securities................................................................. (16.0) --
Other investing activities, net............................................................... .5 --
--------- --------
Net cash used in investing activities......................................................... (153.7) (37.1)
--------- --------
CASH FLOWS FROM FINANCING ACTIVITIES
Net increase in short-term debt............................................................... 1.4 4.1
Borrowings of long-term debt.................................................................. 470.4 --
Repayment of long-term debt................................................................... (404.1) (.3)
Issuance of common shares..................................................................... 37.8 3.9
Minority interest dividends paid.............................................................. (12.4) --
Cash dividends paid........................................................................... (4.5) (13.7)
-------- ---------
Net cash provided by (used in) financing activities......................................... 88.6 (6.0)
-------- ---------
Net decrease in cash and cash equivalents........................................................ (60.3) (2.4)
Cash and cash equivalents at beginning of period................................................. 80.0 10.1
-------- --------
Cash and cash equivalents at end of period....................................................... $ 19.7 $ 7.7
======== ========
Cash paid for:
Interest (net of amount capitalized)........................................................... $ 41.3 $ 3.6
======== ========
Income taxes (net of refunds).................................................................. $ -- $ 6.4
======== ========
Non-cash Investing and Financing Activities:
Accretion of preferred stock.................................................................. $ 4.2 $ --
======== ========
Fiber barter agreements.......................................................................... $ 4.8 $ --
======== ========
</TABLE>
See Notes to Financial Statements.
5
<PAGE>
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(1) BASIS OF PRESENTATION - The consolidated financial statements include
the accounts of Broadwing Inc. and its wholly owned subsidiaries (the
Company). The Company is a diversified telecommunications company with
principal businesses in four industry segments; Broadband, Local
Communications, Wireless and Other Communications.
The Broadband segment utilizes its advanced fiber-optic network to
provide broadband transport (previously referred to as "private line"),
data transport, Internet services, switched access, network integration
and consulting, and other services. This segment also leases network
capacity in the form of indefeasable right-to-use agreements ("IRUs").
These services are offered nationally through the Company's new
Broadwing Communications, Inc. subsidiary.
The Local Communications segment provides local service, network access
(including high-speed data transport), long distance, data and
Internet, ADSL transport, as well as sales of communications equipment
to customers in southwestern Ohio, northern Kentucky and southeastern
Indiana. Services are marketed and delivered via the Company's
Cincinnati Bell Telephone (CBT) subsidiary.
The Wireless segment includes the Company's Cincinnati Bell Wireless
subsidiary, an 80%-owned venture with AT&T Wireless PCS, Inc. ("AT&T
PCS"), which provides advanced digital personal communications to
customers in its Greater Cincinnati and Dayton, Ohio operating areas.
Services are provided over the Company's regional, and AT&T PCS'
national, networks.
The Other Communications Services segment comprises the operations of
the Company's Cincinnati Bell Directory (CBD), Cincinnati Bell Long
Distance (doing business as Cincinnati Bell Any Distance, or CBAD),
Cincinnati Bell Supply (CBS) and ZoomTown.com subsidiaries, as well as
its public payphone operations. CBD publishes Yellow Page directories
and sells directory advertising and informational services to customers
primarily in its Local Communications' segment service area. CBAD
resells voice long distance service primarily to small and medium-sized
residence and business customers in the same Local Communications
segment service area. CBS resells telecommunications and computer
equipment in the secondary market. ZoomTown.com provides Web hosting
and other Internet-based products and services. The Company is
currently evaluating plans to sell, or exit, the CBS business because
it does not fit with the Company's long-term strategic plan.
The consolidated financial statements of Broadwing Inc. have been
prepared pursuant to the rules and regulations of the Securities and
Exchange Commission (SEC) and, in the opinion of management, include
all adjustments necessary for a fair presentation of the results of
operations, financial position and cash flows for each period shown.
All adjustments are of a normal and recurring nature except for those
outlined in Notes 2, 3 and 5. Certain prior year amounts have been
reclassified to conform to the current classifications with no effect
on financial results. Certain information and footnote disclosures
normally included in financial statements prepared in accordance with
generally accepted accounting principles have been condensed or omitted
pursuant to SEC rules and regulations. The December 31, 1999 condensed
balance sheet was derived from audited financial statements, but does
not include all disclosures required by generally accepted accounting
principles. It is suggested that these financial statements be read
in conjunction with financial statements and notes thereto included
in the Company's 1999 Annual Report on Form 10-K.
(2) ACQUISITIONS -
IXC COMMUNICATIONS INC.:
On November 9, 1999, the Company merged with IXC Communications, Inc.
(the Merger). Under the terms of the Merger, each share of IXC common
stock was exchanged for 2.0976 shares of the Company's common stock.
The aggregate purchase price of $2.2 billion consisted of (all numbers
approximate): $0.3 billion in cash for the purchase of five million
shares of IXC stock from GE Capital Pension Trust; the issuance of 68
million shares of the Company's common stock valued at $1.6 billion,
155,000 shares of 6 3/4% convertible preferred stock valued at $0.1
billion; and the issuance of 14 million options to purchase Broadwing
common stock valued at $0.2 billion. These options were issued
coincident with the Merger to replace the then outstanding and
unexercised options exercisable for shares of IXC common stock. These
options were granted on the same terms and conditions as the IXC
options, except that the exercise price and the number of shares
issuable upon exercise were divided and multiplied, respectively, by
2.0976. The
6
<PAGE>
Merger was accounted for as a purchase and, accordingly,
the operating results of IXC (Broadwing Communications) have been
included in the Company's consolidated financial statements since the
Merger date of November 9, 1999.
The cost of the Merger has been preliminarily allocated to the assets
acquired and liabilities assumed according to their estimated fair
values at the acquisition date and is subject to adjustment as the
assumptions relating to the asset and liability valuations are
finalized. In addition, the allocation may be impacted by changes in
pre-acquisition contingencies identified during the allocation period
by the Company relating to certain environmental, litigation, and other
matters. As a result, amounts preliminarily allocated to goodwill were
decreased by approximately $20.7 million during the first quarter of
2000.
The amount allocated to goodwill represents the excess of price paid
over the fair value of assets realized and liabilities assumed in the
Merger. These amounts are being amortized to expense over a 30-year
period.
The following summarized unaudited pro forma financial information
assumes the Merger occurred at the beginning of each year:
<TABLE>
<CAPTION>
Millions of dollars (except per share amounts) Three months ended March 31 2000 1999
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Revenues $470.2 $403.6
Earnings Before Interest, Taxes, Depreciation and Amortization (EBITDA) $ 85.1 $ 82.3
Net Loss Applicable to Common Shareholders $(55.7) $(57.0)
Loss per common share (basic and diluted) $ (.28) $ (.28)
</TABLE>
The unaudited pro forma results of operations have been prepared for
comparative purposes only and do not purport to be indicative of the
results of operations which actually would have resulted had the Merger
occurred on January 1, 1999.
(3) RESTRUCTURING AND OTHER CHARGES
1999 Restructuring Plan
In December 1999, the Company initiated a restructuring plan to integrate
the operations of the Company and Broadwing Communications, improve
service delivery, and reduce the Company's expense structure. Total
restructuring costs and impairments of $18.6 million were recorded in
1999 and consisted of $7.7 million related to Broadwing Communications
(recorded as a component of the purchase price allocation) and $10.9
million related to the Company (recorded as a cost of operations). The
$10.9 million related to the Company consisted of restructuring and other
liabilities in the amount of $9.5 million and related asset impairments
in the amount of $1.4 million. The restructuring costs accrued in 1999
included the costs of involuntary employee separation benefits (including
severance, medical and other benefits) related to 347 employees which
primarily affect customer support, infrastructure and the Company's long
distance operations. As of March 31, 2000, approximately 41% of the
employee separations had been completed. The restructuring plans also
included costs associated with closing a number of technical and customer
support facilities, decommissioning certain switching equipment, and
terminating contracts with vendors. The following table illustrates
activity in this reserve since December 31, 1999:
<TABLE>
<CAPTION>
Balance Balance
Type of costs (in millions): December 31, 1999 Expenditures March 31, 2000
---------------------------- ----------------- ------------ --------------
<S> <C> <C> <C>
Employee separations $ 8.2 $ (3.4) $ 4.8
Facility closure costs 4.4 (1.8) 2.6
Relocation .2 -- .2
Other exit costs 4.4 (.2) 4.2
-------- ---------- ---------
Total $ 17.2 $ (5.4) $ 11.8
======= ========== =========
</TABLE>
7
<PAGE>
In total, the Company expects these restructuring plans to result in
cash outlays of $14.8 million and non-cash items of $3.8 million.
Management believes that the remaining balance of $ 11.8 million at
March 31, 2000 is adequate to complete the restructuring plan and that
most of the related actions will be completed by December 31, 2000.
(4) DEBT - The Company's indebtedness consists of the following:
<TABLE>
<CAPTION>
Millions of dollars March 31, 2000 December 31, 1999
------------------------------------------------------------------------------------------------
<S> <C> <C>
Short-Term Debt:
Current maturities of long-term debt $ 10.5 $ 9.2
------------ -----------
Total short-term debt $ 10.5 $ 9.2
============ ===========
Long-Term Debt:
Bank notes $ 1,205.0 $ 755.0
9.0% Senior subordinated notes 46.0 450.0
6 3/4% Convertible subordinated debentures 418.9 412.0
Various CBT notes 290.0 290.0
7 1/4% Senior subordinated notes 50.0 50.0
PSINet forward sale 153.2 133.9
Capital lease obligations 38.4 37.0
Other 7.6 8.1
----------- -----------
Total long-term debt $ 2,209.1 $ 2,136.0
=========== ===========
</TABLE>
9% Senior Subordinated Notes
In 1998, IXC issued $450 million of 9% senior subordinated notes due
2008 ("the 9% Notes"). In January 2000, $404 million of these 9% Notes
were redeemed through a tender offer as a result of the change of
control terms of the bond indenture. As a result, the $4.4 million
premium paid upon redemption, net of taxes, was recorded as a component
of the purchase price allocation during the first quarter of 2000.
The 9% Notes are general unsecured obligations and are subordinate in
right of payment to all existing and future senior indebtedness and
other liabilities of the Company's subsidiaries. The indenture related
to the 9% Notes requires the Company to comply with various financial
and other covenants and may restrict the Company from incurring certain
additional indebtedness.
6 3/4% Convertible Subordinated Debentures
In July 1999, the Company issued $400 million of 10-year, convertible
subordinated debentures to Oak Hill Capital Partners, L.P. These notes
are convertible into common stock of the Company at a price of $29.89
per common share at the option of the holder. For as long as this debt
is outstanding, these notes bear a coupon rate of 6.75% per annum, with
the associated interest expense being added to the debt principal
amount. Through March 31, 2000, the Company has recorded $18.9 million
in interest expense and has adjusted the carrying amount of the debt
accordingly.
PSINet Forward Sale
The Company's investment in PSINet consists of 20.5 million shares
after adjusting for their February 2000 two-for-one stock split. In
June and July 1999, Broadwing Communications received approximately
$111.8 million representing amounts from a financial institution in
connection with two prepaid forward sale contracts on six million
shares of the PSINet common stock. This amount is accounted for as
notes payable and is collateralized by six million shares of PSINet
common stock owned by the Company. Each forward-sale obligation for
three million shares of PSINet stock may be settled at future dates
for a maximum amount of three million shares of PSINet stock, or at
the Company's option, the equivalent value in cash.
8
<PAGE>
Bank Notes
In November 1999, the Company obtained a $1.8 billion credit
facility from a group of 24 lending institutions that was amended
to $2.1 billion in January 2000. The credit facility consists of
$900 million in revolving credit and $750 million in term loans
from banking institutions and $450 million in term loans from
non-banking institutions. At March 31, 2000, the Company had
drawn approximately $1,205 million from the credit facility in
order to refinance its existing debt and debt assumed as part of
the Merger, as well as additional financing needs since the
Merger. Accordingly, the Company has approximately $900 million
in additional borrowing capacity under this facility as of the
date of this report. This facility's financial covenants require
that the Company maintain certain debt to EBITDA ratios, debt to
capitalization ratios, fixed to floating rate debt ratios and
interest coverage ratios. This facility also contains covenants
which, among other things, may restrict the Company's ability to
incur additional debt, pay dividends, repurchase Company common
stock, sell assets or merge with another company.
The interest rates to be charged on borrowings from this credit
facility can range from 100 to 225 basis points above the London
Interbank Offering Rate (LIBOR), depending on the Company's credit
rating. The current borrowing rate is approximately 200 basis points.
The Company will incur banking fees in association with this credit
facility ranging from 37.5 basis points to 75 basis points, applied to
the unused amount of borrowings of the facility.
(5) REDEMPTION AND CONVERSION OF 7 1/4% JUNIOR CONVERTIBLE PREFERRED STOCK
In connection with the Merger, the Company issued shares of 7 1/4%
junior convertible preferred stock due 2007 in exchange for similar
preferred shares of IXC. Pursuant to the Company's March 21, 2000
redemption offer, approximately 1.1 million of these preferred shares
were converted into common shares at a rate of 8.945 common shares for
each preferred share, creating approximately 9.5 million additional
common shares at April 26, 2000. Approximately 100 shares were redeemed
for cash to complete the Company's obligations related to this
preferred stock.
(6) EARNINGS (LOSS) PER SHARE - Basic earnings (loss) per share is based
upon the average number of common shares outstanding during the period.
Diluted earnings (loss) per share reflect the potential dilution that
would occur if common stock equivalents were exercised. The following
table is a reconciliation of the numerators and denominators of the
basic and diluted earnings (loss) per share computations for net income
(loss):
<TABLE>
<CAPTION>
Share and dollars in millions March 31, March 31,
(except per share amounts) Three months ended 2000 1999
-------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Numerator:
Net Income (loss) $ (55.4) $ 24.7
Dividends and accretion applicable to preferred stock (.3) ---
-------- --------
Numerator for basic earnings per common share and
earnings per common share assuming dilution -
income applicable to common shareowners $ (55.7) $ 24.7
======== ========
Denominator:
Denominator for basic earnings per common
share - weighted average common shares 202.3 136.4
Potential Dilution:
Stock options --- 2.9
Stock based compensation arrangements --- .8
-------- --------
Denominator for diluted earnings per common share 202.3 140.1
======== ========
Basic earnings (loss) per common share $ (.28) $ .18
======== ========
Earnings (loss) per common share assuming dilution $ (.28) $ .18
======== ========
</TABLE>
9
<PAGE>
Options to purchase approximately 2.3 million weighted average shares
of common stock at an average of $35.64 per share were outstanding
during the three months ended March 31, 2000, but were not included in
the computation of diluted EPS because they were anti-dilutive. The 6
3/4% convertible subordinated debentures and 7 1/4% convertible
preferred stock were excluded from the diluted EPS calculation because
they are anti-dilutive. The inclusion of the convertible debentures and
preferred stocks would have added 13.8 million and 9.5 million shares,
respectively, to the denominator of the EPS calculation at March 31,
2000.
On April 6, 2000, the Company converted approximately 1.1 million
shares of the aforementioned 7 1/4% convertible preferred stock into
approximately 9.5 million shares of its common stock. Accordingly,
these 9.5 million shares will be added to the denominator of the EPS
calculation during the second quarter of 2000.
(7) BUSINESS SEGMENT INFORMATION - Effective January 1, 2000, the Company
changed its definition and composition of strategic operating segments
and the related reporting framework. The operating segment changes are
described below:
BROADBAND SERVICES
Includes Broadwing Communications, Broadwing IT Consulting
(formerly EnterpriseWise IT Consulting) and amounts
associated with an agreement between the Company and Cincinnati
Bell Long Distance (CBLD) to service the customers of CBLD outside
the Cincinati, Ohio area. IT Consulting and the CBLD service
agreement amounts were previously in Other Communications
Services.
LOCAL COMMUNICATIONS SERVICES
Includes Cincinnati Bell Telephone. The Company's public payphone
business has moved to Other Communications Services. Also,
ZoomTown.com's content and web hosting business has moved to Other
Communications Services. ADSL transport continues to be included
in Cincinnati Bell Telephone's results.
WIRELESS SERVICES
Includes Cincinnati Bell Wireless and is unchanged.
OTHER COMMUNICATIONS SERVICES
Includes Cincinnati Bell Supply, Cincinnati Bell Directory,
Cincinnati Bell Any Distance (including the portion of the former
CBLD that provided voice services to the Cincinnati market),
ZoomTown.com and the public payphone business. Cincinnati Bell
Directory was formerly the Directory Services segment. Both
ZoomTown.com and the public payphone business were previously in
Local Communications Services.
Certain corporate administrative expenses have been allocated to
segments based upon the nature of the expense. Assets are those assets
used in the operations of the segment.
The Company's business segment information is as follows:
<TABLE>
<CAPTION>
Three Months
Millions of Dollars Ended March 31,
------------------- ----------------------------
2000 1999
-------- --------
<S> <C> <C>
REVENUES
Broadband $ 213.0 $ 17.2
Local Communications 192.8 179.1
Wireless 36.6 15.2
Other Communications 39.1 35.8
Intersegment (11.3) (5.1)
--------- --------
$ 470.2 $ 242.2
========= ========
INTERSEGMENT REVENUES
Broadband $ .4 $ --
Local Communications .8 1.5
Wireless .4 .2
Other Communications 9.7 3.4
--------- --------
$ 11.3 $ 5.1
========= ========
10
<PAGE>
EBITDA
Broadband $ (2.2) $ 1.5
Local Communications 90.5 73.7
Wireless 1.6 (6.1)
Other Communications (4.4) 7.7
Corporate and Eliminations (.4) .8
---------- --------
$ 85.1 $ 77.6
========= ========
ASSETS
Broadband $ 5,152.9 $ 8.0
Local Communications 779.0 762.4
Wireless 280.3 221.4
Other Communications 79.1 64.7
Corporate and Eliminations 170.1 16.6
--------- --------
$ 6,461.4 $1,073.1
========= ========
CAPITAL ADDITIONS (excluding Acqusitions)
Broadband $ 91.7 $ .3
Local Communications 43.9 28.1
Wireless 18.0 6.7
Other Communications .3 2.0
Corporate and Eliminations -- --
--------- --------
$ 153.9 $ 37.1
========= ========
DEPRECIATION AND AMORTIZATION
Broadband $ 74.8 $ 1.3
Local Communications 29.4 27.4
Wireless 4.5 3.3
Other Communications 1.9 .3
Corporate and Eliminations -- --
--------- --------
$ 110.6 $ 32.3
========= ========
</TABLE>
(8) CINCINNATI BELL TELEPHONE COMPANY - The following summarized financial
information is for the Company's consolidated wholly owned subsidiary,
Cincinnati Bell Telephone Company:
<TABLE>
<CAPTION>
Three Months
Ended March 31,
---------------------
Millions of Dollars 2000 1999
------------------- -------- -------
<S> <C> <C>
Revenues....................................................... $ 192.8 $ 181.6
Costs and Expenses............................................. 131.7 135.7
------- -------
Operating Income............................................... $ 61.1 $ 45.9
======= =======
Net Income..................................................... $ 35.8 $ 26.6
======= =======
</TABLE>
Results for the three months ended March 31, 1999 include $2.4 million
of Year 2000 programming costs which decreased net income by $1.6
million for the three months ended March 31, 1999.
<TABLE>
<CAPTION>
March 31, December 31,
Millions of Dollars 2000 1999
------------------- ---------- ------------
<S> <C> <C>
Current Assets............................................................ $ 137.8 $ 148.5
Telephone Plant-Net....................................................... 617.0 606.9
Other Noncurrent Assets................................................... 24.2 26.0
---------- ----------
Total Assets.............................................................. $ 779.0 $ 781.4
========== =========
Current Liabilities....................................................... $ 151.0 $ 161.6
Noncurrent Liabilities.................................................... 50.0 45.1
Long-Term Debt............................................................ 323.4 322.0
Shareowner's Equity....................................................... 254.6 252.7
---------- ----------
Total Liabilities and Shareowner's Equity................................. $ 779.0 $ 781.4
========== ===========
</TABLE>
11
<PAGE>
(9) CONTINGENCIES - In the normal course of business, the Company is
subject to various regulatory proceedings, lawsuits, claims and other
matters. Such matters are subject to many uncertainties and outcomes
are not predictable with assurance.
The Company, as well as certain former members of IXC's board of
directors, has been named as a defendant in five stockholder class
action suits filed in the Delaware Court of Chancery (the Court). These
suits were filed in July 1999 and pertain to the Company's recently
completed merger with IXC. The complaints allege, among other things,
that the defendants breached their fiduciary duties to IXC's former
stockholders by failing to maximize stockholder value in connection
with entering into the merger agreement and sought a court order
enjoining completion of the Merger. In an October 27, 1999 ruling, the
Court denied plaintiffs' request for a preliminary injunction. The
Merger has since closed and management believes that the performance of
the Company's share price has rendered plaintiffs' arguments moot.
While these suits currently remain outstanding and subject to further
litigation, the Company does not believe any of plaintiffs' arguments
have merit. The Company is in the process of negotiating a possible
settlement.
A total of twenty-six Equal Employment Opportunity Commission ("EEOC")
charges were filed beginning in September 1999 by Broadwing
Telecommunications Inc. employees located in the Houston office
(formerly Coastal Telephone, acquired by IXC in May 1999) alleging
sexual harassment, race discrimination and retaliation. The Company is
continuing its investigation of these charges and is cooperating with
the EEOC. The Company and the various complainants are currently
engaged in a voluntary mediation proceeding to attempt to resolve this
matter.
In the course of closing the Company's recently completed merger with
IXC, the Company became aware of IXC's possible non-compliance with
certain requirements under state and federal environmental laws. Since
the Company is committed to compliance with environmental laws,
management decided to undertake a voluntary environmental compliance
audit of the IXC facilities and operations and, by letter dated
November 9, 1999, disclosed potential non-compliance at the IXC
facilities to the U.S. Environmental Protection Agency ("EPA") under
the Agency's Self-Policing Policy. The Company made similar voluntary
disclosures to various state authorities. By letter dated January 19,
2000, the EPA determined that IXC appears to have satisfied the "prompt
disclosure" requirement of the Self-Policing Policy, and established a
deadline of May 1, 2000 for the Company to complete its environmental
audit of all IXC facilities and report any violations to the Agency.
This deadline has since been extended to June 15, 2000 and the Company
is currently in the process of completing the audit and implementing
the steps necessary to correct violations discovered in the course of
the audit. The Company intends to complete its environmental audit of
these facilities within the time frame established by U.S. EPA and
undertake corrective actions necessary to promptly achieve compliance.
The Company believes that the resolution of such matters for amounts in
excess of those reflected in the consolidated financial statements
would not likely have a materially adverse effect on the Company's
financial condition.
(10) RECENTLY ISSUED ACCOUNTING STANDARDS - In June 1998, the Financial
Accounting Standards Board issued Statement of Financial Accounting
Standard (SFAS) No. 133, "Accounting for Derivative Instruments and
Hedging Activities." SFAS 133 establishes accounting and reporting
standards requiring that a derivative instrument may need to be
recorded in the balance sheet as either an asset or liability, measured
at its fair value. SFAS 133 has been subsequently amended through the
release of SFAS 137, which provides for a deferral of the effective
date of SFAS 133 to all fiscal years beginning after June 15, 2000. As
a result, implementation of SFAS 133 is not mandatory for the Company
until January 1, 2001. Management is currently assessing the impact of
SFAS 133 on the Company's results of operations, cash flows and
financial position.
In December 1999, the Securities and Exchange Commission (SEC) issued
Staff Accounting Bulletin (SAB) 101, "Revenue Recognition in Financial
Statements". In SAB 101 (which will be effective for and applicable to
the Company's operating results in the second quarter of 2000), the SEC
Staff expressed its views regarding the appropriate recognition of
revenue with regard to a variety of circumstances, some of which are of
particular relevance to the Company. The Company is currently
evaluating SAB 101 to determine its impact on the financial statements.
12
<PAGE>
MANAGEMENT DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Information included in this Quarterly Report on Form 10-Q contains certain
forward-looking statements that involve potential risks and uncertainties. The
Company's future results could differ materially from those discussed herein.
Factors that could cause or contribute to such differences include, but are not
limited to, those discussed herein, and those discussed in the Form 10-K for the
year ended December 31, 1999. Readers are cautioned not to place undue reliance
on these forward-looking statements that speak only as of the date thereof.
RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the consolidated
financial statements and segment data. Results for interim periods may not be
indicative of the results for the full years.
On November 9, 1999, the Company completed its merger with IXC
Communications, Inc. ("the Merger") and formed the basis for its Broadwing
Communications Inc. subsidiary. The Merger was accounted for as a purchase
and, accordingly, the operating results of Broadwing Communications have been
included in the Company's financial statements since the Merger date. Because
the Merger did not take place until November 9, 1999, comparisons of current
quarter results with that of the prior year may not yield meaningful results
in the absence of additional pro forma information. With regard to
consolidated results and those of the Broadband segment, the Company has
provided pro forma information (assuming the Merger occurred at the beginning
of each year) to aid in the reader's understanding of the financial results
presented in this Form 10-Q. In these instances, financial results and
management's discussion thereof will be labeled as "pro forma". The following
table summarizes the Company's reported and pro forma financial results for
the quarterly periods ending March 31, 2000 and 1999:
<TABLE>
<CAPTION>
AS REPORTED PRO FORMA
Three Months Three Months
Ended March 31, Ended March 31,
---------------------------- ---------------------------
($ Millions) 2000 1999 Change % 2000 1999 Change %
-------- -------- ------ - ------ -------- ------ -
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues:
Broadband $ 213.0 $ 17.2 $ 195.8 -- $ 213.0 $ 178.5 $ 34.5 19
Local communications 192.8 179.1 13.7 8 192.8 179.1 13.7 8
Wireless 36.6 15.2 21.4 141 36.6 15.2 21.4 141
Other communications 39.1 35.8 3.3 9 39.1 35.8 3.3 9
Intersegment (11.3) (5.1) (6.2) 122 (11.3) (5.0) (6.3) 126
----- ---- ---- ----- ---- ----
Total 470.2 242.2 228.0 94 470.2 403.6 66.6 17
Costs and expenses:
Cost of providing services and products sold 226.2 107.9 118.3 110 226.2 212.8 13.4 6
Selling, general and administrative 158.9 56.7 102.2 180 158.9 108.5 50.4 47
----- ---- ---- ----- ---- ----
Total 385.1 164.6 220.5 134 385.1 321.3 63.8 20
EBITDA 85.1 77.6 7.5 10 85.1 82.3 2.8 3
Depreciation and Amortization 110.6 32.3 78.3 242 110.6 89.3 21.3 24
----- ---- ---- ----- ---- ----
Operating Income (Loss) (25.5) 45.3 (70.8) -- (25.5) (7.0) (18.5) --
Other Income, Net 7.0 -- 7.0 -- 7.0 5.8 1.2 21
Equity Loss in Unconsolidated Entities 2.0 -- 2.0 -- 2.0 2.9 (0.9) (31)
Minority Interest Expense (Income) 10.9 (2.3) 13.2 -- 10.9 9.4 1.5 16
Interest Expense 36.4 8.7 27.7 318 36.4 26.4 10.0 38
----- ---- ---- ----- ---- ----
Income (Loss) Before Income Taxes (67.8) 38.9 (106.7) -- (67.8) (39.9) (27.9) --
Income Tax Provision (Benefit) (12.4) 14.2 (26.6) -- (12.4) 15.5 (27.9) --
----- ---- ---- ----- ---- ----
Net Income (Loss) (55.4) 24.7 (80.1) -- (55.4) (55.4) -- --
Dividends and Accretion Applicable
to Preferred Stock 0.3 -- 0.3 -- 0.3 1.6 (1.3) --
----- ---- ---- ----- ---- ----
Net Income (Loss) Attributable to
Common Shareowners $ (55.7) $ 24.7 $ (80.4) -- $ (55.7) $ (57.0) $ (1.3) --
===== ==== ==== ===== ==== ====
Income (Loss) per Common Share
(Basic and Diluted) $ (0.28) $ .18 $ (.46) -- $ (0.28) $ (0.28) $ -- --
===== ==== ==== ===== ==== ====
</TABLE>
13
<PAGE>
MANAGEMENT DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
CONSOLIDATED OVERVIEW
The discussion and analysis of the Company's Consolidated and Broadband
operating results are presented on both a pro forma and as reported basis. All
other operating segments are presented on an as reported basis since they were
not affected by the Merger.
Revenues of $470 million were $67 million higher than in the first quarter of
1999, owing largely to the growth of the Broadband, Wireless and Local
Communications segments. The Broadband segment, encompassing the operations of
the Company's new Broadwing Communications Inc. subsidiary, produced more than
half of the increase, or $35 million, as a result of growth in broadband
transport, data and Internet and network integration and consulting revenues.
Revenues from the Wireless segment increased 141%, or $21 million, and were the
result of growth in subscribership. The Local Communications segment provided
nearly $14 million in additional revenues, representing an 8% increase that came
largely from data and broadband transport and value-added services. The Other
Communications segment provided a $3 million increase, with growth coming from
the new residential long distance offering at Cincinnati Bell Any Distance
(CBAD), directory advertising and equipment sales.
Costs and expenses of $385 million (less depreciation and amortization) were $64
million higher than in the first quarter of 1999, of which $23 million was due
to advertising to launch the new brand and new products and services. An
additional $14 million in costs and expenses resulted from the growth of the
Wireless segment. Costs of providing services and products sold was $226
million, a $13 million increase, nearly all of which was attributable to
maintenance of the fiber-optic network and revenue growth within the Broadband
segment. Selling, general and administrative (SG&A) expenses of $159 million
increased $50 million over the prior year as a result of heavy spending on the
Company's advertising campaigns mentioned above and an increased sales force to
support existing and new products and services.
Earnings before interest, taxes, depreciation and amortization (EBITDA) of $85
million represented a modest improvement over the prior year. Significant EBITDA
improvements by the Local Communications and Wireless segments were somewhat
offset by the declining EBITDA of the Other Communications segment and a small
EBITDA loss for the Broadband segment. The declining EBITDA of the Broadband and
Other Communications segments are largely attributable to advertising
expenditures of $17 million to launch the Company's nationwide presence and $6
million related to its Any Distance long-distance offer. The Company anticipates
an improvement in EBITDA as the focus of these advertising efforts shift from
general informational advertising to a more product-oriented approach.
Depreciation and amortization expenses increased $21 million for the first three
months of 2000, $16 million of which was the result of the continued
construction of the fiber-optic network. Higher depreciation and amortization
expenses were also incurred by the Local Communications and Wireless segments as
each continues to add to its respective network infrastructure.
An operating loss of $26 million represented a $19 million decline in comparison
to the prior year quarter, with decreases by the Broadband and Other
Communications segments being slightly offset by the improvements of the Local
Communications and Wireless segments.
Minority interest expense of $11 million represented a $2 million increase
versus the prior year quarter. This was the result of AT&T PCS' 19.9% minority
interest in the operating loss of the Company's wireless business (an income
item to the Company) being slightly less than in the prior year quarter, and
higher dividends and accretion on the 12 1/2% preferred stock of Broadwing
Communications (an expense item).
Interest expense increased $10 million due to higher average debt levels
necessary to fund continued construction of the fiber-optic network (see further
discussion of indebtedness under "Financial Condition" and in the Notes to
Financial Statements).
The Company realized a gain of $7 million on the sale of approximately 100,000
shares of the common stock of an investee that the Company classifies as an
"available for sale" security under SFAS 115.
The Company had a $2 million loss resulting from an equity investee accounted
for under the equity method.
14
<PAGE>
MANAGEMENT DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Income taxes decreased $28 million as a function of lower pre-tax income,
somewhat offset by the effect of certain non-deductible expenses such as
goodwill amortization and minority interest dividends. The Company's previous
effective tax rate of approximately 35% will not be sustainable to future
periods due to significant levels of non-deductible expense such as goodwill
amortization and minority interest dividends.
The Company reported a net loss of $55 million during the first quarter, equal
to the amount reported in the prior year. The net loss applicable to common
shareholders and loss per common share was $56 million or $.28 per common share,
respectively, and virtually equal to the $57 million and $.28 reported in the
prior year quarter.
CONSOLIDATED OVERVIEW ON AN AS REPORTED BASIS:
Revenues of $470 million were $228 million higher than in the first quarter of
1999, owing largely to acquisitions and growth of the company's wireless
business. Costs and expenses of $385 million (less depreciation and
amortization) were $221 million higher than in the first quarter of 1999, nearly
90% of which (or $199 million) was attributable to the operations of the
recently acquired Broadband segment. Increases in addition to the Merger are
explained in the pro forma results above.
Earnings before interest, taxes, depreciation and amortization (EBITDA) of $85
million represented a 10% improvement over the prior year. Significant EBITDA
improvements by the Local Communications and Wireless segments were somewhat
offset by the declining EBITDA of the Other Communications segment and the
inclusion of the Broadband segment for the first full quarter. EBITDA margin
experienced a significant decline, decreasing to 18% in the current quarter due
to higher maintenance to support the fiber-optic network and to introduce the
Company's new brand name, nationwide presence and new products and services. The
Company anticipates an improvement in EBITDA as the focus of its advertising
effort shifts from general informational advertising to a more product-oriented
approach.
The Company reported a net loss of $55 million during the first quarter, an $80
million decline versus the prior year. The net loss applicable to common
shareholders was $56 million in the first quarter, or a $.28 loss per common
share. In the prior year quarter, net income applicable to common shareholders
and basic and diluted earnings per common share was $25 million and $.18
respectively.
BROADBAND ON A PRO FORMA BASIS
<TABLE>
<CAPTION>
As Reported Pro Forma
----------- ---------
Three Months Three Months
Ended March 31, Ended March 31,
--------------------------- --------------------------------
($ Millions) 2000 1999 Change % 2000 1999 Change %
---- ---- ------ - ---- ---- ------ -
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues:
Broadband transport $ 91.3 $ --- $ 91.3 n/m $ 91.3 $ 70.9 $ 20.4 29
Switched services 103.1 15.1 88.0 n/m 103.1 92.8 10.3 11
Data and Internet 9.6 --- 9.6 n/m 9.6 5.2 4.4 85
Other 9.0 2.1 6.9 n/m 9.0 9.6 (0.6) (6)
-------- ------ ------- ------- ------- ------
Total 213.0 17.2 195.8 n/m 213.0 178.5 34.5 19
Costs and expenses:
Cost of providing services and products sold 126.2 10.0 116.2 n/m 126.2 114.8 11.4 10
Selling, general and administrative 89.0 5.7 83.3 n/m 89.0 57.4 31.6 55
-------- ------ ------- ------- ------- ------
Total 215.2 15.7 199.5 n/m 215.2 172.2 43.0 25
EBITDA $ (2.2) $ 1.5 $ (3.7) n/m $ (2.2) 6.3 (8.5) (135)
</TABLE>
The Broadband segment comprises the operations of the Company's Broadwing
Communications Inc. subsidiary, a leading provider of telecommunications
transmission and switched long-distance services with a coast-to-coast fiber
optic network containing approximately 16,000 fiber route miles at March 31,
2000. The Company utilizes its advanced fiber-optic national network to provide
data and voice services through its network, using both wholesale and retail
channels. Broadband transport services are comprised of the lease of dedicated
circuits that customers use to transmit voice and data traffic, indefeasible
right-to-use ("IRU") agreements and network construction services.
15
<PAGE>
MANAGEMENT DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Switched services represents the transmission of long-distance switched
traffic to resellers and retail business customers through the Company's
switches. Data/Internet services include providing frame relay and ATM-based
data services, Web hosting and collocation. Other is comprised of Network
integration and consulting services along with the sale of the related
equipment and, in 1999, revenues from the Company's now completed Vyvx
project.
Revenues increased $35 million, or 19%. The increase was due to a $24 million
improvement in data services (which includes Broadband transport, Data and
Internet and Other), and a $10 million increase in switched services. Broadband
transport improvement was mainly comprised of increases in circuit-lease revenue
and IRU revenue. Switched service revenue grew 11% year over year to $103
million. Increases in the switched services revenues, including the traffic
associated with the May 10, 1999 acquisition of Coastal Telcom Limited Company
and other related companies under common control ("Coastal"), were partially
offset by the decrease in the wholesale portion of switched services revenues as
a result of the decision to de-emphasize this business. At March 31, 2000,
wholesale revenues are now less than 40% of the switched services, whereas they
comprised more than 50% a year ago. Data and Internet, while only a small
percentage of total revenues today, grew 86%. Other revenues grew more than 300%
due to network integration and consulting sales, but this was offset by the
completion of the Vyvx project which provided $7 million of revenues in 1999.
Cost of services primarily reflects access charges paid to LECs, transmission
lease payments to other carriers and employee and hardware costs in the
data-consulting arena. The increase was driven by revenue growth, and was held
to a minimum as much of the year-over-year increase in data revenue and voice
traffic was carried on the Company's network. The gross profit margin increased
from 36% to 41% in the first quarter of 2000 versus the prior year. Going
forward, cost of service expense is expected to continue to grow with revenue,
but decline as a percentage of revenue as more of the traffic is carried on the
Company's network.
Selling, general and administrative costs for the quarter increased $32 million,
or 55%. Advertising increased $17 million over the first quarter of 1999 due to
the national advertising campaign to launch the "Broadwing" brand. The remainder
of the increase was primarily salary-related costs as the Company added
approximately 600 employees from March 1999 to March 2000 mainly due to the
inclusion of the Coastal and the expansion of the retail and IT consulting
businesses. Selling, general and administrative expenses are expected to decline
due to the completion of the initial branding campaign.
An EBITDA loss of $2 million was $9 million less than in the prior year and is
the result of the items discussed above.
BROADBAND ON AN AS REPORTED BASIS:
Revenues increased $196 million to $213 million in current quarter due to
increases in all categories resulting from the Merger. Additional growth came
from network integration and consulting revenues provided by the IT Consulting
subsidiary.
Cost of providing services and products sold increased $116 million due to the
Merger and growth in the IT Consulting business. SG&A expenses increased for the
same reasons as well as the increased advertising, resulting in an $83 million
increase.
An EBITDA loss of $2 million is $4 million less than in the prior year quarter
and is a result of the items discussed above.
16
<PAGE>
MANAGEMENT DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
LOCAL COMMUNICATIONS
<TABLE>
<CAPTION>
Three Months Ended March 31,
---------------------------------------
($ Millions) 2000 1999 Change %
---- ---- ------ -
<S> <C> <C> <C> <C>
Revenues
Local service $ 111.3 $ 104.1 $ 7.2 7
Network access 48.3 45.7 2.6 6
Other services 33.2 29.3 3.9 13
-------- -------- --------
Total 192.8 179.1 13.7 8
Costs and Expenses:
Cost of providing services and products sold 66.4 70.5 (4.1) (6)
Selling, general and administrative 35.9 34.9 1.0 3
-------- -------- --------
Total 102.3 105.4 (3.1) (3)
EBITDA $ 90.5 $ 73.7 $ 16.8 23
Access lines (In thousands) 1,049 1,044 5 1
Voice grade equivalents (In thousands) 558 416 142 34
</TABLE>
The Local Communications segment provides local service, network access
(including high-speed data transport), long distance, data and Internet, ADSL
transport, sales and installation of communications equipment and other
ancillary telecommunications services through its Cincinnati Bell Telephone
subsidiary.
Total revenues of $193 million were 8% higher than the $179 million recorded in
the prior year quarter, owing to growth in all categories. The local service
category provided most of the revenue growth for the segment, increasing 7% for
the quarter, or $7 million. For local services, growth came primarily from data
transport and value-added services. These services, in the aggregate,
contributed more than 80% of the increase for this category, or $6 million. CBT
added nearly 40,000 new subscribers for its Complete Connections(R) calling
service bundle during the first quarter, bringing total subscribership and
penetration rates to 139,000 and 20%, respectively. Similar success was achieved
with regard to the Company's ZoomTownSM ADSL product, with subscribership now
topping 24,000 as a result of the 6,000 subscribers added this quarter. The
growth of the ZoomTownSM service resulted in $1 million in added revenues in
comparison to the prior year quarter. A small increase in access lines
contributed the remainder of the increase for the category.
Network access revenues were 6% higher, or $3 million. The sale of high capacity
digital services (expressed in voice grade equivalents, or VGEs) increased 34%,
resulting in approximately $4 million in new revenues for the network access
category. The Company also realized approximately $1 million in additional
revenues due to the recovery of mandated telecommunications costs. In spite of a
9% increase in access minutes of use, switched access revenues were
approximately $2 million lower due to decreased per-minute rates as part of the
optional incentive rate regulation at the Federal level in July 1999.
Other services revenue increased 13% over the prior year quarter, or $4 million.
The Company's competitive pricing structure for the high-speed Internet access
(ZoomTownSM) and Internet service provider (FUSE(R)) bundle resulted in
increased subscribership for FUSE(R), which added 5,000 new subscribers for the
quarter. FUSE(R) revenues have grown nearly $1 million since the first quarter
of last year. Other increases in the category are attributable to agency fees
for sales of CBAD services, higher rent and facilities collocation revenue and a
lower loss on receivables versus the prior year quarter.
CBT continues to improve its EBITDA, profitability and margins by leveraging the
fixed investment in its telecommunications network to offer new products and
services without significant incremental costs.
Costs and expenses of $102 million (excluding depreciation and amortization)
were $3 million less than in the prior year, representing a 3% decrease and the
lowest quarterly total in more than a year. Costs of providing services
decreased by $4 million versus the prior year quarter, as lower spending for
network switching right-to-use fees and lower operating taxes were partially
offset by an increase in customer care expenses incurred in support of new
products and services.
17
<PAGE>
MANAGEMENT DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Selling, general and administrative expenses increased by $1 million in
comparison to the prior year quarter as decreases in Y2K spending were more than
offset by additional advertising and call center expenses incurred in support of
new calling service bundles and the Company's ZoomTownSM ADSL service.
As a result of the revenue increase and expense decrease detailed above, EBITDA
grew from $74 million in the prior year quarter to the current quarter total of
$91 million, a 23% increase.
<TABLE>
<CAPTION>
WIRELESS
Three Months Ended March 31,
-----------------------------------
($ Millions) 2000 1999 Change %
---- ---- ------ -
<S> <C> <C> <C> <C>
Revenues:
Service $ 33.2 $ 12.5 $ 20.7 166
Equipment 3.4 2.7 .7 26
------ ------ ------
Total 36.6 15.2 21.4 141
Costs and expenses:
Cost of providing services and products sold 17.6 11.3 6.3 56
Selling, general and administrative 17.4 10.0 7.4 74
------ ------ ------
Total 35.0 21.3 13.7 64
EBITDA $ 1.6 $ (6.1) $ 7.7 126
Number of subscribers (thousands) 199.5 70.5 129.0 183
Customer churn 1.1% 1.4% (21)
Average revenue per unit, postpaid customers (ARPU) $ 66 $ 67 $ (1) (1)
</TABLE>
The Wireless segment comprises the operations of Cincinnati Bell Wireless LLC
("CBW"), an 80%-owned venture with AT&T Wireless PCS, Inc. ("AT&T PCS"),
which provides advanced digital personal communications services and sales of
related communications equipment to customers in its Greater Cincinnati and
Dayton, Ohio operating areas. Services are provided over the Company's
regional, and AT&T PCS' national, wireless networks.
Revenues of $37 million far exceeded that of the prior year quarter, gaining
141% versus the $15 million recorded in the prior year quarter. The vast
majority of revenues for this segment, or approximately $33 million, were
derived from service revenues. Remaining revenues resulted from the sale of
handsets and associated accessories. Service revenues are growing on the basis
of increasing subscribership, consistent ARPU and low customer churn.
Approximately 37,000 subscribers were added during the quarter, with significant
growth from both the postpaid and prepaid categories (20,000 and 17,000,
respectively). ARPU from postpaid subscribers was $66 for the quarter;
approximately equal to the $67 generated in the prior year quarter. Customer
churn remains low and is among the best in the industry, decreasing to 1.1% of
postpaid subscribers for the first quarter. The launch of CBW's new i-wirelessSM
prepaid service in the fourth quarter of 1999 resulted in $2 million in new
revenues in comparison to the prior year as subscribership grew from
approximately 11,000 subscribers at the end of 1999 to more than 28,000 at the
end of the current quarter. i-wirelessSM also represents an efficient use of the
Company's wireless network due to its use of off-peak minutes.
Costs and expenses of $35 million (excluding depreciation and amortization)
increased 64% versus the prior year quarter, largely as a function of
increasing subscribership. Costs and expenses were divided equally between
costs of providing services and products sold and selling, general and
administrative expenses, totaling approximately $18 million each in the
current quarter.
Cost of providing services consists largely of incollect expense (whereby CBW
incurs costs associated with its subscribers using their handset while in the
territory of another wireless service provider), network operations costs,
interconnection expenses and cost of equipment sales. These costs were 34% of
revenue in the first three months of 2000, considerably better than the 56%
reported during the same period in the prior year.
Selling, general and administrative expenses include the high cost of customer
acquisition and include the subsidy of customer handsets, advertising,
distribution and promotional expenses. These costs totaled $17.4 million for the
quarter due to the significant growth in subscribership. The cost per gross
addition (CPGA) was $385 for postpaid
18
<PAGE>
MANAGEMENT DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
subscribers. Selling, general and administrative costs dropped significantly as
a percentage of total revenue, decreasing from 66% in the prior year quarter to
48% for the first three months of 2000.
A significant improvement in EBITDA was achieved during the first quarter as a
function of increasing revenues and the expense controls noted above. EBITDA was
positive for the first time in the relatively short existence of the wireless
business, which exceeded the Company's projections by approximately one year.
(CBW began operations in May 1998). EBITDA of $2 million represented a $8
million improvement over the prior year quarter, with a similar effect on EBITDA
margin. EBITDA margin increased to 4.3%, a significant increase over the
negative 40.1% margin reported for the prior year quarter.
<TABLE>
<CAPTION>
OTHER COMMUNICATIONS
Three Months Ended March 31,
-----------------------------------
($ Millions) 2000 1999 Change %
---- ---- ------ -
<S> <C> <C> <C> <C>
Revenues $ 39.1 $ 35.8 $ 3.3 9
Costs and expenses:
Cost of providing services and products sold 25.3 20.6 4.7 23
Selling, general and administrative 18.2 7.5 10.7 143
------- ------- -------
Total 43.5 28.1 15.4 55
EBITDA $ (4.4) $ 7.7 $ (12.1) (157)
</TABLE>
The Other Communications Services segment comprises the operations of the
Company's Cincinnati Bell Directory (CBD), Cincinnati Bell Long Distance
(doing business as Cincinnati Bell Any Distance, or CBAD), Cincinnati Bell
Supply (CBS) and ZoomTown.com subsidiaries, as well as its public payphone
operations. CBD publishes Yellow Page directories and sells directory
advertising and informational services to customers primarily in its Local
Communications' segment service area. CBAD resells voice long distance
service primarily to small and medium-sized residence and business customers
in the same Local Communications segment service area. CBS resells
telecommunications and computer equipment in the secondary market.
ZoomTown.com provides Web hosting and other Internet-based products and
services. The Company is currently evaluating plans to sell, or exit, the CBS
business because it does not fit with the Company's long-term strategic plan.
Revenues of $39 million for the quarter represented a 9% increase, or $3
million, versus the prior year quarter. CBAD produced the majority of the
revenue increase, gaining $2 million on the success of its new "Any Distance"
service offering. This offer was successful in capturing a 40% market share
by the end of the first quarter, representing 252,000 subscribers. CBD (which
accounts for approximately 50% of the revenues for this segment) also
reported higher revenues, increasing $1 million (or 6%) on the strength of
the successful 1999 sales campaign. CBS contributed an additional $1 million
revenue increase versus the prior year quarter due to higher sales of
telecommunications equipment.
Costs and expenses (excluding depreciation and amortization) increased $15
million, or 55%. Costs of providing services were approximately $5 million
higher, with all subsidiaries reporting increases. These increases were
primarily the result of the Any Distance offer, higher sales volumes at CBS and
the operations of the Company's new ZoomTown.com subsidiary. CBD also reported
an increase in direct costs resulting from higher sales commissions and printing
costs for its directories. SG&A expenses were also higher for each subsidiary,
increasing by nearly $11 million in total versus the prior year quarter. Of the
increase for the category, $6 million was the result of advertising and
promotional efforts in support of the Any Distance offer. Versus the prior year
when it did not have operations, the Company's new ZoomTown.com subsidiary
reported a $1 million increase in SG&A expenses (consisting largely of customer
care, consulting and other operational expenses). CBS reported a $1 million
increase, reflecting higher employee costs and the move to a new facility.
EBITDA was reduced to a negative $4 million as a result of the above, nearly $12
million less than in the prior year. The Company anticipates improvement in
EBITDA and EBITDA margin once it begins to fully realize the benefits of the
advertising and promotional efforts necessary to advance the Any Distance offer,
and leverage its existing billing, customer care and network infrastructure.
19
<PAGE>
MANAGEMENT DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
FINANCIAL CONDITION
CAPITAL INVESTMENT, RESOURCES AND LIQUIDITY
The Company's continued transformation from a wireline voice communications
provider focused on its local franchise to a nationwide provider of data and
voice communications and a regional provider of wireless services has resulted
in significantly different financing requirements. Although the Company expects
to generate positive cash flow from operations in 2000, capital expenditures and
other investing needs continue to increase the Company's borrowings.
In order to provide for these cash requirements and other general corporate
purposes, the Company recently obtained a $2.1 billion credit facility from a
group of 24 lending institutions. The credit facility consists of $900 million
in revolving credit and $750 million in term loans from banking institutions and
$450 million in term loans from non-banking institutions. In January 2000,
pursuant to a tender offer, the Company borrowed approximately $400 million in
order to redeem the majority of the outstanding 9% senior subordinated notes
assumed during the Merger. This tender offer was required under the terms of the
note indenture due to a change in control provision. At March 31, 2000, the
Company had drawn approximately $1.2 billion from the credit facility in order
to refinance its existing debt and debt assumed as part of the Merger.
Accordingly, the Company has approximately $900 million in additional borrowing
capacity under this facility as of the date of this report. Separately, the
Company also has ownership position in four publicly traded companies which were
valued at $864 million as of March 31, 2000. The sale of these securities is
subject to limitations including registration rights.
On April 6, 2000, the Company completed the conversion of its 7 1/4% convertible
preferred stock, exchanging 9,466,000 shares of its common stock for 1,058,292
shares of the 7 1/4% preferred stock, based on a conversion factor of 8.9446
common shares for each of the preferred shares. Conversion of these preferred
shares into common stock of the Company eliminates approximately $8 million per
year in dividend payment requirements.
The interest rates to be charged on borrowings from the credit facility can
range from 100 to 225 basis points above the London Interbank Offering Rate
(LIBOR), depending on the Company's credit rating. The current borrowing rate is
approximately 200 basis points. The Company will incur banking fees in
association with this credit facility ranging from 37.5 basis points to 75 basis
points, applied to the unused amount of borrowings of the facility.
The Company is also subject to financial covenants in association with the
credit facility. These financial covenants require that the Company maintain
certain debt to EBITDA ratios, debt to total capitalization ratios, fixed and
floating rate debt ratios and interest coverage ratios. This facility also
contains certain covenants which, among other things, may restrict the
Company's ability to incur additional debt, pay dividends, repurchase Company
common stock, and sell assets or merge with another company.
As of the date of this filing, the Company maintains the following credit
ratings:
<TABLE>
<CAPTION>
Duff & Phelps Moody's
Entity Description Standard and Poor's Credit Rating Service Investor Service
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
BRW Corporate Credit Rating BB+ BB+ Ba2
CBT Corporate Credit Rating BB+ BBB+ Baa3
</TABLE>
CASH FLOW
For the first three months of 2000, cash provided by operating activities was $5
million, compared to $41 million in 1999 due to lower earnings. Decreases in
other current assets and increases in other current liabilities were more than
offset by decreases in accounts payable and accrued liabilities, and increases
in other assets and liabilities.
20
<PAGE>
MANAGEMENT DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The Company's significant investing activities are capital expenditures and
equity investments. Capital expenditures for the quarter were approximately $154
million, considerably higher than the $37 million spent in the prior year
period. This increase is attributable to expenditures associated with continued
construction of the Company's nationwide fiber-optic network, additional
equipment purchases by CBT, and higher levels of capital investment at CBW.
Capital expenditures to maintain and grow the nationwide fiber network, complete
the wireless network expansion, and maintain the local Cincinnati network are
expected to be approximately $805 million in 2000, consistent with amounts spent
by the Company on a pro forma basis in 1999.
In contrast to the first three months of 1999 (when $14 in common stock
dividends were paid to shareowners), no dividends were paid on common stock in
the first three months of 2000. Approximately $5 million in preferred stock
dividends were paid to shareowners during the first quarter of 2000 (this amount
was offset by approximately $4 million in accretion that was neither a source
nor use of cash). The Company switched to cash payments of dividends on its 12
1/2% preferred stock in February 2000 and approximately $12 million in dividends
were paid on this preferred stock in the first quarter of 2000. This amount is
included in the "Minority Interest (Income) Expense" caption in the Consolidated
Statements of Income and Retained Earnings.
BALANCE SHEET
The following comparisons are relative to December 31, 1999.
The change in cash and cash equivalents and capital expenditures are discussed
above. Accounts receivable increased as a result of increased revenues.
Increased inventory levels are attributable to equipment requirements associated
with new product offerings. Goodwill and other intangibles decreased as a result
of adjustments relating to the Merger and amortization expense (see Note 2).
Restructuring liabilities recorded in conjunction with the 1999 restructuring
plan decreased as a result of cash expenditures during the first quarter of
2000. Increases to common stock outstanding and additional paid in capital are
due to stock option exercises in the first quarter of 2000.
REGULATORY MATTERS AND COMPETITIVE TRENDS
FEDERAL - In February 1996, Congress enacted the Telecommunications Act of 1996
(the 1996 Act), the primary purpose of which was to introduce greater
competition into the market for telecommunications services. Since February
1996, the Federal Communications Commission (FCC) has initiated numerous
rulemaking proceedings to adopt regulations pursuant to the 1996 Act. The 1996
Act and the FCC's rulemaking proceedings can be expected to impact CBT's
in-territory local exchange operations in the form of greater competition.
However, these statutes and regulations also create opportunities for the
Company to expand the scope of its operations, both geographically and in terms
of products and services offered.
OHIO - The TELRIC phase of CBT's alternative regulation case, which will
establish the rates CBT can charge to competitive local exchange carriers for
unbundled network elements, remains pending. The PUCO issued its decision on the
methodology CBT must use to calculate these rates on November 4, 1999. On
January 20, 2000, the PUCO denied all parties' requests for rehearing except for
one issue regarding nonrecurring charges. On March 17, 2000, CBT filed an appeal
to the Ohio Supreme Court with respect to several issues. CBT's initial brief is
due May 30, 2000. Nevertheless, CBT has submitted new cost studies as required
by the PUCO's orders and is awaiting comments. After a period for review of the
studies and resolution of any disputes, CBT is to file a tariff implementing the
resulting rates.
KENTUCKY - On June 29, 1998, CBT filed an application with the Public Service
Commission of Kentucky (PSCK) seeking approval of an alternative regulation plan
similar to the Commitment 2000 plan approved by the PUCO in Ohio. On January 25,
1999, the PSCK issued an order approving the Kentucky alternative regulation
plan with certain modifications. One of the modifications was the adoption of an
earnings-sharing provision whereby customers would receive one-half of earnings
on equity in excess of 13.5%. The PSCK also ordered that residential rates be
frozen for three years and required rate reductions of approximately $3 million
per year versus current rates. On February 12, 1999, CBT filed a petition
seeking rehearing of the PSCK's January 25, 1999 order. On July 26, 1999, the
PSCK issued an order that eliminated the automatic earnings-sharing provision
and revised the required rate reductions to $2.3 million per year, instead of
the $3 million per year previously ordered.
21
<PAGE>
MANAGEMENT DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
BUSINESS OUTLOOK
Evolving technology, the preferences of consumers, the legislative and
regulatory initiatives of policy makers and the convergence of other industries
with the telecommunications industry are causes for increasing competition. The
range of communications services, the equipment available to provide and access
such services, and the number of competitors offering such services continue to
increase. These initiatives and developments could make it difficult for the
Company to maintain current revenue and operating margins.
CBT's current and potential competitors include other incumbent local exchange
carriers, wireless services providers, interexchange carriers, competitive local
exchange carriers and others. To date, CBT has signed various interconnection
agreements with competitors and approximately 7,200 net access lines have been
transferred to competitors.
Broadwing Communications faces significant competition from other fiber-based
telecommunications companies such as Level 3 Communications, Qwest
Communications International, Global Crossing and Williams Communications. These
companies have enjoyed a competitive advantage over Broadwing Communications in
the past due to better business execution. The Company feels that Broadwing
Communications is well equipped to match these competitors on the basis of
technology and has been working to improve on critical processes, systems and
the execution of its business strategy. In order to achieve competitive
advantage, the Company intends to develop, blend or even move, products and
services from other subsidiaries into the operations of Broadwing
Communications. This will be done as deemed necessary by the Company. Broadwing
IT Consulting competes with Intranet hardware vendors, wiring vendors, and other
network integration and consulting businesses.
The Company's other subsidiaries face intense competition in their markets,
principally from larger companies. These subsidiaries primarily seek to
differentiate themselves by leveraging the strength and recognition of the
Company's brand equity, by providing customers with superior service and by
focusing on niche markets and opportunities to develop and market customized
packages of services. CBW is one of six active wireless service providers in the
Cincinnati and Dayton, Ohio metropolitan market areas. CBD's competitors are
directory services companies, newspapers and other media advertising services
providers in the Cincinnati metropolitan market area and now competes with its
former sales representative for Yellow Pages directory customers. This
competition may affect CBD's ability to grow or maintain profits and revenues.
CBS's competitors include vendors of new and used computer and communications
equipment operating regionally and across the nation.
Cincinnati Bell Any Distance captured considerable market share in the Greater
Cincinnati area during this quarter, but still faces intense competition from
larger long distance providers and other resellers. As a matter of necessity,
margins on long distance minutes continue to fall as providers attempt to hold
on to their subscriber base.
The Company believes that its reputation for quality service and innovative
products can be successfully exported outside of its local franchise area. The
Company plans to blend its provisioning and marketing expertise with Broadwing
Communications' next-generation fiber-optic network in order to introduce
advanced calling and data transport services throughout the United States. The
Company intends to retain market share with respect to its current service
offerings and pursue rapid growth in data transport services. The Company also
intends to leverage its investment in its local communications network and its
regional wireless network and national partnership with AT&T PCS to provide new
and incremental product and service offerings.
BUSINESS DEVELOPMENT - To enhance shareholder value, the Company continues to
review opportunities for acquisitions, divestitures, equity investments and
strategic partnerships.
22
<PAGE>
MANAGEMENT DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
QUALITATIVE AND QUANTITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to the impact of interest rate changes. To manage its
exposure to interest rate changes, the Company uses a combination of variable
rate short-term and fixed rate long-term financial instruments. The Company may,
from time to time, employ a small number of financial instruments to manage its
exposure to fluctuations in interest rates. The Company does not hold or issue
derivative financial instruments for trading purposes or enter into interest
rate transactions for speculative purposes. Management is reviewing steps
necessary to mitigate this exposure.
Interest Rate Risk Management - The Company's objective in managing its exposure
to interest rate changes is to limit the impact of interest rate changes on
earnings and cash flows and to lower its overall borrowing costs.
23
<PAGE>
ITEM 1. LEGAL PROCEEDINGS
The information required by this Item is included in Note 9 of the notes to the
condensed consolidated financial statements on page 12 of this quarterly report.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
On April 6, 2000, the Company converted approximately 1.1 million shares of its
7 1/4% convertible preferred stock into approximately 9.5 million shares of its
common stock, based on a conversion factor of 8.945 common shares for each share
of convertible preferred stock. Holders had the option to convert their shares
of preferred stock into shares of the Company's common stock, or accept a cash
payment in lieu of this conversion feature. A cash payment was made for
approximately 100 preferred shares that were not converted by the holders.
The Company is restricted as to the payment of certain dividends as defined in
the Credit Agreement that is filed as Exhibit (3)(a) to this Report on Form
10-Q.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during the first
quarter of 2000.
The Company's annual meeting of shareholders was conducted on April 19, 2000. At
this meeting, shareholders voted on:
i. Election of three directors for three-year terms expiring in 2003,
ii. Amendment of the Company's Articles of Incorporation to change the
Company's official name to Broadwing Inc.,
iii. Approval of the amended Broadwing Inc. 1997 Long Term Incentive Plan,
iv. Approval of the amended Broadwing Inc. Short Term Incentive Plan, and
v. Appointment of PricewaterhouseCoopers LLP as independent accountants
for audit of the Company's financial statements for the year 2000.
The results of such votes were as follows:
i. Richard G. Ellenberger was elected as a director with 171,558,492
common shares voting for election and 1,919,895 shares voting against
election. Karen M. Hoguet was elected as a director with 171,634,748
common shares voting for election and 1,843,639 shares voting against
election. David B. Sharrock was elected as a director with 171,643,140
common shares voting for election and 1,835,247 shares voting against
election.
ii. The proposal to amend the Company's Articles of Incorporation to change
the Company's official name to Broadwing Inc. was approved with
170,847,428 common shares voting for the proposal, 1,784,879 common
shares voting against the proposal, and 846,080 common shares which
were abstentions or broker non-votes.
iii. The proposal to approve the amended Broadwing Inc. 1997 Long Term
Incentive Plan was approved with 153,924,278 common shares voting for
the proposal, 18,292,191 common shares voting against the proposal, and
1,261,918 common shares which were abstentions or broker non-votes.
iv. The proposal to approve the amended Broadwing Inc. Short Term Incentive
Plan was approved with 164,674,785 common shares voting for the
proposal, 7,446,374 common shares voting against the proposal, and
1,357,228 common shares which were abstentions or broker non-votes.
24
<PAGE>
v. PricewaterhouseCoopers LLP was ratified as the Company's independent
accountants with 171,966,558 common shares voting for ratification,
874,495 common shares voting against ratification, and 637,334 common
shares which were abstentions or broker non-votes.
A shareholder proposal recommending a change to the method of executive
incentive compensation was included in the Company's proxy statement, but was
not submitted for shareholder vote because the item was not properly presented
at the shareholder meeting.
ITEM 5. OTHER INFORMATION
See Item 2 above for a discussion regarding the conversion of the Company's 7
1/4% convertible preferred stock into common shares of the Company.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
The following are filed as Exhibits to Part I of this Form 10-Q:
<TABLE>
<CAPTION>
Exhibit
Number
-------
<S> <C>
(10)(i)(1) Credit Agreement dated as of January 12, 2000 among
Cincinnati Bell Inc. (aka Broadwing Inc.) and IXCS as
Borrowers, Cincinnati Bell Inc. 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.
(10)(iii)(A)(1) Short Term Incentive Plan of Broadwing Inc., as
amended and restated effective January 1, 2000.
(10)(iii)(A)(2) Broadwing Inc. Long Term Incentive Plan, as amended
and restated effective January 1, 2000.
(27) Financial Data Schedule
</TABLE>
(b) Reports on Form 8-K.
None.
25
<PAGE>
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 thereunto duly authorized.
Broadwing Inc.
Date: May 12, 2000 /s/ Kevin W. Mooney
-------------- --------------------------------------
Kevin W. Mooney
Chief Financial Officer
26
<PAGE>
AMENDMENT AND RESTATEMENT
OF THE
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of November 9, 1999, as amended and restated
as of January 12, 2000, among CINCINNATI BELL INC., an Ohio corporation ("CBI"),
and BROADWING COMMUNICATIONS SERVICES INC. (f/k/a 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") for the Lender Parties (as hereinafter defined), PNC
Bank, N.A. ("PNC," and collectively with CSFB and BNY, the "CO-ARRANGERS"),
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, Reorganization 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
<PAGE>
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 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.
(5) The Borrowers have requested the addition of an Incremental
Facility (the "INCREMENTAL TERM B FACILITY") pursuant to Section 2.05(c) in an
aggregate principal amount of $450,000,000, which Facility shall be a Term
Facility for all purposes hereunder and, unless otherwise provided, all
references to the Term Facility and Term Advances shall be deemed to include
references to the Incremental Term B Facility as the context requires.
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,
<PAGE>
Attention: Townsend Weekes, or such other account as the Administrative Agent
shall specify in writing to the Lender Parties.
"ADVANCE" means a Term Advance, an Incremental 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 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.
"AMENDMENT AND RESTATEMENT" means the Amendment and Restatement of the
Credit Agreement dated as of January 12, 2000.
<PAGE>
"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 (i) in the case of the Incremental Term B
Facility, 2.25% per annum for Eurodollar Rate Advances and 1.25% per annum for
Base Rate Advances and (ii) in the case of each other Facility, 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:
APPLICABLE MARGIN PRICING GRID
<TABLE>
<CAPTION>
------------------------------------ -------------------------------------------
Applicable Margin
Revolving and
Term
S&P/MOODY'S FACILITIES
------------------------------------ ------------------- -----------------------
Eurodollar Rate Base Rate Advances
Advances
------------------------------------ ------------------- -----------------------
<S> <C> <C>
I: 1.00% 0.00%
At least BBB and Baa2
------------------------------------ ------------------- -----------------------
II: 1.25% 0.25%
Below I, but at least
BBB- and Baa3
------------------------------------ ------------------- -----------------------
III: 1.50% 0.50%
Below II, but at least
BB+ and Ba1
------------------------------------ ------------------- -----------------------
IV: 1.75% 0.75%
Below III, but at least
BB+ and Ba2 OR BB and Ba1
--
------------------------------------ ------------------- -----------------------
V: 2.00% 1.00%
Below IV, but at least
BB and Ba2
------------------------------------ ------------------- -----------------------
VI: 2.25% 1.25%
Below V
------------------------------------ ------------------- -----------------------
</TABLE>
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
<PAGE>
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 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.
"ASSIGNED ADVANCES" means $5,000,000 of Term A Advances outstanding
under the Reallocated Commitments on the Restatement Effective Date prior to
giving effect to any assumption under Section 2.01(a)(ii).
<PAGE>
"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.
"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
<PAGE>
Borrowers, such other account as the Borrower shall specify in writing to the
Administrative Agent.
"BORROWING" means a Term Borrowing, an Incremental 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 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
<PAGE>
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.
"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).
"CBT" means Cincinnati Bell Telephone Company, an Ohio
corporation.
"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
<PAGE>
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.
"CO-DOCUMENTATION AGENTS" has the meaning specified in the
recital of parties to this Agreement.
"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, an Incremental 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 Commitments:
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------
Less than 33% of 33% to 66% of Greater than 66% of
Facilities Utilized Facilities Utilized Facilities Utilized
------------------------------------------------------------------------------
<S> <C> <C> <C>
0.75% 0.50% 0.375%
------------------------------------------------------------------------------
</TABLE>
"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.
"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
<PAGE>
(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 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.
<PAGE>
"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) 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
<PAGE>
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
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). For purposes of Section 9.01(a)
and (b) only, the definition of Defaulting Lender shall not include
any Lender that is a Disputing Lender.
"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.
"DISPUTING LENDER" shall mean any Lender that becomes a
Defaulting Lender because such Lender in good faith has determined
that the conditions precedent to funding the applicable Advance set
forth in Section 3.02 of this Agreement have not been satisfied.
"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
<PAGE>
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.
"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
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.
<PAGE>
"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 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.
<PAGE>
"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) 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:
<PAGE>
(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 Obligations under Capitalized Leases 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
(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.
<PAGE>
"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 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.
<PAGE>
"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 ADVANCE" means an Advance made under an Incremental
Facility pursuant to Section 2.01(a)(ii) or 2.05(c).
"INCREMENTAL BORROWING" means a borrowing consisting of
simultaneous Incremental Advances of the same Type made by the
Incremental Lenders.
<PAGE>
"INCREMENTAL COMMITMENT" means, with respect to any Incremental
Lender at any time, the aggregate amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Incremental
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 "Incremental Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"INCREMENTAL FACILITY" and "INCREMENTAL FACILITIES" have the
meaning specified in Section 2.05(c).
"INCREMENTAL FACILITY NOTICE" has the meaning specified in
Section 2.05(c).
"INCREMENTAL LENDER" means any Lender that has an Incremental
Commitment.
"INCREMENTAL NOTE" means a promissory note of a Borrower payable
to the order of any Incremental Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to
such Lender resulting from the Incremental Advance made by such
Lender, as amended.
"INCREMENTAL TERM B ADVANCES" means each Incremental Advance made
by an Incremental Lender under the Incremental Term B Facility.
"INCREMENTAL TERM B FACILITY" has the meaning specified in
Preliminary Statement (5). "INDEMNIFIED PARTY" has the meaning
specified in Section 9.04(b).
"INDEX DEBT" means long-term senior unsecured Debt 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
<PAGE>
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;
(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
<PAGE>
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.
"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,
<PAGE>
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.
"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.
<PAGE>
"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 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 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.
"MARGIN STOCK" has the meaning specified in Regulation U.
<PAGE>
"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
<PAGE>
Person, the aggregate amount of cash received from time to time
(whether as initial 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.
<PAGE>
"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.
"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).
"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 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)(vi) of the
Non-Shared Collateral Security Agreement.
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"PLEDGED SHARES" has the meaning specified in Section 1(a)(iii)
of the Shared Collateral Security Agreement and Section 1(a)(v) of the
Non-Shared Collateral Security Agreement.
"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).
"REALLOCATED COMMITMENTS" means $150,000,000 of the Term A
Commitments of the Term A Lenders on the Restatement Effective Date
prior to giving effect to any assignment under Section 2.01(a)(ii).
"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.
<PAGE>
"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
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.
"RESTATEMENT EFFECTIVE DATE" shall have the meaning set forth in
Section 2 of the Amendment and Restatement.
"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.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount of the Revolving Credit Lenders' Revolving Credit Commitments
at such time.
<PAGE>
"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.
"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.
<PAGE>
"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.
"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 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).
<PAGE>
"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.
"TAXES" has the meaning specified in Section 2.12(a).
"TERM A ADVANCE" has the meaning specified in Section 2.01(a)(i).
"TERM A COMMITMENT" means the Commitment of each Term Lender to
make Term A Advances on the Restatement Effective Date prior to giving
effect to any assignment under Section 2.01(a)(ii).
"TERM A LENDER" means each Term Lender that has a Term A
Commitment.
"TERM ADVANCES" means, collectively, Term A Advances and
Incremental Term B Advances.
"TERM B ADVANCE" has the meaning specified in Section
2.01(a)(ii).
"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
<PAGE>
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 (i) in the case of the Incremental Term
B Facility, the earlier of December 30, 2006 and the date of
termination in whole of the Incremental Commitments with respect to
the Incremental Term B Facility pursuant to Section 2.05 or 7.01 and
(ii) in the case of each other Facility, 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.
"TRANSACTION" means the Merger and the other transactions
contemplated by the Transaction Documents.
"TRANSACTION DOCUMENTS" means, collectively, the Loan Documents
and the Related Documents.
"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.
<PAGE>
"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. (i) Each Term Lender severally agrees, on the terms
and conditions hereinafter set forth, to make advances (each a "TERM A
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 the unused portion of such
Lender's Term Commitment at such time. Each Term Borrowing shall be in
an aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof (or if less, the amount of the aggregate
unused portion of the Term Commitments at such time) and 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)(i) and repaid or prepaid may not be reborrowed; EXCEPT
the Borrowers may reborrow up to the principal amount prepaid on the
Term A Advances from the proceeds of the Incremental Term B Facility
less the principal amount of the Assigned Advances.
(ii) Each of the Term A Lenders will, as of the Restatement
Effective Date, sell and assign to the Incremental Lenders an
undivided interest in and to all of its respective rights and
obligations under and in respect of its ratable portion (based on its
Term A Commitment) of the Reallocated Commitments and the Assigned
Advances and each of the Incremental Lenders severally agrees, on the
terms and conditions hereinafter set forth, to purchase and assume an
undivided interest in its ratable portion (based on its Incremental
Commitment) of the Reallocated Commitments and the Assigned Advances
being so sold and assigned to the Incremental Lenders on such date.
Immediately after giving effect to all of the assignments and
assumptions described in the immediately preceding sentence, the
Assigned Advances shall be deemed to be Incremental Term B Advances
made by the Incremental Lenders to the Borrower hereunder on the
Restatement Effective Date for all purposes of this Agreement. Each
Incremental Lender severally agrees further, on the terms and
conditions hereinafter set forth, to make an additional single advance
(each a "TERM B ADVANCE" and together with the Assigned Advances, each
an "INCREMENTAL TERM B ADVANCE") to the Borrowers on the Restatement
Effective Date in an amount not to exceed such Lender's unused portion
of its Incremental Commitment at such time. The Incremental Borrowing
under the Incremental Term B Facility shall consist of Term B Advances
made simultaneously by the Incremental Lenders ratably according to
their Incremental Commitments. Amounts borrowed under this Section
2.01(a)(ii) 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
<PAGE>
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).
(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
<PAGE>
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, 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
<PAGE>
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 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
<PAGE>
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
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.
<PAGE>
(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 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,
<PAGE>
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 mount 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. (i)
The Borrowers shall repay to the Administrative Agent for the ratable
account of the Term Lenders the 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):
<PAGE>
<TABLE>
<CAPTION>
DATE PERCENTAGE
<S> <C> <C>
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%
</TABLE>
PROVIDED, HOWEVER, that, notwithstanding the foregoing provisions of this
Section 2.04(a)(i), 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.
(ii) The Borrowers shall repay to the Administrative Agent for
the ratable account of the Incremental Lenders that are Lenders under the
Incremental Term B Facility, the aggregate outstanding principal amount of the
Incremental Term B Advances on the following dates in an amount equal to the
percentage of the aggregate principal amount of all of the Incremental Term B
Advances outstanding on the date that is two years from the date hereof (after
giving effect to all Borrowings under the Incremental Term B Facility, 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):
<TABLE>
<CAPTION>
DATE PERCENTAGE
<S> <C> <C>
March 28, 2002 0.25%
June 27, 2002 0.25%
September 27, 2002 0.25%
December 30, 2002 0.25%
March 29, 2003 0.25%
June 27, 2003 0.25%
September 29, 2003 0.25%
December 30, 2003 0.25%
<PAGE>
March 30, 2004 0.25%
June 29, 2004 0.25%
September 29, 2004 0.25%
December 30, 2004 0.25%
March 30, 2005 0.25%
June 29, 2005 0.25%
September 29, 2005 0.25%
December 30, 2005 0.25%
March 30, 2006 24.00%
June 29, 2006 24.00%
September 29, 2006 24.00%
December 30, 2006 24.00%
</TABLE>
PROVIDED, HOWEVER, that, notwithstanding the foregoing provisions of this
Section 2.04(a)(ii), the final principal repayment installment of the
Incremental Term B 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 Incremental Term B 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 each
Issuing Bank and each other Revolving Credit Lender, in an amount equal to such
<PAGE>
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.
<PAGE>
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 the Administrative Agent, terminate in whole or
reduce in part the unused portions of the Term Commitments, the Incremental
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 portions of the Incremental
Commitment pursuant to this Section 2.05(a) shall be applied to the remaining
principal installments of the Incremental 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:
<PAGE>
<TABLE>
<CAPTION>
DATE PERCENTAGE
<S> <C> <C>
March 28, 2002 3.75%
June 27, 2002 3.75%
September 27, 2002 3.75%
December 30, 2002 3.75%
6.25%
March 29, 2003
June 27, 2003 6.25%
September 29, 2003 6.25%
December 30, 2003 6.25%
15.00%
March 30, 2004
June 29, 2004 15.00%
September 29, 2004 15.00%
</TABLE>
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.
(v) The Incremental Facility shall be automatically and
permanently reduced, on a pro rata basis, on each date on which the Incremental
Advances outstanding thereunder are repaid or prepaid by an amount equal to the
amount by which the aggregate Incremental Commitments immediately prior to such
reduction exceed the aggregate unpaid principal amount of the Incremental
Advances then outstanding.
(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 amount not to exceed $650 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 or such later
termination date and longer proportional amortization terms as shall be agreed
by the Borrowers and the Incremental Lenders providing such Incremental
Facility. 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 15 days of the Incremental Facility Notice for any such Incremental
Facility,
<PAGE>
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 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,
<PAGE>
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) 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
<PAGE>
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.
(c) PRO RATA TREATMENT. All prepayments of the Term Facility or
the Incremental Facility under this Section 2.06 shall be applied to prepay the
Term A Advances then outstanding and the Incremental Term B Advances then
outstanding on a pro rata basis.
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 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.
<PAGE>
(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 AdministrativeAgent 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.
(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.
<PAGE>
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 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
<PAGE>
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 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.
<PAGE>
(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 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
<PAGE>
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 other Obligations owed to such Lender Party, and for application to such
principal installments, as the Administrative Agent shall direct.
<PAGE>
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
<PAGE>
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
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
<PAGE>
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 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
<PAGE>
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 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;
<PAGE>
(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 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;
<PAGE>
(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 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, a Term Note and an
Incremental Note, as applicable, in substantially the form of Exhibits A-1 and
A-2 hereto, as the case may be, payable to the order of such Lender Party in a
principal amount equal to the Revolving Credit Commitment, the Term Commitment
and the Incremental Commitment, as the case may be, 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
<PAGE>
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.
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:
<PAGE>
(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,
(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
<PAGE>
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).
(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
<PAGE>
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 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
<PAGE>
(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.
(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.
<PAGE>
(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 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
<PAGE>
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 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.
<PAGE>
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
<PAGE>
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 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.
<PAGE>
(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 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
<PAGE>
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 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
<PAGE>
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.
(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
<PAGE>
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
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) (i) 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; and
(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.
<PAGE>
(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.
(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.
(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.
<PAGE>
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. (i) 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 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
<PAGE>
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).
(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
<PAGE>
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 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)),
<PAGE>
(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,
(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
<PAGE>
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 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,
<PAGE>
(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 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.
<PAGE>
(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 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 sufficient to ensure that not less than 50% of Funded Debt shall be
at a fixed rate of interest and providing for such Persons to make payments
thereunder for a period of no less than two years on terms
<PAGE>
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 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;
<PAGE>
(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;
(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;
<PAGE>
(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 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
<PAGE>
(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,
(F) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business,
(G) [Intentionally Omitted]
<PAGE>
(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;
<PAGE>
(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
(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.
<PAGE>
(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 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; 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
<PAGE>
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
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:
<PAGE>
(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),
(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.
<PAGE>
(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, 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.
<PAGE>
(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.
(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.
(r) EXCHANGE OF EXCHANGEABLE PREFERRED STOCK. Exchange the
Exchangeable Preferred Stock into Debt except to the extent such Debt
is permitted under Section 5.02(b).
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
<PAGE>
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
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 (or in the case of the Fiscal Year ended December
31, 1999, no later than February 15, 2000) 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
<PAGE>
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.
(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;
<PAGE>
(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(i)(i)(A)
and the notice under Section 5.03(i)(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(i) 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:
(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.
<PAGE>
(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,
may 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:
(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:
<TABLE>
<CAPTION>
=======================================================================
Period Ending Ratio
=======================================================================
<S> <C> <C>
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
=======================================================================
<PAGE>
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 3.7
=======================================================================
</TABLE>
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 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:
<TABLE>
<CAPTION>
=======================================================================
Period Ending Ratio
=======================================================================
<S> <C> <C>
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
=======================================================================
<PAGE>
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
=======================================================================
</TABLE>
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 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
<PAGE>
(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:
<TABLE>
<CAPTION>
=======================================================================
Period Ending Ratio
=======================================================================
<S> <C> <C>
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
=======================================================================
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
=======================================================================
</TABLE>
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
<PAGE>
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 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
<PAGE>
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 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;
<PAGE>
(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
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
<PAGE>
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
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
<PAGE>
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
<PAGE>
shall be declared to be due and payable or required to be 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
<PAGE>
(k) a Change of Control shall occur; or
(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
<PAGE>
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.
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
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
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, 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.
<PAGE>
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 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.
<PAGE>
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:
(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 (x) the guarantee of CBI under Article VI
herein or (y) all or substantially all of the value of the
guarantees of the Subsidiaries under the Subsidiary Guaranties
(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);
(v) change any purchase obligation of any Lender under
Section 2.13; or
(vi) 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 or an
<PAGE>
Advance then outstanding under the Term Facility, the Incremental
Facility or the Revolving Credit Facility, as the case may be, 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 Advances held by such Lender or any fees or other amounts
payable hereunder to such Lender or reduce or relieve any
repayment obligation of the Revolving Credit Lenders under
Section 2.03(c); or
(iii) postpone any date scheduled for any payment of
principal of, or interest on, the Advances held by such Lender
pursuant to Section 2.04 or 2.07, or postpone scheduled
reductions of the Revolving Credit Facility pursuant to Section
2.05 or any date fixed for any payment of fees or the Guaranteed
Obligations payable hereunder 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 or, if no Commitments are then outstanding under such
Facility, the Advances then outstanding, under the Term Facility, the
Incremental Facility or the Revolving Credit Facility, as the case may
be, change the order of application of any reduction in the
Commitments in any manner that materially affects any Lender Party
under such Facility at any time when all 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
<PAGE>
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.
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).
<PAGE>
(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 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
<PAGE>
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 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.
<PAGE>
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 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
<PAGE>
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).
(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
<PAGE>
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 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.
<PAGE>
(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 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
<PAGE>
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.
(k) Notwithstanding any other provision set forth in this
Agreement, any Lender Party that is a fund that invests in bank loans may
pledge all or any portion of its rights in connection with this Agreement
to the trustee for holders of obligations owed, or securities issued, by
such fund as security for such obligations or securities; PROVIDED that
nothing contained herein shall affect any obligations of the Lender Party
or such pledgee to comply with the requirements of Section 9.07 in order
for such pledgee to become a Lender Party under this Agreement. No pledge
described in the immediately preceding sentence shall release such Lender
Party from its obligations under this Agreement.
<PAGE>
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 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), (c) as requested or required by any state,
Federal or foreign authority or examiner regulating such Lender Party and
(d) to any direct or indirect contractual counterparty in swap agreements
or such contractual counterparty's professional advisor (so long as such
contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by this Section 9.10).
<PAGE>
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.
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.
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
<PAGE>
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 W. PETERSON
-----------------------------------
Title: Vice President and Treasurer
BROADWING COMMUNICATIONS
SERVICES INC. (f/k/a IXC
Communications Services, Inc.)
By /s/ MARK W. PETERSON
-----------------------------------
Title: Vice President and Treasurer
CITICORP USA, INC.,
as Administrative Agent, Initial Lender,
Initial Issuing Bank and Swing
Line Lender
By /s/ KIMBERLY A. HARPER
-----------------------------------
Title: Vice President
BANK OF AMERICA, N.A.,
as Syndication Agent, Initial Lender,
Initial Issuing Bank and Swing
Line Lender
By /s/ ROSELYN DRAKE
-----------------------------------
Title: Principal
<PAGE>
INTITIAL LENDERS
CREDIT SUISSE FIRST BOSTON
By /s/ JOEL GLODOWSKI
-----------------------------------
Title: Managing Director
CREDIT SUISSE FIRST BOSTON
By /s/ CHRIS T. HORGAN
-----------------------------------
Title: Vice President
THE BANK OF NEW YORK
By /s/ DEBRA M. RITCHIE
-----------------------------------
Title: Assistant Vice President
PNC BANK, N.A.
By /s/ BRUCE A. KINTNER
-----------------------------------
Title: Vice President
BAYERISCHE HYPO-UND
VEREINSBANK AG, NEW YORK
BRANCH
By /s/ YORAM DANKNER
----------------------------------
Title: Managing Director
BY /s/ PETER W. HALL
----------------------------------
Title: Associate Director
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE
By /s/ WILLIAM M. SWENSON
-----------------------------------
Title: Authorized Signatory
CANADIAN IMPERIAL BANK OF COMMERCE
By /s/ WILLIAM M. SWENSON
-----------------------------------
Title: Authorized Signatory
FIRSTAR BANK, N.A.
By /s/ MARK A. WHITSON
-----------------------------------
Title: Vice President
FIRST UNION NATIONAL BANK
By /s/ CHARLES B. EDMONDSON
-----------------------------------
Title: Assistant Vice President
FLEET NATIONAL BANK
By /s/ WILLIAM B. MAAS
-----------------------------------
Title: Director
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ KARL KIEFFER
-----------------------------------
Title: Duly Authorized Signatory
<PAGE>
KEMPER FLOATING RATE FUND
By /s/ MARK E. WITTNEBEL
-----------------------------------
Title: Senior Vice President
KZH CNC LLC
By /S/ VIRGINIA CONWAY
-----------------------------------
Title: Authorized Agent
KZH ING-1 LLC
By /s/ VIRGINIA CONWAY
-----------------------------------
Title: Authorized Agent
KZH ING-2 LLC \
By /s/ VIRGINIA CONWAY
-----------------------------------
Title: Authorized Agent
KZH ING-3 LLC
By /s/ VIRGINIA CONWAY
-----------------------------------
Title: Authorized Agent
KZH LANGDALE LLC
By /s/ VIRGINIA CONWAY
-----------------------------------
Title: Authorized Agent
<PAGE>
KZH SHOSHONE LLC
By /s/ VIRGINIA CONWAY
-----------------------------------
Title: Authorized Agent
KZH STERLING LLC
By /s/ VIRGINIA CONWAY
-----------------------------------
Title: Authorized Agent
KZH III LLC
By /s/ VIRGINIA CONWAY
-----------------------------------
Title: Authorized Agent
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By /s/ ANDREW C. LIGGIO
-----------------------------------
Title: Authorized Signatory
OLYMPIC FUNDING TRUST, SERIES
1999-1
By /s/ KELLY C. WALKER
-----------------------------------
Title: Authorized Agent
<PAGE>
ROYAL BANK OF CANADA
By /s/ ANDREW WILLIAMSON
----------------------------------
Title: Vice President
SRF TRADING, INC.
By /s/ KELLY C. WALKER
-----------------------------------
Title: Vice President
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY
By /s/ BRIAN W GOOD
------------------------------------
Title: Vice President
Stein Roe & Farnham
Incorporated, as Advisor to
the Stein Roe Floating Rate
Limited Liability Company
TORONTO DOMINION (NEW YORK), INC.
By /s/ SONJA R. JORDAN
-----------------------------------
Title: Vice President
WINGED FOOT FUNDING TRUST
By /s/ KELLY C. WALKER
-----------------------------------
Title: Authorized Agent
LENDERS
ABN AMRO BANK N.V.
By /s/ ROXANA SOPALA
-----------------------------------
Title: Vice President
<PAGE>
ABN AMRO BANK N.V.
By /s/ SANG W. LEE
-----------------------------------
Title: Assistant Vice President
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By /s/ GARY ANDRESEN
-----------------------------------
Title: Senior Associate
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By /s/ ROBERT M. BIRINGER
-----------------------------------
Title: Executive Vice President
BANK OF CHINA, NEW YORK
By /s/ GUOTING ZHANG
-----------------------------------
Title: Deputy General Manager
<PAGE>
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
BY /s/ ANDREAS NEUMEIER
--------------------------------------
Title: Vice President
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By /s/ JOEL MAKOWSKY
-----------------------------------
Title: Vice President
EXPORT DEVELOPMENT CORPORATION
By /s/ MICHAEL FORTNER
-----------------------------------
Title: Financial Services MANAGER
EXPORT DEVELOPMENT CORPORATION
By /s/ MICHAEL SMALLSHAW
-----------------------------------
Title: International Contracts
Specialists
FIFTH THIRD BANK
By /s/ ANDREW K. HAUCK
-----------------------------------
TiTle: Vice President
FIRST HAWAIIAN BANK
By /s/ CHARLES L. JENKINS
-----------------------------------
Title: Vice President & Manager
<PAGE>
FIRSTRUST BANK
By /s/ KENT NELSON
-----------------------------------
Title: Vice PRESIDENT and Manager
FLEET NATIONAL BANK
By /s/ BARBARA A. KEEGAN
-----------------------------------
Title: Vice President
IBM CREDIT CORPORATION
By /s/ THOMAS CURCIO
-----------------------------------
Title: MaNager of Credit
KEY CORPORATE CAPITAL, INC.
BY /s/ THOMAS R. PATTERSON
-----------------------------------
Title: Senior Vice President
MERITA BANK PLC, NEW YORK BRANCH
BY /s/ CHARLES J. LANSDOWN
-----------------------------------
Title: Senior Vice President
MERITA BANK PLC, NEW YORK BRANCH
By /s/ CLIFFORD ABRAMSKY
-----------------------------------
Title: Vice President
<PAGE>
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
By /s/ HISASHI MIYASHIRO
-----------------------------------
Title: Deputy GENERAL Manager
THE PROVIDENT BANK
By /s/ DAVID OLIVERIO
-----------------------------------
Title: Vice President
THE SUMITOMO BANK, LIMITED
By /s/ JOHN KEMPER
-----------------------------------
Title: Senior Vice President
<PAGE>
SCHEDULE II TO THE
CREDIT AGREEMENT
LIST OF SUBSIDIARY GUARANTORS
CBI GUARANTORS:
- ---------------
Cincinnati Bell Supply Company
Cincinnati Bell Directory Inc.
Cincinnati Bell Network Solutions Inc.
Cincinnati Bell Holdings Inc.
EnterpriseWise IT Consulting LLC
Zoomtown.com Inc.
Cincinnati Bell Long Distance Inc.
CTI Long Lines Inc.
Cincinnati Bell Wireless Company
IXCS GUARANTORS:
- ----------------
IXC Communications, Inc.
Atlantic States Microwave Transmission Company
Central States Microwave Transmission Company
Delaware Capital Provisioning, Inc.
DPNet, Inc.
Eastern Telecom of Washington, D.C., Inc.
Eclipse Telecommunications, Inc.
IXC Business Services, LLC.
IXC Communications Services of Virginia, Inc.
IXC International, Inc.
IXC Internet Services, Inc.
IXC Leasing, LLC
Network Advanced Services, Inc.
Network Evolutions, Incorporated
Rio Grande Transmission, Inc.
Telcom Engineering, Inc.
Telecom One, Inc.
The Data Place, Inc.
Tower Communication Systems Corp.
West Texas Microwave Company
Western States Microwave Transmission Company
<PAGE>
Conformed Composite Copy including
all assignments of Term A Commitments
and related Advances and Revolving Credit Commitments
and related Advances made through January 12, 2000
$2,100,000,000
AMENDMENT AND RESTATEMENT
OF THE
CREDIT AGREEMENT
Dated as of January 12, 2000
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
<PAGE>
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>
<CAPTION>
SCHEDULES
<S> <C> <C>
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-1 - Form of IXC Subsidiary Guaranty
Exhibit E-2 - Form of CBI Subsidiary Guaranty
</TABLE>
<PAGE>
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Name of Lender Term Incremental Revolving Letter of Domestic Eurodollar
Commitment Commitment Credit Credit Lending Lending
(a) Incremental Term Commitment Office Office
B Facility
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
*Citicorp USA, $81,818,181.82 (a) * $98,181,818.18 $12,000,000.00 399 Park Avenue 399 Park Avenue
Inc. New York, NY 10043 New York, NY 10043
Att: Townsend Weekes Att:Townsend Weekes
P: (212)723-6774 P: (212) 723-6774
F: (212)723-8547 F: (212) 723-8547
- -----------------------------------------------------------------------------------------------------------------------------------
Bank of America, $77,272,727.27 (a)* $92,727,272.73 $8,000,000.00 901 Main Street 901 Main Street
64thFloor 14th Floor
Dallas, TX 75202-3748 Dallas, TX 75202
Att: PerlaPerez Att: Perla Perez
P: (214)209-3044 P: (214) 209-3044
F: (214)209-9429 F: (214) 209-9429
- -----------------------------------------------------------------------------------------------------------------------------------
Credit Suisse $56,818,181.82 $68,181,818.18 Five World Trade Center Five World Trade Center
First Boston 8th Floor 8th Floor
New York, NY 10048-0928 New York, NY 10048-0928
10048-0928 Att: Ronald Davis Att: Ronald Davis
P: (212) 322-1865 P: (212) 322-1865
F: (212) 335-0593 F: (212) 335-0593
- -----------------------------------------------------------------------------------------------------------------------------------
The Bank of New $56,818,181.82 $68,181,818.18 One Wall Street One Wall Street
York 16th Floor 16th Floor
New York, NY 10286 New York, NY 10286
Att: Debra M.Ritchie Att: Debra M. Ritchie
P: (212)635-8748 P: (212) 635-8748
F: (212)635-8595 F: (212) 635-8595
- -----------------------------------------------------------------------------------------------------------------------------------
<PAGE>
- -----------------------------------------------------------------------------------------------------------------------------------
Name of Lender Term Incremental Revolving Letter of Domestic Eurodollar
Commitment Commitment Credit Credit Lending Lending
(a) Incremental Term Commitment Office Office
B Facility
- -----------------------------------------------------------------------------------------------------------------------------------
PNC Bank, N.A. $56,818,181.82 $68,181,818.18 201 East Fifth St. 201 East Fifth St.
Cincinnati, OH 45202 Cincinnati, OH 45202
Att: Joe Richardson Att: Joe Richardson
P: (513)651-8688 P: (513) 651-8688
F: (513)651-8951 F: (513) 651-8951
- -----------------------------------------------------------------------------------------------------------------------------------
ABN AMRO Bank, $34,090,909.09 $40,909,090.91 135 South LaSalle 135 South LaSalle
N.V. Street, Ste. 640 Street, Ste. 640
Chicago, IL0603 Chicago, IL 60603
Attn: Roxana Sopala Attn: Roxana Sopala
P: (312)904-2504 P: (312) 904-2504
F: (312)904-5445 F: (312) 904-5445
- -----------------------------------------------------------------------------------------------------------------------------------
Bank Austria $15,909,090.91 $19,090,909.09 Two Ravina Drive, Two Ravina Drive,
Creditanstalt Suite 1680 Suite 1680
Corporate Finance, Atlanta, GA 30346 Atlanta, GA 30346
Inc. Attn: Pat Kennedy Attn: Pat Kennedy
P: (770)390-1850 P: (770) 390-1850
F: (770)390-1851 F: (770) 390-1851
- -----------------------------------------------------------------------------------------------------------------------------------
Bank of China, $ 2,272,727.27 $ 2,727,272.73 410 Madison Avenue 410 Madison Avenue
New York New York, NY 10017 New York, NY 10017
Attn: Kevin Cheung Attn: Kevin Cheung
P: (212)935-3101 P: (212) 935-3101
F: (212)308-4993 F: (212) 308-4993
- -----------------------------------------------------------------------------------------------------------------------------------
*Bayerische Hypo $34,090,909.09(a) $40,909,090.91 150 E. 42nd Street 150 E. 42nd Street
- -undVereinsbank New York NY 10017 New York NY 10017
AG, New York Att: Arelis Cepeda Att: Arelis Cepeda
Branch P: (212)672-5495 P: (212) 672-5495
F: (212)672-5530 F: (212) 672-5530
- -----------------------------------------------------------------------------------------------------------------------------------
Canadian Imperial (a)* 425 Lexington Ave., 7th 425 Lexington Ave., 7th
Bank of Commerce New York NY 10017 New York NY 10017
Att: Tara Kaplan Att: Tara Kaplan
P: (212) 856-3897 P: (212) 856-3897
F: (212) 856-3799 F: (212) 856-3799
- -----------------------------------------------------------------------------------------------------------------------------------
<PAGE>
- -----------------------------------------------------------------------------------------------------------------------------------
Name of Lender Term Incremental Revolving Letter of Domestic Eurodollar
Commitment Commitment Credit Credit Lending Lending
(a) Incremental Term Commitment Office Office
B Facility
- -----------------------------------------------------------------------------------------------------------------------------------
Deutsche Bank $34,090,909.09 $40,909,090.91 Deutsche Bank AG Deutsche Bank AG
AG New New York Branch Cayman Islands Branch
York and/or Cayman 31 West 52nd Street c/o Deutsche Bank AG
Islands Branches New York, NY 10019 New York Branch
Attn: Noble Samuel 31 West 52nd Street
Cheryl H. Mendelbaum New York, NY 10019
P: (212)469-4091 Attn: Noble Samuel /
F: (212)469-4139 Cheryl H. Mendelbaum
P: (212) 469-4091
F: (212) 469-4139
- -----------------------------------------------------------------------------------------------------------------------------------
Export $45,454,545.45 $54,545,454.55 151 O'Connor Street 151 O'Connor Street
Development Ottawa, Ontario, Canada Ottawa, Ontario, Canada
Corporation K1A-1K3 K1A-1K3
Attn: Viola Wedge- Attn: Viola Wedge-
Moores Moores
P: (613)598-3017 P: (613) 598-3017
F: (613)598-2514 F: (613) 598-251
- -----------------------------------------------------------------------------------------------------------------------------------
Fifth Third Bank $11,363,636.36 $13,636,363.64 38 Fountain Square 38 Fountain Square
Plaza Plaza
Cincinnati, OH 45263 Cincinnati, OH 45263
Attn: Andrew Nauck Attn: Andrew Nauck
P: (513)579-4178 P: (513) 579-4178
F: (513)579-5226 F: (513) 579-5226
- -----------------------------------------------------------------------------------------------------------------------------------
Firstar Bank, $34,090,909.09 (a)* $40,909,090.91 ML CN-WN-08 ML CN-WN-08
NA 425 Walnut Street,8th 425 Walnut Street, 8th
Floor Floor
Cincinnati OH 45201- Cincinnati OH 45201-
1038 1038
Att: Brenda Luethy Att: Brenda Luethy
P: (920)426-7604 P: (920) 426-7604
F: (920)426-7655 F: (920) 426-7655
- -----------------------------------------------------------------------------------------------------------------------------------
First Union $34,090,909.09 (a)* $40,909,090.91 201 S. College Street, 201 S. College Street,
National Bank CP-24 CP-24
Charlotte NC 28288-1183 Charlotte NC 28288-1183
Att: Hilda Weathers Att: Hilda Weathers
P: (704)374-4897 P: (704) 374-4897
F: (704)374-7201 F: (704) 374-7201
- -----------------------------------------------------------------------------------------------------------------------------------
<PAGE>
- -----------------------------------------------------------------------------------------------------------------------------------
Name of Lender Term Incremental Revolving Letter of Domestic Eurodollar
Commitment Commitment Credit Credit Lending Lending
(a) Incremental Term Commitment Office Office
B Facility
- -----------------------------------------------------------------------------------------------------------------------------------
First Hawaiian $6,818,181.82 $8,181,818.18 999 Bishop Street,11th 999 Bishop Street, 11th
Bank Floor Floor
Honolulu, HI 96813 Honolulu, HI 96813
Attn: Charles L.Jenkins Attn: Charles L. Jenkins
P: (808)525-6289 P: (808) 525-6289
F: (808)525-6372 F: (808) 525-6372
- -----------------------------------------------------------------------------------------------------------------------------------
FirsTrust Bank $4,545,454.55 $5,454,545.45 15 East Ridge Pike 15 East Ridge Pike
Conshohocken, PA 19428 Conshohocken, PA 19428
Attn: Cathy Tipson Attn: Cathy Tipson
P: (215)728-8614 P: (215) 728-8614
F: (215)728-6105 F: (215) 728-6105
- -----------------------------------------------------------------------------------------------------------------------------------
Fleet National $34,090,909.09 (a)* $40,909,090.91 One Landmark Square One Landmark Square
Bank Stamford CT 06904 Stamford CT 06904
Att: Ginny Rockwood Att: Ginny Rockwood
P: (203)358-6146 P: (203) 358-6146
F: (203)358-2039 F: (203) 358-2039
- -----------------------------------------------------------------------------------------------------------------------------------
General Electric (a)* 60 Long Ridge Road 60 Long Ridge Road
Capital Corporation Stamford CT 06927-5100 Stamford CT 06927-5100
Att: Frank Flanigan Att: Frank Flanigan
P: (203)316-7735 P: (203) 316-7735
F: (203)602-8345 F: (203) 602-8345
- -----------------------------------------------------------------------------------------------------------------------------------
IBM Credit $11,363,636.36 $13,636,363.64 2707 West Butterfield 2707 West Butterfield
Corporation Road, Ste. 205 Road, Ste. 205
Oak Brook, IL 60523 Oak Brook, IL 60523
Attn: Jennifer Urda Attn: Jennifer Urda
P: (630)573-7547 P: (630) 573-7547
F: (630)573-7560 F: (630) 573-7560
- -----------------------------------------------------------------------------------------------------------------------------------
Kemper Floating (a)* Kemper Floating Rate Kemper Floating Rate
Rate Fund Scudder Kemper Scudder Kemper
Investments, Inc. Investments, Inc.
222 South Riverside 222 South Riverside
Plaza Plaza
Chicago IL 60606-5808 Chicago IL 60606-5808
Att: Jonathan Trutter Att: Jonathan Trutter
Mark Wittnebel Mark Wittnebel
P: (312) 537-8343 P: (312) 537-8343
F: (312) 537-4239 F: (312) 537-4239
- -----------------------------------------------------------------------------------------------------------------------------------
<PAGE>
- -----------------------------------------------------------------------------------------------------------------------------------
Name of Lender Term Incremental Revolving Letter of Domestic Eurodollar
Commitment Commitment Credit Credit Lending Lending
(a) Incremental Term Commitment Office Office
B Facility
- -----------------------------------------------------------------------------------------------------------------------------------
Key Corporate $34,090,909.09 $40,909,090.91 127 Public Square, 127 Public Square,
Capital, Inc. OH-01-27-0602 OH-01-27-0602
Cleveland, OH 44114 Cleveland, OH 44114
Attn: Sandy Wilder Attn: Sandy Wilder
P: (216)689-4456 P: (216) 689-4456
F: (216)689-4666 F: (216) 689-4666
- -----------------------------------------------------------------------------------------------------------------------------------
KZH CNC LLC (a)* c/o The Chase Manhattan c/o The Chase Manhattan
Bank Bank
450 W. 33rd St.,15th 450 W. 33rd St., 15th
Floor Floor
New York NY 10001 New York NY 10001
Att: Virginia Conway Att: Virginia Conway
P: (212)946-7573 P: (212) 946-7573
F: (212)946-7776 F: (212) 946-7776
- -----------------------------------------------------------------------------------------------------------------------------------
KZH ING-1 LLC (a)* c/o The Chase Manhattan c/o The Chase Manhattan
Bank Bank
450 W. 33rd St.,15th 450 W. 33rd St., 15th
Floor Floor
New York NY 10001 New York NY 10001
Att: Virginia Conway Att: Virginia Conway
P: (212)946-7573 P: (212) 946-7573
F: (212)946-7776 F: (212) 946-7776
- -----------------------------------------------------------------------------------------------------------------------------------
KZH ING-2 LLC (a)* c/o The Chase Manhattan c/o The Chase Manhattan
Bank Bank
450 W. 33rd St., 15th 450 W. 33rd St., 15th
Floor Floor
New York NY 10001 New York NY 10001
Att: Virginia Conway Att: Virginia Conway
P: (212)946-7573 P: (212) 946-7573
F: (212)946-7776 F: (212) 946-7776
- -----------------------------------------------------------------------------------------------------------------------------------
KZH ING-3 LLC (a)* c/o The Chase Manhattan c/o The Chase Manhattan
Bank Bank
450 W. 33rd St., 15th 450 W. 33rd St., 15th
Floor Floor
New York NY 10001 New York NY 10001
Att: Virginia Conway Att: Virginia Conway
P: (212)946-7573 P: (212) 946-7573
F: (212)946-7776 F: (212) 946-7776
- -----------------------------------------------------------------------------------------------------------------------------------
<PAGE>
- -----------------------------------------------------------------------------------------------------------------------------------
Name of Lender Term Incremental Revolving Letter of Domestic Eurodollar
Commitment Commitment Credit Credit Lending Lending
(a) Incremental Term Commitment Office Office
B Facility
- -----------------------------------------------------------------------------------------------------------------------------------
KZH Langdale LLC (a)* c/o The Chase Manhattan c/o The Chase Manhattan
Bank Bank
450 W. 33rd St., 15th 450 W. 33rd St., 15th
Floor Floor
New York NY 10001 New York NY 10001
Att: Virginia Conway Att: Virginia Conway
P: (212)946-7573 P: (212) 946-7573
F: (212)946-7776 F: (212) 946-7776
- -----------------------------------------------------------------------------------------------------------------------------------
KZH Shoshone LLC (a)* c/o The Chase Manhattan c/o The Chase Manhattan
Bank Bank
450 W. 33rd St., 15th 450 W. 33rd St., 15th
Floor Floor
New York NY 10001 New York NY 10001
Att: Virginia Conway Att: Virginia Conway
P: (212)946-7573 P: (212) 946-7573
F: (212)946-7776 F: (212) 946-7776
- -----------------------------------------------------------------------------------------------------------------------------------
KZH Sterling LLC (a)* c/o The Chase Manhattan c/o The Chase Manhattan
Bank Bank
450 W. 33rd St., 15th 450 W. 33rd St., 15th
Floor Floor
New York NY 10001 New York NY 10001
Att: Virginia Conway Att: Virginia Conway
P: (212)946-7573 P: (212) 946-7573
F: (212)946-7776 F: (212) 946-7776
- -----------------------------------------------------------------------------------------------------------------------------------
KZH III LLC (a) c/o The Chase Manhattan c/o The Chase Manhattan
Bank Bank
450 W. 33d St., 15th 450 W. 33d St., 15th
Floor Floor
New York NY 10001 New York NY 10001
Att: Virginia Conway Att: Virginia Conway
P: (212)946-7575 P: (212) 946-7575
F: (212)946-7776 F: (212) 946-7776
- -----------------------------------------------------------------------------------------------------------------------------------
<PAGE>
- -----------------------------------------------------------------------------------------------------------------------------------
Name of Lender Term Incremental Revolving Letter of Domestic Eurodollar
Commitment Commitment Credit Credit Lending Lending
(a) Incremental Term Commitment Office Office
B Facility
- -----------------------------------------------------------------------------------------------------------------------------------
Merita Bank Plc, $4,545,454.55 (a)* $5,454,545.45 437 Madison Avenue, 437 Madison Avenue,
New York Branch 21st Floor 21st Floor
New York NY 10022 New York NY 10022
Att: Charles Lansdown Att: Charles Lansdown
P: (212)318-9583 P: (212) 318-9583
F: (212)318-9318 F: (212) 318-9318
- -----------------------------------------------------------------------------------------------------------------------------------
Merrill Lynch (a) c/o Merrill Lynch Asset c/o Merrill Lynch Asset
Senior Floating Management Management
Rate Fund, Inc. 800 Scudders Mill Road 800 Scudders Mill Road
Area B Area B
Plainsboro NJ 08536 Plainsboro NJ 08536
Att: Janet S.Hansen Att: Janet S. Hansen
P: (609)282-3136 P: (609) 282-3136
F: (609)282-3542 F: (609) 282-3542
- -----------------------------------------------------------------------------------------------------------------------------------
Olympic Funding (a)* Bank of America Bank of America
Trust, Series Securities LLC Securities LLC
1999-1 100 North Tryon Street 100 North Tryon Street
NC1-007-06-07 NC1-007-06-07
Charlotte NC 28255 Charlotte NC 28255
Att: Ashley Hamilton Att: Ashley Hamilton
P: (704)387-9951 P: (704) 387-9951
F: (704)387-0275 F: (704) 387-0275
- -----------------------------------------------------------------------------------------------------------------------------------
Royal Bank of $45,454,545.45(a)* $54,545,454.55 Royal Bank of Canada Royal Bank of Canada
Canada Grand Cayman (North Grand Cayman (North
America No. 1)Branch America No. 1) Branch
c/o New York Branch c/o New York Branch
1 Liberty Plaza, 4th 1 Liberty Plaza, 4th
Floor Floor
New York, NY 10006-1404 New York, NY 10006-1404
Attn: Linda Joannou Attn: Linda Joannou
P: (212)428-6212 P: (212) 428-6212
F: (212)428-2372 F: (212) 428-2372
WITH A COPY TO: WITH A COPY TO:
Royal Bank of Canada Royal Bank of Canada
One Liberty Plaza, 4th One Liberty Plaza, 4th
Floor Floor
New York, New York New York, New York
10006-1404 10006-1404
Attn: A.C.Williamson Attn: A.C. Williamson
P: (212)428-2321 P: (212) 428-2321
F: (212)428-6460 F: (212) 428-6460
- -----------------------------------------------------------------------------------------------------------------------------------
<PAGE>
- -----------------------------------------------------------------------------------------------------------------------------------
Name of Lender Term Incremental Revolving Letter of Domestic Eurodollar
Commitment Commitment Credit Credit Lending Lending
(a) Incremental Term Commitment Office Office
B Facility
- -----------------------------------------------------------------------------------------------------------------------------------
SRF Trading, Inc. (a)* Bank of America N.A. Bank of America N.A.
101 N. Tryon Street 101 N. Tryon Street
NC1-001-15-01 NC1-001-15-01
Charlotte NC 28273 Charlotte NC 28273
Att: Sokya Lindsay Att: Sokya Lindsay
P: (704)386-6395 P: (704) 386-6395
F: (704)409-0165 F: (704) 409-0165
or or
Att: Margaret J.Rhodes Att: Margaret J. Rhodes
P: (704)388-3317 P: (704) 388-3317
F: (704)409-0158 F: (704) 409-0158
- -----------------------------------------------------------------------------------------------------------------------------------
*Stein Roe Floating (a) Stein, Roe & Farnham Stein, Roe & Farnham
Rate Limited One South Wacker Drive, One South Wacker Drive,
Liability Company 33rd Floor 33rd Floor
Chicago IL 60606-4685 Chicago IL 60606-4685
Att: Steven F. Krull Att: Steven F. Krull
P: (312)368-7629 P: (312) 368-7629
F: (312)368-7857 F: (312) 368-7857
- -----------------------------------------------------------------------------------------------------------------------------------
The Bank of $18,181,818.18 $21,818,181.82 227 West Monroe Street, 227 West Monroe Street,
Tokyo Mitsubishi, Ste. 2300 Ste. 2300
Ltd, Chicago Chicago, IL 60606 Chicago, IL 60606
Branch Attn: William Murray Attn: William Murray
P: (312)696-4653 P: (312) 696-4653
F: (312)696-4535 F: (312) 696-4535
- -----------------------------------------------------------------------------------------------------------------------------------
The Sumitomo $11,363,636.36 $13,636,363.64 277 Park Avenue 277 Park Avenue
Bank, Limited New York, NY 10172 New York, NY 10172
Attn: Noel Swift Attn: Noel Swift
P: (212)224-4185 P: (212) 224-4185
F: (212)24-5197 F: (212) 224-5197
<PAGE>
- -----------------------------------------------------------------------------------------------------------------------------------
The Provident $4,545,454.55 $5,454,545.45 One East 4th Street One East 4th Street
Bank Cincinnati, OH 45202 Cincinnati, OH 45202
Attn: David Oliverio Attn: David Oliverio
P: (513)579-2806 P: (513) 579-2806
F: (513)579-2201 F: (513) 579-2201
- -----------------------------------------------------------------------------------------------------------------------------------
Toronto Dominion (a)* The Toronto-Dominion The Toronto-Dominion
(New York),Inc. Bnak Bank
. 909 Fannin, Suite 1700 909 Fannin, Suite 1700
Houston TX 77010 Houston TX 77010
Att: Sonia R. Jordan Att: Sonia R. Jordan
P: (713) 652-0914 P: (713) 652-0914
F: (713) 653-8200 F: (713) 653-8200
Winged Foot Funding (a)* Bank of America, N.A. Bank of America, N.A.
Trust 101 N. Tryon Street 101 N. Tryon Street
NC1-001-15-01 NC1-001-15-01
Charlotte, NC 28273 Charlotte, NC 28273
Att: Annabet Morris Att: Annabet Morris
P: (704)386-6373 P: (704) 386-6373
F: (704)409-0164 F: (704 409-0164
or or
Att: Kendra C. Dorn Att: Kendra C. Dorn
P: (704)387-6030 P: (704) 387-6030
F: (704)409-0169 F: (704) 409-0169
- -Additional (a)*
Incremental Lenders
======================= ==================== ======================= ===================== =================
========================= ==========================
Total: $750,000,000.00 (a)$450,000,000.00 $900,000,000.00 $20,000,000.00
======================= ==================== ======================= ===================== =================
========================= ==========================
- ------------------------
* Incremental Term B Commitments for each individual lender are maintained by the Administration Agent.
</TABLE>
<PAGE>
SCHEDULE II TO THE
CREDIT AGREEMENT
LIST OF SUBSIDIARY GUARANTORS
CBI GUARANTORS:
- ---------------
Cincinnati Bell Supply Company
Cincinnati Bell Directory Inc.
Cincinnati Bell Network Solutions Inc.
Cincinnati Bell Holdings Inc.
EnterpriseWise IT Consulting LLC
Zoomtown.com Inc.
Cincinnati Bell Long Distance Inc.
CTI Long Lines Inc.
Cincinnati Bell Wireless Company
IXCS GUARANTORS:
- ----------------
IXC Communications, Inc.
Atlantic States Microwave Transmission Company
Central States Microwave Transmission Company
Delaware Capital Provisioning, Inc.
DPNet, Inc.
Eastern Telecom of Washington, D.C., Inc.
Eclipse Telecommunications, Inc.
IXC Business Services, LLC.
IXC Communications Services of Virginia, Inc.
IXC International, Inc.
IXC Internet Services, Inc.
IXC Leasing, LLC
Network Advanced Services, Inc.
Network Evolutions, Incorporated
Rio Grande Transmission, Inc.
Telcom Engineering, Inc.
Telecom One, Inc.
The Data Place, Inc.
Tower Communication Systems Corp.
West Texas Microwave Company
Western States Microwave Transmission Company
<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 9, 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 399 Park
Avenue, New York, N.Y. 10043 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.
[CINCINNATI BELL INC.]
[IXCS COMMUNICATIONS SERVICES, INC.]
By
----------
Title:
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
=================== ======================= ======================= ======================= ========================
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
=================== ======================= ======================= ======================= ========================
<S> <C> <C> <C> <C>
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
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- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
- ------------------- ----------------------- ----------------------- ----------------------- ------------------------
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=================== ======================= ======================= ======================= ========================
</TABLE>
<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 9, 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 399 Park
Avenue, New York, NY 10043 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 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
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
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- ---------------------------------------------------------------------------------------------------------------------
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</TABLE>
<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:
(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 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.
<PAGE>
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 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
<TABLE>
<S> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
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 $ $ $ $ $
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
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 $ $ $ $ $
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Effective Date (if other than date of acceptance by Administrative Agent):
*_________ __, ____
<TABLE>
<S> <C>
ASSIGNORS
, as Assignor
-----------------------------------
[TYPE OR PRINT LEGAL NAME OF ASSIGNOR]
By
-----------
Title:
Dated: _________ __, ____
, as Assignor
-----------------------------------
[TYPE OR PRINT LEGAL NAME OF ASSIGNOR]
By
-----------
Title:
Dated: _________ __, ____
, as Assignor
-----------------------------------
[TYPE OR PRINT LEGAL NAME OF ASSIGNOR]
By
-----------
Title:
Dated: _________ __, ____
, as Assignor
-----------------------------------
[TYPE OR PRINT LEGAL NAME OF ASSIGNOR]
By
-----------
Title:
Dated: _________ __, ____
, as Assignor
-----------------------------------
[TYPE OR PRINT LEGAL NAME OF ASSIGNOR]
By
-----------
Title:
Dated: _________ __, ____
</TABLE>
- ----------------
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
<PAGE>
<TABLE>
<S> <C>
ASSIGNEES
, as Assignee
-----------------------------------
[TYPE OR PRINT LEGAL NAME OF ASSIGNEE]
By
-----------
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:
, as Assignee
-----------------------------------
[TYPE OR PRINT LEGAL NAME OF ASSIGNEE]
By
-----------
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:
</TABLE>
<PAGE>
<TABLE>
<S> <C>
, as Assignee
-----------------------------------
[TYPE OR PRINT LEGAL NAME OF ASSIGNEE]
By
-----------
Title:
Dated: _________ __, ____
Domestic Lending Office:
Eurodollar Lending Office:
</TABLE>
Accepted *[and Approved] this ____
day of ___________, ____
CITICORP USA, INC.,
as Administrative Agent
By
------------------------------------------------
Title:
+[Approved this ____ day
of _____________, ____
[CINCINNATI BELL INC.] [IXCS COMMUNICATIONS SERVICES, INC.]
By
------------------------------------------------
Title: ]
- ------------------
* Required if the Assignee is an Eligible Assignee solely by reason of clause
(a)(iii) or (b) of the definition of "Eligible Assignee".
+ See footnote 8.
<PAGE>
COLLATERAL TRUST AGREEMENT
TRUST AGREEMENT, dated November 9, 1999, among CINCINNATI BELL INC.,
an Ohio corporation (the "COMPANY"), WILMINGTON TRUST COMPANY, a Delaware
banking corporation (together with any successor corporate trustee appointed
pursuant to Article 7, the "CORPORATE TRUSTEE"), and JOHN M. BEESON, an
individual residing in the State of Delaware (together with any successor
individual trustee appointed pursuant to Article 7, the "INDIVIDUAL TRUSTEE";
and, together with the Corporate Trustee, the "COLLATERAL TRUSTEES"), the
foregoing trustees being trustees for the holders of the Secured Indebtedness
referred to below. Certain capitalized terms used herein are defined in Article
1 of this Agreement.
PRELIMINARY STATEMENTS:
(1) The Company and IXC Communications Services, Inc., a Delaware
corporation (collectively, the "BORROWERS"), have entered into a Credit
Agreement dated as of November 9, 1999 (said Agreement, as it may hereafter be
amended, amended and restated, supplemented or otherwise modified from time to
time, being the "CREDIT AGREEMENT") with the Lender Parties (the "LENDER
PARTIES"), the Agents, the Co-Documentation Agents and the Co-Arrangers (each as
defined therein).
(2) In connection with the Credit Agreement, the Company has agreed to
grant to the Collateral Trustees for the benefit of the Lender Parties pursuant
to the Shared Collateral Documents liens on and security interests in certain of
the Company's assets and property from time to time owned by it.
(3) The Company has issued up to $50,000,000 principal amount of 7
1/4% Notes Due June 15, 2023 (the "EXISTING NOTES") listed on Schedule I hereto,
pursuant to the Indenture (the Existing Notes and the Indenture, collectively,
the "EXISTING NOTES AGREEMENTS").
(4) Pursuant to the Existing Notes Agreements the Company agreed not
to incur specified kinds of secured indebtedness (the "SPECIFIED INDEBTEDNESS")
without making effective provision whereby the Existing Notes shall be secured
equally and ratably with such Specified Indebtedness so long as such Specified
Indebtedness shall be outstanding.
(5) This Agreement is intended to secure the Existing Notes to the
extent required to comply with the provisions of the Existing Notes Agreements
and the Collateral Trustees have agreed to undertake the rights, powers, duties
and responsibilities set forth in this Agreement and the other Shared Collateral
Documents in order to effect such purpose.
NOW THEREFORE, in consideration of the premises and in order to induce
the Lender Parties to make Advances under the Credit Agreement and the Hedge
Banks to enter into the Secured Hedge Agreements, the Company hereby agrees with
the Collateral Trustees for its benefit and the equal and ratable benefit of the
Secured Holders as follows:
<PAGE>
ARTICLE 1
DEFINITIONS
SECTION 1.01. CERTAIN DEFINED TERMS. The following terms shall have
the following meanings as used herein (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"ACTIONABLE DEFAULT" has the meaning specified in Section 4.01.
"ACTIONABLE DEFAULT NOTICE" has the meaning specified in Section 4.01.
"ADDITIONAL SECURED HOLDERS COLLATERAL" has the meaning specified in
Section 2.01.
"ADVANCES" has the meaning specified in Section 1.01 of the Credit
Agreement.
"AFFILIATE" means, with respect to a particular Person, (a) any Person
which, directly or indirectly, controls, is controlled by, or is under common
control with such particular Person, or (b) any Person who is a director or
officer of such particular Person. For purposes of this definition, control of a
Person shall mean the power, direct or indirect, (i) to vote 5% or more of the
securities having ordinary voting power for the election of directors of such
Person, or (ii) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"ADMINISTRATIVE AGENT" means Citicorp USA, Inc. and any successor
administrative agent for the Lender Parties pursuant to the Credit Agreement.
"AUTHORIZED OFFICER" means the Chairman, the President, any Vice
President, the Secretary or the Treasurer of a Person or any other officer
designated as an "Authorized Officer" by the Board of Directors (or equivalent
governing body) of such Person.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy", as amended from time to time.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized by law to close in New York City or the city in which the
Corporate Trustee maintains its corporate trust office.
"CLOSING DATE" means the date on which the initial Advances shall have
been made pursuant to the Credit Agreement.
"COLLATERAL TRUST ESTATE" means all of the right, title and interest
of the Collateral Trustees, whether now owned or hereafter acquired, in and to
the Shared Collateral.
<PAGE>
"COLLATERAL TRUSTEES" has the meaning specified in the recital of
parties to this Agreement.
"COLLATERAL TRUSTEES' FEES" means the fees and other amounts payable
to the Collateral Trustees pursuant to Sections 6.03, 6.04 and 6.05 and amounts
claimed and unpaid pursuant to Section 6.06.
"CORPORATE TRUSTEE" has the meaning specified in the recital of
parties to this Agreement.
"CREDIT AGREEMENT" has the meaning specified in the Preliminary
Statements.
"DEFAULTED AGREEMENT PARTY" has the meaning specified in Section 4.01.
"DISTRIBUTION DATE" means any date on which the Collateral Trustees
shall distribute moneys from the Shared Collateral Account pursuant to Section
5.01.
"ESTIMATED TAX AMOUNT" has the meaning specified in the Credit
Agreement.
"EXISTING NOTES" has the meaning specified in the Preliminary
Statements.
"EXISTING NOTES AGREEMENTS" has the meaning specified in the
Preliminary Statements and each agreement and instrument delivered by the
Company pursuant thereto, as the same may be supplemented, amended or modified
from time to time in accordance with the provisions thereof.
"HEDGE BANKS" means any Lender Party or Affiliate of a Lender Party
that has entered into a Secured Hedge Agreement.
"HOLDERS" means at any time the registered holders of Existing Notes
issued under the Indenture at such time.
"HOLDERS COLLATERAL ACCOUNT" means the cash collateral account
established in favor of the Representatives pursuant to Section 2.02 for the
benefit of the Holders of the Existing Notes issued under the Existing Notes
Agreements.
"INDENTURE TRUSTEE" means the counterparty listed opposite the
Indenture listed on Schedule I and any successor to such trustee appointed under
the Indenture.
"INDENTURE" means the Indenture listed under the heading of "Governing
Agreements" on Schedule I hereto.
<PAGE>
"INDIVIDUAL TRUSTEE" has the meaning specified in the recital of
parties to this Agreement.
"LENDER PARTIES" has the meaning specified in the Preliminary
Statements.
"LOAN DOCUMENTS" has the meaning specified in the Credit Agreement.
"MAJORITY REPRESENTATIVES" means, at any time, the Representative, on
behalf of itself and the Secured Holders represented thereby, that own or hold
(either by itself or through its Secured Holders) more than 50% of the aggregate
amount of Shared Collateral Obligations at such time.
"MOODY'S" means Moody's Investor's Service, Inc.
"PERMITTED INVESTMENTS" means any of the following:
(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 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.
"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.
"REGULATORY AUTHORITY" has the meaning specified in the Shared
Collateral Security Agreement.
"REPRESENTATIVES" means the Indenture Trustee and the Administrative
Agent (for itself and as Administrative Agent for the Lender Parties).
<PAGE>
"SECURED HEDGE AGREEMENT" means any hedge agreement required or
permitted under the Credit Agreement that is entered into by and between the
Company and any Hedge Bank.
"SECURED HOLDERS" means, at any time, the Administrative Agent, the
Syndication Agent, the Lender Parties, the Indenture Trustee and the Holders at
such time.
"SECURED INDEBTEDNESS" means all Shared Collateral Obligations of the
Company arising out of or evidenced by the Secured Indebtedness Agreements.
"SECURED INDEBTEDNESS AGREEMENTS" means, collectively, the Credit
Agreement, the Existing Notes Agreements and each agreement or instrument
delivered by the Company pursuant thereto (including, without limitation, the
Shared Collateral Documents), as the same may be amended from time to time in
accordance with the provisions thereof and of Section 5.02(k) of the Credit
Agreement.
"SHARED COLLATERAL" means, collectively, all of the "Shared
Collateral" (as defined in the Shared Collateral Security Agreement) and all of
the Additional Secured Holders Collateral.
"SHARED COLLATERAL ACCOUNT " has the meaning specified in Section
3.01.
"SHARED COLLATERAL DOCUMENTS" means this Agreement, the Shared
Collateral Security Agreement and each Successor Collateral Agreement.
"SHARED COLLATERAL OBLIGATIONS" means at any time any obligations,
whether matured or unmatured, contingent or liquidated, of the Company arising
out of or evidenced by the Secured Indebtedness Agreements, whether for
principal, interest, expenses, premiums, indemnities, fees or other amounts,
whether or not such obligations are due and payable at such time.
"SHARED COLLATERAL SECURITY AGREEMENT" means a Shared Collateral
Security Agreement, dated the Closing Date, made by the Company in favor of the
Collateral Trustees, in substantially the form of Exhibit D-2 to the Credit
Agreement.
"SPECIFIED INDEBTEDNESS" has the meaning specified in the Preliminary
Statements.
"S&P" means Standard & Poors, a division of The McGraw-Hill Companies,
Inc.
"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
<PAGE>
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.
"SUCCESSOR COLLATERAL" has the meaning specified in Section 2.01.
"SUCCESSOR COLLATERAL AGREEMENTS" has the meaning specified in Section
2.01.
"SYNDICATION AGENT" means Bank of America, N.A. and any successor
syndication agent pursuant to the Credit Agreement.
"WITHHELD AMOUNT" has the meaning specified in Section 5.02.
"WITHHELD AMOUNT NOTICE" has the meaning specified in Section 5.02.
SECTION 1.02. CERTAIN REFERENCES . In this Agreement, the words
"hereof," "herein" and "hereunder", and words of similar import, shall refer to
this Agreement as a whole and not to any particular provision of this Agreement.
All section, schedule and exhibit references set forth in this Agreement are,
unless otherwise specified, references to such section in, or schedule or
exhibit to, this Agreement.
ARTICLE 2
CONFIRMATION AND CREATION OF SECURITY INTERESTS
SECTION 2.01. COLLATERAL TRUST ESTATE. The Company hereby confirms
that, pursuant to the terms of the Shared Collateral Security Agreement, the
Company has pledged and assigned to the Collateral Trustees for their benefit
and in trust for the equal and ratable benefit of the Representatives and the
Secured Holders, and has granted the Collateral Trustees for their benefit and
in trust for the equal and ratable benefit of the Representatives and the
Secured Holders a lien on and security interest in, the Shared Collateral
described therein. The Company hereby further pledges and assigns to the
Collateral Trustees for their benefit and in trust for the equal and ratable
benefit of the Representatives, on their behalf and on behalf of the Secured
Holders, and hereby grants to the Collateral Trustees for their benefit and in
trust for the equal and ratable benefit of the Representatives, on their behalf
and on behalf of the Secured Holders, a lien on and security interest in, the
following (collectively, the "ADDITIONAL SECURED HOLDERS COLLATERAL"):
(i) the Shared Collateral Account established pursuant to Section
3.01(a) with the Corporate Trustee at its offices at its corporate trust
department in the State of Delaware and is, and shall at all times remain,
under the sole dominion and control of the
<PAGE>
Corporate Trustee, all funds held therein and all certificates and
instruments, if any, from time to time representing each Shared Collateral
Account;
(ii) all Permitted Investments made in respect of the Shared
Collateral Account from time to time and all certificates and instruments,
if any, from time to time representing or evidencing such Permitted
Investments;
(iii) all notes, certificates of deposit, deposit accounts, checks and
other instruments from time to time delivered to or otherwise possessed by
the Collateral Trustees for or on behalf of the Company in substitution for
or in addition to any or all of the then existing Additional Secured
Holders Collateral;
(iv) all interest, income, dividends, instruments and other property
and assets from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of the then existing Additional
Secured Holders Collateral referred to in clauses (i) through (iii) of this
Section 2.01(a);
(v) any other property and assets of the Company or any of its
successors and assigns as the Company, any such successor or any such
assign may, from time to time, upon notice to the Collateral Trustees,
grant to the Collateral Trustees as collateral hereunder for their benefit
and in trust for the equal and ratable benefit of the Representatives, on
their behalf and on behalf of the Secured Holders (the "SUCCESSOR
COLLATERAL"), together with all agreements, instruments and other documents
creating, evidencing or relating to any of the Successor Collateral (the
"SUCCESSOR COLLATERAL AGREEMENTS"); and
(vi) all proceeds of any and all of the foregoing Additional Secured
Holders Collateral (including, without limitation, proceeds that constitute
property and assets of the types described in clauses (i) through (v) of
this Section 2.01(a)) and, to the extent not otherwise included, all (A)
payments under any indemnity, warranty or guaranty payable with respect to
any of the foregoing Additional Secured Holders Collateral, and (B) cash.
SECTION 2.02. HOLDERS COLLATERAL ACCOUNT. The Company hereby
pledges and assigns to the Collateral Trustee, and grants the Collateral
Trustee a lien on and security interest in the Holders Collateral Account
created pursuant to Section 3.02 and all funds on deposit and all
investments, interest, income and proceeds thereof and therefrom in the
Holders Collateral Account, and all certificates and instruments, if any,
from time to time representing the foregoing, in trust for the benefit of
the Representative on behalf of the Holders of Existing Notes issued from
time to time pursuant to the Existing Notes Agreement.
SECTION 2.03. SECURITY FOR OBLIGATIONS. All of the right, title
and interest of the Collateral Trustees in and to the Collateral Trust
Estate secures the payment of all of the Shared Collateral Obligations now
or hereafter existing under or in
<PAGE>
respect of the Secured Indebtedness Agreements and the performance of, and
the compliance with, all of the covenants and conditions of this Agreement,
the other Shared Collateral Documents and the Secured Indebtedness
Agreements. The Holders Collateral Account secures the payment of the
Shared Collateral Obligations arising out of or evidenced by the respective
Existing Notes Agreements and the Existing Notes issued thereunder, and for
the performance and compliance with the covenants and conditions in this
Agreement and such Existing Notes Agreement. Without limiting the
generality of the foregoing, the Collateral Trust Estate and the Holders
Collateral Account secures the payment of all amounts that constitute part
of the Shared Collateral Obligations and would be owed by the Company to
the Collateral Trustees, any Representative or any Secured Holder under the
Shared Collateral Documents or the Secured Indebtedness Agreements but for
the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving the
Company.
ARTICLE 3
COLLATERAL ACCOUNTS
SECTION 3.01. SHARED COLLATERAL ACCOUNT. (a) So long as any Shared
Collateral Obligations remain outstanding under the Loan Documents or any
Existing Note shall remain outstanding, a non-interest bearing cash collateral
account (the "SHARED COLLATERAL ACCOUNT") for the Secured Holders in respect of
the Secured Indebtedness Agreements shall be maintained by the Corporate Trustee
at its offices at its corporate trust department in the State of Delaware in
accordance with the terms of this Agreement. All moneys that are received by the
Collateral Trustees upon the occurrence and during the continuance of an
Actionable Default, upon liquidation or otherwise in respect of the Shared
Collateral shall be deposited in the Shared Collateral Account and, thereafter,
shall be held and applied by the Corporate Trustee all in accordance with the
terms of this Agreement.
(b) The Corporate Trustee shall, subject to the provisions of Section
4.01, from time to time (i) invest amounts on deposit in the Shared Collateral
Account and the Holders Collateral Account referred to below in Permitted
Investments and (ii) invest interest paid on such Permitted Investments, and
reinvest other proceeds of any such Permitted Investments that may mature or be
sold, in additional Permitted Investments, in each case at the direction of the
Company so long as no Actionable Default shall have occurred and be continuing
and at the direction of the Majority Representatives if an Actionable Default
shall have occurred and be continuing. Interest and proceeds that are not
invested or reinvested in Permitted Investments as provided in the immediately
preceding sentence shall be deposited and held in the Shared Collateral Account
or the Holders Collateral Account, as the case may be. Notwithstanding the
foregoing, the Corporate Trustee shall, to the extent possible, invest any funds
to be distributed on a Distribution Date in Permitted Investments that shall
mature or become liquid on or prior to such Distribution Date. All Permitted
Investments made in respect of the Shared Collateral Account or the Holders
Collateral Account and all interest and income received thereon and
<PAGE>
therefrom and the net proceeds realized on the maturity or sale thereof shall be
held in the Shared Collateral Account as part of the Collateral Trust Estate or
in the Holders Collateral Account pursuant to the terms hereof, as the case may
be.
(c) The Shared Collateral Account and the Holders Collateral Account
shall be subject to such applicable laws, and such applicable regulations of the
Board of Governors of the Federal Reserve System and of any other appropriate
banking or Regulatory Authority, as are in effect from time to time.
SECTION 3.02 HOLDERS COLLATERAL ACCOUNT. The Corporate Trustee shall
establish a cash collateral account to be maintained by, and under the exclusive
dominion and control of, the Corporate Trustee in the State of Delaware for the
benefit of the Indenture Trustee, as trustee for the Holders of Existing Notes
issued under the Existing Holders Agreement (the "HOLDERS COLLATERAL ACCOUNT").
The Collateral Trustee's duties, liabilities and rights with respect to the
Holders Collateral Account shall be the same as its duties, liabilities and
rights with respect to the Collateral Trust Estate unless otherwise stated
herein.
ARTICLE 4
ACTIONABLE DEFAULTS; REMEDIES
SECTION 4.01. ACTIONABLE DEFAULT NOTICE. (a) If, at any time, a
default under any Secured Indebtedness Agreement shall have occurred and be
continuing and, as a result thereof, any Representative or any Lender Party
under, or the percentage of Holders of Existing Notes specified in, the
applicable Secured Indebtedness Agreement (any such party or percentage of
Holders of Existing Notes being a "DEFAULTED AGREEMENT PARTY") has the right
thereunder (without the delivery of any further notice or the requirement that
any further time elapse) to declare all of the Shared Collateral Obligations of
the Company under such Secured Indebtedness Agreement to be due and payable
prior to the stated maturity thereof (any such default being an "ACTIONABLE
DEFAULT"), and if such Defaulted Agreement Party gives the Collateral Trustees a
notice (an "ACTIONABLE DEFAULT NOTICE") stating:
(i) the nature of the Actionable Default;
(ii) the action requested to be taken by the Collateral Trustees with
respect to the Shared Collateral and the Shared Collateral Documents (which
action may include, without limitation, the calling of a meeting of the
Representatives or the institution of any remedies provided by law or this
Agreement or any Shared Collateral Document); and
(iii) that such Defaulted Agreement Party requests the Collateral
Trustees to poll the Representatives with respect to such action,
then the Collateral Trustees shall forthwith send a copy of the Actionable
Default Notice to each Representative and poll the Representatives as to whether
they favor the Collateral Trustees
<PAGE>
taking such action. If the Majority Representatives shall have directed the
Collateral Trustees to commence the action set forth in the Actionable Default
Notice (whether or not such poll shall have been taken or completed), then,
subject to Section 4.01(b) and the right of the Collateral Trustees to commence
such action under the Shared Collateral Documents, the Collateral Trustees shall
forthwith undertake such action. The Collateral Trustees shall, subject to
Section 4.01(b) and Section 4.08, follow the directions of the Majority
Representatives with respect to the time, method and place of taking any action
requested in an Actionable Default Notice or, if no such direction is provided,
shall take such action in the manner they deem advisable in order to protect and
preserve the interests of the Secured Holders. Each Collateral Trustee shall be
entitled to assume conclusively that no Actionable Default has occurred and is
continuing until it receives an Actionable Default Notice.
(b) If the Actionable Default which was the basis for the giving of an
Actionable Default Notice shall be cured or waived in accordance with the terms
of the applicable Secured Indebtedness Agreement, the Defaulted Agreement Party
which gave such Actionable Default Notice shall promptly notify the Collateral
Trustees of such cure or waiver, whereupon (i) such Actionable Default Notice
shall be deemed withdrawn, (ii) the Collateral Trustees shall notify each
Representative of such withdrawal and (iii) any direction to the Collateral
Trustees to take any action in connection with such Actionable Default Notice
shall be deemed rescinded. If in connection solely with such withdrawn
Actionable Default Notice the Collateral Trustees shall have been directed to
take, and shall have commenced taking but shall not have completed, any action,
the Collateral Trustees shall promptly terminate any such action which they
shall not also have been directed to take in connection with an Actionable
Default Notice other than that withdrawn.
SECTION 4.02. DIRECTION BY REPRESENTATIVES. As to any matters not
expressly provided for under this Agreement or the other Shared Collateral
Documents (including, without limitation, matters relating to enforcement and
collection of the Shared Collateral Obligations), the Collateral Trustees shall
not be required to exercise any discretion or to take any action under this
Agreement or the other Shared Collateral Documents, or in respect of the Shared
Collateral, but shall be required to act or to refrain from acting (and shall be
fully protected in acting or refraining from acting) in accordance with the
instructions of the Majority Representatives.
SECTION 4.03. RIGHT TO INITIATE JUDICIAL PROCEEDINGS, ETC. (a) Upon
the occurrence of and during the continuance of any Actionable Default, the
Corporate Trustee, and if the Corporate Trustee deems necessary or desirable,
the Individual Trustee, jointly or individually as the Corporate Trustees my
determine, (i) shall have the right and power to institute and maintain such
suits and proceedings as it or they, as the case may be, or the Majority
Representatives may deem appropriate to protect and enforce the rights vested in
them by this Agreement and the other Shared Collateral Documents and (ii) may
either, after entry or without entry, proceed by suit or suits at law or in
equity to enforce such rights and to foreclose upon the Shared Collateral and to
dispose of, collect or otherwise realize upon, all or any portion of the
Collateral Trust Estate under the judgment or decree of a court of competent
jurisdiction.
<PAGE>
(b) If a receiver of the Collateral Trust Estate shall be appointed in
judicial proceedings, the Collateral Trustees may be appointed as such receiver.
Notwithstanding the appointment of a receiver, the Collateral Trustees shall be
entitled to retain possession and control of all cash held by or deposited with
them or their agents or co-trustees pursuant to any provision of this Agreement
or any other Shared Collateral Document.
SECTION 4.04. REMEDIES NOT EXCLUSIVE. (a) No remedy conferred upon or
reserved to the Collateral Trustees herein or in the Shared Collateral Documents
is intended to be a limitation exclusive of any other remedy or remedies, but
every such remedy shall be cumulative and shall be in addition to every other
remedy conferred herein or in the Shared Collateral Documents or now or
hereafter existing at law or in equity or by statute.
(b) No delay or omission of either of the Collateral Trustees to
exercise any right, remedy or power accruing upon any Actionable Default shall
impair any such right, remedy or power or shall be construed to be a waiver of
any such Actionable Default or any acquiescence therein; and every right, power
and remedy given by this Agreement or any Shared Collateral Document to the
Collateral Trustees may be exercised from time to time and as often as may be
deemed expedient by the Collateral Trustees.
(c) In case either of the Collateral Trustees shall have proceeded to
enforce any right, remedy or power under this Agreement or any Shared Collateral
Document and the proceeding for the enforcement thereof shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to such Collateral Trustee, then and in every such case the Company, the
Collateral Trustees, the Representatives and Secured Holders shall, subject to
any determination in such proceeding, severally be restored to their former
positions and rights hereunder and under such Shared Collateral Document with
respect to the Collateral Trust Estate, the Shared Collateral Account, the
Holders Collateral Account and in all other respects, and thereafter all rights,
remedies and powers of such Collateral Trustee shall continue as though no such
proceeding had been taken.
(d) The Company expressly agrees that all rights of action and rights
to assert claims upon or under this Agreement and the Shared Collateral
Documents may be enforced by the Collateral Trustees without the possession of
any debt instrument or the production thereof in any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Collateral
Trustees shall be brought in either of their names as Collateral Trustee and any
recovery of judgment shall be held as part of the Collateral Trust Estate or the
Holders Collateral Account, as the case may be; PROVIDED that nothing in this
Section 4.04(d) shall constitute a waiver of any right that the Company may have
or may hereafter acquire to challenge the amounts outstanding under the Existing
Notes.
SECTION 4.05. WAIVER OF CERTAIN RIGHTS. The Company, on behalf of
itself and all who may claim through or under it, including, without limitation,
any and all subsequent Affiliates, creditors, vendees, assignees and lienors,
expressly waives and releases, to the fullest extent permitted by law, any,
every and all rights to demand or to have any marshalling of the
<PAGE>
Collateral Trust Estate upon any enforcement of any Shared Collateral Document,
including, without limitation, upon any sale, whether made under any power of
sale herein granted or pursuant to judicial proceedings or upon any foreclosure
or any enforcement of any Shared Collateral Document or this Agreement and
consents and agrees that all the Collateral Trust Estate and any such sale may
be offered and sold as an entirety. Provided no Actionable Default shall have
occurred and be continuing, the Collateral Trustees will not take any action
that would constitute or result in any transfer of control or assignment of any
Federal Communication Commission (the "FCC") licenses or any transfer of control
or assignment of any interest in any Loan Party without obtaining all necessary
FCC and other Regulatory Authority approvals solely to the extent such approvals
are required by law.
SECTION 4.06. LIMITATION ON COLLATERAL TRUSTEES' DUTIES IN RESPECT OF
SHARED COLLATERAL. Beyond the duties set forth in this Agreement, the Collateral
Trustees shall not have any duty to the Company and the Representatives as to
any Shared Collateral in the Collateral Trustees' possession or control or in
the possession or control of any agent or nominee of the Collateral Trustees or
any income thereon or as to the preservation of rights against prior parties or
any other rights pertaining thereto, EXCEPT that each Collateral Trustee shall
be liable for its failure to exercise ordinary care in the handling of moneys
and securities actually received by it.
SECTION 4.07. LIMITATION BY LAW. All rights, remedies and powers
provided by this Article 4 may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law, and all the provisions
of this Article 4 are intended to be subject to all applicable mandatory
provisions of law which may be controlling and to be limited to the extent
necessary so that they will not render this Agreement invalid, unenforceable in
whole or in part or, if the Representatives elect that this Agreement should be
recorded, registered or filed, not entitled to be recorded, registered, or filed
under the provisions of any applicable law.
SECTION 4.08. ABSOLUTE RIGHTS OF SECURED HOLDERS AND REPRESENTATIVES.
Notwithstanding any other provision of this Agreement or any of the other Shared
Collateral Documents, each of the Representatives and each of the Secured
Holders has an absolute and unconditional right to receive payment of all of the
Shared Collateral Obligations owing to such Representative or such Secured
Holder, as the case may be, when the same becomes due and payable and at the
time and place and otherwise in the manner set forth in the applicable Secured
Indebtedness Agreements, and the right of each such Representative and each such
Secured Holder to institute proceedings for the enforcement of such payment on
or after the date such payment becomes due and to assert its position as a
secured creditor in a proceeding under the Bankruptcy Code in which the Company
is a debtor, and the obligation of the Company to pay all of the Shared
Collateral Obligations owing to each of the Representatives and each of the
Secured Holders at the time and place expressed therein, shall not be impaired
or affected without the consent of such Representative or such Secured Holder.
In addition, the right of any Secured Holder or any Representative, on behalf of
itself or on behalf of any such Secured Holder, to receive payment or security
from sources other than the Shared Collateral or the Holders Collateral Account
shall not be, and is not hereby, impaired or affected in any manner. Without
limiting the generality of the foregoing provisions of this Section 4.08, no
Secured
<PAGE>
Holder and no Representative, on behalf of itself or on behalf of any Secured
Holder, shall be obligated to share with any other Secured Holder or any other
Representative any proceeds of any collateral, guaranty or right of setoff other
than pursuant to, and to the extent expressly required under, this Agreement and
the other Secured Indebtedness Agreements; nor shall any Secured Holder's or any
Representative's right to receive its ratable share of any amounts maintained in
the Shared Collateral Account or Holders Collateral Account, if any, or any
proceeds of any of the Shared Collateral, or any part thereof, under the terms
of this Agreement and the other Shared Collateral Documents be diminished or
affected in any way by its right to receive proceeds of any other collateral or
right of setoff, or payment upon a guaranty or from any other source.
SECTION 4.09. EQUAL AND RATABLE SECURITY. This Agreement is intended
solely to comply with the provisions of the Existing Notes Agreements to secure
the unpaid principal of, premium, if any, and accrued interest on the Existing
Notes, equally and ratably with the Shared Collateral Obligations arising under
the Loan Documents. To the extent that the rights and benefits herein conferred
on the Holders of the Existing Notes or the Indenture Trustee shall be held to
exceed the rights and benefits required so to be conferred by such provisions,
such rights and benefits shall be limited so as to provide to such Holders and
such Indenture Trustee only those rights and benefits that are required by such
provisions. Any and all rights not herein expressly given to the Indenture
Trustee are expressly reserved to the Administrative Agent and the Lender
Parties, it being understood that in the absence of a requirement to provide
equal and ratable security set forth in the Existing Note Agreements, this
Agreement would not have been accepted by the Administrative Agent or the Lender
Parties.
ARTICLE 5
APPLICATION OF PROCEEDS
SECTION 5.01. APPLICATION OF PROCEEDS. (a) If, following the
acceleration of the principal amount of the Shared Collateral Obligations under
any Secured Indebtedness Agreement and pursuant to the exercise of any remedy
set forth in any Shared Collateral Documents, any Shared Collateral is sold or
otherwise realized upon by the Corporate Trustee, the proceeds received by the
Corporate Trustee in respect of such Shared Collateral and all moneys held by
the Corporate Trustee in the Shared Collateral Account shall, to the extent
available for distribution, be distributed by the Corporate Trustee (or, in the
case of moneys allocated to the Holders of Existing Notes, applied by the
Corporate Trustee to the Holders Collateral Account pursuant to Section 5.04) on
each Distribution Date as follows:
FIRST, to the payment (in such priority as the Corporate Trustee shall
elect, but without duplication) of all reasonable legal fees and expenses
and other reasonable costs or expenses or other liabilities of any kind
incurred by the Collateral Trustees as secured parties under any Shared
Collateral Document or otherwise in connection with any Shared Collateral
Document or this Agreement (including, without limitation, any
<PAGE>
reasonable costs or expenses or liabilities incurred in connection with
the sale of any assets covered by any Shared Collateral Document, or in the
operation or maintenance of any of the assets covered by any Shared
Collateral Document), including the reimbursement to any Representative
of any amounts theretofore advanced by such Representative for the payment
of such fees, costs and expenses, except only for any such fees, expenses,
costs or liabilities incurred by any Collateral Trustee as a result of its
gross negligence or willful misconduct in performing or failing to perform
any of its duties to the parties hereto expressly set forth herein;
PROVIDED, HOWEVER, that nothing herein is intended to relieve the Company
of its duties to pay such costs, fees, expenses and liabilities otherwise
payable to the Collateral Trustees from funds outside of the Shared
Collateral Account, as required by this Agreement and the Credit Agreement.
SECOND, to the Collateral Trustees (without duplication) in an amount
equal to the Collateral Trustees' Fees which are unpaid as of the
Distribution Date and to any Representative which has theretofore advanced
or paid any such Collateral Trustees' Fees in an amount equal to the amount
thereof so advanced or paid by such Representative prior to such
Distribution Date; PROVIDED, HOWEVER, that nothing herein is intended to
relieve the Company of its duties to pay such fees and claims from funds
outside of the Shared Collateral Account, as required by this Agreement and
the Credit Agreement.
THIRD, pursuant to paragraph (b) below, ratably to the Representatives
on behalf of the Secured Holders.
FOURTH, any surplus remaining after the indefeasible cash payment in
full of the Shared Collateral Obligations shall, pursuant to the provisions
of Section 8.02, be paid to the Company, its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct.
(b) In order to determine the ratable amount to be distributed to each
of the Representatives pursuant to clause THIRD above, unless otherwise directed
in writing by the Representatives, the Corporate Trustee may rely (subject to
the provisions of Section 5.02) on a certificate of an Authorized Officer of the
Company setting forth the Shared Collateral Obligations (identified by type and
amount) outstanding under each Secured Indebtedness Agreement.
SECTION 5.02. APPLICATION OF WITHHELD AMOUNTS. If at any time any
proceeds of Collateral collected or received by the Collateral Trustees are
distributable pursuant to Section 5.01 to any Representative, and if such
Representative shall give notice (each, a "WITHHELD AMOUNT NOTICE") that all or
a portion of such proceeds (each such amount, a "WITHHELD AMOUNT") shall be held
by the Collateral Trustees pending the application thereof to Shared Collateral
Obligations, then, notwithstanding the provisions of Section 5.01, the
Collateral Trustees shall hold such Withheld Amount in the Shared Collateral
Account or Holders Collateral Account, as the case may be, until such time as
the applicable Representative
<PAGE>
shall request the delivery thereof for application to Shared Collateral
Obligations pursuant to the provisions of Section 5.03.
SECTION 5.03. RELEASE OF AMOUNTS IN COLLATERAL ACCOUNTS. (a) Amounts
on deposit in the Shared Collateral Account with respect to the Shared
Collateral Obligations shall be paid to the applicable Representative or
deposited into the Holders Collateral Account pursuant to Section 5.04 upon
receipt by the Corporate Trustee of a certificate of such Representative setting
forth, (i) in the case of the Representative for the Lender Parties, the name of
the Person to whom payment should be made, the amount to be delivered to such
Person and including appropriate payment instructions, and (ii) in the case of
the Representative for the Holders of the Existing Notes, stating that such
amount will be applied to the payment of Shared Collateral Obligations and
directing such amounts to be paid into the Holders Collateral Account.
(b) If, at any time, funds are on deposit in the Holders Collateral
Account and the principal of and accrued interest on and all other amounts due
in respect of such Existing Notes have been paid in full, such funds shall be
distributed and applied in accordance with the provisions of Section 5.01
hereof.
(c) All interest received on the investments in the Shared Collateral
Account or the Holders Collateral Account shall be part of such account.
SECTION 5.04. SHARED COLLATERAL ACCOUNT AS SECURITY. Upon the
occurrence and during the continuance of an Actionable Default, any amounts on
deposit in the Shared Collateral Account shall at the request, or may with the
consent, of the Majority Representatives be distributed to the appropriate
Representatives, for their benefit and the benefit of the Secured Holders;
PROVIDED that any amounts that would otherwise be distributed to the Indenture
Trustee pursuant to this Section 5.04 shall be deposited in the Holders
Collateral Account and, upon acceleration of the Shared Collateral Obligations
outstanding under the Indenture, all amounts remaining in the Holders Collateral
Account at such time shall, at the request of such Indenture Trustee, be
released and paid to such Indenture Trustee for the benefit of the Holders of
Existing Notes represented thereby for distribution in a manner not inconsistent
with the terms of the Indenture.
ARTICLE 6
AGREEMENTS WITH THE COLLATERAL TRUSTEE
SECTION 6.01. DELIVERY OF AGREEMENTS. On the Closing Date, the Company
will deliver to the Collateral Trustees a true and complete copy of each Secured
Indebtedness Agreement and of each Shared Collateral Document as in effect on
the Closing Date. The Company agrees that, promptly upon the execution thereof,
the Company will deliver to the Collateral Trustees a true and complete copy of
any and all Shared Collateral Documents entered
<PAGE>
into subsequent to the date hereof and a true and complete copy of any and
all amendments, modifications or supplements to any of the foregoing.
SECTION 6.02. INFORMATION AS TO REPRESENTATIVES. The Company
agrees that it shall deliver to the Collateral Trustees from time to time
upon request of the Collateral Trustees a list setting forth, for each
Secured Indebtedness Agreement, (a) the aggregate principal amount
outstanding thereunder, (b) the accrued and unpaid interest thereunder, (c)
the accrued and unpaid fees (if any) thereunder, (d) the names of the
Representatives and of the Secured Holders (to the extent known to the
Company) of the Secured Indebtedness outstanding thereunder and the unpaid
principal amount thereof, all accrued interest thereon, all accrued fees
(if any) thereunder and all other unpaid amounts thereunder known to the
Company, owing to each such Representative, for its own account and on
behalf of such Secured Holders and (e) such other information regarding the
Representatives, such Secured Holders and the Secured Indebtedness
Agreements as the Collateral Trustees may reasonably request. In addition,
the Company shall deliver to the Collateral Trustees, each time a
distribution from the Collateral Trust Estate, the Shared Collateral
Account or the Holders Collateral Account is to be made pursuant to the
terms hereof, a certificate of an Authorized Officer, setting forth the
amounts to be distributed and the Persons to whom such distributions are to
be made, including appropriate payment instructions therefor, PROVIDED,
that if any distribution is directed to be made to the Indenture Trustee as
a Representative, if the Indenture Trustee shall have notified the
Collateral Trustees in writing that such Indenture Trustee is unable to
accept such distribution, such distribution shall be made instead to the
Holders Collateral Account. The Company will furnish to the Collateral
Trustees on the Closing Date a list setting forth the name and address of
each Representative and each Person to whom notices must be sent under the
Secured Indebtedness Agreements and the Company agrees to furnish promptly
to the Collateral Trustees any changes or additions to such list. Unless
otherwise specified herein, the Collateral Trustees may for all purposes
hereunder, rely on such information given by the Company unless (i) the
Collateral Trustees shall have actual knowledge of an inaccuracy or (ii)
any Representative shall provide contrary information with respect to such
Representative in which case, unless such Representative and the Company
can reach an agreement on such issue within a period of 10 days, the
Collateral Trustees shall appoint an independent arbitrator (who shall be
reasonably acceptable to the Company and such Representative) to resolve
the dispute (at the expense of the Company).
SECTION 6.03. COMPENSATION AND EXPENSES. The Company agrees to
pay to the Collateral Trustees and any co-trustees or successor trustees
appointed hereunder, from time to time upon demand, (a) reasonable
compensation for their services hereunder and under the Shared Collateral
Documents and for administering the Collateral Trust Estate, the Shared
Collateral Account and the Holders Collateral Account and (b) all the fees,
costs and expenses incurred by any of them (including, without limitation,
the reasonable fees and disbursements of counsel) (i) arising in connection
with the preparation, execution, delivery, modification and termination of
this Agreement and each Shared Collateral Document or the enforcement of
any of the provisions hereof or thereof or (ii) incurred or required to be
advanced in connection with the administration of the Collateral Trust
Account, the sale or other disposition of Shared Collateral pursuant to any
Shared
<PAGE>
Collateral Document and the preservation, protection or defense of their
rights under this Agreement and in and to the Shared Collateral, the Shared
Collateral Account, the Holders Collateral Account and the Collateral
Trust Estate. As security for such payment, the Collateral Trustees shall
have a prior lien upon all Shared Collateral and other property and funds
held or collected by the Collateral Trustees as part of the Collateral
Trust Estate. The Company's obligations under this Section 6.03 shall
survive the termination of the other provisions of this Agreement.
SECTION 6.04. STAMP AND OTHER SIMILAR TAXES. The Company agrees
to indemnify and hold harmless the Collateral Trustees, each Representative
and each Secured Holder from any present or future claim for liability for
any stamp or other similar tax and any penalties or interest with respect
thereto, which may be assessed, levied or collected by any jurisdiction in
connection with this Agreement, any Shared Collateral Document, the
Collateral Trust Estate, the Shared Collateral Account, the Holders
Collateral Account or any Shared Collateral. The obligations of the Company
under this Section 6.04 shall survive the termination of the other
provisions of this Agreement.
SECTION 6.05. FILING FEES, EXCISE TAXES, ETC. The Company agrees
to pay or to reimburse the Collateral Trustees for any and all amounts in
respect of all search, filing, recording and registration fees, taxes,
excise taxes and other similar imposts which may be payable or determined
to be payable in respect of the execution, delivery, performance and
enforcement of this Agreement and each Shared Collateral Document. The
obligations of the Company under this Section 6.05 shall survive the
termination of the other provisions of this Agreement.
SECTION 6.06. INDEMNIFICATION. (a) The Company agrees to pay,
indemnify, and hold harmless the Collateral Trustees and each of the agents
of either thereof from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including, without
limitation, the costs and expenses of defending any claim against any of
them) with respect to the execution, delivery, enforcement, performance and
administration of this Agreement and the Shared Collateral Documents unless
and to the extent arising from the gross negligence or willful misconduct
of such of the Collateral Trustees or such of the agents thereof as are
seeking indemnification or any failure of any Collateral Trustee or any
such agent to exercise ordinary care in the handling of moneys and
securities actually received by any such Collateral Trustee or any such
agent. As security for such payment, any such Collateral Trustee shall have
a prior lien upon all Shared Collateral and other property and funds held
or collected by the Collateral Trustees as part of the Collateral Trust
Estate.
(b) In any suit, proceeding or action brought by the Collateral
Trustees under or with respect to any Shared Collateral Document or the
Shared Collateral for any amount owing thereunder, or to enforce any
provisions thereof, the Company will save, indemnify and hold harmless the
Collateral Trustees, the Representatives and the Secured Holders from and
against all expense, loss or damage suffered by reason of any defense,
set-off, counterclaim,
<PAGE>
recoupment or reduction of liability whatsoever of the obligee thereunder
(unless and to the extent that such expense, loss or damage is caused by
the gross negligence or willful misconduct of the such Collateral Trustee
or the failure of any Collateral Trustee to exercise ordinary care in the
handling of moneys and securities actually received by such Collateral
Trustee), arising out of a breach by the Company of any obligation
thereunder or arising out of any other agreement, indebtedness or liability
at any time owing to or in favor of such obligee or its successors from the
Company and all such obligations of the Company shall be and remain
enforceable against and only against the Company and shall not be
enforceable against the Collateral Trustees, any Representative or
any Secured Holder. The agreements in this Section 6.06 shall survive the
termination of the other provisions of this Agreement.
SECTION 6.07. FURTHER ASSURANCES. (a) The Company agrees, from
time to time, at its own expense to execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register, and cause any of its
Subsidiaries, if any, to promptly execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further
acts, financing statements and continuations thereof, notices of
assignment, transfers, certificates, assurances and other instruments as
may be necessary or desirable, or as any Collateral Trustee, any
Representative, any Secured Holder through its Representative, the
Administrative Agent, or any Lender Party through the Administrative Agent,
may reasonably request from time to time in order (i) to carry out more
effectively the purposes or this Agreement, (ii) to subject to the liens
and security interests created by any of the Shared Collateral Documents
any of the properties, rights or interests of the Company covered or now or
hereafter intended to be covered by any of the Shared Collateral Documents,
(iii) to perfect and maintain the validity, effectiveness and priority of
any of the Shared Collateral Documents and the liens and security interests
intended to be created thereby, (iv) to better assure, convey, grant,
assign, transfer, preserve, protect and confirm unto the Collateral
Trustees, the Representatives, the Secured Holders and the Lender Parties
the rights granted or now or hereafter intended to be granted to the
Collateral Trustees, the Representatives, the Secured Holders and/or the
Lender Parties under any Shared Collateral Document or under any other
instrument executed in connection with any Shared Collateral Document to
which it is or may become a party, and (v) to enable the Collateral
Trustees to exercise and enforce their rights and remedies hereunder and
under each Shared Collateral Document with respect to any Shared
Collateral; PROVIDED, HOWEVER, that this Section 6.07 shall not be
construed to require the Company to grant any interest in Shared Collateral
other than pursuant to this Agreement, the Credit Agreement or any Shared
Collateral Document. Without limiting the generality of the foregoing, the
Company will take any such action required to be taken by it pursuant to
any Shared Collateral Document.
(b) The Company hereby authorizes the Collateral Trustees to file
one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Shared Collateral without the signature
of the Company where permitted by law. A photocopy or other reproduction of
this Agreement, any Shared Collateral Document or any financing statement
covering the Shared Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law.
<PAGE>
(c) The Company will furnish such information about the Shared
Collateral as the Collateral Trustees may reasonably request from time to
time.
ARTICLE 7
THE COLLATERAL TRUSTEE
SECTION 7.01. DECLARATION OF TRUST. Each of the Corporate Trustee
and the Individual Trustee, for itself and its successors, hereby accepts
the trusts created by this Agreement upon the terms and conditions hereof,
including those contained in this Article 7. Further, each of the Corporate
Trustee and the Individual Trustee, for itself and its successors, does
hereby declare that it will hold all of the estate, right, title and
interest in (a) the Collateral Trust Estate and the Shared Collateral
Account for the equal and ratable benefit of the Representatives and the
Secured Holders as provided herein, and (b) the Holders Collateral Account
upon the trust herein set forth and for the benefit of the Representative
on behalf of the Holders of the Existing Notes as provided herein.
SECTION 7.02. EXCULPATORY PROVISIONS. (a) The Collateral Trustees
shall not be responsible in any manner whatsoever for the correctness of
any recitals, statements, representations or warranties contained herein or
in the Shared Collateral Documents, all of which are made solely by the
Company. The Collateral Trustees make no representations as to the value or
condition of the Collateral Trust Estate, the Shared Collateral Account,
the Holders Collateral Account or any part thereof, or as to the title of
the Company thereto or as to the security afforded by the Shared Collateral
Documents or this Agreement, or as to the validity, execution (except its
own execution), enforceability, legality or sufficiency of this Agreement,
any Shared Collateral Document or any Secured Indebtedness Agreement, and
the Collateral Trustees shall incur no liability or responsibility in
respect of any such matters. The Collateral Trustees shall not be
responsible for insuring the Collateral Trust Estate or for the payment of
taxes, charges, assessments or liens upon the Collateral Trust Estate or
otherwise as to the maintenance of the Collateral Trust Estate or the
Shared Collateral Account or the Holders Collateral Account, except that in
any event that any Collateral Trustee enters into possession of a part or
all of the Collateral Trust Estate, the Shared Collateral Account or the
Holders Collateral Account, such Collateral Trustee, shall preserve the
part in its possession.
(b) The Collateral Trustees shall not be required to ascertain or
inquire as to the performance by the Company of any of the covenants or
agreements contained herein, in any Secured Indebtedness Agreement.
SECTION 7.03. DELEGATION OF DUTIES. The Collateral Trustees may
execute any of the trusts or powers hereof and perform any duty hereunder
either directly or by or through agents or attorneys-in-fact (which shall
not include officers and employees of the Company or any Affiliate of the
Company). The Collateral Trustees shall be entitled to rely upon advice of
counsel concerning all matters pertaining to such trusts, powers and
duties. The Collateral
<PAGE>
Trustees shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact reasonably selected by them in good faith.
SECTION 7.04. RELIANCE BY COLLATERAL TRUSTEES. (a) Whenever in
the administration of the trusts of this Agreement the Collateral Trustees
shall deem it necessary or desirable that a matter be proved or established
in connection with the taking, suffering or omitting any action hereunder
by the Collateral Trustees unless otherwise provided herein, such matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved or established by a
certificate of an Authorized Officer of the Company delivered to the
Collateral Trustees and the Representatives, and such certificate shall
constitute a full warranty to the Collateral Trustees for any action taken,
suffered or omitted in reliance thereon unless (i) the Collateral Trustees
shall have actual knowledge of an inaccuracy therein or (ii) any
Representative shall provide contrary information with respect to such
matter within 10 days of receipt thereof by such Representative, in which
case unless such Representative and the Company can reach agreement on such
issue within a period of 10 days, the Collateral Trustees shall appoint, at
the expense of the Company, an independent arbitrator (who shall be
reasonably acceptable to the Company and such Representative) to resolve
the dispute.
(b) The Collateral Trustees may consult with independent counsel
(excluding, without limitation, counsel to or any employee of the Corporate
Trustee, the Company or any Affiliate of the Company), and any opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken or suffered by them hereunder in accordance
therewith unless such Collateral Trustee has actual knowledge of a reason
to question the validity or accuracy of such opinion or of any assumptions
expressed therein as the basis for such opinion. The Collateral Trustees
shall have the right at any time to seek instructions concerning the
administration of the Collateral Trust Estate or the Shared Collateral
Account or the Holders Collateral Account from any court of competent
jurisdiction.
(c) The Collateral Trustees may rely, and shall be fully
protected in acting, upon any resolution, statement, certificate,
instrument, opinion, report, notice, request, consent, order, bond or other
paper or document which they reasonably believe to be genuine and to have
been signed or presented by the proper party or parties or, in the case of
telecopies and telexes, to have been sent by the proper party or parties.
In the absence of its gross negligence or willful misconduct, each
Collateral Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any notices,
certificates or opinions furnished to such Collateral Trustee that conform
to the requirements of this Agreement or any Shared Collateral Document.
SECTION 7.05. LIMITATIONS ON DUTIES OF THE TRUSTEES. (a) The
Collateral Trustees undertake to perform only the duties expressly set
forth herein and no implied covenant or obligation shall be read into this
Agreement against the Collateral Trustees.
<PAGE>
(b) The Collateral Trustees may exercise the rights and powers
granted to them by this Agreement and the Shared Collateral Documents, but
only pursuant to the terms of this Agreement, and the Collateral Trustees
shall not be liable with respect to any action taken or omitted by them in
accordance with the direction of the Representatives.
(c) Except as herein otherwise expressly provided, the Collateral
Trustees shall not be under any obligation to take any action which is
discretionary with the Collateral Trustees under the provisions hereof or
under any Shared Collateral Document except upon the written request of the
Representatives and subject to the provisions of Section 4.04(b). The
Collateral Trustees shall make available for inspection and copying by each
Representative each certificate or other paper furnished to the Collateral
Trustees by the Company, by any Representative, or by any other Person,
under or in respect of this Agreement, any Shared Collateral Document or
any of the Collateral Trust Estate.
(d) The Collateral Trustees shall be under no obligation to
exercise any of the rights or powers vested in them by this Agreement at
the request or direction of any Representatives pursuant to this Agreement,
unless such Representatives shall have offered to the Collateral Trustees
security or indemnity satisfactory to the Collateral Trustees against the
costs, expenses and liabilities which might be incurred by them in
compliance with such request or direction.
SECTION 7.06. MONEYS TO BE HELD IN TRUST. All moneys received by
the Corporate Trustee under or pursuant to any provision of this Agreement
or any Shared Collateral Document shall be segregated and held in trust for
the purposes for which they were paid or are held and the Corporate Trustee
shall exercise ordinary care in the handling of any such moneys actually
received by it. The Individual Trustee shall promptly turn over to the
Corporate Trustee any Shared Collateral, or any part thereof, delivered to
or received by the Individual Trustee.
SECTION 7.07. RESIGNATION AND REMOVAL OF COLLATERAL TRUSTEES. (a)
Each or both of the Collateral Trustees may at any time, by giving 30 days'
prior written notice to the Company and the Representatives, resign and be
discharged of their responsibilities hereby created, such resignation to
become effective upon the appointment of a successor trustee or trustees by
the Representatives, the acceptance of such appointment by such successor
trustee or trustees and, unless an Actionable Default has occurred and is
continuing, the consent to the appointment of such successor trustee or
trustees by the Company. Either or both of the Collateral Trustees may be
removed at any time (with or without cause) and a successor trustee or
trustees appointed by the affirmative vote of the Representatives, subject
to, unless an Actionable Default has occurred and is continuing, the
consent of the Company, PROVIDED that the Collateral Trustees or either of
them shall be entitled to their fees and expenses accrued to the date of
removal. If either or both of the Collateral Trustees resigns or is removed
as provided in this Section 7.07 the consent to the appointment of a
successor trustee or trustees shall not be unreasonably withheld and shall
be deemed to have been given if the Company shall not have reasonably
objected to any proposed successor trustee or trustees within five Business
Days of receipt of notice of the identity thereof from the Representatives.
If no successor trustee or
<PAGE>
trustees shall be appointed and approved within 30 days from the date of
the giving of the aforesaid notice of resignation or within 30 days from
the date of such vote for removal, the Collateral Trustees, shall, or any
Representative may, apply to any court of competent jurisdiction to appoint
a successor trustee or trustees to act until such time, if any, as a
successor trustee or trustees shall have been appointed as above provided.
Any successor trustee or trustees so appointed by such court shall
immediately and without further act be superseded by any successor trustee
or trustees approved by the Representatives as above provided.
(b) If at any time either or both of the Collateral Trustees
shall become incapable of acting, or if at any time a vacancy shall occur
in the office of the Collateral Trustees for any other cause, a successor
trustee or trustees shall be appointed by the Representatives, subject to,
unless an Actionable Default has occurred and is continuing, the consent of
the Company, which consent shall not be unreasonably withheld, and the
powers, duties, authority and title of the predecessor trustee or trustees
terminated and cancelled without procuring the resignation of such
predecessor trustee or trustees, and without any formality (except as may
be required by applicable law) other than appointment and designation of a
successor trustee or trustees in writing, duly acknowledged, delivered to
the predecessor trustee or trustees and the Company and filed for record in
each public office, if any, in which this Agreement is required to be
filed.
(c) The appointment and designation referred to in Section
7.07(b) shall, after any required filing, be full evidence of the right and
authority to make the same and of all the facts therein recited, and this
Agreement shall vest in such successor trustee or trustees, without any
further act, deed or conveyance, all of the estate and title of its
predecessor, and upon such filing for record the successor trustee or
trustees shall become fully vested with all the estates, properties,
rights, powers, trusts, duties, authority and title of its predecessor; but
such predecessor shall, nevertheless, on the written request of the
Representatives, the Company or its successor trustee or trustees, execute
and deliver an instrument transferring to such successor all the estates,
properties, rights, powers, trusts, duties, authority and title of such
predecessor hereunder and shall deliver all securities and moneys held by
it or them to such successor trustee or trustees. Should any deed,
conveyance or other instrument in writing from the Company be required by
any successor trustee or trustees for more fully and certainly vesting in
such successor trustee or trustees the estates, properties, rights, powers,
trusts, duties, authority and title vested or intended to be vested in the
predecessor trustee or trustees, any and all such deeds, conveyances and
other instruments in writing shall, on request of such successor trustee or
trustees, be executed, acknowledged and delivered by the Company.
(d) Any required filing for record of the instrument appointing a
successor trustee or trustees as hereinabove provided shall be at the
expense of the Company. The resignation of any trustee or trustees and the
instrument removing any trustee or trustees, together with all other
instruments, deeds and conveyances provided for in this Article 7 shall, if
permitted by law, be forthwith recorded, registered and filed by and at the
expense of the Company, wherever this Agreement is recorded, registered and
filed.
<PAGE>
SECTION 7.08. STATUS OF SUCCESSORS TO TRUSTEE. Every successor to
the Corporate Trustee appointed pursuant to Section 7.07 shall be a bank or
trust company in good standing and having power so to act, incorporated
under the laws of the United States or any State thereof or the District of
Columbia and having its principal corporate trust office within the State
of Delaware, or another state acceptable to the Representatives, and shall
also have capital, surplus and undivided profits of not less than
$100,000,000, if there be such an institution with such capital, surplus
and undivided profits willing, qualified and able to accept the trust upon
reasonable or customary terms. Any successor to the Individual Trustee
appointed pursuant to Section 7.07 shall be an individual residing in the
State of Delaware, the State of New York or another state of the United
States acceptable to the Majority Representatives.
SECTION 7.09. MERGER OF THE CORPORATE TRUSTEE. Any corporation
into which the Corporate Trustee may be merged, or with which it may be
consolidated, or any corporation resulting from any merger or consolidation
to which the Corporate Trustee shall be a party, shall be the Corporate
Trustee under this Agreement without the execution or filing of any paper
or any further act on the part of the parties hereto.
SECTION 7.10. POWERS OF INDIVIDUAL TRUSTEE. The Individual
Trustee has been joined as a party hereunder so that if, by any present or
future applicable law in any jurisdiction in which it may be necessary to
perform any act in the execution or enforcement of the trusts hereby
created, the Corporate Trustee may be incompetent, unqualified or unable to
act as the Collateral Trustees, then all of the acts required to be
performed in such jurisdiction, in the execution or enforcement of the
trusts hereby created, shall and will be performed by the Individual
Trustee, acting alone. Notwithstanding any other term or provision of this
Agreement to the contrary, the Corporate Trustee alone shall have and
exercise the rights and powers granted herein and shall be solely charged
with the performance of the duties herein declared on the part of the
Collateral Trustees to be had and exercised or to be performed without any
action taken by the Individual Trustee; PROVIDED, HOWEVER, that if the
Corporate Trustee or the Majority Representatives deem it necessary or
desirable for the Individual Trustee to act in a particular jurisdiction,
the Individual Trustee shall have and exercise the rights and powers
granted herein (but no greater powers) and shall be charged with the
performance of the duties herein declared on the part of the Collateral
Trustees to be had and exercised or to be performed, but only in such
particular jurisdiction.
SECTION 7.11. ADDITIONAL CO-TRUSTEES; SEPARATE TRUSTEES. (a) If
at any time or times it shall be necessary or prudent in order to conform
to any law of any jurisdiction in which any of the Shared Collateral shall
be located, or the Collateral Trustees shall be advised by counsel
satisfactory to them that it is so necessary or prudent in the interest of
the Representatives on behalf of the Secured Holders, or the
Representatives shall in writing so request by notice to the Collateral
Trustees and the Company, or the Collateral Trustees shall deem it
desirable for their own protection in the performance of their duties
hereunder, or the Company shall in writing so request by notice to the
Collateral Trustees with the consent of the Representatives, the Collateral
Trustees and the Company shall execute and deliver all instruments and
agreements necessary or proper to constitute another bank or trust company,
or
<PAGE>
one or more persons approved by the Collateral Trustees, the Company and
the Representatives, either to act as co-trustee or co-trustees of all or
any of the Shared Collateral, jointly with the Collateral Trustees
originally named herein or any successor, or to act as separate trustee of
any such property. In the event the Company shall not have joined in the
execution of such instruments and agreements within 10 days after the
receipt of a written request from the Collateral Trustees so to do, or in
case an Actionable Default shall have occurred and be continuing, the
Collateral Trustees may act under the foregoing provisions of this Section
7.11 without the concurrence of the Company (but with the concurrence of
the Representatives), and the Company hereby appoints the Collateral
Trustees as its agents and attorneys to act for it under the foregoing
provisions of this Section 7.11 in either of such contingencies.
(b) Any separate trustee and any co-trustee (other than any
trustee which may be appointed as successor to the Corporate Trustee or the
Individual Trustee pursuant to Section 7.07) shall, to the extent permitted
by law, be appointed and act and be such, subject to the following
provisions and conditions, namely:
(i) all rights, powers, duties and obligations conferred
upon the trustees in respect of the custody, control and
management of moneys, papers or securities shall be exercised
solely by the Collateral Trustees originally named herein or
their successors appointed pursuant to Section 7.07;
(ii) all rights, powers, duties and obligations conferred or
imposed upon the Collateral Trustees hereunder shall be conferred
or imposed and exercised or performed by the Collateral Trustees
and such separate trustee or co-trustee, jointly, as shall be
provided in the instrument appointing such separate trustee or
co-trustee, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed the Collateral Trustees shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations shall be exercised and
performed by such separate trustee or co-trustee;
(iii) no power given hereby to, or which it is provided
hereby may be exercised by, any such co-trustee or separate
trustee, shall be exercised hereunder by such co-trustee or
separate trustee, except jointly with, or with the consent in
writing of, the Collateral Trustees, anything herein contained to
the contrary notwithstanding;
(iv) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(v) the Company and the Collateral Trustees, at any time, by
an instrument in writing, executed by them jointly, may accept
the resignation of or remove any such separate trustee, and in
that case, by an instrument in writing executed by the Company
and the Collateral Trustees jointly, may appoint a successor (who
shall be acceptable to the Representatives) to such a separate
trustee or co-trustee, as the case may be, anything herein
contained to the contrary notwithstanding. In the event that the
Company shall not
<PAGE>
have joined in the execution of any such instrument within 10
days after the receipt of a written request from the
Collateral Trustees so to do, or in case an Actionable Default
shall have occurred and be continuing, the Collateral Trustees
shall have the power to accept the resignation of or remove
any such separate trustee or co-trustee and to appoint (with
the consent of the Representatives) a successor without the
concurrence of the Company and the Company hereby appoints the
Collateral Trustees its agents and attorneys to act for it in
such connection in either of such contingencies. In the event
that the Collateral Trustees shall have appointed a separate
trustee or co-trustee or as above provided, they may at any
time, by an instrument in writing, accept the resignation of
or remove any such separate trustee, the successor to any such
separate trustee to be appointed by the Company and the
Collateral Trustees, or by the Collateral Trustees alone, as
hereinbefore provided in this Section 7.11.
SECTION 7.12. TRUSTEES APPOINTED ATTORNEYS-IN-FACT. The
Company hereby irrevocably constitutes and appoints the Collateral
Trustees and any officer or agent thereof, with full power of
substitution, as its true and lawful attorneys-in-fact with full power
and authority in the name of the Company or their own name and in the
place and stead of the Company and in the name of the Company, from
time to time at the direction of the Representatives (or in the case
of actions relating to the Holders Collateral Account, at the
direction of the Holders of Existing Notes to whom are owed 66-2/3% of
the Shared Collateral Obligations secured by such account pursuant to
the terms hereof), to take, subject to Section 4.09, any action and to
execute any instrument which the same may deem necessary or advisable
to accomplish the purposes of this Agreement, including, without
limitation, to receive, endorse and collect all instruments made
payable to the Company representing any dividend, interest payment or
other distribution in respect of the Shared Collateral or any part
thereof and to give full discharge for the same. The Company
acknowledges and agrees that the foregoing power of attorney is
coupled with an interest and may not be revoked or modified except
with the consent of the Collateral Trustees or as otherwise provided
herein.
SECTION 7.13. ORDINARY CARE. The Collateral Trustees shall
be deemed to have exercised ordinary care in the custody and
preservation of the Shared Collateral in their possession if the
Shared Collateral is accorded treatment substantially equal to that
which the Collateral Trustees accord their own property and reasonable
care is exercised by the Collateral Trustees in handling any moneys or
securities actually received by them, it being understood that the
Collateral Trustees shall not have any responsibility for (i)
ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any Shared
Collateral, whether or not the Collateral Trustees have or are deemed
to have knowledge of such matters, or (ii) taking any necessary steps
to preserve rights against any parties with respect to any Shared
Collateral.
<PAGE>
ARTICLE 8
RELEASE OF SHARED COLLATERAL
SECTION 8.01. PARTIAL RELEASE OF SHARED COLLATERAL. (a) The
Company may, from time to time so long as no Actionable Default shall
have occurred and be continuing, request the release of the lien and
security interest in the Shared Collateral, or any portion thereof,
created under the Shared Collateral Documents, upon notice to the
Collateral Trustees (with a copy to the Administrative Agent) from an
Authorized Officer of the Company (a "NOTICE OF PARTIAL RELEASE"),
which Notice of Partial Release shall be delivered to the Collateral
Trustees at least ten Business Days prior to the date of the proposed
release (unless a shorter period of time is acceptable to the
Collateral Trustees and the Administrative Agent) and shall
(i) specify the Shared Collateral to be so released and the
proposed date of such release, and
(ii) certify that the release of the lien and security
interest on such Shared Collateral is permitted under the terms
of the Loan Documents, and the Company is not, and after giving
effect to such release, would not be, in default under any of the
Secured Indebtedness Agreements.
If a Notice of Partial Release is delivered to the Collateral Trustees
in accordance with the immediately preceding sentence and the
Administrative Agent, on behalf of the Lender Parties, shall have
consented thereto prior to the date of the proposed release, the
Collateral Trustees shall execute and deliver to the Company, on the
date of the proposed release (or as promptly thereafter as possible),
a release or releases (including, without limitation, Uniform
Commercial Code release statements and instruments of satisfaction,
discharge and/or reconveyance) in recordable form as to the Shared
Collateral specified in such Notice of Partial Release from the liens,
security interests, conveyances and assignments evidenced by the
Shared Collateral Documents, which release shall state that it is
effective as of the date of its delivery; PROVIDED, HOWEVER, that, if
(A) the Administrative Agent shall not have consented to such release
or (B) prior to the time that the Collateral Trustees deliver a
release pursuant to this Section 8.01(a), the Collateral Trustees
shall have received an Actionable Default Notice that shall not have
been withdrawn prior to such time and the Majority Representatives
shall have directed the Collateral Trustees either not to deliver such
a release or not to deliver releases generally, then, in either case,
the Collateral Trustees shall so notify the Company and shall not sign
any release or releases in connection with such disposition.
(b) If, at any time, the Collateral Trustees shall receive a
notice from an Authorized Officer of the Company
(i) stating that any promissory note or other similar or
related instrument evidencing obligations payable to the Company
and included in the Shared Collateral has
<PAGE>
been paid in full in accordance with its terms (or will be
so paid concurrently with the surrender thereof), and
(ii) identifying such note or other instrument in reasonable
detail (including, without limitation, by its date of issuance,
the name of its payee and the principal amount thereof),
then the Collateral Trustees shall promptly deliver a copy of each
such notice to each Representative and, unless any Representative
shall have disputed the accuracy of such notice within five Business
Days of the delivery of such notice, the Collateral Trustees shall
promptly deliver such note or other instrument to the Company, and
execute and deliver a release or releases (including, without
limitation, Uniform Commercial Code release statements) in recordable
form as to any such note or other instrument from the liens, security
interests, conveyances and assignments evidenced by the Shared
Collateral Documents, which release shall state that it is effective
as of the date of its delivery.
SECTION 8.02. FULL RELEASE OF SHARED COLLATERAL UPON
SATISFACTION OF CERTAIN SHARED COLLATERAL OBLIGATIONS. (a) The
Collateral Trustees shall promptly release in accordance with Section
8.03 all the Shared Collateral upon the later of (i) the indefeasible
cash payment in full of the Shared Collateral Obligations arising
under the Credit Agreement and the other Loan Documents (as defined in
the Credit Agreement) and (ii) the date on which the senior unsecured
debt rating of the Company by both S&P and Moody's is BBB- and Baa3,
respectively, or higher (the "INVESTMENT GRADE DATE").
(b) In furtherance of the undertaking set forth above in
Section 8.02(a), the Collateral Trustees shall, upon the request of
the Company accompanied by a certificate of an Authorized Officer of
the Company, upon which the Collateral Trustees may conclusively rely
without independent verification, to the effect that either (i) all
Shared Collateral Obligations under the Credit Agreement and the other
Loan Documents have been, or will, concurrently with the release of
the Shared Collateral be, indefeasibly paid in full in cash (and if
such Shared Collateral Obligations have not previously been so paid,
describing the source(s) of funds for such repayment) or (ii) the
occurrence of the Investment Grade Date, deliver a notice to the
Administrative Agent (with a copy to each Representative) containing
the following:
(i) a statement as to the total amount of moneys in the
Shared Collateral Account and the Holders Collateral Account; and
(ii) a statement that the Collateral Trustees intend to
release all the Shared Collateral unless they receive a notice
from the Administrative Agent within 10 days saying that it has
not received indefeasible cash payment in full of all the Shared
Collateral Obligations owed to the Administrative Agent and the
Lender Parties under the Credit Agreement and the other Loan
Documents or, if such Shared Collateral Obligations are to be
repaid concurrently with such release, a statement that the
Collateral
<PAGE>
Trustees will release such Shared Collateral only upon
receipt from the Administrative Agent of instructions to do so.
If the Collateral Trustees do not receive a certificate from the
Administrative Agent within 10 days after the delivery of such notice
stating that such Shared Collateral Obligations have not been
indefeasibly paid in full in cash, or the Collateral Trustees receive
a direction from the Administrative Agent so to release such Shared
Collateral, as the case may be, then the Collateral Trustees shall
release all the Shared Collateral from the security interest in their
favor and deliver to the Company all Shared Collateral in the
possession of the Collateral Trustees promptly after the expiration of
such 10 day period or as specified in such instruction, as the case
may be, PROVIDED that the Company shall have made adequate provision
for the expenses of the Collateral Trustees associated with such
release of Shared Collateral and all other expenses of, or payable to,
the Collateral Trustees hereunder, and PROVIDED, FURTHER, that the
failure of the Administrative Agent to provide a certificate to the
Collateral Trustees pursuant to this Section 8.02 shall in no way be
deemed a waiver of, or otherwise impair in any way, its rights to
receive payment in respect of unpaid Shared Collateral Obligations. If
the Collateral Trustees shall have received such a certificate from
the Agent within such 60 day period, or shall not have received an
instruction so to release such Shared Collateral, as the case may be,
the Collateral Trustees shall not release the Shared Collateral unless
and until the Administrative Agent or a court of competent
jurisdiction so directs the Collateral Trustees pursuant to a final,
non-appealable judgment (including a judgment that becomes
non-appealable by reason of expiration of any period of time limiting
the right to appeal therefrom).
SECTION 8.03. EFFECT OF RELEASE OF SHARED COLLATERAL. Upon
the effectiveness of the release of the Shared Collateral pursuant to
Section 8.02, all right, title and interest of the Collateral Trustees
and the Representatives on behalf of the Secured Holders in, to and
under the Collateral Trust Estate, the Shared Collateral and the
Shared Collateral Documents shall terminate and shall revert to the
Company and its successors and assigns, and the estate, right, title
and interest of the Collateral Trustees therein shall thereupon cease;
and in such case, upon the written request of the Company, its
successors or assigns, and at the cost and expense of the Company, its
successors or assigns, the Collateral Trustees shall execute and
deliver a satisfaction of the Shared Collateral Documents and such
instruments as are necessary or desirable to terminate and remove of
record any documents constituting public notice of the Shared
Collateral Documents and the security interests granted thereunder and
shall transfer, or cause to be transferred, and shall deliver or cause
to be delivered to the Company, all property, including all moneys,
instruments and securities of the Company then held by the Collateral
Trustees. The cancellation and satisfaction of the Shared Collateral
Documents shall be without prejudice to the rights of the Collateral
Trustees or any successor trustee or trustees to charge and be
reimbursed for any expenditures which they may thereafter incur in
connection therewith.
<PAGE>
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, SUPPLEMENTS AND WAIVERS. (a) With
the written consent of the Administrative Agent and the Collateral
Trustees, the Company may, from time to time, enter into written
agreements supplemental hereto for the purpose of adding to or waiving
any provision of this Agreement or any of the Shared Collateral
Documents or changing in any manner the rights of the Collateral
Trustees, the Representatives, the Secured Holders and the Company
hereunder or thereunder; PROVIDED, HOWEVER, that no such supplemental
agreement shall amend, modify or waive any provision of this Section
9.01.
No amendment, waiver or consent shall, unless in writing and
signed by the Individual Trustee, amend, waive or otherwise modify any
provision of Section 7.10. Any such supplemental agreement shall be
binding upon the Company, the Representatives, the Secured Holders and
the Collateral Trustees and their respective successors. The
Collateral Trustees shall not enter into any such supplemental
agreement unless they shall have received a certificate of an
Authorized Officer of the Company to the effect that such supplemental
agreement will not result in a breach of any provision or covenant
contained in the Secured Indebtedness Agreements.
(b) Notwithstanding the provisions of paragraph (a), the
Collateral Trustees and the Company may, at any time and from time to
time, without the consent of the Administrative Agent, any
Representatives or any Secured Holders, enter into additional Shared
Collateral Documents or one or more agreements supplemental hereto or
to any Shared Collateral Document, in form satisfactory to the
Collateral Trustees,
(i) to add to the covenants of the Company, for the benefit
of the Representatives or any Secured Holders, or to surrender
any right or power herein conferred upon the Company;
(ii) to mortgage, pledge or grant a security interest in
favor of the Collateral Trustees as additional security for the
Secured Indebtedness any property or assets which are required to
be mortgaged or pledged, or in which a security interest is
required to be granted, to the Collateral Trustees pursuant to
any Shared Collateral Document or otherwise; or
(iii) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Agreement which shall not
be inconsistent with the provisions of this Agreement, provided
such action shall not adversely affect the interests of the
Secured Holders.
<PAGE>
SECTION 9.02. ADDITIONAL ACTIONS OF REPRESENTATIVES. Whether
or not there shall be an Actionable Default, the Collateral Trustees
shall comply and shall be fully protected in complying with any
reasonable request of (a) the Representatives, to take or refrain from
taking certain actions with respect to the Shared Collateral or the
Representatives, and (b) the Holders of Existing Notes to whom at
least 66-2/3% of the Shared Collateral Obligations secured by the
Holders Collateral Account are owed, to take or refrain from taking
certain actions with respect to the Holders Collateral Account,
PROVIDED, in each case, that the Collateral Trustees shall not take or
refrain from taking such actions if to do so would violate applicable
law or the terms of this Agreement, the Shared Collateral Documents or
the applicable Secured Indebtedness Agreements or if the Collateral
Trustees shall not be indemnified as provided in Section 6.06(b).
SECTION 9.03. NOTICES. All notices, requests, demands and
other communications provided for or permitted hereunder shall, unless
otherwise stated herein, be in writing (including telex and telecopy
communications) and shall be sent by mail (by registered or certified
mail, return receipt requested), telex, telecopier or hand delivery:
(a) If to the Company, to its address at 201 E. Fourth
Street, 102-1900, P.O. Box 2301, Cincinnati, Ohio 45201-2301,
Attention: Robert P. Komin (telecopy no. (513) 241-1543) or at
such other address as shall be designated by it in a written
notice to the Collateral Trustees;
(b) If to the Corporate Trustee, at 1100 N. Market Street,
Rodney Square North, Wilmington, Delaware 19890, Attention:
Corporate Trust Administration, or at such other address as shall
be designated by it in a written notice to the Company and each
Representative, with a copy to the Individual Trustee, at 1100 N.
Market Street, Rodney Square North, Wilmington, Delaware 19890,
or at such other address as shall be designated by him in a
written notice to the Company and each Representative; PROVIDED
that failure to send a copy of any notice to the Individual
Trustee shall not render any notice to the Collateral Trustees
ineffective; and
(c) If to any Representative, to it at the address specified
from time to time in the list provided by the Company to the
Collateral Trustees pursuant to Section 6.02 with copies to
whomever (other than the Company) is specified by the Company
pursuant to Section 6.02 as a Person to whom notice must be sent
under the Secured Indebtedness Agreements, PROVIDED that in the
case that no address is known for a Representative, notice shall
be given to it in the manner specified by the related Secured
Indebtedness Agreement, and, in the absence of any such specified
means of giving notice, by such notice in the national edition of
THE WALL STREET JOURNAL or as the Collateral Trustees shall
determine to be reasonable. For purposes of notice by
publication, one notice is sufficient and shall be deemed made on
the date of its publication.
All such notices, requests, demands and communications shall be deemed
to have been duly given or made, (i) when delivered by hand, (ii) five
Business Days after being deposited in the
<PAGE>
mail, postage prepaid, (iii) when telexed with answerback received,
(iv) when telecopied or (v) when published in THE WALL STREET JOURNAL
or such other publication; PROVIDED, HOWEVER, that any notice,
request, demand or other communication to the Collateral Trustees
shall not be effective until received by the Corporate Trustee and,
PROVIDED, FURTHER, that any notice to the Collateral Trustees from the
Company shall be signed by an Authorized Officer, unless otherwise
specifically set forth herein.
SECTION 9.04. HEADINGS. Section, subsection and other
headings used in this Agreement are for convenience only and
shall not affect the construction of this Agreement.
SECTION 9.05. SEVERABILITY. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall not
invalidate the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 9.06. TREATMENT OF PAYEE OR INDORSEE BY TRUSTEES.
(a) The Collateral Trustees may treat the registered Holder of any
registered note, and the payee or indorsee of any note or debenture
which is not registered, as the absolute owner thereof for all
purposes hereunder and shall not be affected by any notice to the
contrary, whether such promissory note or debenture shall be past due
or not.
(b) Any person, firm, corporation or other entity which
shall be designated as the duly authorized representative of one or
more Representatives to act as such in connection with any matters
pertaining to this Agreement or any Shared Collateral Document or the
Shared Collateral shall present to the Collateral Trustees such
documents, including, without limitation, opinions of counsel, as the
Collateral Trustees may reasonably require, in order to demonstrate to
the Collateral Trustees the authority of such person, firm,
corporation or other entity to act as the representative of such
Representatives.
SECTION 9.07. DEALINGS WITH THE COMPANY. (a) Upon any
application or demand by the Company to the Collateral Trustees to
take or permit any action under any of the provisions of this
Agreement, the Company shall (unless otherwise waived by the
Collateral Trustees in writing) furnish to the Collateral Trustees a
certificate signed by an Authorized Officer stating that all
conditions precedent, if any, provided for in this Agreement relating
to the proposed action have been complied with, except that in the
case of any such application or demand as to which the furnishing of
such documents is specifically required by any provision of this
Agreement relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Any opinion of counsel may be based, insofar as it
relates to factual matters which were not independently established by
counsel, upon a certificate of the Company furnished to the Collateral
Trustees.
<PAGE>
SECTION 9.08. CLAIMS AGAINST TRUSTEE. This Agreement is made
for the benefit of the Representatives on behalf of the Secured
Holders, and the Representatives may from time to time enforce their
rights as explicit beneficiaries hereunder.
SECTION 9.09. BINDING EFFECT. This Agreement shall be
binding upon and inure to the benefit of each of the parties hereto
and shall inure to the benefit of the Representatives on behalf of the
Secured Holders and their respective successors and assigns and
nothing herein or in any Shared Collateral Document is intended or
shall be construed to give any other Person any right, remedy or claim
under, to or in respect of this Agreement, any Shared Collateral
Document, the Shared Collateral, the Shared Collateral Account, the
Holders Collateral Account or the Collateral Trust Estate or any part
thereof.
SECTION 9.10. GOVERNING LAW. The provisions of this
Agreement creating a trust for the benefit of the Representatives on
behalf of the Secured Holders and setting forth the rights, duties,
obligations and responsibilities of the Collateral Trustees hereunder
shall be governed by and construed in accordance with the laws of the
State of Delaware, so long as Wilmington Trust Company shall serve as
Corporate Trustee hereunder. In all other respects, including, without
limitation, all matters governed by the Uniform Commercial Code, and
if Wilmington Trust Company shall cease to serve as Corporate Trustee
hereunder, this Agreement shall be governed by and construed in
accordance with the laws of the State of New York, except as otherwise
required by mandatory provisions of law.
SECTION 9.11. EFFECTIVENESS. This Agreement shall become
effective on the execution and delivery hereof and shall remain in
effect so long as the Collateral Trustees shall have any
obligations hereunder.
SECTION 9.12. REEXECUTION OF AGREEMENT. This Agreement shall
be reexecuted at any time and from time to time, at the request of the
Majority Representatives, with such changes in the form hereof
(including, without limitation, changes on the cover page and adding
supplemental signatures and notary statements) as may be necessary to
comply with the filing or recording requirements of any jurisdiction
where this Agreement is to be filed.
SECTION 9.13. EFFECT ON CREDIT AGREEMENT. Nothing in this
Agreement shall operate or be deemed to prevent any amendment,
modification or waiver of the Credit Agreement or other Loan Documents
(as defined in the Credit Agreement) by the parties thereto in
accordance with the terms thereof.
SECTION 9.14. COUNTERPARTS. This Agreement may be executed
in separate counterparts, each of which shall be an original and all
of which taken together shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the day and year
first above written.
CINCINNATI BELL INC.
By:________________________________
Title:
Corporate Trustee: WILMINGTON TRUST COMPANY
By:_________________________________
Title:
Individual Trustee: By:_________________________________
John M. Beeson
<PAGE>
SCHEDULE I
EXISTING NOTE AGREEMENTS
REQUIRED TO BE SECURED EQUALLY
AND RATABLY WITH THE ADVANCES
GOVERNING AGREEMENTS
1) Indenture, dated as of July 1, 1993 between Cincinnati Bell Inc. and The
Bank of New York, as Trustee (the "INDENTURE")
2) 71/4% Notes due June 15, 2023, issued pursuant to the Indenture.
<PAGE>
EXECUTION COPY
COLLATERAL TRUST AGREEMENT
dated November 9, 1999
among
CINCINNATI BELL INC.
and
WILMINGTON TRUST COMPANY,
as Corporate Trustee
and
JOHN M. BEESON,
as Individual Trustee
<PAGE>
TABLE OF CONTENTS
SECTION PAGE
PRELIMINARY STATEMENTS
ARTICLE 1 DEFINITIONS
1.01. Certain Defined Terms 2
1.02. Certain References 6
ARTICLE 2 CONFIRMATION AND CREATION OF SECURITY INTERESTS
2.01. Collateral Trust Estate 6
2.02. Holders Collateral Account 7
2.03. Security for Obligations 7
ARTICLE 3 COLLATERAL ACCOUNTS
3.01. Shared Collateral Account 8
3.02 Holders Collateral Account 9
ARTICLE 4 ACTIONABLE DEFAULTS; REMEDIES
4.01. Actionable Default Notice 9
4.02. Direction by Representatives 10
4.03. Right to Initiate Judicial Proceedings, Etc. 10
4.04. Remedies Not Exclusive 11
4.05. Waiver of Certain Rights 11
4.06. Limitation on Collateral Trustees'
Duties in Respect of Shared Collateral 12
4.07. Limitation by Law 12
4.08. Absolute Rights of Secured Holders and Representatives 12
4.09. Equal and Ratable Security 13
ARTICLE 5 APPLICATION OF PROCEEDS
5.01. Application of Proceeds 13
5.02. Application of Withheld Amounts 14
5.03. Release of Amounts in Collateral Accounts 15
5.04. Shared Collateral Account as Security 15
ARTICLE 6 AGREEMENTS WITH THE COLLATERAL TRUSTEE
6.01. Delivery of Agreements 16
6.02. Information as to Representatives 16
6.03. Compensation and Expenses 17
6.04. Stamp and Other Similar Taxes 17
6.05. Filing Fees, Excise Taxes, Etc. 17
6.06. Indemnification 17
6.07. Further Assurances 18
<PAGE>
ARTICLE 7 THE COLLATERAL TRUSTEE
7.01. Declaration of Trust 19
7.02. Exculpatory Provisions 19
7.03. Delegation of Duties 20
7.04. Reliance by Collateral Trustees 20
7.05. Limitations on Duties of the Trustees 21
7.06. Moneys to Be Held in Trust 21
7.07. Resignation and Removal of Collateral Trustees 22
7.08. Status of Successors to Trustee 23
7.09. Merger of the Corporate Trustee 23
7.10. Powers of Individual Trustee23
7.11. Additional Co-Trustees; Separate Trustees 24
7.12. Trustees Appointed Attorneys-in-Fact 25
7.13. Ordinary Care 26
ARTICLE 8 RELEASE OF SHARED COLLATERAL
8.01. Partial Release of Shared Collateral 26
8.02. Full Release of Shared Collateral Upon Satisfaction
of Certain Shared Collateral Obligations 27
8.03. Effect of Release of Shared Collateral 29
ARTICLE 9 MISCELLANEOUS
9.01. Amendments, Supplements and Waivers 29
9.02. Additional Actions of Representatives 30
9.03. Notices 30
9.04. Headings 31
9.05. Severability 31
9.06. Treatment of Payee or Indorsee by Trustees 31
9.07. Dealings with the Company 32
9.08. Claims Against Trustee 32
9.09. Binding Effect 32
9.10. Governing Law 32
9.11. Effectiveness 33
9.12. Reexecution of Agreement 33
9.13. Effect on Credit Agreement 33
9.14. Counterparts 33
<PAGE>
Schedule I Existing Notes Agreements
<TABLE>
<S> <C>
* Incremental Term B commitments for each individual lender are maintained
by the Administrative Agent.
* Incremental Term B commitments for each individual lender are maintained by the
Administrative Agent.
** Incremental Term B commitments for each individual lender are maintained by the
Administrative Agent.
** Incremental Term B commitments for each individual lender are maintained by the
Administrative Agent.
* Incremental Term B commitments for each individual lender are maintained by the
Administrative Agent.
** Incremental Term B commitments for each individual lender are maintained by the
Administrative Agent.
* Incremental Term B commitments for each individual lender are maintained by the
Administrative Agent.
* Incremental Term B commitments for each individual lender are maintained by the
Administrative Agent.
* Incremental Term B commitments for each individual lender are maintained by the
Administrative Agent.
</TABLE>
1 This date should be no earlier than five Business Days after the
delivery of this Assignment and
Acceptance to the Administrative Agent.
2 Required if the Assignee is an Eligible Assignee solely by reason of
clause (a)(iii) or (b) of the definition of "Eligible Assignee".
3 See footnote 8.
<PAGE>
APPENDIX C
BROADWING INC.
SHORT TERM INCENTIVE PLAN
(As amended and restated effective as of January 1, 2000)
1. PURPOSE.
1.1 The purpose of this plan, which shall be named the Broadwing Inc.
Short Term Incentive Plan (the "Plan") and the sponsor of which is the
Company (as defined in subsection 1.2 below), is to provide key executives of
the Company and its Subsidiaries (as defined in subsection 1.2 below) with
incentive compensation based upon the achievement of specific short term
performance goals.
1.2 For purposes of the Plan, "Company" refers to Cincinnati Bell Inc.
(doing business as Broadwing Inc.) or, if applicable, any corporate successor
to Cincinnati Bell Inc. that results from a merger or similar transaction.
Also, for purposes of the Plan, a "Subsidiary" refers to any corporation
which is part of an unbroken chain of corporations that begins with the
Company and in which each corporation in such chain, other than the Company,
has at least 80% of the total combined voting power of all classes of its
stock owned by the Company or one of the other corporations in such chain. In
addition, for purposes of the Plan, the Company's "Subsidiaries" refers to
each and every Subsidiary in the aggregate.
1.3 This document amends and restates the plan that was named the
Cincinnati Bell Inc. 1997 Short Term Incentive Plan (the "Prior Plan")
effective as of January 1, 2000 (the "Effective Amendment Date") and does not
affect any awards granted under the Prior Plan prior to such date. For all
purposes hereof, however, where the context permits, any reference to the
Plan contained herein refers to the Plan both as amended and restated by this
document and to the Prior Plan as it was in effect prior to the Effective
Amendment Date.
1.4 Further, this document makes certain technical, administrative, and
clarifying changes to the terms of the Plan document that both was signed
prior to the date this document is signed and indicated by its terms that it
amended and restated the Prior Plan as of January 1, 2000 (the "Initial
January 1, 2000 Amended Plan"), and hence this document constitutes an
amendment and restatement of the Initial January 1, 2000 Amended Plan and
shall for all purposes be deemed to be substituted for (and as if it had
always been) the Initial January 1, 2000 Amended Plan.
1.5 Notwithstanding any other provision of the Plan to the contrary, no
amount may be paid by reason of any award granted under the Plan on or after
the Effective Amendment Date unless and until the Plan, as amended and
restated effective as of January 1, 2000, has been approved by the favorable
vote of a majority of the outstanding stock of the Company present, or
represented, and entitled to vote at a meeting duly held in accordance with
the laws of the state in which the Company is incorporated (including
abstentions to the extent abstentions are counted as voting under the
applicable state law).
2. ADMINISTRATION.
2.1 The Plan shall be administered by the Compensation Committee (the
"Committee") of the Company's Board of Directors (the "Board"). The Committee
shall consist of at least three members of the Board (a) who are neither
officers nor employees of the Company and (b) who are "outside directors"
within the meaning of Section 162(m)(4)(C) (as in effect on the Effective
Amendment Date or as it may thereafter be amended or renumbered) of the
Internal Revenue Code of 1986, as amended (the "Code").
2.2 Subject to the limitations and other provisions of the Plan, the
Committee shall have the sole and complete authority (a) to select, from the
employees of the Company and its Subsidiaries who are part of the class of
employees eligible for awards under the Plan, those employees who shall
participate in the Plan (the "Participants"), (b) to make awards to each and
any Participant in such amounts as it shall determine and to cancel, suspend,
or amend any such awards (except that it may not amend any award that without
such amendment would not be subject to the deduction limits of Section
162(m)(1) (as in effect on the Effective Amendment Date or as it may
thereafter be amended or renumbered) of the Code if such amendment would
cause such award to be subject to such deduction limits), (c) to impose such
limitations,
1
<PAGE>
restrictions, and conditions upon awards as it shall deem appropriate, (d) to
interpret the Plan and to adopt, amend, and rescind administrative guidelines
and other rules and regulations relating to the Plan, (e) to appoint certain
employees of the Company and the Subsidiaries to act on its behalf as its
representatives (including for purposes of signing agreements which reflect
awards granted under the Plan), and (f) to make all other determinations and
to take all other actions necessary or advisable for the proper
administration of the Plan. The Committee's determinations on any matter
within its authority shall be conclusive and binding on the Company, its
Subsidiaries, all Participants, and all other parties.
2.3 Notwithstanding any other provision of the Plan which may be read to
the contrary, the Committee may set different terms and conditions applicable
to each and any award granted under the Plan, and there is no obligation that
the awards made with respect to any calendar year must contain the same terms
and conditions for all Participants or any group of Participants.
3. CLASS OF EMPLOYEES ELIGIBLE FOR PLAN.
Awards may be granted under the Plan with respect to any calendar year
to, and only to, key executives. For purposes of the Plan, a "key executive"
refers, with respect to any calendar year, to any person who during such year
is employed and classified as an employee by the Company or a Subsidiary of
the Company and whose regular and incentive compensation for such year is
principally established by the Committee under the policies of the Company
and its Subsidiaries. A key executive may but is not required to be a member
of the Board or the board of directors of any Subsidiary of the Company. As
is indicated in Section 2 above, the specific key executives to whom awards
will be granted under the Plan, and who thereby will be considered
Participants under the Plan, shall be chosen by the Committee in its sole
discretion.
4. AWARDS.
4.1 Any award granted under the Plan to a Participant shall be made with
respect to a specific calendar year (the award's "Award Year") and shall, if
certain performance goals that are made applicable to the award by the
Committee are met, provide for the payment to the Participant of a lump sum
cash amount in the first quarter of the next following calendar year (the
award's "Payment Year"). No more than one award may be granted to a
Participant under the Plan with respect to any calendar year. Also, the grant
of any award to a Participant under the Plan with respect to any calendar
year shall not entitle the Participant to an award for any subsequent
calendar year.
4.2 Subject to the other provisions of this Section 4, any award granted
under the Plan to a Participant shall specify a standard payment amount (the
award's "Standard Award Level") if certain but not all (or a certain level
but not the highest level) of the performance goals applicable to the award
are met and will also specify payment amounts more or less than the Standard
Award Level if additional or fewer (or if a higher or lower level) of the
performance goals applicable to the award are met. In no event may the amount
of the award exceed 200% of the award's Standard Award Level (or, if less,
$3,000,000).
4.3 The performance goals to be set by the Committee with respect to any
award granted under the Plan to a Participant may be based on, and only on,
one or more of the following criteria applicable to the Company and its
Subsidiaries: earnings before interest, taxes, depreciation, and
amortization; earnings per share; operating income; total shareholder
returns; cash generation targets; profit targets; revenue targets;
profitability targets as measured by return ratios; net income; return on
sales; return on assets; return on equity; and corporate performance
indicators (indices based on the level of certain services provided to
customers). The performance criteria that shall apply to any award granted
under the Plan to a Participant shall be criteria that will be able to be
objectively determined by the Committee, shall be measured or determined on
the basis of the award's Award Year, and shall be set by the Committee either
prior to the start of the award's Award Year or within the first 90 days of
the award's Award Year. In addition, any such performance criteria (a) may be
measured or determined for the Company, for any Subsidiary of the Company,
for the Company and all of the Company's Subsidiaries in the aggregate, or
for any group of
2
<PAGE>
corporations that are included in the entire group of the Company and its
Subsidiaries and (b) may be measured and determined in an absolute sense
and/or in comparison to the analogous performance criteria of other
publicly-traded companies (that are selected for such comparison purposes by
the Committee).
4.4 The Committee shall verify that the performance goals that must be
met for any specific payment to be made under an award granted under the Plan
have been met before such payment is permitted.
4.5 Notwithstanding the foregoing subsections of this Section 4 and
principally in order to permit the Committee to take into account, before the
amount otherwise payable under any award granted under the Plan is finalized,
its determination as to whether the Participant has met certain individual
goals that may have been set for him or her by the Committee or his or her
managers and its determination as to whether any extraordinary or
nonrecurring events in the operations of the Company and its Subsidiaries
have unduly affected the performance goals applicable to the award, the
Committee may, in its sole and unrestricted discretion, reduce the amount
payable under any award granted under the Plan below the amount that would
otherwise be payable under the award based solely on the performance goals
that are set by the Committee for the award pursuant to the provisions of
subsections 4.2 and 4.3 above. The discretion granted the Committee under
this subsection 4.5 shall not, however, allow the Committee to increase the
amount that would otherwise be payable under any award granted under the Plan
based solely on the performance goals that are set by the Committee for the
award pursuant to the provisions of subsections 4.2 and 4.3 above.
4.6 In addition, and notwithstanding the foregoing subsections of this
Section 4, if a situation that is described in any of the following
paragraphs of this subsection 4.6 applies to a Participant to whom an award
is granted under the Plan, then the amount that is payable under the award
shall be deemed to be equal to the product obtained by multiplying (a) the
amount that would otherwise be payable under the award based on all of the
foregoing subsections of this Section 4 (without regard to the provisions of
this subsection 4.6) by (b) a fraction, the numerator of which is equal to
the difference between the total number of days in the award's Award Year and
the number of days that are to be excluded from such fraction's numerator
pursuant to whichever of the following paragraphs of this subsection 4.6 are
applicable to the Participant and the denominator of which is the total
number of days in such Award Year.
(a) If the Participant becomes a key executive during but after the
first day of the award's Award Year, and/or if the Participant ceases to be a
key executive during but prior to the last day of the award's Award Year
because of his or her retirement or death, then the numerator of the fraction
referred to above shall exclude the number of the days in such Award Year
on which the Participant is not a key executive. For purposes of the Plan, a
Participant's "retirement" shall be deemed to have occurred only if the
Participant ceases to be an employee of the Company and its Subsidiaries
after either (a) both attaining age 60 and completing at least ten years of
continuous service as an employee with the Company and its Subsidiaries or
(b) completing at least 30 years of continuous service as an employee with
the Company and its Subsidiaries.
(b) If the Participant receives disability benefits under the
Company's Sickness and Accident Disability Benefits Plan, or any similar type
of disability plan of a Subsidiary of the Company, for more than three months
of the award's Award Year, the numerator of the fraction referred to above
shall exclude the number of the days in the period of such Award Year for
which benefits are payable to the Participant under such plan.
(c) If the Participant is on a leave of absence (approved by the
Companyor a Subsidiary of the Company) for more than three months of the
award's Award Year, the numerator of the fraction referred to above shall
exclude the number of the days in such Award Year on which the Participant is
on such leave of absence.
4.7 Further, and notwithstanding the foregoing subsections of this
Section 4, a Participant to whom an award has been granted under the Plan
shall not in any event be entitled to receive any amount by reason of the
award unless he or she both: (a) either (i) is an employee of the Company or
a Subsidiary of the Company on the last day of the award's Award Year or (ii)
terminated his or her employment with the Company and its Subsidiaries
because of his or her disability (for which the Participant will be entitled
to
3
<PAGE>
receive or has received disability benefits under the Company's Sickness and
Accident Disability Benefits Plan or any similar type of disability plan of a
Subsidiary of the Company), his or her retirement (as defined in subsection
4.6 above), or his or her death; and (b) has had at least three months of
active service for the Company and its Subsidiaries during the award's Award
Year (not including any time the Participant was absent from active service
during such Award Year by reason of any leave of absence or for any other
reason, including an absence on account of disability).
4.8 As is noted in subsection 4.2 above and notwithstanding any other
provision of the Plan to the contrary, the amount to be received by a
Participant by reason of any award that is granted to the Participant under
the Plan with respect to any calendar year shall not in any event exceed
$3,000,000.
4.9 Each award granted under the Plan shall be evidenced by a written
agreement, notice, or similar document that is provided in any manner by the
Committee or a representative thereof (including, if the Committee so
determines in its discretion, by a commonly accepted electronic notice),
which agreement, notice, or other document shall contain the terms and
conditions of such award (as set by the Committee).
4.10 If a Participant is entitled to receive a payment under any award
granted to him or her under the Plan by reason of the foregoing subsections
of this Section 4, but he or she dies before such payment is made to him or
her, then such payment shall be made to the Participant's beneficiary (as
determined under the provisions of subsection 4.11 below) at the same time as
such payment would be made if the Participant had not died. No beneficiary of
a Participant shall be entitled to any amount under the Plan that is greater
than the amount to which the Participant is entitled under the foregoing
subsections of this Section 4.
4.11 For purposes of the Plan, a Participant's "beneficiary" shall mean
the person(s), trust(s), and/or other entity(ies) which the Participant
designates as his or her beneficiary for the purposes of the Plan in any
writing or form which is signed by the Participant and acceptable to the
Committee, provided that such writing or form is filed with the Committee
prior to the Participant's death. The determination of a Participant's
beneficiary under the Plan shall also be subject to the following paragraphs
of this subsection 4.11:
(a) If the Participant names more than one person, trust, and/or
other entity as part of his or her beneficiary with respect to the Plan, each
person, trust, and other entity designated as part of the Participant's
beneficiary shall be entitled to an equal share of any amount payable to the
Participant's beneficiary under any award granted under the Plan (unless the
Participant otherwise designates in the writing or form by which he or she
names his or her beneficiary for purposes of the Plan).
(b) The Participant may revoke or change his or her beneficiary
designation by signing and filing with the Committee at any time prior to
his or her death a new writing or form acceptable to the Committee.
(c) Notwithstanding the foregoing provisions of this subsection 4.11,
if no beneficiary designation of the Participant has been filed with the
Committee prior to his or her death, or if the Committee in good faith
determines either that any beneficiary designation made by the Participant
prior to his or her death is for any reason not valid or enforceable under
applicable law or that there is a valid question as to the legal right of
the designated beneficiary to receive the applicable payment, then the
applicable payment shall be paid to the estate of the Participant (in which
case none of the Company, any of its Subsidiaries, the Committee, or any of
their personnel, agents, or representatives shall have any further liability
to anyone with respect to such payment).
5. NONASSIGNABILITY OF AWARDS.
Except as may be required by applicable law, no award granted under the
Plan may be assigned, transferred, pledged, or otherwise encumbered by a
Participant otherwise than by designation of a beneficiary under the
provisions of subsections 4.10 and 4.11 above.
4
<PAGE>
6. DEFERRALS OF AWARD PAYMENTS.
The Committee may, in its discretion, permit Participants to elect to
defer the payment otherwise required under any award granted under the Plan
in accordance with such terms and conditions as the Committee shall establish.
7. PROVISIONS UPON CHANGE IN CONTROL.
In the event of a Change in Control (as defined in subsection 7.2 below)
occurring on or after the Effective Amendment Date, the provisions of this
Section 7 shall supersede any conflicting provisions of the Plan.
7.1 In the event of a Change in Control, the amount payable under any
award that was granted under the Plan with respect to the calendar year that
immediately precedes the calendar year in which the Change in Control occurs
shall, if such amount has not yet been paid (or if such amount has not been
determined by the Committee) by the date of the Change in Control, be paid
within five business days after the date of such Change in Control (and, if
the amount of such award has not yet been determined by the Committee by the
date of the Change in Control, its amount shall be deemed to be equal to the
award's Standard Award Level). Further, in the event of a Change in Control,
a pro rata portion of any award granted under the Plan with respect to the
calendar year in which the Change in Control occurs shall be paid within five
business days after the date of the Change in Control, with the pro rata
portion of such award being deemed to be equal to the full present value of
such award's Standard Award Level (determined as of the date of payment under
such interest rate and other actuarial assumptions as are reasonably adopted
by the Committee) multiplied by a fraction, the numerator of which shall
equal the number of full and partial months (including the month in which the
Change in Control occurs) since the first day of the calendar year in which
the Change in Control occurs and the denominator of which shall equal twelve.
7.2 For the purpose of this Section 7, a "Change in Control" of the
Company means and shall be deemed to have occurred if, on or after the
Effective Amendment Date:
(a) A tender offer shall be made and consummated for the ownership of
30% or more of the outstanding voting securities of the Company;
(b) The Company shall be merged or consolidated with another
corporation and as a result of such merger or consolidation less than 75% of
the outstanding voting securities of the surviving or resulting corporation
shall be owned in the aggregate by the former shareholders of the Company,
other than affiliates (within the meaning of the Securities Exchange Act of
1934, as amended (the "1934 Act")) of any party to such merger or
consolidation, as the same shall have existed immediately prior to such
merger or consolidation;
(c) The Company shall sell substantially all of its assets to another
corporation which is not a Subsidiary whose stock is wholly owned by the
Company;
(d) A person within the meaning of Section 3(a)(9) or of Section
13(d)(3) (as in effect on the Effective Amendment Date) of the 1934 Act shall
acquire 20% or more of the outstanding voting securities of the Company
(whether directly, indirectly, beneficially, or of record), or a person
within the meaning of Section 3(a)(9) or Section 13(d)(3) (as in effect on
the Effective Amendment Date) of the 1934 Act controls in any manner the
election of a majority of the directors of the Company; or
(e) Within any period of two consecutive years ending on or after the
Effective Amendment Date, individuals who at the beginning of such period
constitute the Board cease for any reason to constitute at least a majority
thereof, unless the election of each director on the Board who was not a
director on the Board at the beginning of such period has been approved in
advance by directors on the Board representing at least two-thirds of the
directors on the Board then in office who were directors on the Board at the
beginning of such period.
For purposes hereof, ownership of voting securities shall take into account
and shall include ownership as determined by applying the provisions of Rule
13d-3(d)(1)(i) (as in effect on the Effective Amendment Date) issued pursuant
to the 1934 Act.
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7.3 The provisions of this Section 7 may not be amended with respect to
any award granted to a Participant on or subsequent to the date such award is
granted if such amendment would be materially adverse to any Participant
without the consent of such Participant; provided, however, the Board may
still then make, without the Participant's consent, minor or administrative
changes to this Section 7 or changes to this Section 7 to conform to
applicable legal requirements that will apply to such award.
8. ADJUSTMENTS.
The Committee shall be authorized to correct any defect, supply any
omission, or reconcile any inconsistency in the Plan or any award granted
under the Plan in the manner and to the extent it shall determine is needed
to reflect the intended provisions of the Plan or that award or to meet any
law that is applicable to the Plan.
9. RIGHTS OF BOARD OF DIRECTORS.
9.1 Notwithstanding any other provision hereof to the contrary, the
Board may amend, alter, or discontinue the Plan or any portion or provision
thereof at any time, provided that no such action shall materially impair the
rights of a Participant with respect to a previously granted Plan award
without the Participant's consent. Notwithstanding the foregoing, the Board
may not in any event, without the approval of the Company's shareholders,
adopt an amendment to the Plan which shall: (a) change the class of persons
eligible to become Participants under the Plan; (b) make any change in the
Plan that is required by Section 162(m) (as in effect on the Effective
Amendment Date or as it may thereafter be amended or renumbered) of the Code
to be approved by the Company's shareholders in order to permit the Committee
the ability to have the amounts payable pursuant to any awards granted by it
under the Plan not be subject to the deduction limits of Section 162(m)(1)
(as in effect on the Effective Amendment Date or as it may thereafter be
amended or renumbered) of the Code by reason of Section 162(m)(4)(C) (as in
effect on the Effective Amendment Date or as it may thereafter be amended or
renumbered) of the Code; or (c) make any other change in the Plan that is
required by applicable law to be approved by the Company's shareholders in
order to be effective.
9.2 If approval of the Company's shareholders is required to a Plan
amendment pursuant to the provisions of subsection 9.1 above, then such
approval must be by the favorable vote of a majority of the outstanding stock
of the Company present, or represented, and entitled to vote at a meeting
duly held in accordance with the laws of the state in which the Company is
incorporated (or, to the extent applicable law requires a greater degree or
level of approval by the Company's shareholders in order for such amendment
to become effective, such approval must comply with such required degree or
level of approval).
10. WITHHOLDING.
The Company shall retain from the payment of any award granted under the
Plan a sufficient amount of cash applicable to the award to satisfy all
withholding tax obligations that apply to the payment.
11. MISCELLANEOUS.
11.1 Nothing contained in the Plan or any award granted under the Plan
shall confer on any Participant any right to be continued in the employment
of the Company or any Subsidiary of the Company or interfere in any way with
the right of the Company or any Subsidiary to terminate the Participant's
employment at any time and in the same manner as though the Plan and any
awards granted under the Plan were not in effect.
11.2 All payments required to be made under awards granted under the
Plan shall be made by the Company out of its general assets. In this regard,
the Plan shall not be funded, and the Company shall not be required to
segregate any assets to reflect any awards granted under the Plan. Any
liability of the Company to any person with respect to any award granted
under the Plan shall be based solely upon the contractual obligations that
apply to such award, and no such liability shall be deemed to be secured by
any pledge of or other lien or encumbrance on any property of the Company.
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11.3 Any payments or other benefits provided to a Participant with
respect to an award granted under the Plan shall not be deemed a part of the
Participant's compensation for purposes of any termination or severance pay
plan, or any other pension, profit sharing, or other benefit plan, of the
Company or any Subsidiary of the Company unless such plan expressly or
clearly indicates that the payments or other benefits provided under an award
granted under the Plan shall be considered part of the Participant's
compensation for purposes of such plan or unless applicable law otherwise
requires.
11.4 The Plan shall be subject to and construed in accordance with the
laws of the State of Ohio.
IN ORDER TO EFFECT THE PROVISIONS OF THIS PLAN DOCUMENT, Cincinnati Bell
Inc. (doing business as Broadwing Inc.), the sponsor of the Plan, has caused
its name to be subscribed to this Plan document this day of, 2000, to be
effective as of January 1, 2000.
CINCINNATI BELL INC.
(DOING BUSINESS AS BROADWING INC.)
By:
-----------------------------------
Title:
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APPENDIX B
BROADWING INC.
1997 LONG TERM INCENTIVE PLAN
(As amended and restated effective as of January 1, 2000)
1. PURPOSE.
1.1 The purpose of this plan, which shall be named the Broadwing Inc. 1997
Long Term Incentive Plan (the "Plan") and the sponsor of which is the Company
(as defined in subsection 1.3 below), is to further the long term growth of the
Company by offering competitive incentive compensation related to long term
performance goals to those salaried employees of the Company and its
Subsidiaries (as defined in subsection 1.3 below) who will be largely
responsible for planning and directing such growth.
1.2 The Plan is also intended as a means of reinforcing a commonality of
interest between the Company's shareholders and the employees who are
participating in the Plan and as an aid to the Company and its Subsidiaries in
attracting and retaining employees of outstanding abilities and specialized
skills.
1.3 For purposes of the Plan, "Company" refers to Cincinnati Bell Inc.
(doing business as Broadwing Inc.) or, if applicable, any corporate successor
to Cincinnati Bell Inc. that results from a merger or similar transaction.
Also, for purposes of the Plan, a "Subsidiary" refers to any corporation
which is part of an unbroken chain of corporations that begins with the
Company and in which each corporation in such chain, other than the Company,
has at least 80% of the total combined voting power of all classes of its
stock owned by the Company or one of the other corporations in such chain. In
addition, for purposes of the Plan, the Company's "Subsidiaries" refers to
each and every Subsidiary in the aggregate.
1.4 This document amends and restates the plan that was named the
Cincinnati Bell Inc. 1997 Long Term Incentive Plan (the "Prior Plan")
effective as of January 1, 2000 (the "Effective Amendment Date") and does not
affect any awards granted under the Prior Plan prior to such date. For all
purposes hereof, however, where the context permits, any reference to the
Plan contained herein refers to the Plan both as amended and restated by this
document and to the Prior Plan as it was in effect prior to the Effective
Amendment Date.
1.5 Further, this document makes certain technical, administrative, and
clarifying changes to the terms of the Plan document that both was signed
prior to the date this document is signed and indicated by its terms that it
amended and restated the Prior Plan as of January 1, 2000 (the "Initial
January 1, 2000 Amended Plan"), and hence this document constitutes an
amendment and restatement of the Initial January 1, 2000 Amended Plan and
shall for all purposes be deemed to be substituted for (and as if it had
always been) the Initial January 1, 2000 Amended Plan.
1.6 Notwithstanding any other provision of the Plan to the contrary, no
amount may be paid by reason of any award granted under the Plan on or after
the Effective Amendment Date unless and until the Plan, as amended and
restated effective as of January 1, 2000, has been approved by the favorable
vote of a majority of the outstanding stock of the Company present, or
represented, and entitled to vote at a meeting duly held in accordance with
the laws of the state in which the Company is incorporated (including
abstentions to the extent abstentions are counted as voting under the
applicable state law).
2. ADMINISTRATION.
2.1 The Plan shall be administered by the Compensation Committee (the
"Committee") of the Company's Board of Directors (the "Board"). The Committee
shall consist of at least three members of the Board (a) who are neither
officers nor employees of the Company, (b) who are "Non-Employee Directors"
within the meaning of Rule 16b-3 (as in effect on the Effective Amendment
Date or as it may thereafter be amended or renumbered) as issued pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and (c) who
are "outside directors" within the meaning of Section 162(m)(4)(C) (as in
effect on the Effective Amendment Date or as it may thereafter be amended or
renumbered) of the Internal Revenue Code of 1986, as amended (the "Code").
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2.2 Subject to the limitations and other provisions of the Plan, the
Committee shall have the sole and complete authority (a) to select, from the
employees of the Company and its Subsidiaries who are part of the class of
employees eligible for awards under the Plan, those employees who shall
participate in the Plan (the "Participants"), (b) to make awards to each and
any Participant in such forms and amounts as it shall determine and to
cancel, suspend, or amend any such awards (except that it may not amend any
award that without such amendment would not be subject to the deduction
limits of Section 162(m)(1) (as in effect on the Effective Amendment Date or
as it may thereafter be amended or renumbered) of the Code if such amendment
would cause such award to be subject to such deduction limits), (c) to impose
such limitations, restrictions, and conditions upon awards as it shall deem
appropriate, (d) to interpret the Plan and to adopt, amend, and rescind
administrative guidelines and other rules and regulations relating to the
Plan, (e) to appoint certain employees of the Company and its Subsidiaries to
act on its behalf as its representatives (including for purposes of signing
agreements which reflect awards granted under the Plan), and (f) to make all
other determinations and to take all other actions necessary or advisable for
the proper administration of the Plan. The Committee's determinations on any
matter within its authority shall be conclusive and binding on the Company,
its Subsidiaries, all Participants, and all other parties.
2.3 Notwithstanding any other provision of the Plan which may be read to
the contrary, the Committee may set different terms and conditions applicable
to each and any award granted under the Plan, even when such awards are of
the same type and even when issued to the same Participant. In addition, and
also notwithstanding any other provision of the Plan which may be read to the
contrary, the Committee may grant to any Participant for any period any
specific type of award available under the Plan without being required to
grant to the Participant for such period any other type of award that may be
available under the Plan.
2.4 The Committee may delegate to one or more Senior Managers of the
Company and its Subsidiaries or to one or more committees of Senior Managers
of the Company and its Subsidiaries its right to make awards to employees who
are part of the class of employees eligible for awards under the Plan but who
are not officers or directors of the Company, are not otherwise considered by
the Company to be "officers" of the Company within the meaning of Section 16
(as in effect on the Effective Amendment Date or as it may thereafter be
amended or renumbered) of the 1934 Act (or other persons who are subject to
the requirements of such Section 16 of the 1934 Act), and are not "covered
employees" within the meaning of Section 162(m)(3) (as in effect on the
Effective Amendment Date or as it may thereafter be amended or renumbered) of
the Code. To the extent the Committee's right to make awards to such
employees is so delegated, then any reference to the Committee in the other
provisions of the Plan that concern the making of awards to such employees,
the terms of such awards, and the verification that all conditions applicable
to the payment under or the exercise of such awards have been met shall be
read to refer to the Senior Managers or committees of Senior Managers to whom
the authority to make such awards is delegated as if they were the Committee.
3. CLASS OF EMPLOYEES ELIGIBLE FOR PLAN.
Awards may be granted under the Plan to, and only to, salaried employees.
For purposes of the Plan, a "salaried employee" refers to any person who is
employed and classified as an employee by the Company or a Subsidiary of the
Company, whose pay is based on a monthly or annual rate, and whose position is
not subject to automatic wage progression. As is indicated in Section 2 above,
the specific salaried employees to whom awards will be granted under the Plan,
and who thereby will be considered Participants under the Plan, shall be chosen
by the Committee in its sole discretion (or, with respect to salaried employees
who are not officers or directors of the Company and as to whom the right to
grant awards to under the Plan may be delegated to any Senior Managers or
committees of Senior Managers under the provisions of subsection 2.4 above, by
any Senior Managers or committees of Senior Managers who are delegated by the
Committee the right to select such persons for Plan awards).
4. TYPES OF AWARDS.
4.1 Awards under the Plan may be granted in any one or more of the
following forms, all of which shall be based on common shares of the Company,
$0.01 par value ("Common Shares"): (a) stock options,
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including incentive stock options within the meaning of Section 422 (as in
effect on the Effective Amendment Date or as it may thereafter be amended or
renumbered) of the Code ("ISOs"), (b) stock appreciation rights ("SARs"), (c)
restricted stock, and (d) performance shares and/or performance units. The
subsequent provisions of the Plan provide certain rules and conditions that
apply to each of such award forms.
4.2 For purposes hereof, an award granted under the Plan shall be deemed
to be based on Common Shares if, and only if, the award provides for a
payment (upon, if applicable, its exercise or the meeting of certain
performance goals or other criteria or conditions) of a certain number of
Common Shares or of an amount determined with reference to the fair market
value (or the change in fair market value over a period of time) of Common
Shares.
4.3 Further, in the discretion of the Committee, payments may also be
made in connection with any award granted under the Plan of dividends payable
with respect to the Common Shares on which the award is based, of an amount
equivalent to such dividends, or of an amount determined by applying an
interest rate or rates to the principal amount of the award.
4.4 No awards shall be granted under the Plan after April 27, 2007 (the
"Plan's Grant Termination Date"), which is the last day of the ten year
period that began on the date that the Plan was originally approved by the
shareholders of the Company.
5. SHARES SUBJECT TO PLAN AWARDS.
5.1 Subject to the provisions of subsections 5.2 through 5.5 below and
Section 14 below, the following limits shall apply to the grant of awards
under the Plan:
(a) The maximum number of Common Shares on which awards granted under
the Plan to all Participants during the period (the "Remaining Period of the
Plan") which begins on the Effective Amendment Date and ends on the Plan's
Grant Termination Date may be based shall be equal to 50,000,000 Common
Shares (which number of shares is substantially equal to the limit on the
maximum number of Common Shares that would apply during the Remaining Period
of the Plan if both the terms of the Plan as originally adopted and the
number of the Common Shares outstanding as of the Effective Amendment Date
never changed);
(b) The maximum number of Common Shares on which awards granted under
the Plan to all Participants during each calendar year that begins in the
Remaining Period of the Plan may be based shall be equal to the sum of: (1)
4,200,000 (which number is approximately equal to 2% of the number of
Common Shares which are outstanding as of the Effective Amendment Date); and
(2) the difference between the maximum number of Common Shares on which
awards could have been granted in the immediately preceding calendar year
under the terms of the Plan then in effect and the number of Common Shares on
which awards are actually granted in such immediately preceding calendar year
under the Plan;
(c) The maximum number of Common Shares on which awards under the
Plan to any Participant during each and any calendar year that begins in the
Remaining Period of the Plan may be based shall be 1,000,000 Common Shares;
and
(d) The maximum number of Common Shares on which ISOs granted under
the Plan to all Participants during the Remaining Period of the Plan may be
based shall be equal to 12,500,000 Common Shares (which number is equal to
25% of the maximum number of Common Shares on which awards granted under the
Plan to all Participants during the Remaining Period of the Plan may be
based).
5.2 Any limit on the maximum number of Common Shares on which awards
granted under the Plan may be based that is set forth in subsection 5.1 above
or elsewhere in the Plan, regardless of whether it is a limit applicable to
all Participants or a limit as to any Participant and regardless of whether
it is a limit applicable to the Remaining Period of the Plan or a limit as to
a more limited period, shall apply both (a) to each specific form of award
available under the Plan and (b) also in the aggregate to all possible forms
of
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awards that can be granted under the Plan, except to the extent the provision
of the Plan that sets forth such limit expressly indicates that it applies to
a specific form of award. (For example, the limit set forth in subsection
5.1(c) above as to the maximum number of Common Shares on the basis of which
awards may be granted under the Plan to any Participant during any calendar
year that begins in the Remaining Period of the Plan shall be a limit that
applies to any specific form of award that may be granted under the Plan to a
Participant as well as an aggregate limit on all forms of awards that may be
granted to the Participant under the Plan.)
5.3 Any Common Shares that are deliverable under any award granted under
the Plan may consist, in whole or in part, of Common Shares that are
authorized but unissued or Common Shares that are treasury shares.
5.4 If any award or portion of an award granted under the Plan on or
after the Effective Amendment Date is forfeited, expires, or in any other
manner terminates without the payment of Common Shares or any other amount or
consideration, the Common Shares on which such award or portion of an award
was based shall again be available to be the basis on which other awards may
be granted under the Plan but shall be counted only once in determining
whether any of the limits set forth in subsection 5.1 above (except for the
limit set forth in paragraph (c) of subsection 5.1 above) is met. However, if
any award or portion of an award granted under the Plan prior to the
Effective Amendment Date is forfeited, expires, or otherwise terminates on or
after the Effective Amendment Date without the payment of Common Shares or
any other amount or consideration, the Common Shares on which such award or
portion of an award was based shall not again be available to be the basis on
which other awards may be granted under the Plan.
5.5 If, after the Effective Amendment Date, any corporation is acquired
by the Company and the Company assumes certain stock-based awards previously
granted by such acquired corporation or issues new awards in substitution for
such previously-granted awards of the acquired corporation, then, except to
the extent expressly provided by action of the Board, the awards so assumed
or issued by the Company shall not be deemed to be granted under the Plan and
any Common Shares that are the basis of such assumed or substituted awards
shall not affect the number of Common Shares on which awards granted under
the Plan can be based.
6. STOCK OPTION AWARDS.
Any awards granted under the Plan in the form of stock options shall be
subject to the following terms and conditions:
6.1 The Committee may, from time to time and subject to the provisions
of the Plan and such other terms and conditions as the Committee may
prescribe, grant to any Participant options to purchase Common Shares, which
options may be ISOs, options that are not ISOs, or both ISOs and options that
are not ISOs.
6.2 Subject to the other provisions of this Section 6, the terms and
conditions of any stock option granted under the Plan shall be determined by
the Committee. The grant of an option shall be evidenced by a written
agreement signed by the Committee or a representative thereof, which
agreement shall contain the terms and conditions of the option (as set by the
Committee).
6.3 The purchase price per Common Share under any stock option granted
under the Plan shall be determined by the Committee but shall not be less
than 100% of the fair market value of a Common Share on the date the option
is granted.
6.4 Unless otherwise prescribed by the Committee, any stock option
granted under the Plan shall expire and no longer be exercisable ten years
after the date on which it is granted and shall be exercisable in whole or in
part after but not before the expiration of one year after the date on which
it is granted.
6.5 Subject to the other provisions of the Plan, the Committee shall
establish procedures governing the exercise of stock options granted under
the Plan (and shall require under such procedures, with respect to each
exercise of a stock option, that written notice of the exercise be given and
that the purchase price for the Common Shares being purchased upon the
exercise and any taxes required to be withheld upon the
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exercise be paid in full at the time of the exercise). As soon as
administratively practical after the receipt of the written notice and full
payment applicable to the exercise of any stock option granted under the
Plan, the Company shall deliver to the applicable Participant (or such other
person who is exercising the stock option) a certificate or certificates
representing the acquired Common Shares.
6.6 To the extent that the aggregate fair market value of Common Shares
with respect to which stock options intended to be ISOs are exercisable for
the first time by any Participant during any calendar year (under the Plan
and all other plans of the Company and its Subsidiaries) exceeds $100,000
(or, if such limit amount is amended under Section 422 of the Code, such
amended limit amount), such stock options shall be treated as if they were
not ISOs. The rule set forth in the immediately preceding sentence shall be
applied by taking options into account in the order in which they were
granted. Also, for purposes of the rules of this subsection 6.6, the fair
market value of any Common Shares which are subject to a stock option shall
be determined as of the date the option is granted.
6.7 Notwithstanding any other provision of the Plan to the contrary, no
person shall be eligible for or granted an ISO under the Plan if, at the time
the applicable ISO is otherwise to be granted, the person owns more than 10%
of the total combined voting power of all classes of stock of the Company or
any of its Subsidiaries. For purposes hereof, a person shall be considered as
owning the stock owned, directly or indirectly, by or for his or her brothers
or sisters (whether by the whole or half blood), spouse, ancestors, and
lineal descendants, and stock owned, directly or indirectly, by or for a
corporation, partnership, estate, or trust shall be considered as being owned
proportionately by or for its shareholders, partners, or beneficiaries.
7. STOCK APPRECIATION RIGHT AWARDS.
Any awards granted under the Plan in the form of SARs shall be subject to
the following terms and conditions:
7.1 A SAR may be granted free-standing, in relation to a new stock
option being granted at the same time as the SAR is granted, or in relation
to a stock option both which is not an ISO and which has been granted prior
to the grant of the SAR. The SAR shall represent the right to receive payment
of a sum not to exceed the amount, if any, by which the fair market value
(determined as of the date on which the SAR is exercised) of the Common
Shares with respect to which the SAR is based exceeds the grant price of the
SAR (as is determined under the provisions of subsection 7.2 below).
7.2 The grant price of a SAR shall not be less than the fair market
value (determined as of the date on which the SAR is granted) of the Common
Shares with respect to which the SAR is based. Subject to the immediately
preceding sentence, the grant price, and the other terms and conditions of a
SAR, shall be determined by the Committee.
7.3 A SAR granted under the Plan shall be evidenced by a written
agreement signed by the Committee or a representative thereof, which
agreement shall contain the terms and conditions of the SAR (as set by the
Committee).
7.4 Subject to the other provisions of the Plan, the Committee shall
establish procedures governing the exercise of SARs granted under the Plan
(and shall require under such procedures, with respect to each exercise of a
SAR, that written notice of the exercise be given and that any taxes required
to be withheld upon the exercise be paid in full at the time of the
exercise). Payment of the amount to which a Participant is entitled upon the
exercise of a SAR shall be made in cash, Common Shares or other property, or
a combination thereof, as the Committee shall determine and permit in its
issuance of the award. To the extent that payment is made in Common Shares or
other property, the Common Shares or other property shall be valued at its
fair market value on the date of exercise of the SAR.
7.5 Unless otherwise determined by the Committee, any stock option as to
which a SAR is related shall no longer be exercisable to the extent the SAR
has been exercised and the exercise of a stock option shall cancel any
related SAR to the extent of such exercise.
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8. RESTRICTED STOCK AWARDS.
Any awards granted under the Plan in the form of restricted stock shall
be subject to the following terms and conditions:
8.1 Restricted stock shall constitute Common Shares that may not be
disposed of by the Participant to whom the restricted stock is granted until
certain restrictions and conditions established by the Committee lapse. Such
restrictions, and any other conditions of the restricted stock, shall be set
forth in a written agreement signed by the Committee or a representative
thereof, which agreement shall be referenced on the certificates representing
the Common Shares that constitute such restricted stock.
8.2 It is anticipated that the only restrictions to be set by the
Committee as to the ability of a Participant to dispose of any restricted
stock granted to him or her under the Plan (and/or as to any dividends or
other rights issued with respect to such stock) shall require the Participant
to be an employee of the Company and/or a Subsidiary of the Company for a
specified continuous period of time or to terminate employment with the
Company and its Subsidiaries in special circumstances (such as, as may be set
by e Committee, the Participant's retirement, disability, or death). However,
the Committee may, in its sole discretion, apply other types of restrictions
as to the ability of the Participant to dispose of any restricted stock
granted to him or her under the Plan (and/or as to any dividends or other
rights issued with respect to such stock), including but not limited to the
meeting of certain performance goals.
8.3 Subject to the other provisions of the Plan, the Committee shall
establish procedures that require any taxes required to be withheld upon the
lapse of any restrictions applicable to any restricted stock granted under
the Plan (and, if applicable, any minimum purchase price for the restricted
stock that may be required by applicable law) to be paid in full.
8.4 Any Participant who has been granted restricted stock under the Plan
shall have, during the period in which restrictions on his or her ability to
dispose of such stock apply, all of the rights of a shareholder of the
Company with respect to the Common Shares awarded as restricted stock (other
than the right to dispose of such shares), including the right to vote the
shares and the right to receive any cash or stock dividends, unless the
Committee shall otherwise determine in the grant of the restricted stock and
except as may otherwise be provided in subsection 8.5 below.
8.5 Any Common Shares issued with respect to restricted stock as a
result of a stock split, stock dividend, or similar transaction shall be
restricted to the same extent as the applicable restricted stock, unless
otherwise determined by the Committee.
8.6 If a Participant to whom restricted stock has been granted under the
Plan terminates his or her employment with the Company and its Subsidiaries
during the period in which restrictions on his or her ability to dispose of
such stock apply (and prior to the satisfaction of the requirements
applicable to such restrictions), such restricted stock shall be forfeited
(subject to such exceptions, if any, as are authorized by the Committee as to
a termination of employment that reflects a retirement, disability, death, or
other special circumstances).
9. PERFORMANCE SHARE AND UNIT AWARDS.
Any awards granted under the Plan in the form of performance shares
and/or performance units (collectively, "Performance Awards") shall be
subject to the following terms and conditions:
9.1 Any award to a Participant of a performance share shall provide that
he or she will receive one Common Share if certain performance goals that are
set by the Committee (and any other conditions, which may include a
requirement that the Participant be an employee of the Company and/or a
Subsidiary of the Company for a specified continuous period of time, that are
set by the Committee) are met.
9.2 Any award to a Participant of a performance unit shall provide that
he or she will receive an amount that is equal to a percent, not more than
200%, of the fair market value of one Common Share on the date such amount
becomes payable under the terms of the unit (or is equal to a percent, not
more than 200%, of the increase in the fair market value of one Common Share
from the date of the grant of the unit to the date such amount becomes
payable under the terms of the unit) if certain performance goals that are
6
<PAGE>
set by the Committee (and any other conditions, which may include a
requirement that the Participant be an employee of the Company and/or a
Subsidiary of the Company for a specified continuous period of time, that are
set by the Committee) are met.
9.3 The Committee may, in its discretion and on such conditions as the
Committee may determine, grant more than one performance share and/or
performance unit to any Participant under the same award and provide that the
satisfaction of certain but not all (or a certain level but not the highest
level) of the performance goals (and/or other conditions) set by the
Committee with respect to such award will permit the Participant to receive a
portion, but not the maximum amount, of the Common Shares or the amounts that
would be payable under such award if all (or the highest level) of the
performance goals (and/or the other conditions) applicable to such award had
been met.
9.4 The Committee may also, in its discretion and on such conditions as
the Committee may determine, provide that any Performance Award may contain
the right to receive dividends payable with respect to the Common Shares on
which the award is based, an amount equivalent to such dividends, or an
amount determined by applying an interest rate or rates to the principal
amount of the award (and/or with respect to previously credited dividends,
dividend equivalent amounts, or interest amounts).
9.5 Each Performance Award granted under the Plan shall be evidenced by
a written agreement signed by the Committee or a representative thereof,
which agreement shall contain the terms and conditions of such award (as set
by the Committee).
9.6 Subject to the other provisions of the Plan, the Committee shall
establish procedures governing the payment of Performance Awards granted
under the Plan (and shall require under such procedures that any taxes
required to be withheld upon such payment be paid in full). Payment of any
amount to which a Participant is entitled under any Performance Award granted
under the Plan may be made in a lump sum or in installments, and, to the
extent a performance unit is involved, in cash, Common Shares or other
property, or a combination thereof, as the Committee shall determine in its
issuance of the award. Payment of any amount to which a Participant is
entitled under any performance share shall be made in Common Shares. To the
extent that payment is made in Common Shares or other property, the Common
Shares or other property shall be valued at its fair market value on the date
as of which the payment is determined.
10. FAIR MARKET VALUE OF COMMON SHARES AND PERFORMANCE GOALS.
10.1 For purposes of the Plan, the fair market value of a Common Share
on any date (for purposes only of this subsection 10.1, the "subject date")
shall be deemed to be the average of the high and low per share sale prices
of the Common Shares on the New York Stock Exchange on the subject date (or,
if the Common Shares were not traded on such exchange on the subject date,
the average of the high and low per share sale prices of the Common Shares on
the New York Stock Exchange on the latest preceding date on which the Common
Shares were traded); except that, if the Common Shares are not listed on the
New York Stock Exchange on the subject date (or, if the subject date is not a
business day of such exchange, on the next preceding business day of such
exchange), then the fair market value of a Common Share on the subject date
shall be determined by the Committee in good faith pursuant to methods and
procedures established by the Committee.
10.2 To the extent the meeting of performance goals set by the Committee
may be a condition to the exercise of or payment under any award granted
under the Plan, the Committee may base such performance goals on, and only
on, one or more of the following criteria applicable to the Company and its
Subsidiaries: earnings before interest, taxes, depreciation, and
amortization; earnings per share; operating income; total shareholder
returns; cash generation targets; profit targets; revenue targets;
profitability targets as measured by return ratios; net income; return on
sales; return on assets; return on equity; and corporate performance
indicators (indices based on the level of certain services provided to
customers). Any such performance criteria shall be measured or determined on
the basis of a period of such duration (a "Performance Period"), which period
may be of any length, as is set by the Committee either prior to the start of
such period or within its first 90 days (provided that the performance
criteria is not in any event set after 25% or more of the applicable
Performance Period has elapsed) and shall be criteria that will be able to be
objectively determined by the Committee. In addition, any such performance
criteria (a) may be
7
<PAGE>
measured or determined for the Company, for any Subsidiary of the Company,
for the Company and all of the Company's Subsidiaries in the aggregate, or
for any group of corporations that are included in the entire group of the
Company and its Subsidiaries and (b) may be measured and determined in an
absolute sense and/or in comparison to the analogous performance criteria of
other publicly-traded companies (that are selected for such comparison
purposes by the Committee).
10.3 Further, to the extent any payment under, or any exercise of, an
award granted under the Plan requires the meeting of any performance goals
and/or any other conditions that have been set by the Committee, the
Committee shall verify that such performance goals and/or such other
conditions have been met before such payment or exercise is permitted.
11. NONASSIGNABILITY OF AWARDS.
Except as may be required by applicable law, no award granted under the
Plan may be assigned, transferred, pledged, or otherwise encumbered by a
Participant otherwise than by will, by designation of a beneficiary to take
effect after the Participant's death, or by the laws of descent and
distribution. Each award shall be exercisable during the Participant's
lifetime only by the Participant (or, if permissible under applicable law, by
the Participant's guardian or legal representative).
12. DEFERRALS OF AWARD PAYMENTS.
The Committee may, in its discretion, permit Participants to elect to
defer the payment otherwise required under all or part of any award granted
under the Plan in accordance with such terms and conditions as the Committee
shall establish.
13. PROVISIONS UPON CHANGE IN CONTROL.
In the event of a Change in Control (as defined in subsection 13.4 below)
occurring on or after the Effective Amendment Date, the provisions of this
Section 13 shall supersede any conflicting provisions of the Plan.
13.1 In the event of a Change in Control, all outstanding stock options
and SARs granted under the Plan shall become exercisable in full and the
restrictions still then in force and applicable to any Common Shares awarded
as restricted stock under the Plan shall lapse.
13.2 Further, unless the Committee shall revoke such an entitlement
prior to the occurrence of a Change in Control, a Participant who has been
awarded a stock option under the Plan and who is deemed by the Committee to
be an officer or other person subject to Section 16 (as in effect on the
Effective Amendment Date or as it may thereafter be amended or renumbered) of
the 1934 Act at the time of such Change in Control shall be entitled to
receive, in lieu of the exercise of any stock option or portion thereof to
the extent that it is then exercisable, a cash payment in an amount equal to
the difference between: (a) the aggregate fair market value, on the date
immediately after the date on which the Change in Control occurs, of the
Common Shares that are subject to such option or portion thereof (or, in the
event the Change in Control is effected by a tender offer or similar event,
the final offer price per share paid for Common Shares under the tender offer
or similar event times the number of Common Shares covered by such option or
portion thereof); and (b) the aggregate purchase price of the Common Shares
that are subject to such option or portion thereof. In the event the
applicable Change in Control is effected by a tender offer in which fewer
than all of the Common Shares which are validly tendered in compliance with
such offer are purchased or exchanged, then only that portion of the Common
Shares covered by a stock option granted under the Plan as results from
multiplying such Common Shares by a fraction, the numerator of which is the
number of Common Shares acquired pursuant to the offer and the denominator of
which is the number of Common Shares tendered in compliance with such offer,
shall be used to determine the payment thereupon. To the extent that all or
any portion of a stock option granted under the Plan shall be affected by
this provision, all or such portion of the stock option shall be terminated.
13.3 In the event of a Change in Control, a pro rata portion of all
still then outstanding Performance Awards granted under the Plan shall be
paid to each Participant within five business days after the date of
8
<PAGE>
such Change in Control. The pro rata portion of any such award to be paid
shall equal the full present value of such award (determined as of the first
day of the month in which such Change in Control occurs under such interest
rate and other actuarial assumptions as are reasonably adopted by the
Committee) multiplied by a ratio, the numerator of which shall equal the
number of full and partial months (including the month in which the Change in
Control occurs) since the date of the award and the denominator of which
shall equal the number of months in the longest Performance Period applicable
to any performance goal on which such award is conditioned.
13.4 For the purpose of this Section 13, a "Change in Control" of the
Company means and shall be deemed to have occurred if, on or after the
Effective Amendment Date:
(a) A tender offer shall be made and consummated for the ownership of
30% or more of the outstanding voting securities of the Company;
(b) The Company shall be merged or consolidated with another
corporation and as a result of such merger or consolidation less than 75% of
the outstanding voting securities of the surviving or resulting corporation
shall be owned in the aggregate by the former shareholders of the Company,
other than affiliates (within the meaning of the 1934 Act) of any party to
such merger or consolidation, as the same shall have existed immediately
prior to such merger or consolidation;
(c) The Company shall sell substantially all of its assets to another
corporation which is not a Subsidiary whose stock is wholly owned by the
Company;
(d) A person within the meaning of Section 3(a)(9) or of Section
13(d)(3) (as in effect on the Effective Amendment Date) of the 1934 Act
shall acquire 20% or more of the outstanding voting securities of the
Company (whether directly, indirectly, beneficially, or of record), or a
person within the meaning of Section 3(a)(9) or Section 13(d)(3) (as in
effect on the Effective Amendment Date) of the 1934 Act controls in any
manner the election of a majority of the directors of the Company; or
(e) Within any period of two consecutive years ending on or after the
Effective Amendment Date, individuals who at the beginning of such period
constitute the Board cease for any reason to constitute at least a
majority thereof, unless the election of each director on the Board who was
not a director on the Board at the beginning of such period has been approved
in advance by directors on the Board representing at least two-thirds of the
directors on the Board then in office who were directors on the Board at the
beginning of such period.
For purposes hereof, ownership of voting securities shall take into
account and shall include ownership as determined by applying the provisions
of Rule 13d-3(d)(1)(i) (as in effect on the Effective Amendment Date) issued
pursuant to the 1934 Act.
13.5 The provisions of this Section 13 may not be amended with respect
to any award granted to a Participant on or subsequent to the date such award
is granted if such amendment would be materially adverse to the Participant
without the consent of the Participant; provided, however, the Board may
still then make, without the Participant's consent, minor or administrative
changes to this Section 13 or changes to this Section 13 to conform to
applicable legal requirements that will apply to such award.
14. ADJUSTMENTS.
14.1 In the event of any change affecting the Common Shares by reason of
any stock dividend or split, recapitalization, merger, consolidation,
spin-off, combination or exchange of shares, or other corporate change, or
any distributions to common shareholders other than cash dividends, the
Committee shall make such substitution or adjustment in the aggregate number
or class of shares which may be distributed under the Plan and in the number,
class, and purchase price, grant price, or other price of shares on which the
outstanding awards granted under the Plan are based as it reasonably
determines to be appropriate in order to maintain the purposes of the Plan
and the then outstanding awards.
14.2 The Committee shall be authorized to correct any defect, supply any
omission, or reconcile any inconsistency in the Plan or any award granted
under the Plan in the manner and to the extent it shall
9
<PAGE>
determine is needed to reflect the intended provisions of the Plan or that
award or to meet any law that is applicable to the Plan (or the provisions of
any law which must be met in order for the normal tax consequences of the
award to apply).
15. RIGHTS OF BOARD OF DIRECTORS.
15.1 Notwithstanding any other provision hereof to the contrary, the
Board may amend, alter, or discontinue the Plan or any portion or provision
thereof at any time, provided that no such action shall materially impair the
rights of a Participant with respect to a previously granted Plan award
without the Participant's consent. Notwithstanding the foregoing, the Board
may not in any event, without the approval of the Company's shareholders,
adopt an amendment to the Plan which shall: (a) increase the total number of
Common Shares reserved for issuance during the Remaining Period of the Plan;
(b) increase the total number of Common Shares which may be subject to ISOs
granted during the Remaining Period of the Plan; (c) change the class of
persons eligible to become Participants under the Plan; (d) make any change
in the Plan that is required by Section 162(m) (as in effect on the Effective
Amendment Date or as it may thereafter be amended or renumbered) of the Code
to be approved by the Company's shareholders in order to permit the Committee
the ability to have the amounts payable pursuant to any awards granted by it
under the Plan not be subject to the deduction limits of Section 162(m)(1)
(as in effect on the Effective Amendment Date or as it may thereafter be
amended or renumbered) of the Code by reason of Section 162(m)(4)(C) (as in
effect on the Effective Amendment Date or as it may thereafter be amended or
renumbered) of the Code; or (e) make any other change in the Plan that is
required by applicable law to be approved by the Company's shareholders in
order to be effective.
15.2 If approval of the Company's shareholders is required to a Plan
amendment pursuant to the provisions of subsection 15.1 above, then such
approval must be by the favorable vote of a majority of the outstanding stock
of the Company present, or represented, and entitled to vote at a meeting
duly held in accordance with the laws of the state in which the Company is
incorporated (or, to the extent applicable law requires a greater degree or
level of approval by the Company's shareholders in order for such amendment
to become effective, such approval must comply with such required degree or
level of approval).
16. PROCEDURES FOR SATISFYING PAYMENT AND WITHHOLDING REQUIREMENTS.
16.1 Subsections 6.5, 7.4, 8.3, and 9.6 above demand that the Committee
establish procedures governing the exercise of, lapse of restrictions under,
and/or payment of any award granted under the Plan and to compel under such
procedures that, to the extent applicable under such award, any purchase
price for Common Shares being obtained under such award and/or taxes required
to be withheld by the terms of such award or under applicable law (with any
such purchase price and/or tax withholding requirements being referred to in
this Section 16 as the "payment/withholding requirements") be paid in full.
The Committee may provide for different rules as to the satisfying of the
payment/withholding requirements with respect to each type of award granted
under the Plan and even among awards of the same type that are granted under
the Plan. If any Participant (or other person) who is responsible for
satisfying any payment/ withholding requirements that apply to an award
granted under the Plan otherwise fails to satisfy such payment/withholding
requirements, the Company shall have the right to retain from such award or
the payment thereof (or from any other amount that is payable as compensation
to the Participant or such other person), as appropriate, a sufficient number
of Common Shares or cash otherwise applicable to the award (or otherwise
applicable to such other compensation amount) in order to satisfy such
payment/ withholding requirements.
16.2 Without limiting the generality of the provisions of subsection
16.1 above, the following provisions may apply in connection with the
Committee's establishment of procedures governing the meeting of any
payment/withholding requirements that apply to an award granted under the
Plan:
(a) The Committee may, in its discretion and pursuant to such
conditions as the Committee decides to impose, provide that the
Participant to whom an award under the Plan is granted (or, if
applicable, such other person who is exercising or receiving a payment
under the award) may, in his or her sole discretion, satisfy the
payment/withholding requirements that apply to such award by using
10
<PAGE>
any one or more of the following methods or any combination of the
following methods: (1) by making a payment to the Company of an amount in
cash (which, for purposes of the Plan, shall be deemed to include payment in
U.S. currency or by personal check, certified check, bank draft, cashier's
check, or money order) equal to the amount of such payment/withholding
requirements, (2) by making a payment to the Company in Common Shares which
are previously owned by the Participant (or such other person) and have a
fair market value on the date of payment equal to the amount of such
payment/withholding requirements, (3) by having the Company retain Common
Shares which are being purchased under the award and have a fair market value
on the date of payment equal to the amount of such payment/withholding
requirements, (4) by having the Company retain an amount of cash that is
payable under the award and equal to the amount of such payment/withholding
requirements, and/or (5) by having the Company retain an amount of cash that
is payable under any other compensation applicable to the Participant (or
such other person) and equal to the amount of such payment/withholding
requirements.
(b) Notwithstanding the provisions of paragraph (a) immediately
above, Common Shares may not be used in payment by the Participant for
satisfying any payment/withholding requirements that apply to an award
granted under the Plan either (1) if the Common Shares being used in payment
either are being purchased upon exercise of the applicable award and the
award is an ISO or (2) if the Common Shares being used in payment both were
previously acquired by the Participant through the exercise of a prior ISO
and have been held by the Participant for less than two years from the date
of grant of the prior ISO or less than one year from the date of the prior
transfer of such Common Shares to him or her.
(c) Further, the procedures applicable to the satisfaction of any
payment/withholding requirements that apply to an award granted under the
Plan that are established by the Committee may, in the discretion of the
Company, include commonly accepted electronic or telephonic notices given via
the internet or an interactive voice response system to a third party broker
which is designated by the Company to facilitate and/or administer the
exercise or payment of any awards granted under the Plan.
17. MISCELLANEOUS.
17.1 Nothing contained in the Plan or any award granted under the Plan
shall confer on any Participant any right to be continued in the employment
of the Company or any Subsidiary of the Company or interfere in any way with
the right of the Company or any Subsidiary to terminate the Participant's
employment at any time and in the same manner as though the Plan and any
awards granted under the Plan were not in effect.
17.2 All payments required to be made under awards granted under the
Plan shall be made by the Company out of its general assets. In this regard,
the Plan shall not be funded and the Company shall not be required to
segregate any assets to reflect any awards granted under the Plan. Any
liability of the Company to any person with respect to any award granted
under the Plan shall be based solely upon the contractual obligations that
apply to such award, and no such liability shall be deemed to be secured by
any pledge of or other lien or encumbrance on any property of the Company.
17.3 Any payments or other benefits provided to a Participant with
respect to an award granted under the Plan shall not be deemed a part of the
Participant's compensation for purposes of any termination or severance pay
plan, or any other pension, profit sharing, or other benefit plan, of the
Company or any Subsidiary of the Company unless such plan expressly or
clearly indicates that the payments or other benefits provided under an award
granted under the Plan shall be considered part of the Participant's
compensation for purposes of such plan or unless applicable law otherwise
requires.
17.4 In no event shall the Company be obligated to issue or deliver any
Common Shares if and to the extent the Committee determines that such
issuance or delivery constitutes a violation of the provisions of any
applicable law (or regulation issued under such law) or the rules of any
securities exchange on which Common Shares are listed.
11
<PAGE>
17.5 Except to the extent preempted by any applicable Federal law, the
Plan shall be subject to and construed in accordance with the laws of the
State of Ohio.
IN ORDER TO EFFECT THE PROVISIONS OF THIS PLAN DOCUMENT, Cincinnati Bell
Inc. (doing business as Broadwing Inc.), the sponsor of the Plan, has caused
its name to be subscribed to this Plan document this day of ,
2000, to be effective as of January 1, 2000.
CINCINNATI BELL INC.
(DOING BUSINESS AS BROADWING INC.)
By:
-----------------------------------
Title:
---------------------------------
12
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<S> <C>
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<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 19,700
<SECURITIES> 0
<RECEIVABLES> 305,000
<ALLOWANCES> 54,500
<INVENTORY> 31,700
<CURRENT-ASSETS> 358,600
<PP&E> 3,914,400
<DEPRECIATION> 1,388,100
<TOTAL-ASSETS> 6,461,400
<CURRENT-LIABILITIES> 421,200
<BONDS> 2,209,100
224,500
129,400
<COMMON> 2,100
<OTHER-SE> 1,995,200
<TOTAL-LIABILITY-AND-EQUITY> 6,461,400
<SALES> 470,200
<TOTAL-REVENUES> 470,200
<CGS> 226,200
<TOTAL-COSTS> 495,700
<OTHER-EXPENSES> 5,900
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<INTEREST-EXPENSE> 36,400
<INCOME-PRETAX> (67,800)
<INCOME-TAX> (12,400)
<INCOME-CONTINUING> (55,400)
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