Exhibit
10(i)(1)


 


SECOND AMENDMENT AND RESTATEMENT


OF THE


CREDIT
AGREEMENT


 


SECOND
AMENDMENT AND RESTATEMENT OF THE CREDIT AGREEMENT dated as of March 26, 2003,
among BROADWING INC. (f/k/a Cincinnati Bell Inc.), an Ohio corporation (“BRW”), and BROADWING
COMMUNICATIONS SERVICES INC.  (f/k/a IXC
Communications Services, Inc.), a Delaware corporation (“BCSI”, and together with BRW, each a “Borrower” and
collectively the “Borrowers”),
the banks, financial institutions and other institutional lenders that are party
to the Existing Credit Agreement (as hereinafter defined) on the date 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)                                  In
connection with the acquisition by BRW of all of the issued and outstanding
Equity Interests in IXC Communications, Inc. (“IXC”), a Delaware corporation, and the
merger of IXC and a wholly owned subsidiary of BRW into a corporation
subsequently renamed Broadwing Communications Inc. (“BCI”), the Borrowers
entered into a Credit Agreement dated as of November 9, 1999 (the “Original Credit Agreement”)
with the banks, financial institutions and other institutional lenders party
thereto (the “Original
Lenders”), BRW, as guarantor, the Agents, the Co-Documentation
Agents, the Arrangers and the Co-Arrangers. Pursuant to the terms of the
Original Credit Agreement, the Original Lenders made advances to the Borrowers
in order to consummate such acquisition, to refinance certain Indebtedness of
BRW and IXC and its Subsidiaries outstanding at such time, to fund capital
expenditures and to pay fees and expenses incurred in connection with the
consummation of such acquisition and refinancing and the other transactions
described in the Original Credit Agreement.


 


(2)                                  In
connection with the implementation of an incremental term B facility, the
Borrowers entered into an amendment and restatement of the Original Credit
Agreement dated as of January 12, 2000 (the “Existing Credit Agreement”) with the
banks, financial institutions and other institutional lenders party thereto,
BRW, as guarantor, the Agents, the Co-Documentation Agents, the Arrangers and
the Co-Arrangers.  Pursuant to the
Fourth Amendment


 

















 


to the Amendment and Restatement of the Credit Agreement dated as of
June 27, 2001, the Existing Credit Agreement was further amended to provide, in
part, for the implementation of an additional incremental term C facility in
accordance with the terms of the Existing Credit Agreement.


 


(3)                                  Concurrently
with the effectiveness of this Agreement, BRW will issue $350,000,000 of senior
subordinated discount notes due 2009 (the “Junior Notes”) pursuant to the terms of an
indenture (as amended in accordance with the terms of this Agreement, the “Junior Notes Indenture”)
not materially less favorable to the Lenders than the form of the draft thereof
dated  March 26, 2003, by and among BRW,
the guarantors party thereto and The Bank of New York, as trustee and the
Purchase Agreement (as amended in accordance with the terms of this Agreement,
the “Purchase Agreement”)
dated December 9, 2002 among BRW and GS Mezzanine Partners II, L.P (“GSMP”) and GS
Mezzanine Partners II Offshore, L.P. (together with GSMP, “Goldman”) together
with warrants to purchase shares of common stock of BRW (the “Warrants”) pursuant
to the terms of the Warrant Agreement not materially less favorable to the
Lenders than the form of the draft thereof dated March 26, 2003 among BRW and
Goldman (as amended in accordance with the terms of this Agreement, the “Warrant Agreement”).


 


(4)                                  The
Borrowers have requested that the Lenders amend and restate the terms of the
Existing Credit Agreement in its entirety to provide, in part, for an extension
of the maturity date of the Revolving Credit Facility to March 1, 2006, such
amendments as shall be required to permit the issuance of the Junior Notes and
permit the satisfaction of the conditions precedent to such issuance, approval
of certain matters relating to BCI and its Subsidiaries and a modification of
certain of the Lender Parties’ rights with respect to BCI in exchange for a
partial prepayment of outstanding Advances and reduction of the Commitments of
the Lender Parties under the Facilities as otherwise hereinafter set
forth.  The Lender Parties have indicated
their willingness to amend and restate the Existing Credit Agreement on the
terms and conditions set forth below.


 


NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained herein, the Existing Credit Agreement is hereby amended
and restated in its entirety and 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.


 


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“Administrative Agent’s Account” means the account of the
Administrative Agent maintained by the Administrative Agent with Citibank, N.A.
at its office at 399 Park Avenue, New York, New York 10043, Account
No.  36852248, Attention:  John
Judge, or such other account as the Administrative Agent shall specify in
writing to the Lender Parties.


 


“Advance” means a Term A Advance, a Term B Advance, a
Term C Advance, a Revolving Credit Advance, a Swing Line Advance or a Letter of
Credit Advance and, collectively, the “Advances”.


 


“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.,
as amended from time to time (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.


 


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“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
Revolving Credit Facility, 4.25% per annum for Eurodollar Rate Advances and
3.25% per annum for Base Rate Advances, and (ii) in the case of each Term
Facility, 3.75% per annum for Eurodollar Rate Advances and 2.75% per annum for
Base Rate Advances.


 


“Appropriate Lender” means, at any time, with respect to
(a) any of the Term or Revolving Credit Facilities, a Lender that has a
Commitment with respect to such Facility at such time, (b) the Letter of
Credit Facility, (i) any Issuing Bank and (ii) if the other Revolving
Credit Lenders have made Letter of Credit Advances pursuant to
Section 2.03(c) that are outstanding at such time, each such other
Revolving Credit Lender and (c) the Swing Line Facility, (i) any
Swing Line Bank and (ii) if the other Revolving Credit Lenders have made
Swing Line Advances pursuant to Section 2.02(b) that are outstanding at
such time, each such other Revolving Credit Lender.


 


“Approved Fund” means, with respect to any Lender that is
a fund that invests in bank loans, any other fund that invests in bank loans
and is advised or managed by the same investment advisor as such Lender or by
an Affiliate of such investment advisor.


 


“Arrangers” means each of SSBI and BAS.


 


 “Assignment and Acceptance”
means an assignment and acceptance entered into by a Lender Party and an
Eligible Assignee, and accepted by the Administrative Agent, in accordance with
Section 9.07 and in substantially the form of Exhibit C hereto.


 


“Available Amount” of any Letter of Credit means, at any
time, the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to drawing).


 


“Backbone Fiber” means a fiber connecting Los Angeles,
California and New York, New York.


 


“Bank of America”
has the meaning specified in the recital of parties to this Agreement.


 


“Bankruptcy Code” means the U.S.
Bankruptcy Code (11 U.S.C. §§ 101 et. seq.).


 


“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


 


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(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).


 


“BCI”
has the meaning specified in the Preliminary Statements.


 


 “BCI Default” means
any BCI Event of Default or any event that would constitute a BCI Event of
Default but for the requirement that notice be given or time elapse or
both.  For the avoidance of doubt, a BCI
Default is not for any purpose a Default under any Loan Document.  Any express statement to the effect that a
reference to a Default does not include a BCI Default is made solely for the sake
of clarity and does not imply that a BCI Default might in any circumstance be a
Default.


 


“BCI
Event of Default” means a BCI Event of Default under Section
7.03.  For the avoidance of doubt, a BCI
Event of Default is not for any purpose under any Loan Document an Event of
Default.  Any express statement to the
effect that a reference to an Event of Default does not include a BCI Event of
Default is made solely for the sake of clarity and does not imply that a BCI Event
of Default might in any circumstance be an Event of Default.


 


“BCI
Exchange” means the exchange of common or preferred stock or
other Equity Interests of BRW or Subordinated Debt of BRW for the BCI
Exchangeable Preferred Stock and/or the BCI Senior Subordinated Notes, including by way of a sale of
common or preferred stock or other Equity Interests of BRW or Subordinated Debt
of BRW to a third party in accordance with Sections 5.02(b)(i)(F) or
5.02(g)(xi).


 


“BCI
Exchangeable Preferred
Stock” means the 121⁄2% Series B Junior Exchangeable Preferred
Stock Due 2009 of BCI.


 


“BCI
Group” means BCI and its Subsidiaries.


 


“BCI
Letters of Credit” means all letters of credit issued for the
account of BCSI pursuant to Section 2.01(d) of the Existing Credit Agreement.


 


“BCI
Maximum Investment” means the sum of (1) $118,000,000 (including
Advances made to BCSI after October 1, 2002) plus (2) the aggregate
amount of net cash dividends and net cash distributions paid by any member of
the BCI Group after October 1, 2002 to any member of the BRW Group plus
(3) the aggregate amount of Revolving Credit Borrowings made under Section
5.02(e)(ix)(E) plus (4) without duplication, the net amount of cash
advanced or otherwise transferred by BCI or any of its Subsidiaries to BRW or
any of its Subsidiaries pursuant to the BRW Cash Management System or so that a
Default under Section 5.02(w) shall not occur or be continuing.


 


“BCI
Net Cash Proceeds” shall mean Net Cash Proceeds from the sale,
lease, transfer or other disposition of all or substantially all of the assets
of BCI and/or its Subsidiaries less (to
the extent not already deducted in computing Net Cash Proceeds) all


 


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amounts in respect of liabilities and claims not
assumed by the buyer of such assets, including, without limitation:


 


(i)                                     claims
paid in cash in settlement of trade payables incurred in the ordinary course of
business,


 


(ii)                                  amounts
paid in cash to terminate circuit lease obligations, capital leases, real
property leases, leasehold interests and contractual obligations for network
elements,


 


(iii)                               cash collection costs of
accounts receivable incurred in the ordinary course of business,


 


(iv)                              reasonable
closing costs relating to sales of assets to the extent not otherwise deducted,


 


(v)                                 cash
settlement of Deferred Revenue liabilities of BCI and its Subsidiaries,


 


(vi)                              payment
of intercompany debt other than intercompany debt owed to (i) a  Subsidiary of BCI, and (ii) a Subsidiary of
BRW that is not a Subsidiary Guarantor,


 


(vii)                           other current ordinary course
operating expense obligations, and


 


(viii)                        reserves maintained in
accordance with Section 5.02(e)(ix)(E) for amounts that may be required to be
paid in respect of non-discharged liabilities or claims in the future;


 


but not to include prepayment or repayment of
principal, interest, liquidation preference, dividends or any other amounts
payable on or with respect to the BCI Senior Subordinated Notes, the BCI 12 1⁄2%
Senior Notes or the BCI Exchangeable Preferred Stock, and in each case to the
extent, but only to the extent, that the amounts so deducted are properly
attributable to BCI or any of its Subsidiaries and are actually required to be
paid substantially contemporaneously with such transaction (or reflect good
faith estimates of amounts taken in reserve pursuant to clause (viii)) 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 (other than as permitted in clause
(vi) above).


 


“BCI 9% Indenture” means the Indenture dated as of April 21,
1998, as amended in accordance with the terms of this Agreement, between BCI
and The Bank of New York (as successor to IBJ Schroder Bank & Trust
Company), as trustee pursuant to which the BCI Senior Subordinated Notes were
issued.


 


 “BCI Senior Subordinated Notes”
means the 9% Senior Subordinated Notes due 2008 of BCI issued pursuant to the
BCI 9% Indenture.


 


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“BCI
12 1/2% Senior Notes” means the 12 1/2% Senior Notes of BCI due
2005.


 


“BCSI”
has the meaning specified in the recital of parties to this Agreement.


 


“BCSI
Sale Agreement” means the Agreement for the Purchase and Sale of
Assets dated as of February 22, 2003, by and between BCSI and the other Sellers
party thereto and the Buyers party thereto, together with all the exhibits and
schedules thereto and all other agreements contemplated to be entered into
thereunder as and when such other agreements become effective, in each case as
amended in accordance with the terms of this Agreement.


 


 “BCSI Subsidiary Guaranty”
has the meaning specified in Section 3.01(a)(iii).


 


“Blocking
Event” means any of the following events:


 


(a)                                  a
Default described in Section 7.01(a) occurs and is continuing, or


 


(b)                                 a
Default described in Section 7.01(f) or an Event of Default  (other than an Event of Default described in
Section 7.01(a)) occurs and is continuing and delivery by the Administrative
Agent to BRW of a notice (a “Blockage Notice”) of such Default or Event of Default
(it being understood that (x) the Administrative Agent may not deliver a
subsequent Blockage Notice unless and until at least 360 consecutive days shall
have elapsed since the day of delivery of the immediately prior Blockage Notice
and (y) no such Default or Event of Default that existed or was continuing on
the date of delivery of any Blockage Notice shall be, or be made, the basis of
a subsequent Blockage Notice unless such Default or Event of Default shall have
been waived for a period of not less than 180 consecutive days);


 


provided,
however, that a Blocking Event
shall cease to occur upon the earlier of:


 


(i)                                     the
date upon which the Default or Event of Default giving rise to a Blocking Event
described in clause (a) or (b) above is cured or waived or shall have ceased to
exist, or


 


(ii)                                  in
the case of a Blocking Event described in clause (b) above, 179 consecutive
days having passed after the Blockage Notice is received by BRW.


 


“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 BRW, 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.


 


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 “Borrower” and “Borrowers” have the
meaning specified in the recital of parties to this Agreement.


 


“Borrower’s Account” means (a) an account maintained by
BRW with Citibank at its office at 399 Park Avenue, New York,
New York 10043, or (b) such other account as BRW shall specify in
writing to the Administrative Agent.


 


“Borrowing” means a Term A Borrowing, a Term B Borrowing,
a Term C Borrowing, a Revolving Credit Borrowing or a Swing Line Borrowing.


 


“BRW”
has the meaning specified in the recital of parties to this Agreement.


 


“BRW
Administrative Expenses” means all administrative expenses
incurred by BRW in the ordinary course of business, including, without
limitation, those related to compensation arrangements, litigation, insurance,
taxes (federal, state and local), health and welfare, office supplies,
contractual obligations, travel, director’s fees paid to and expenses of BRW’s
Board of Directors and payments to investment banks, advisors and consultants.


 


“BRW
Cash Management System” has the meaning set forth in Section
5.01(r).


 


“BRW
Group” means BRW and its Subsidiaries other than the BCI Group.


 


“BRW Guaranty” has the meaning specified in Section 6.01.


 


“BRW
Sale Arrangements” means the arrangements under the Sellers’
Parent Guaranty, the APTIS Software Agreement, the Intellectual Property Rights
Assignment Agreement, the Transition Services Agreement and the Intercompany
Agreements, in each case as defined in the BCSI Sale Agreement.


 


 “BRW 71⁄4% Notes” means the
BRW $50 Million 71⁄4% Notes due June 15, 2023.


 


“BRW Subsidiary Guaranty” has the meaning specified in
Section 3.01(a)(iii).


 


“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, 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


 


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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.


 


“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 BRW or any of its Subsidiaries (including BCI and its
Subsidiaries) free and clear of all Liens other than Liens created under the
Collateral Documents and having a maturity of not greater than 90 days from the
date of acquisition thereof:


 


(a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality thereof or
obligations unconditionally guaranteed by the full faith and credit of the
Government of the United States,


 


(b) insured certificates of deposit of or time
deposits with any commercial bank that is a Lender Party or a member of the
Federal Reserve System, issues (or the parent of which issues) commercial paper
rated as described in clause (c) below, is organized under the laws of the
United States or any State thereof and has combined capital and surplus of at
least $1 billion,


 


(c) commercial paper issued by any corporation
organized under the laws of any State of the United States and rated at least
“Prime-1” (or the then equivalent grade) by Moody’s or “A-1” (or the then
equivalent grade) by S&P’s, or


 


(d) Investments in money market funds registered under
the Investment Company Act of 1940, as amended, that satisfy the requirements
of Rule 2a-7 of such Act.


 


“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 BCI Exchangeable Preferred Stock, as amended in accordance
with the terms of this Agreement.


 


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“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 BRW (or other securities convertible into such Voting
Interests) representing 20% or more of the combined voting power of all Voting
Interests of BRW; 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 BRW shall cease for any reason to constitute
a majority of the board of directors of BRW; 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 BRW; or
(d) prior to the Part II Effective Date, BRW shall cease to own 100% of the
Equity Interests in BCSI or BCI (other than in connection with a sale or other
disposition of assets of BCI and its Subsidiaries pursuant to Section
5.02(e)(ix) and, in the case of BCI, the BCI Exchangeable Preferred Stock); or
(e) any “change of control” as defined in the BRW 71⁄4% Notes or in the Oak
Hill Indenture or in the Junior Notes.


 


 “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 Second Amendment
and Restatement of the Collateral Trust Agreement dated as of the date hereof
by and between BRW and Wilmington Trust Company, and John M. Beeson, as
collateral trustees, as amended from time to time in accordance with its terms.


 


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“Commitment” means a Term A Commitment, a Term B
Commitment, a Term C Commitment, a Revolving Credit Commitment or a Letter of
Credit Commitment.


 


“Company” has the meaning specified in the Preliminary
Statements.


 


“Confidential Information” means all information,
including material nonpublic information within the meaning of Regulation FD
promulgated by the Securities and Exchange Commission, received from the
Borrowers relating to the Borrowers or their respective businesses, other than
any such information that is available to any Agent or any Lender Party on a
nonconfidential basis prior to disclosure by the Borrowers; provided
that, in case of information received from the Borrowers after the date hereof,
such information is clearly identified at the time of delivery as confidential.


 


“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
Consolidated Interest Expense (including, for purposes of this definition only,
all interest and payment Obligations in respect of Debt referred to in clause
(h) of the definition of “Debt” herein) plus, to the extent deducted in the
computation of Consolidated Interest Expense under clause (C) or (D) of the
definition thereof, all interest not payable in cash and any amortization of
financing fees or other charges or expenses incurred in connection with the
issuance of any Debt or preferred stock or the obtaining of any amendment,
waiver or other modification in respect of any Debt or preferred stock, minus,
to the extent added in the computation of Consolidated Interest Expense under
clause (e) of the definition thereof, dividends paid in cash in respect of
preferred stock, in each case 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)                                                without
duplication of clause (i) above, all amortization expense of such Person and
its Subsidiaries for such period,


 


(v)                                                   (A)
all non-cash and non-recurring cash charges deducted in determining the
consolidated net income of such Person and its Subsidiaries for such period in
an amount not to exceed $100,000,000 in the aggregate for the four consecutive
fiscal quarters ended on or immediately prior to the date of determination, and
(B) all


 


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extraordinary
losses deducted in determining the consolidated net income of such Person and
its Subsidiaries for such period (provided that any cash payment made with
respect to any such non-cash charge shall be subtracted in computing
Consolidated EBITDA during the period in which such cash payment is made) less
(C) all extraordinary gains and non-cash or non-recurring gains added in
determining the consolidated net income of such Person and its Subsidiaries for
such period, in each case determined in accordance with GAAP for such period,


 


(vi)                                                minority
interest expense (income),


 


(vii)                                             non-cash
losses for such period not to exceed $200,000,000 (in aggregate for all
impacted periods) and cash losses for such period not to exceed $100,000,000
(in aggregate for all impacted periods), in each case, resulting from the 2001
Restructuring and deducted in determining the consolidated net income of BRW in
the first quarter of Fiscal Year 2002 and all other quarters impacted as a
result of the 2001 Restructuring,


 


(viii)                                          all charges
taken in accordance with SFAS 142,


 


(ix)                                                  all
charges taken in accordance with SFAS 144 (A) as of December 31, 2002 or (B) in
an aggregate amount not to exceed $50,000,000 for all such charges taken in any
consecutive four fiscal-quarter period commencing after December 31, 2002, and


 


(x)                                                     all
non-cash amounts deducted from net income due to the initial recording of any
expense item in respect of an obligation classified as a debt obligation under
FASB Interpretation No. 45 (it being understood that all subsequent non-cash
adjustments to such amount shall, as applicable, be added to ordeducted from
Consolidated EBITDA).


 


Consolidated
EBITDA of BRW and its Subsidiaries shall be computed to exclude all income
(including interest income), loss and other effects of BCI and its Subsidiaries
on the financial statements of BRW and its Subsidiaries, except that interest
expense of BCI and its Subsidiaries in respect of the Advances shall be
included in the computation of Consolidated EBITDA (it being understood that
the foregoing is not intended to require any adjustments to exclude the results
for BRW and its Subsidiaries in respect of operating transactions between BRW
and its Subsidiaries and BCI and its Subsidiaries).  It is understood and agreed that, using calculations based on the
interim financial statements that have been delivered to the Lenders,
Consolidated EBITDA of BRW and its Subsidiaries for the fiscal quarter ended
March 31, 2002 was $127,600,000, Consolidated EBITDA of BRW and its
Subsidiaries for the fiscal quarter ended June 30, 2002 was $134,500,000 and
Consolidated EBITDA of BRW and its Subsidiaries for the fiscal quarter ended
September 30, 2002 was $137,700,000.


 


12

















 


“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, other
than the BCI Exchangeable Preferred Stock) of such Person and its Subsidiaries
for such period, determined on a Consolidated basis and in accordance with
GAAP, including, without limitation, (a) in the case of the Borrowers,
(i) interest expense paid or payable in respect of Debt resulting from
Advances and (ii) all fees paid or payable pursuant to Section 2.08(a),
(b) the interest component of all Obligations in respect of Capitalized
Leases, (c) commissions, discounts and other fees and charges paid or payable
in connection with letters of credit (including, without limitation, the
Letters of Credit), (d) the net payment, if any, paid or payable in
connection with Hedge Agreements less the net credit, if any, received in
connection with Hedge Agreements, and (e) dividends paid in cash in
respect of preferred stock, but excluding (A) any amortization of original
issue discount, (B) the interest portion of any deferred payment
obligation, (C) any other interest not payable in cash, (D) any
amortization of financing fees or other charges or expenses incurred in connection
with the issuance of any Debt or preferred stock or the obtaining of any
amendment, waiver or other modification in respect of any Debt or preferred
stock, (E) to the extent included in “interest expense” in accordance with
GAAP, any penalties paid or payable in connection with the prepayment of any
Debt and (F) all non-cash interest expense due to the initial recording of any
expense item in respect of an obligation classified as a debt obligation under
FASB Interpretation No. 45 and all subsequent non-cash adjustments to such
amount.  It is understood and agreed
that, using calculations based on the interim financial statements that have
been delivered to the Lenders, Consolidated Interest Expense of BRW and its
Subsidiaries for the fiscal quarter ended March 31, 2002 was $31,800,000,
Consolidated Interest Expense of BRW and its Subsidiaries for the fiscal
quarter ended June 30, 2002 was $32,500,000 and Consolidated Interest Expense
of BRW and its Subsidiaries for the fiscal quarter ended September 30, 2002 was
$32,600,000.


 


“Consultant”
has the meaning specified in Section 5.01(j)(I)(3)(f).


 


“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


 


13

















 


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, as amended in
accordance with the terms of this Agreement.


 


“Convertible Preferred Stock” means the 63⁄4% Cumulative
Convertible Preferred Stock of BRW.


 


“CSFB” has the meaning specified in the recital of
parties to this Agreement.


 


“CSFB Fee Letter” means the confidential fee letter,
dated May 21, 2001, from CSFB to the Borrowers.


 


“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


 


14

















 


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; provided that for purposes of calculating
the financial ratios set forth in the financial covenants in Section 5.04, the
definition of Debt shall not include contingent obligations under the Sellers’
Parent Guaranty (as defined in the BCSI Sale Agreement) or any other similar
guaranty by BRW of obligations of BCI and its Subsidiaries under a sale
agreement entered into pursuant to Section 5.02(e)(ix) in lieu of the BCSI Sale
Agreement until either a claim is made thereunder (unless the obligation
underlying such claim is paid by BCI or its Subsidiaries or the total amount of
such obligation is being disputed in good faith by BCI or its Subsidiaries) or
BCI has defaulted on its obligations with respect to the BCSI Sale Agreement or
such other sale agreement entered into in lieu of the BCSI Sale Agreement.


 


“Debt/EBITDA Ratio” means, at any date of determination,
the ratio of Consolidated Debt of BRW and its Subsidiaries (excluding all
indebtedness and payment Obligations referred to in clauses (g) and (h) of the
definition of “Debt” herein) as at such date of determination to Consolidated
EBITDA of BRW and its Subsidiaries for the period of four consecutive fiscal
quarters of BRW ended on or immediately prior to such date.


 


“Default” means any Event of Default or any event that
would constitute an Event of Default but for the requirement that notice be
given or time elapse or both.


 


“Default Termination Notice” has the meaning specified in
Section 2.01(d).


 


“Defaulted Advance” means, with respect to any Lender
Party at any time, the portion of any Advance required to be made by such
Lender Party to any Borrower pursuant to Section 2.01 or 2.02 at or prior
to such time that has not been made by such Lender Party or by the Administrative
Agent for the account of such Lender Party pursuant to Section 2.02(e) as of
such time.  In the event that a portion
of a Defaulted Advance shall be deemed made pursuant to Section 2.15(a),
the remaining portion of such Defaulted Advance shall be considered a Defaulted
Advance originally required to be made pursuant to Section 2.01 on the
same date as the Defaulted Advance so deemed made in part.


 


“Defaulted Amount” means, with respect to any Lender
Party at any time, any amount required to be paid by such Lender Party to any
Agent or any other Lender Party hereunder or under any other Loan Document at
or prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender Party to
(a) any Swing Line Bank pursuant to Section 2.02(b) to purchase a
portion of a Swing Line Advance made by such Swing Line Bank, (b) any
Issuing Bank pursuant to Section 2.03(c) to purchase a portion of a Letter
of Credit Advance made by such Issuing Bank, (c) the Administrative Agent
pursuant to Section 2.02(e) to reimburse the Administrative Agent for the
amount of any Advance made by the Administrative Agent for the account of such
Lender Party, (d) any other Lender Party pursuant to


 


15

















 


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 for any Person,
amounts appearing as a liability on the financial statements of such Person and
its Subsidiaries as prepared according to GAAP classified as 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 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” has the meaning specified in Section
3.01(I).


 


“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, BRW, such approval not to be unreasonably withheld or
delayed and, in the case of BRW, 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 BRW; 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


 


16

















 


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.


 


 “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


 


17

















 


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.


 


“Escrow
Agreements” means each of the Escrow Agreement (Cranberry
Adjustment), the Escrow Agreement (Closing Adjustment Receivables), the Escrow
Agreement (Second Stage Closing) and the Escrow Agreement (Working
Capital/Indemnity), in each case as defined in the BCSI Sale Agreement.


 


“Eurocurrency Liabilities” has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.


 


“Eurodollar Lending Office” means, with respect to any
Lender Party, the office of such Lender Party specified as its “Eurodollar
Lending Office” opposite its name on Schedule I hereto or in the Assignment
and Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of such
Lender Party as such Lender Party may from time to time specify to the
Borrowers and the Administrative Agent.


 


“Eurodollar Rate” means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an interest
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
obtained by dividing (a) the rate per annum appearing on Telerate
Page 3750 (or any successor page) as the London interbank offered rate for
deposits in U.S. dollars at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period for a period equal to such Interest
Period (provided
that, if for any reason such rate is not available, the term “Eurodollar Rate”
shall mean, for any Interest Period for all Eurodollar Rate Advances comprising
part of the same Borrowing, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates) by (b) a percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period.


 


18

















 


“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:


 


(i)                                     Consolidated
net income (or loss) of BRW and its Subsidiaries for such period adjusted to
exclude any cash gains attributable to any transaction that requires prepayment
of Term Advances pursuant to Section 2.06(b); 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 of BRW and its Subsidiaries
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 of BRW and its Subsidiaries decreased; plus


 


(ii)                                  the
sum of (A) the aggregate amount of Capital Expenditures of BRW and its
Subsidiaries 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


 


19

















 


Cash
Proceeds) plus (B) cash consideration paid during such fiscal year
by BRW 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 (C) the net
amount of cash used by BRW and its Subsidiaries in Permitted BCI Transactions
during such Fiscal Year (except to the extent financed with Advances under the
Revolving Credit Facility or by incurring long-term Debt); 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.


 


 “Excluded Entities”
means CBT, Wireless LLC and the Mutual Subsidiaries.


 


“Excluded
Equity Agreements” means the (i) Operating Agreement of Wireless
LLC between AT&T Wireless PCS Inc. and Wireless Co., dated as of December
31, 1998 and (ii) Network Membership License Agreement between AT&T Corp.
and its affiliated companies, including AT&T Wireless Services, Inc., and
Wireless LCC, dated as of February 4, 1998, as amended as of April 16, 1999.


 


“Existing
Credit Agreement” has the meaning specified in the Preliminary
Statements.


 


 “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


 


20

















 


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.


 


“Facilities
Period” means the period commencing on the Effective Date and
ending December 29, 2007.


 


“Facility” means the Term A Facility, the Term B
Facility, the Term C Facility, the Revolving Credit Facility, the Swing Line
Facility or the Letter of Credit Facility.


 


“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 Letters” means collectively, (i) the fee letter
dated as of October 20, 1999 between BRW and the Agents, (ii) the fee
letter dated as of January 27, 2003 between BRW, SSBI and the Administrative
Agent, and (iii) the fee letter dated as of January 27, 2003 between BRW and
BAS.


 


“Final
Maturity Date” means, (i) in the case of the Term A Facility,
the earlier of November 9, 2004 and the date of termination in whole of the
Term A Commitments pursuant to Section 2.05 or 7.01, (ii) in the case of
the Term B Facility, the earlier of December 30, 2006 and the date of
termination in whole of the Term B Commitments pursuant to Section 2.05 or
7.01, and (iii) in the case of the Term C Facility, the earlier of June 29,
2007 and the date of termination in whole of the Term C Commitments pursuant to
Section 2.05 or 7.01.


 


“Fiscal Year” means a fiscal year of BRW 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.


 


“FTI”
means FTI Consulting, Inc.


 


21

















 


“FTI
Report” means the report provided by FTI and posted to the BRW
IntraLinks website by the Administrative Agent on January 28, 2003 and
distributed to the Lenders at the bank meeting with BRW held on the same date.


 


“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.


 


“GAAP” has the meaning specified in Section 1.03.


 


“Goldman”  has the meaning
specified in the Preliminary Statements.


 


 “Granting Lender” has
the meaning specified in Section 9.07(j).


 


“Guaranties” means the BRW Guaranty and the Subsidiary
Guaranties.


 


“Guarantors” means BRW 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.


 


 “Indemnified Party”
has the meaning specified in Section 9.04(b).


 


 “Index Debt” means
long-term senior unsecured Debt of BRW that is not guaranteed or otherwise
credit enhanced.


 


“Information Materials” means the Amendment Package dated
as of January 2003, and the other information materials (other than the FTI
Report) reviewed by BRW and posted to the BRW IntraLinks website by the
Administrative Agent on January 28, 2003 and distributed to the Lenders at the
bank meeting with BRW held on the same date and used by the Arrangers in
connection with the seeking of approvals of the amendments effected by this
Agreement.


 


22

















 


 “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 BRW and its Subsidiaries during the
four consecutive fiscal quarters most recently ended for which financial
statements are required to be delivered to the Lender Parties pursuant to
Section 5.03(b) or (c), as the case may be.


 


“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


 


23

















 


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, Revolving Credit Lender or Eligible Assignee, as the case may be,
shall have a Letter of Credit Commitment.


 


 “June BCSI  Agreement” means the First Amended and Restated
Credit Agreement, as amended, among BCSI, as borrower, the lenders party
thereto,


 


24

















 


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 Notes”  has the meaning
specified in the Preliminary Statements.


 


“Junior
Notes Documents” means the Junior Notes, the
Junior Notes Indenture, the Purchase Agreement, the Warrants, the Warrant
Agreement and any other agreements, indentures and instruments pursuant to
which the Junior Notes or the Warrants are issued.


 


“Junior
Notes Indenture”  has
the meaning specified in the Preliminary Statements.


 


“L/C Cash Collateral Account” has the meaning specified
in the Security Agreements.


 


“L/C Related Documents” has the meaning specified in
Section 2.04(d)(ii).


 


“Lender Party” means any Lender, any Issuing Bank or any
Swing Line Bank.


 


“Lenders” means the Initial Lenders and each Person that
shall become a Lender hereunder pursuant to Section 9.07 for so long as
such Initial Lender or Person, as the case may be, shall be a party to this
Agreement.


 


“Letter of Credit Advance” means an advance made by any
Issuing Bank or any Revolving Credit Lender pursuant to Section 2.03(c).


 


“Letter of Credit Agreement” has the meaning specified in
Section 2.03(a).


 


“Letter of Credit Commitment” means, with respect to any
Issuing Bank 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


 


25

















 


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 Letters and the CSFB 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 Letters and the CSFB 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.


 


“Material Adverse Change” means any material adverse
change in the business, assets, condition (financial or otherwise), operations,
or prospects of BRW and its Subsidiaries, taken as a whole.


 


“Material Adverse Effect” means a material adverse effect
on (a) the business, assets, condition (financial or otherwise), operations or
prospects of BRW 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 BRW or any of its Subsidiaries 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.


 


“Minimum
Liquidity” means the sum of (i) collected cash balances and Cash
Equivalents of BRW and its Subsidiaries and (ii) the amount available to be
drawn under the Revolving Credit Facility.


 


“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


 


26

















 


Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event such
plan has been or were to be terminated.


 


“Mutual
Subsidiaries” means Mutual Signal Holding Corporation, Mutual
Signal Corporation, Mutual Signal Corporation of Michigan and MSM Associates
Limited Partnership.


 


“Net Cash Proceeds” means, with respect to any sale,
lease, transfer or other disposition of any asset or the incurrence or issuance
of any Debt or the sale or issuance of any Equity Interests (including, without
limitation, any capital contribution) by any Person, or any Extraordinary
Receipt received by or paid to or for the account of any Person, the aggregate
amount of cash received from time to time (whether as initial 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


 


27

















 


determined
reasonably and in good faith by the treasurer or chief financial officer of
such Person); provided, however, that if, at the time such taxes or such
contingent liabilities are actually paid or otherwise satisfied, the amount of
the reserve therefor exceeds the amount paid or otherwise satisfied, then the
Borrowers shall reduce the Commitments in accordance with the terms of Section
2.05(b), and shall prepay the outstanding Advances in accordance with the terms
of Section 2.06(b)(ii) and (iii), in an amount equal to the amount of such
excess reserve.


 


 “Net Working Capital”
means, at any date, (a) the consolidated current assets of BRW and its
Subsidiaries as of such date (excluding cash and cash equivalents) minus
(b) the consolidated current liabilities of BRW and its Subsidiaries as of
such date (excluding current liabilities in respect of Debt).


 


“New
Notes” means (i) Subordinated Debt of BRW evidenced by the
Subordinated Debt Documents, (ii) Senior Notes and (iii) the Junior Notes.


 


 “Non-Shared Collateral Security
Agreement” has the meaning specified in
Section 3.01(a)(ii).


 


“Note” means a Term A Note, a Term B Note, a Term C Note
or a Revolving Credit 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 BRW under the Oak Hill Indenture.


 


“Oak Hill Indenture” means the Indenture, dated as of
July 21, 1999, between BRW, as Issuer, and The Bank of New York, as Trustee, as
amended in accordance with the terms of this Agreement.


 


“Oak
Hill Waiver” has the meaning specified in Section 3.01(II)(b).


 


“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


 


28

















 


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.


 


“OECD” means the Organization for Economic Cooperation
and Development.


 


“Original
Credit Agreement” has the meaning specified in the Preliminary
Statements.


 


“Other
Permitted Equity” means an Equity Interest of BRW other than
common stock that (i) is a security that is not guaranteed or secured and ranks
junior to the Facilities and the New Notes in all respects, (ii) has a term
extending to at least December 31, 2007 and is not mandatorily redeemable or
putable prior to such date (other than pursuant to a customary change of
control provision), (iii) has covenants and change of control provisions no
more restrictive than those customarily contained in senior subordinated or
subordinated public high yield issues for similar issuers and (iv) if
convertible or exchangeable, is convertible or exchangeable only into BRW’s
common stock.


 


 “Other Taxes” has the
meaning specified in Section 2.12(b).


 


“Part
II Effective Date” has the meaning specified in Section
3.01(II).


 


“PBGC” means the Pension Benefit Guaranty Corporation (or
any successor).


 


“Permitted
BCI Transaction” means:


 


(A) any (a) Investment in the BCI Group, (b)
Restricted Payment made to the BCI Group, (c) Debt incurred for the benefit of
the BCI Group or in connection with a sale of the BCI Group permitted under
Section 5.02(e)(ix), (d) Lien incurred for the benefit of the BCI Group or in
connection with a sale of the BCI Group permitted under Section 5.02(e)(ix),
(e) asset purchase for the benefit of the BCI Group without charge or
allocation to the BCI Group, (f) payment in respect of operating expenses or
net operating losses of the BCI Group (including payments for direct expenses
of the BCI Group that are made by the BRW Group and not charged or allocated to
the BCI Group or payments made by the BRW Group for shared expenses that are
not charged or allocated to the BCI Group), (g) tax reimbursement allowed for
the benefit of any member of the BCI Group, (h) Equity Interest of any member
of the BRW Group issued to the BCI Group, and (i) any other transaction in, to
or for the benefit of the BCI Group, excluding in each case items set forth in
clause (B) below, in each case (1) made or incurred directly or indirectly by
the BRW Group after October 1, 2002 and (2) after giving effect to which the
aggregate amount of cash plus the fair value of non-cash property transferred
from the BRW Group to the BCI Group in such transaction plus the 


 


29

















 


value
of any obligations incurred or assumed by the BRW Group in connection with such
transaction does not exceed the BCI Maximum Investment for all such
transactions specified in clauses (a) through (i) in aggregate, and


 


(B) each of the following transactions:


 


(i)                                     the
issuance of Equity Interests or the incurrence of Debt in connection with any
BCI Exchange and the application of proceeds thereof to the extent permitted
under Section 5.02,


 


(ii)                                  the
Guarantees,


 


(iii)                               Liens under the Loan
Documents,


 


(iv)                              scheduled
principal and interest payments (or capital contributions made solely for the
purpose of funding such payments) made or guaranteed by any member of the BRW
Group in respect of the Obligations of BCSI under the Loan Documents,


 


(v)                                 payments
made by any member of the BRW Group under the Guarantees in respect of the
Obligations of BCSI under the Loan Documents,


 


(vi)                              non-cash
payments made solely through reductions in the principal amount of any
intercompany notes issued by any member of the BCI Group to any member of the
BRW Group in respect of net operating losses of the BCI Group used by the BRW
Group or other Investments in the form of reductions of such intercompany
notes,


 


(vii)                           Permitted Obligations,


 


(viii)                        interest payments made or
funded by any member of the BRW Group in respect of the BCI Senior Subordinated
Notes and the BCI 12 1/2% Senior Notes,


 


(ix)                                the
accrual and capitalization of interest on intercompany notes issued by the BCI
Group to BRW or to any other member of the BRW Group,


 


(x)                                  the
payment by the BCI Group of non-cash management fees to the BRW Group made
solely through adjustments to intercompany notes issued by any member of the
BCI Group to any member of the BRW Group in any amount not to exceed $2,000,000
per quarter,


 


(xi)                              any
transactions of the type described on Schedule 1.01, and


 


(xii)                             any non-cash transition
arrangements or other related services provided to or for the benefit of a
buyer in connection with a transaction permitted under Section 5.02(e)(ix),
including under any BRW Sale Arrangements;


 


30

















 


provided no Default or Event of Default
has occurred and is continuing at the time of such transaction; provided further that any such Permitted
BCI Transaction is also permitted under Section 5.11 of the Junior Notes
Indenture.


 


“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
Obligations” means, in connection with:


 


(A)  the BCSI
Sale Agreement, all obligations under the Sellers’ Parent Guaranty (as defined
in the BCSI Sale Agreement) and under the other BRW Sale Arrangements, and


 


(B) any other sale, transfer or other disposition of
the assets of BCI and/or its Subsidiaries permitted under Section 5.02(e)(ix),
(a) any customary indemnification obligation of the type described in clause
(A), including for excluded liabilities or tax payments of any member of the
BCI Group not assumed by the purchaser as expressly set forth in the related
purchase and sale agreement or (b) any obligation of the types referred to in
clause (i) of the definition of “Debt” in respect of any such obligation
specified in clause (a) created, incurred or otherwise arising in connection
with such sale, transfer or other disposition of  assets of BCI.


 


“Permitted Preferred Stock” means the Convertible
Preferred Stock and the BCI Exchangeable Preferred Stock.


 


“Permitted Preferred Stock Documents” means,
collectively, the Certificate of Designation and the Convertible Certificate of
Designation, any subscription agreements therefor and all of the other
agreements, instruments and other documents pursuant to which the Permitted
Preferred Stock will be or has been issued or otherwise setting forth the terms
of the Permitted Preferred Stock, in each case as such agreement, instrument or
other document may be amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof, but only to the extent permitted
under the terms of the Loan Documents.


 


“Person” means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock company,
trust, unincorporated association,


 


31

















 


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.


 


“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.


 


“Prepackaged
Plan” means a plan of reorganization filed in a proceeding under
Chapter 11 of the Bankruptcy Code which plan shall have been accepted prior to
such filing by the holders of the minimum amount of each class of claims or
interests impaired under such plan that would be necessary to achieve
acceptance thereof pursuant to Section 1126 of the Bankruptcy Code.


 


“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).


 


“Purchase
Agreement”  has
the meaning specified in the Preliminary Statements.


 


“PWC”
means PricewaterhouseCoopers LLP.


 


“Real
Estate SPV” means Broadwing Communications Real
Estate Services LLC, a Delaware limited liability company.


 


 “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.


 


32

















 


“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 Junior Notes Documents, the
Oak Hill Indenture, the BCSI Sale Agreement, the Subordinated Debt Documents,
any intercompany notes issued pursuant to Section 5.02(b)(ii) and Section
5.02(b)(i)(D), all agreements, indentures and instruments pursuant to which the
Senior Notes are issued, the certificate of incorporation of Wireless Holdco,
documents related to the Surviving Debt and the Permitted Preferred Stock
Documents.


 


“Related
Fund” means, with respect to any Lender which is a fund that
invests in loans, any other fund that invests in loans and is controlled by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.


 


 “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 and (c) 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 a Borrower or any of
its Subsidiaries or any other officer, partner or member (or person performing
similar functions) of such 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.


 


“Restricted
Payment” has the meaning specified in Section 5.02(g).


 


 “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.


 


33

















 


“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.


 


“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
Notes” means senior unsubordinated notes of BRW which have
customary high yield covenants for similar issuers, are unsecured and have the
benefit of no upstream guaranties or other claims against Subsidiaries of BRW
(including BCI and its Subsidiaries).


 


“Senior Secured Debt/EBITDA Ratio” means, at any date of
determination, the ratio of Consolidated Senior Secured Debt of BRW and its
Subsidiaries as at such date of determination to Consolidated EBITDA of BRW and
its Subsidiaries for the period of four consecutive fiscal quarters of BRW
ended on or immediately prior to such date.


 


“Senior Secured Debt” means, as of any date, the Advances
and that portion of  the Debt (excluding
all indebtedness and payment Obligations referred to in clauses (g) and (h) of
the definition of “Debt” herein) of BRW and its Subsidiaries that ranks pari
passu with the Advances made to BRW and is secured by any collateral,
including, without limitation, the BRW 71⁄4 % Notes. “Senior Secured Debt” shall also at all times include the
medium term notes of CBT issued under CBT’s indenture dated as of October


 


34

















 


27,
1993, and CBT’s 6.30% Debentures due 2028 issued under CBT’s indenture dated as
of November 30, 1998.


 


“Shared Collateral Security Agreement” has the meaning
specified in Section 3.01(a)(ii).


 


 “Single Employer Plan”
means a single employer plan, as defined in Section 4001(a)(15) of ERISA,
that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or
(b) was so maintained, and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.


 


“Solvent” and “Solvency” mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay such debts and liabilities as they mature and (d) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person’s property would constitute
an unreasonably small capital.  The
amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.


 


“SPC” has the meaning specified in Section 9.07(j).


 


“Specified
Default” means any default or event of default under any Debt of
BRW or any of its Subsidiaries of the type described in Section 7.01(p) or by
reason of a cross default to the Oak Hill Indenture resulting from a default or
event of default under the Oak Hill Indenture of the type described in Section
7.01(p).


 


“Spectrum
Assets” means the E-Block spectrum license granted by the
Federal Communications Commission or any spectrum license owned by Wireless Co.
for which the E-Block may be exchanged.


 


“SPV”
has the meaning specified in Section 5.01(s).


 


“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.


 


 “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 either (a) contains


 


35

















 


terms
and conditions that comply with the requirements of Section 5.02(b)(i)(F)(y) or
(b) 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 either (a) contains terms and conditions that comply with the requirements
of Section 5.02(b)(i)(F)(y) or (b) 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.  Notwithstanding the
foregoing, for purposes of this Agreement only but not the other Loan
Documents, references to “Subsidiaries”
of BRW shall not include BCI or any Subsidiary of BCI unless an express
reference to BCI or BCI and its Subsidiaries is made, except that at all times
after BRW shall deliver written notice to the Administrative Agent stating that
Broadwing Telecommunications Inc. shall thereafter be deemed to be a Subsidiary
of BRW for all purposes hereunder in accordance with Section 5.02(d)(iii),
Broadwing Telecommunications Inc. shall thereafter be deemed to be a Subsidiary
of BRW notwithstanding that it may at any such time be a Subsidiary of BCI.


 


“Subsidiary Guaranties” has the meaning specified in
Section 3.01(a)(iii).


 


“Subsidiary Guarantors” means the Subsidiaries of BRW
(including BCI and its Subsidiaries) listed on Schedule II hereto and each
other Subsidiary of BRW (including BCI and its Subsidiaries) 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 prior to the Effective Date.


 


“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, initially, each of CUSA, Bank of
America and  PNC or any other Lender
selected by BRW pursuant to Section 2.01(c).


 


“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).


 


36

















 


“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 Borrowing” means a
borrowing consisting of simultaneous Term A Advances of the same Type made by
the Term A Lenders.


 


“Term A Commitment” means, with respect to any Term A
Lender at any time, the aggregate amount set forth opposite such Lender’s name
on Schedule I hereto under the caption “Term A Commitment”, or, if such Lender
has entered into one or more Assignment and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Lender’s “Term A Commitment”, as the case may be, in
each case as such amount may be reduced at or prior to such time pursuant to
Section 2.05.


 


“Term Advances” means, collectively, Term A Advances,
Term B Advances and Term C Advances.


 


“Term A Facility” 
means, at any time, the aggregate amount of the Term A Lenders’ Term A
Commitments at such time.


 


“Term A Lender” means each Lender that has made a Term A
Advance.


 


“Term  A Note” means a promissory note of a Borrower
payable to the order of any Term A Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from the Term A Advance made by such Lender, as amended.


 


“Term B Advance” has the meaning specified in Section
2.01(a)(ii).


 


“Term
B Borrowing”
means a borrowing consisting of simultaneous Term B Advances of the same Type
made by the Term B Lenders.


 


“Term B Commitment” means, with respect to any Term B
Lender at any time, the aggregate amount set forth opposite such Lender’s name
on Schedule I hereto under the caption “Term B Commitment”, or, if such Lender
has entered into one or more Assignment and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Lender’s “Term B Commitment”, as the case may be, in
each case as such amount may be reduced at or prior to such time pursuant to
Section 2.05.


 


37

















 


“Term B Facility” 
means, at any time, the aggregate amount of the Term B Lenders’ Term B
Commitments at such time.


 


“Term B Lender” means each Lender that has made a Term B
Advance.


 


“Term  B Note” means a promissory note of a Borrower
payable to the order of any Term B Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from the Term B Advance made by such Lender, as amended.


 


“Term
Borrowings” means, collectively, Term A Borrowings, Term B
Borrowings and Term C Borrowings.


 


“Term C Advance” has the meaning specified in Section
2.01(a)(iii).


 


“Term
C Borrowing”
means a borrowing consisting of simultaneous Term C Advances of the same Type
made by the Term C Lenders.


 


“Term C Commitment” means, with respect to any Term C
Lender at any time, the aggregate amount set forth opposite such Lender’s name
on Schedule I hereto under the caption “Term C Commitment”, or, if such Lender
has entered into one or more Assignment and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Lender’s “Term C Commitment”, as the case may be, in
each case as such amount may be reduced at or prior to such time pursuant to
Section 2.05.


 


“Term C Facility” 
means, at any time, the aggregate amount of the Term C Lenders’ Term C
Commitments at such time.


 


“Term C Lender” means each Lender that has made a Term C
Advance.


 


“Term  C Note” means a promissory note of a Borrower
payable to the order of any Term C Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from the Term C Advance made by such Lender, as amended.


 


 “Term Commitments”
means, collectively, Term A Commitments, Term B Commitments and Term C
Commitments.


 


“Term Facility” means, collectively, the Term A Facility,
the Term B Facility  and the Term C
Facility.


 


“Termination Date” means the earlier of March 1, 2006 and
the date of termination in whole of the Revolving Credit Commitments and the
Letter of Credit Commitments pursuant to Section 2.05 or 7.01.


 


38

















 


 “Term Lenders” means,
collectively, Term A Lenders, Term B Lenders and Term C Lenders.


 


 “Term Notes” means,
collectively, Term A Notes, Term B Notes and Term C Notes.


 


“Transaction” means the issuance of the Junior Notes and
the execution, delivery and performance of the Loan Documents.


 


“Transaction Documents” means, collectively, the Loan
Documents and the Related Documents.


 


“Transfer”
has the meaning specified in Section 5.01(j)(I)(3)(d).


 


“2004 Letters of Credit” means (i) the $47,742
letter of credit issued to Utah State Retirement Investment Fund issued by Bank
of America that expires April 20, 2004 and (ii) the $138,112 letter
of credit issued to Overseas Partners (333), Inc. issued by Bank of America
that expires July 14, 2004.


 


 “Type” refers to the
distinction between Advances bearing interest at the Base Rate and Advances
bearing interest at the Eurodollar Rate.


 


 “Unused Revolving Credit Commitment”
means, with respect to any Revolving Credit Lender at any time, (a) such
Lender’s Revolving Credit Commitment at such time minus (b) the sum of
(i) the aggregate principal amount of all Revolving Credit Advances, Swing
Line Advances and Letter of Credit Advances made by such Lender (in its
capacity as a Lender) and outstanding at such time plus (ii) such Lender’s
Pro Rata Share of (A) the aggregate Available Amount of all Letters of
Credit outstanding at such time, (B) the aggregate principal amount of all
Letter of Credit Advances made by the Issuing Banks pursuant to
Section 2.03(c) and outstanding at such time and (C) the aggregate
principal amount of all Swing Line Advances made by the Swing Line Banks
pursuant to Section 2.01(c) and outstanding at such time.


 


“Voting Interests” means shares of capital stock issued
by a corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended by the happening
of such a contingency.


 


“Warrant
Agreement” has the meaning specified in the Preliminary
Statements.


 


“Warrants”  has the meaning
specified in the Preliminary Statements.


 


“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.


 


39

















 


“Wireless
Co.” means Cincinnati Bell Wireless Company, an Ohio
corporation.


 


“Wireless
Holdco”  means
Cincinnati Bell Wireless Holdings LLC, a Delaware limited liability company.


 


“Wireless
LLC” means Cincinnati Bell Wireless LLC, an Ohio limited
liability company.


 


“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 in effect on the Effective Date (“GAAP”).


 


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 A Lender made advances (each a
“Term A Advance”) to
the Borrowers prior to the Effective Date under Section 2.01(a)(i) of the
Existing Credit Agreement in an aggregate amount equal to such Lender’s Term A
Commitment.  All Term A Advances
outstanding on the Effective Date shall for all purposes be deemed to have been
made hereunder and shall constitute use of the Term A Facility. Amounts
outstanding under this Section 2.01(a)(i) and repaid or prepaid may not be
reborrowed.


 


(ii)
Each Term B Lender made incremental term B advances (each a “Term B Advance”) to
the Borrowers prior to the Effective Date under Sections 2.01(a)(ii) and
2.05(c) of the Existing Credit Agreement in an aggregate amount equal to such
Lender’s Term B Commitment.  All Term B
Advances outstanding on the Effective Date shall for all purposes be deemed to
have been made hereunder and shall constitute use of the Term B Facility.
Amounts outstanding under this Section 2.01(a)(ii) and repaid or prepaid
may not be reborrowed.


 


(iii)
Each Term C Lender made a single incremental term C advance (each a “Term C Advance”) to
the Borrowers prior to the Effective Date under Sections 2.01(a)(iii) and
2.05(c) of the Existing Credit Agreement in an aggregate amount equal to such
Lender’s Term C Commitment.  All Term C
Advances outstanding on the Effective Date shall for all purposes be


 


40

















 


deemed
to have been made hereunder and shall constitute use of the Term C Facility. Amounts
outstanding under this Section 2.01(a)(iii) 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 BRW from time
to time on any Business Day during the period from the date hereof until the
Termination Date in an amount for each such Advance not to exceed such Lender’s
Unused Revolving Credit Commitment at such time.  Each Revolving Credit Borrowing shall be in an aggregate amount
of (i) $10,000,000 or an integral multiple of $1,000,000 in excess thereof
in respect of Eurodollar Rate Advances and (ii) $10,000,000 or an integral
multiple of $1,000,000 in excess thereof in respect of Base Rate Advances (in
each case, other than a Borrowing the proceeds of which shall be used solely to
repay or prepay in full outstanding Swing Line Advances or outstanding Letter
of Credit Advances) and shall consist of Revolving Credit Advances made
simultaneously by the Revolving Credit Lenders ratably according to their
Revolving Credit Commitments.  The
Revolving Credit Advances made to BRW and to BCSI under Section 2.01(b) of the
Existing Credit Agreement and outstanding on the Effective Date shall for all
purposes be deemed to have been made hereunder and shall constitute use of the
Revolving Credit Facility.  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). BCSI may not borrow any new Revolving Credit
Advances under this Section 2.01(b).


 


(c)                                  The
Swing Line Advances.  BRW 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 BRW 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. 
Any Swing Line Advances made to BRW and to BCSI under Section 2.01(c) of
the Existing Credit Agreement and outstanding on the Effective Date shall for
all purposes be deemed to have been made hereunder and shall constitute use of
the Swing Line Facility.  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, BRW 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).  BCSI may not borrow any new Swing Line
Advances under this Section 2.01(c). 
BRW may select any Lender to act as a Swing Line Bank or remove any
Lender as a Swing Line Bank at its discretion; provided
that (i) each such Lender 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 a Swing Line Bank and notifies the
Administrative Agent of its acceptance of such


 


41

















 


appointment
and (ii) there are no more than four Swing Line Banks (including all Swing Line
Banks that have issued Swing Line Advances that remain outstanding) at any one
time.


 


(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 BRW 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 2004 Letters of Credit and all Letters
of Credit issued for the account of BRW or BCSI under Section 2.01(d) of the
Existing Credit Agreement and outstanding on the Effective Date 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 shall have an expiration date (including all rights of the
Borrowers or the beneficiary to require renewal) later than the earlier of 5
Business Days before the Termination Date and one year after the date of
issuance thereof, but may by its terms be renewable annually upon notice (a “Notice of Renewal”)
given to the Issuing Bank that issued such Letter of Credit and the
Administrative Agent on or prior to any date for notice of renewal set forth in
such Letter of Credit but in any event at least three Business Days prior to
the date of the proposed renewal of such Letter of Credit and upon fulfillment
of the applicable conditions set forth in Article III unless such Issuing Bank
has notified such Borrower (with a copy to the Administrative Agent) on or
prior to the date for notice of termination set forth in such Letter of Credit
but in any event at least 30 Business Days prior to the date of automatic
renewal of its election not to renew such Letter of Credit (a “Notice of Termination”).  If either a Notice of Renewal is not given
by such Borrower or a Notice of Termination is given by the relevant Issuing
Bank pursuant to the immediately preceding sentence, such Letter of Credit
shall expire on the date on which it otherwise would have been automatically
renewed; provided,
however, that even in the absence of receipt of a Notice of Renewal
the relevant Issuing Bank may in its discretion, unless instructed to the
contrary by the Administrative Agent or such Borrower, deem that a Notice of
Renewal had been timely delivered and in such case, a Notice of Renewal shall
be deemed to have been so delivered for all purposes under this Agreement.  Each Letter of Credit shall contain a
provision authorizing the Issuing Bank that issued such Letter of Credit to
deliver to the beneficiary of such Letter of Credit, upon the occurrence and
during the continuance of an Event of Default, a notice (a “Default Termination Notice”)
terminating such Letter of Credit and giving such beneficiary 15 days to draw
such Letter of Credit.  Within the
limits of the Letter of Credit Facility, and subject to the limits referred to
above, BRW 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).  BCSI may not request the issuance of any new
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 


 


42

















 


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 BRW 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 BRW by crediting the
Borrower’s Account; provided, however, that, in the case of
any Revolving Credit Borrowing, the Administrative Agent shall first make a
portion of such funds equal to the aggregate principal amount of any Swing Line
Advances and Letter of Credit Advances made by any Swing Line Bank or any
Issuing Bank, as the case may be, and by any other Revolving Credit Lender and
outstanding on the date of such Revolving Credit Borrowing, plus interest
accrued and unpaid thereon to and as of such date, available to such Swing Line
Bank or such Issuing Bank, as the case may be, and such other Revolving Credit
Lenders for repayment of such Swing Line Advances and Letter of Credit
Advances.


 


(b)                                 Each
Swing Line Borrowing shall be made on notice, given not later than
1:00 P.M. (New York City time) on the date of the proposed Swing Line
Borrowing, by BRW 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 BRW by crediting the
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.  BRW hereby
agrees to each such sale and assignment. 
Each Revolving Credit Lender agrees to purchase its Pro Rata


 


43

















 


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 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) BRW may
not select Eurodollar Rate Advances 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 and (ii) 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 BRW.  In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, BRW 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 BRW on such date a
corresponding


 


44

















 


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 BRW 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 BRW until the date such
amount is repaid or paid to the Administrative Agent, at (i) in the case
of BRW, the interest rate applicable at such time under Section 2.07 to
Advances comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate.  If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount so
paid shall constitute such Lender’s Advance as part of such Borrowing for all
purposes.


 


(f)                                    The
failure of any Lender to make the Advance to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.


 


SECTION 2.03.  Issuance of and Drawings
and Reimbursement Under Letters of Credit 
(a)  Request for Issuance.  Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, by BRW 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 BRW 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 BRW at its office referred to in Section 9.02 or as
otherwise agreed with BRW 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


 


45

















 


average
daily aggregate Available Amount during the preceding calendar quarter of all
Letters of Credit issued by such Issuing Bank.


 


(c)                                  Drawing
and Reimbursement.  The payment by
any Issuing Bank of a draft drawn under any Letter of Credit shall constitute
for all purposes of this Agreement the making by such Issuing Bank of a Letter
of Credit Advance, which shall be a Base Rate Advance, in the amount of such
draft.  Upon written demand by any
Issuing Bank with an outstanding Letter of Credit Advance, with a copy of such
demand to the Administrative Agent, each Revolving Credit Lender shall purchase
from such Issuing Bank, and such Issuing Bank shall sell and assign to each
such Revolving Credit Lender, such Lender’s Pro Rata Share of such outstanding
Letter of Credit Advance as of the date of such purchase, by making available
for the account of its Applicable Lending Office to the Administrative Agent
for the account of such Issuing Bank, by deposit to the Administrative Agent’s
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of such Letter of Credit Advance to be purchased by such
Lender.  Promptly after receipt thereof,
the Administrative Agent shall transfer such funds to such Issuing Bank.  BRW hereby agrees to each such sale and
assignment.  In consideration and in
furtherance of the foregoing, each Revolving Credit Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Lender’s Pro Rata Share of each Letter of Credit
Advance made by the Issuing Bank and not reimbursed by the Borrower on the date
made, or of any reimbursement payment required to be refunded to the Borrower
for any reason.  Each Revolving Credit
Lender acknowledges and agrees that its obligation to purchase its Pro Rata
Share pursuant to this paragraph in respect of Letters of Credit is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the Revolving
Credit Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. 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 


 


46

















 


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 A Lenders the
aggregate outstanding principal amount of the Term A Advances on the following
dates in the amounts set forth opposite such dates (in each case which amounts
shall be reduced as a result of the application of prepayments in accordance
with the order of priority set forth in Section 2.06):


 


	
  Date

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 27, 2003

  	
   

  	
  $

  	
  172,992,155.71

  	
   

  
	
  September 29, 2003

  	
   

  	
  42,515,080.83

  	
   

  
	
  December 30, 2003

  	
   

  	
  42,515,080.83

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 30, 2004

  	
   

  	
  64,536,193.98

  	
   

  
	
  June 29, 2004

  	
   

  	
  64,536,193.98

  	
   

  
	
  September 29, 2004

  	
   

  	
  64,536,193.98

  	
   

  
	
  November 9, 2004

  	
   

  	
  64,536,193.98

  	
   

  
					



 


provided,
however, that, notwithstanding the foregoing provisions of
this Section 2.04(a)(i), the final principal repayment installment of the Term
A Advances shall be repaid in full on the Final Maturity Date and in any event
shall be in an amount equal to the aggregate principal amount of all Term A
Advances outstanding on such date.


 


(ii)
The Borrowers shall repay to the Administrative Agent for the ratable account
of the Term B Lenders the aggregate outstanding principal amount of the Term B
Advances on the following dates in an amount equal to the percentage of the
aggregate principal amount of all of the Term B Advances outstanding on January
12, 2002 under the Existing Credit Agreement (after giving effect to all
Borrowings under Section 2.01(a)(ii) of the Existing Credit Agreement, 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):


 


47

















 


	
  Date

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 29, 2003

  	
   

  	
  0.25

  	
  %

  
	
  June 27, 2003

  	
   

  	
  0.25

  	
  %

  
	
  September 29, 2003

  	
   

  	
  0.25

  	
  %

  
	
  December 30, 2003

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  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

  	
  %

  



 


provided,
however, that, notwithstanding the foregoing provisions of
this Section 2.04(a)(ii), the final principal repayment installment of the Term
B Advances shall be repaid in full on the Final Maturity Date and in any event
shall be in an amount equal to the aggregate principal amount of all Term B
Advances outstanding on such date.


 


(iii)                               The Borrowers shall
repay to the Administrative Agent for the ratable account of the Term C Lenders
the aggregate outstanding principal amount of the Term C Advances on the
following dates in an amount equal to the percentage of the aggregate principal
amount of all of the Term C Advances outstanding on January 12, 2002 under the
Existing Credit Agreement set forth opposite such dates (in each case which
amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.06):


 




	
  Date

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 29, 2003

  	
   

  	
  0.25

  	
  %

  
	
  June 27, 2003

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September 29, 2003

  	
   

  	
  0.25

  	
  %

  
	
  December 30, 2003

  	
   

  	
  0.25

  	
  %

  
	
  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

  	
   

  	
  0.25

  	
  %

  
	
  June 29, 2006

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September 29, 2006

  	
   

  	
  23.875

  	
  %

  
	
  December 30, 2006

  	
   

  	
  23.875

  	
  %

  
	
  March 30, 2007

  	
   

  	
  23.875

  	
  %

  
	
  June 29, 2007

  	
   

  	
  23.875

  	
  %

  






 


48

















 


provided,
however, that, notwithstanding the foregoing provisions of
this Section 2.04(a)(iii), the final principal repayment installment of the
Term C Advances shall be repaid in full on the Final Maturity Date and in any
event shall be in an amount equal to the aggregate principal amount of all Term
C 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 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.


 


49

















 


(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.


 


(e)                                Designation
of Amortization Payments. BRW may elect to have any amortization payment of
any Facility made pursuant to this Section 2.04 applied to the Advances made to
BRW rather than the Advances made to BCSI upon prior notice to the
Administrative Agent.


 


SECTION 2.05.  Termination or
Reduction of the Commitments; Increase of the Commitments.  (a)  Optional. BRW may,
upon at least three Business Days’ notice to the Administrative Agent,
terminate in whole or reduce in part the unused portions of the Letter of


 


50

















 


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 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) Each 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 for such
Facility immediately prior to such reduction exceed the aggregate unpaid
principal amount of such 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 the amount 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) or (b)(v) of this Section 2.05), provided
that each such reduction of the Revolving Credit Facility shall be made ratably
among the Revolving Credit Lenders in accordance with their Revolving Credit
Commitments:


 


	
  Date

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 30, 2005

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
  June 29, 2005

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
  September 29, 2005

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
  December 30, 2005

  	
   

  	
  $

  	
  50,000,000

  	
   

  



 


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 Revolving
Credit Facility shall be automatically and permanently reduced ratably among
the Revolving Credit Lenders in accordance with their Revolving Credit
Commitments in an amount equal to the prepayments of the Revolving Credit
Advances pursuant to clause (x) of the proviso
in Section 5.02(b)(i)(B), and each reduction of the


 


51

















 


Revolving Credit Commitments pursuant to this Section 2.05(b)(v) shall
be applied to the scheduled commitment reduction installments of the Revolving
Credit Facility on a pro rata basis.


 


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 such 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
for such Facility pro rata to the remaining installments thereof.


 


(b)                                 Mandatory.  (i)  Following the end of each Fiscal
Year of BRW commencing with the Fiscal Year ending December 31, 2003, 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 75% of the Excess Cash
Flow for such Fiscal Year.  Each such
prepayment shall be applied ratably first to the Term Facilities 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)                                  The
Borrowers shall, on the date of receipt of the Net Cash Proceeds by any Loan
Party or any of its Subsidiaries from (A) the sale, lease, transfer or
other disposition of any assets of any Loan Party or any of its Subsidiaries
(other than any sale, lease, transfer or other disposition of assets pursuant
to (x) clauses (i) through (vii) and (ix) of Section 5.02(e) or (y) pursuant to
clause (viii) of Section 5.02(e) if the proceeds are being reinvested in the
existing lines of business of BRW and its 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 Facilities 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 Facilities 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.


 


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(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
Borrowers shall, on each Business Day, pay to the Administrative Agent for
deposit in the L/C Cash Collateral Account an amount sufficient to cause the
aggregate amount on deposit in the L/C Cash Collateral Account to equal the
amount by which the aggregate Available Amount of all Letters of Credit then
outstanding exceeds the Letter of Credit Facility on such Business Day.


 


(vi)                              Prepayments
of the Revolving Credit Facility made pursuant to clause (i), (ii), (iii) or
(iv) above shall be first applied to prepay Letter of Credit
Advances then outstanding until such Advances are paid in full, second
applied to prepay Swing Line Advances then outstanding until such Advances are
paid in full, third applied to prepay Revolving Credit Advances then
outstanding comprising part of the same Borrowings until such Advances are paid
in full and fourth
deposited in the L/C Cash Collateral Account to cash collateralize 100% of the
Available Amount of the Letters of Credit then outstanding.  Upon the drawing of any Letter of Credit for
which funds are on deposit in the L/C Cash Collateral Account, such funds shall
be applied to reimburse the relevant Issuing Bank or Revolving Credit Lenders,
as applicable.


 


(vii)                           All
prepayments under this subsection (b) shall be made together with accrued
interest to the date of such prepayment on the principal amount prepaid.


 


(viii)                        Anything
contained in this Section 2.06(b) to the contrary notwithstanding, (A) if,
following the occurrence of any “Asset Disposition” (as such term is defined in
the Junior Notes Indenture or any comparable definition in any other Debt
document to which either Borrower is a party (any “Other Debt Document”)),
the issuance of equity or any other event under any Other Debt Document (a “Prepayment Event”),
by any Loan Party or any of its Subsidiaries, either Borrower is required to
commit by a particular date (a “Commitment Date”) to apply or cause its Subsidiaries to
apply an amount equal to any of the “Net Proceeds” (as defined in the Junior
Notes Indenture or any comparable definition in any Other Debt Document, as the
case may be) thereof in a particular manner, or to apply by a particular date
(an “Application Date”)
an amount equal to any such “Net Proceeds” in a particular manner, in either
case in order to excuse such Borrower from being required to make an “Asset
Sale Offer” (as defined in the Junior Notes Indenture or any comparable
definition in any Other Debt Document, as the case may be) or any other
prepayment of such Debt under such Other Debt Document (a “Debt Prepayment”) in
connection with such “Asset Sale” or other Prepayment Event, as the case may
be, and such Borrower shall have failed to so commit or to so apply an amount
equal to such “Net Proceeds” at least 30 days before the Commitment Date or the
Application Date, as the case may be, or (B) if either Borrower at any other
time shall have failed to apply or commit or cause to be applied any amount
equal to any such “Net Proceeds” and ,


 


53

















 


within
30 days thereafter assuming no further application or commitment of an amount
equal to such “Net Proceeds” such Borrower would otherwise be required to make
an “Asset Sale Offer” or Debt Prepayment, as the case may be, in respect
thereof, then in either such case such Borrower shall immediately apply or
cause to be applied an amount equal to such “Net Proceeds” to the payment of
the Advances in the manner set forth in Section 2.06(b)(ii) in such amounts as
shall excuse such Borrower from making any such “Asset Sale Offer” or Debt
Prepayment, as the case may be.


 


(c)                                  Pro
Rata Treatment. All prepayments of the Term Facilities under this Section
2.06 shall be applied to prepay the Term A Advances then outstanding, the Term
B Advances then outstanding and the Term C Advances then outstanding on a pro
rata basis.


 


(d)                                 Designation
of Prepayments.  BRW may elect to
have any prepayment of the Facilities made pursuant to this Section 2.06
applied to the Advances made to BRW rather than the Advances made to BCSI upon
prior notice to the Administrative Agent.


 


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 


 


54

















 


Advance
on which such interest has accrued pursuant to clause (a)(i) or (a)(ii)
above and, in all other cases, on Base Rate Advances pursuant to clause (a)(i)
above.


 


(c)                                  Notice
of Interest Period and Interest Rate. 
Promptly after receipt of a Notice of 
Borrowing pursuant to Section 2.02(a), a notice of Conversion pursuant
to Section 2.09 or a notice of selection of an Interest Period pursuant to
the terms of the definition of “Interest Period”, the Administrative Agent
shall give notice to the appropriate Borrower and each Appropriate Lender of
the applicable Interest Period and the applicable interest rate determined by
the Administrative Agent for purposes of clause (a)(i) or (a)(ii) above.


 


SECTION 2.08  Fees.  (a)  Commitment
Fee.  BRW shall pay to the Administrative
Agent for the account of the Lenders a commitment fee, from the date hereof in
the case of each Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender until the Termination Date, payable in arrears on the date of
the initial Borrowing hereunder, thereafter quarterly on the last day of each
March, June, September and December, and on the Termination Date, at a rate per
annum equal to 0.625% 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)  BRW 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
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)                                  BRW
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 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 Borrowers 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.  BRW shall pay to each Agent
for its own account such fees as may from time to time be agreed between BRW
and such Agent.


 


SECTION 2.09  Conversion of
Advances  (a)  Optional.  Each Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the date of the proposed Conversion


 


55

















 


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 Party is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Borrowers 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)


 


56

















 


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.


 


(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


 


57

















 


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 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.


 


58

















 


(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.


 


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


 


59

















 


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.


 


(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 Borrowers (but only so long thereafter as such Lender Party remains
lawfully able to do so), provide each of the Administrative Agent and the
Borrowers with two properly completed original Internal Revenue Service forms W-8BEN
or W-8ECI, 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.  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


 


60

















 


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 W-BEN or W-8ECI, that the applicable Lender Party reasonably
considers to be confidential, such Lender Party shall give notice thereof to
the Borrowers and shall not be obligated to include in such form or document
such confidential information.


 


(f)                                    For
any period with respect to which a Lender Party has failed to provide such
Borrower with the appropriate form described in subsection (e) above (other than
if such failure is due to a change in law occurring after the date on which a
form originally was required to be provided (but only so long as such Lender
Party is not lawfully able to provide such form) or if such form otherwise is
not required under subsection (e) above), such Lender Party shall not be
entitled to indemnification under subsection (a) or (c) of this
Section 2.12 with respect to Taxes imposed by the United States by reason
of such failure; provided, however, that should a Lender Party become subject
to Taxes because of its failure to deliver a form required hereunder, the
Borrowers 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


 


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at such time) of payments on account of the Obligations owing (but not
due and payable) to all Lender Parties hereunder and under the Notes at such
time obtained by all of the Lender Parties at such time, such Lender Party
shall forthwith purchase from the other Lender Parties such interests or participating
interests in the Obligations due and payable or owing to them, as the case may
be, as shall be necessary to cause such purchasing Lender Party to share the
excess payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender Party, such purchase from each other Lender Party shall be rescinded and
such other Lender Party shall repay to the purchasing Lender Party the purchase
price to the extent of such Lender Party’s ratable share (according to the
proportion of (i) the purchase price paid to such Lender Party to
(ii) the aggregate purchase price paid to all Lender Parties) of such
recovery together with an amount equal to such Lender Party’s ratable share
(according to the proportion of (i) the amount of such other Lender
Party’s required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered; provided
further that, so long as the Obligations under the Loan Documents
shall not have been accelerated, any excess payment received by any Appropriate
Lender shall be shared on a pro rata basis only with other Appropriate
Lenders.  Each Borrower 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 were used
prior to the Effective Date (and each Borrower represents that it used such
proceeds) as follows: (i) by BCSI solely to refinance certain existing debt
outstanding on the closing date of the Original Credit Agreement, including the
June BCSI Agreement, to fund Capital Expenditures, to pay transaction fees and
expenses under the Original Credit Agreement and other general corporate
purposes, in each case, to the extent permitted hereunder and under applicable
Surviving Debt documents (as defined under the Original Credit Agreement) and
to repurchase a portion of the BCI Senior Subordinated Notes; and (ii) by
BRW solely to refinance the BofA Credit Agreement, to pay transaction fees and
expenses under the Original Credit Agreement, to make equity contributions and
intercompany loans to BCI and its Subsidiaries, to enable BCI to refinance
certain existing debt outstanding on the closing date of the Original Credit
Agreement and to repurchase a portion of the BCI Senior Subordinated Notes and
for other general corporate purposes, in each case, to the extent permitted
hereunder and under applicable Surviving Debt documents (as defined under the
Original Credit Agreement).  The
proceeds of the Revolving Credit Advances and issuances of Letters of Credit
shall be available to BRW (and BRW agrees that it shall use such proceeds and
Letters of Credit) solely to fund Capital Expenditures, to make limited equity
contributions and intercompany loans to BCI and its Subsidiaries and for other
general corporate purposes, in each case, to the extent permitted hereunder and
under the applicable Surviving Debt documents and the Junior Notes.


 


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 BRW and (iii) BRW shall
be required to make any payment hereunder or


 


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under any other Loan Document to or for the account of such Defaulting
Lender, then BRW 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 BRW 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, BRW
shall so set off and otherwise apply its obligation to make any such payment
against the obligation of such Defaulting Lender to make any such Defaulted
Advance on or prior to such date, the amount so set off and otherwise applied
by BRW 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).  BRW shall notify the Administrative Agent at any time BRW
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 BRW to or
for the account of such Defaulting Lender which is paid by BRW, after giving
effect to the amount set off and otherwise applied by BRW 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:


 


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(i)                                     first,
to the Agents for any Defaulted Amounts then owing to them, in their capacities
as such, ratably in accordance with such respective Defaulted Amounts then
owing to the Agents;


 


(ii)                                  second,
to the Issuing Banks and the Swing Line Banks for any Defaulted Amounts then
owing to them, in their capacities as such, ratably in accordance with such
respective Defaulted Amounts then owing to the Issuing Banks and the Swing Line
Banks; and


 


(iii)                               third,
to any other Lender Parties for any Defaulted Amounts then owing to such other
Lender Parties, ratably in accordance with such respective Defaulted Amounts
then owing to such other Lender Parties.


 


Any portion of such amount paid by such Borrower for
the account of such Defaulting Lender remaining, after giving effect to the amount
applied by the Administrative Agent pursuant to this 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 such 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;


 


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(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 BRW 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 BRW may have against such
Defaulting Lender with respect to any Defaulted Advance and that any Agent or
any Lender Party may have against such Defaulting Lender with respect to any
Defaulted Amount.


 


SECTION 2.16.  Evidence of Debt.  (a) 
Each Lender Party shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Advance owing to such Lender Party from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder. 
Each Borrower agrees that upon notice by any Lender Party to such
Borrower (with a copy of such notice to the Administrative Agent) to the effect
that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Lender Party to evidence (whether for purposes of
pledge, enforcement or otherwise) the Advances owing to, or to be made by, such
Lender Party, such Borrower shall promptly execute and deliver to such Lender
Party, with a copy to the Administrative Agent, a Revolving Credit Note and one
or more Term Notes, 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 A
Commitment, the Term B Commitment and the Term C 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
(or under the Existing Credit Agreement, as the case may be), the Type of
Advances comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable 


 


65

















 


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
EFFECTIVENESS, LENDING AND


ISSUANCES OF
LETTERS OF CREDIT


 


SECTION 3.01.  (I) Conditions
Precedent to Effectiveness of this Agreement.   This Agreement (other than as set forth in Section 3.01(II)) shall
become effective on and as of the first date (the “Effective Date”) on which all of the following
conditions precedent shall have been satisfied:


 


(a)                                  The
Administrative Agent shall have received on or before the Effective Date 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 replacement Notes
prior to the Effective Date.


 


(ii)                                  An
amended and restated security agreement from (a) BRW 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).


 


(iii)                               An amended and restated
guaranty from (a) the Subsidiary Guarantors who have guaranteed the
Obligations of BCSI and its Subsidiaries under the Loan Documents (the “BCSI Subsidiary Guaranty”)
and (b) the Subsidiary Guarantors who have guaranteed the Obligations of BRW
and its Subsidiaries under the Loan Documents (the “BRW 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


 


66

















 


case
as amended, the “Subsidiary Guaranties”),
duly executed by each Subsidiary Guarantor party thereto.


 


(iv)                              Certified
copies of the resolutions of the Board of Directors (or persons performing
similar functions), or, in the case of wholly owned Subsidiaries, action by
unanimous written consent of the sole shareholder, of each Loan Party approving
the Transaction and each Loan 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 Loan Document to which it is
or is to be a party.


 


(v)                                 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 Effective Date
(the statements made in which certificate shall be true on and as of the
Effective Date), 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 such documents were delivered to the
Administrative Agent under the Existing Credit Agreement, (B) the absence
of any amendments to the bylaws or limited liability company agreement, as
applicable, of such Loan Party since the date such documents were delivered to
the Administrative Agent under the Existing Credit Agreement, (C) no
proceeding for dissolution or liquidation of such Loan Party has been commenced
by such Loan Party, (D) the truth of the representations and warranties
contained in the Loan Documents as they relate to such Loan Party as though
made on and as of the Effective Date (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 consummation of the Transaction, that
constitutes a Default.


 


(vi)                              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.


 


(vii)                            A favorable opinion of
Cravath, Swaine & Moore, with respect to the Loan Documents, in form
reasonably acceptable to the Agents.


 


(viii)                        A favorable opinion of Frost
Brown Todd, with respect to the Loan Documents, in form reasonably acceptable
to the Agents.


 


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(ix)                                A
favorable opinion of Shearman & Sterling, counsel for the
Administrative Agent, in form and substance satisfactory to the Administrative
Agent.


 


(x)                                   
Counterparts of this Agreement duly executed by the Required Lenders, all of
the Revolving Credit Lenders, the Agents and the Borrowers.


 


(xi)                              Such other documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the authorization of the Transaction and other legal matters
relating to the Borrowers and the Transaction.


 


(b)                                 Before
giving effect and immediately after giving pro forma effect to the Transaction,
there shall have occurred no Material Adverse Change since December 31, 2001.


 


(c)                                  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 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.


 


(d)                                 All
governmental and third party consents and approvals and authorizations of,
notices and filings to or with, and other actions by any other Person necessary
in connection with any aspect of the Transaction, any of the Loan Documents or
the Related Documents or any of the other transactions contemplated thereby, shall
have been obtained (without the imposition of any conditions that are not
acceptable to the Lender Parties) and shall remain in effect; 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.


 


(e)                                  The
final Junior Note Documents executed by BRW and the other parties thereto shall
have terms and conditions not materially less favorable to the Lender Parties
than those set forth in the version of the drafts of the Purchase Agreement and
the Junior Notes Indenture most recently posted on or before March 21, 2003 to
the BRW IntraLinks website by the Administrative Agent for review by the Lender
Parties.


 


(f)                                    BRW
shall have received not less than $339,500,000 in net cash proceeds from the
sale of the Junior Notes and not less than $169,750,000 of such net cash


 


68

















 


proceeds
shall have been applied to the prepayment of the Facilities in accordance with
clause (x) of the proviso in
Section 5.02(b)(i)(B) and not less than $50,250,000 of such net cash proceeds
shall have been applied as a prepayment to the Revolving Credit Advances made
by BRW with a corresponding permanent reduction in the Revolving Credit
Commitment.


 


(g)                                 The
Borrowers shall have paid all accrued fees of the Agents and the Lender Parties
(including the amendment fees payable to the Lender Parties on the Effective
Date as agreed among the Agents and BRW) and all accrued expenses of the Agents
(including the reasonable accrued fees and expenses of counsel to the
Administrative Agent to the Lender Parties).


 


(II)  Conditions Precedent to Effectiveness of
the Part II Effective Date.  The Part II Effective Date shall become
effective without any further action on the part of any party hereto on and as
of the first date (the “Part
II Effective Date”) on which all of the following conditions
precedent shall have been satisfied:


 


(a)                                  The
Effective Date shall have occurred.


 


(b)                                 BRW
shall have obtained a waiver (the “Oak Hill Waiver”) from the holders of the Oak
Hill Debt of all default provisions in Sections 6.1(f) or (g) of the Oak Hill
Indenture by, against or with respect to BCI or any of its Subsidiaries and
similar provisions, if any, in the notes issued in connection therewith in form
and substance reasonably satisfactory to the Agents.


 


(c)                                  As
of the date of effectiveness of the Oak Hill Waiver, no other Debt of BRW or
any of its Subsidiaries shall have been accelerated by reason of a Specified
Default.


 


(d)                                 BRW
shall be in compliance with Section 5.02(v) with respect to fees, cash pay
interest or other cash pay financial consideration paid to holders of any Debt
in connection with any matter referred to in clauses (b) or (c) above, if any.


 


(e)                                  The
Facilities, or any part thereof, shall not have been accelerated pursuant to
Section 7.01.


 


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 BRW 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 BRW of the proceeds of such Borrowing or of such Letter of Credit
or the


 


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renewal of such Letter of Credit shall constitute a representation and
warranty by BRW, on its behalf and on behalf of BCSI, 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 (except to the
extent made by or relating to BCI or any Subsidiary of BCI) 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 BRW’s
representations and warranties (except to the extent relating to BCI or any
Subsidiary of BCI), (ii) BRW’s timely compliance with the terms, covenants
and agreements set forth in this Agreement and (iii) the absence of any
Default; and (c) prior to and after giving effect to any Revolving Credit
Advance (and giving effect to any debt service and other payments anticipated
to be made within 20 days of such Revolving Credit Advance), the total cash and
Cash Equivalents held by BRW and its Subsidiaries, on a Consolidated basis,
shall not exceed (A) prior to the completion of the Second Stage Closing under
the BCSI Sale Agreement (or the final consummation of any transaction effected
under Section 5.02(e)(ix) in lieu of a transaction under the BCSI Sale
Agreement), $50,000,000 and (B) thereafter, $40,000,000, excluding, in each
case in clauses (A) and (B), amounts held in cash collateral accounts pursuant
to Section 5.02(e)(ix)(E).


 


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 Effective Date specifying its objection thereto and, if an
initial Borrowing is requested to be made on the Effective Date, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party’s ratable portion of such Borrowing.


 


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


 


70

















 


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) conflict with or result in the
breach of, or constitute a default or, except as set forth in the attached
Schedule 4.01(c)(iii), require any payment to be made under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument
binding on or affecting any Loan Party, any of its 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


 


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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.  Notwithstanding the foregoing, it is
understood that (i) no regulatory approvals have been obtained in connection
with the pledge of shares of any regulated entity 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.


 


(e)                                  This
Agreement has been, and each other Transaction Document when delivered
hereunder will have been, duly executed and delivered by each Loan Party party
thereto.  This Agreement is, and each
other Transaction Document when delivered hereunder will be, the legal, valid
and binding obligation of each Loan Party party thereto, enforceable against
such Loan Party in accordance with its terms.


 


(f)                                    There
is no action, suit, investigation, litigation or proceeding affecting any Loan
Party or any of its Subsidiaries pending or, to the best knowledge of any Loan
Party, threatened before any court, governmental agency or arbitrator of any
kind that (i) either individually or in the aggregate, could be reasonably
likely to have a Material Adverse Effect other than any such action, suit,
investigation, litigation or proceeding affecting BCI or any of its
Subsidiaries after the Part II Effective Date which does not affect BRW or any
of its Subsidiaries, 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 BRW and its Subsidiaries (including BCI and its
Subsidiaries) as at December 31, 2001, and the related Consolidated and
consolidating, if any, statements of income and Consolidated statement of cash
flows of BRW and its Subsidiaries (including BCI and its Subsidiaries) for the
fiscal year then ended, accompanied by an unqualified opinion of PWC
independent public accountants, and the Consolidated and consolidating, if any,
balance sheets of BRW and its Subsidiaries (including BCI and its Subsidiaries)
as at September 30, 2002, and the related Consolidated and consolidating
statements of income and Consolidated statement of cash flows of BRW and its
Subsidiaries (including BCI and its Subsidiaries) for the nine months then
ended, duly certified by the Chief Financial Officer of BRW, copies of which
have been furnished to each Lender Party, fairly present the Consolidated and
consolidating financial condition of BRW and its Subsidiaries (including BCI
and its


 


72

















 


Subsidiaries)
as at such dates and the Consolidated and consolidating results of operations
of BRW and its Subsidiaries (including BCI and its 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, 2001, there has been no Material Adverse Change;


 


(h)                                 [Intentionally
Omitted.]


 


(i)                                     The
Consolidated and consolidating forecasted balance sheets, statements of income
and statements of cash flows of BRW and its Subsidiaries included in the
Information Materials (as applicable) or delivered to the Lender Parties
pursuant to Section 5.03 were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and represented,
at the time of delivery, BRW’s best estimate of its future financial
performance.


 


(j)                                     Neither
the Information Materials 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 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 BRW and its Subsidiaries (including BCI 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 BRW 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 BRW or any of its Subsidiaries includes,
without limitation, treasury stock of BRW 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.


 


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(m)                               Neither
any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or
credit agreement or any lease or other agreement or instrument or subject to
any charter or corporate restriction that could have a Material Adverse Effect.


 


(n)                                 All
filings and other actions necessary or desirable to perfect and protect the
security interest in the Collateral created under the Collateral Documents have
been duly made or taken and are in full force and effect, and the Collateral
Documents create in favor of the Administrative Agent for the benefit of the
Secured Parties a valid and, together with such filings and other actions,
perfected first priority security interest in the Collateral, securing the
payment of the Secured Obligations, and all filings and other actions necessary
or desirable to perfect and protect such security interest have been duly
taken.  The Loan Parties are the legal
and beneficial owners of the Collateral free and clear of any Lien, except for
the liens and security interests created or permitted under the Loan Documents.


 


(o)                                 BRW
and its Subsidiaries, on a consolidated basis, is Solvent (it being understood
and agreed that a going concern qualification for Fiscal Year 2002 shall not in
and of itself be deemed to evidence that BRW is not 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


 


74

















 


against
any Loan Party or any of its Subsidiaries or any of their properties or
(B) cause any such property to be subject to any liens and/or
environmental transfer act restrictions under any Environmental Law.  In addition to the foregoing, it is
understood and agreed that the Borrowers will comply with regulatory requirements
set forth in Schedule 4.01(q);


 


(ii)                                  none
of the properties currently or formerly owned or operated by any Loan Party or
any of its Subsidiaries is listed or, to the knowledge of any Loan Party or any
of their Subsidiaries, proposed for listing on the NPL or on the CERCLIS or any
analogous foreign, state or local list; and during the ownership or operation
thereof by any Loan Party or any of their Subsidiaries, Hazardous Materials
were not and have not been released, discharged or disposed of on any property
currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries; and


 


(iii)                               neither any Loan Party
nor any of its Subsidiaries is undertaking, and has not completed, either
individually or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to any
actual or threatened release, discharge or disposal of Hazardous Materials at
any site, location or 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


 


(s)                                  [Intentionally
Omitted.]


 


(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.


 


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(u)                                 Set
forth on Schedule 4.01(u) hereto is a complete and accurate list of all
Liens as of the date of the Existing Credit Agreement on the property or assets
of any Loan Party or any of its Subsidiaries; provided  that each Borrower further represents and
warrants that no Liens exist on such property or assets other than Liens
created under the Loan Documents, those listed on Schedule 4.01(u) and those
permitted under Section 5.02(a).


 


(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)                               Set
forth on Schedule 4.01(w) 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.


 


ARTICLE V


 


COVENANTS OF
THE BORROWERS


 


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, BRW and, where specifically indicated, BCSI 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 BRW 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)).


 


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(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 BRW nor any of its Subsidiaries shall be
required to pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien resulting
therefrom attaches to its property and becomes enforceable against its other
creditors.


 


(c)                                  Compliance
with Environmental Laws.  Comply,
cause each of its Subsidiaries and use its best efforts (which efforts shall
include ensuring that all applicable leases, licenses or other such agreements
include provisions requiring such compliance) to cause all lessees and other
Persons operating or occupying its properties to comply, in all material
respects, with all Environmental Laws and Environmental Permits; obtain and
renew and cause each of its Subsidiaries to obtain and renew all Environmental
Permits necessary for its operations and properties; and conduct, and cause
each of its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action necessary
to remove and clean up Hazardous Materials from any of its properties, to the
extent required by Environmental Laws, except where and to the extent that the
failure to comply with Environmental Laws, obtain or renew Environmental
Permits or to conduct such cleanup, removal, remedial or other action,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect; provided, however, that neither BRW nor
any of its 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 BRW 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) or 5.02(e)(ix), 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 for BRW and any of its Subsidiaries (including BCI and its
Subsidiaries) may be made so long as BRW makes 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.


 


77

















 


(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 BRW,
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 BRW and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.


 


(h)                                 Maintenance
of Properties, Etc.  Maintain and
preserve, and cause each of its Subsidiaries to maintain and preserve, all of
its properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.


 


(i)                                     Transactions
with Affiliates.  With respect to
each Borrower, 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 (it being understood that any
transaction involving the Oak Hill Debt, the Junior Notes or any Related
Document that is expressly permitted under Section 5.02, any Permitted BCI
Transaction, any transaction of the type described in Schedule 1.01 and any
non-cash transition arrangements or other related services provided to or for
the benefit of a buyer in connection with a transaction permitted under Section
5.02(e)(ix), including under any BRW Sale Arrangements, shall be deemed not to
violate this Section 5.01(i)).


 


(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 BRW 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 BCI 9% Indenture (it being acknowledged by the Agents that all actions
required to be taken under this subsection (j)(I) on or prior to the Effective
Date have already been taken):


 


(1)                                  as
soon as practicable but in any event by April 15, 2002, furnish to the
Administrative Agent a description of the real and personal properties of each
of the Loan Parties and their respective Subsidiaries (other than the Excluded
Entities) (by street address and property type maintained at such address) in
detail reasonably satisfactory to the Administrative Agent;


 


78

















 


(2)                                  by
June 2, 2002, cause each Subsidiary (other than the Excluded Entities and 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
(other than the Excluded Entities) 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:


 


a.                                                                                       fiber
in which an IRU has been granted prior to the date hereof or pursuant to
Section 5.02(e)(i) or 5.02(e)(viii)(B);


 


b.                                                                                      the
Equity Interests of Wireless LLC held by Wireless Holdco;


 


c.                                                                                       the
Spectrum Assets;


 


d.                                                                                      any
item of real property of BRW or such Subsidiaries that has been irrevocably
transferred under title documents satisfactory to the Agents to the Real Estate
SPV under terms and conditions acceptable to the Agents (a “Transfer”); provided that if such real property is
transferred out of the Real Estate SPV, the Real Estate SPV will be required to
deliver mortgages, assignments, surveys (if requested by the Administrative
Agent) and title insurance all in form and substance satisfactory to the Agents
on such real property at or before the time of such transfer unless such real
property is sold or otherwise transferred to a Person in a transaction
permitted by Section 5.02(e);


 


e.                                                                                       any
item of real property, the mortgage or Transfer, as the case may be, of which
is prohibited by or would constitute a breach of or a default under or give
rise to a right of termination under the underlying documentation, where
despite the use of best efforts by BRW or such Subsidiaries to obtain a consent
to so mortgage or Transfer, such consent cannot be obtained; provided that BRW or such Subsidiaries
will attempt to obtain the


 


79

















 


consent to
Transfer if a consent to mortgage any such property interest cannot be
obtained;


 


f.                                                                                         any
property interest that BRW has requested be excluded and as to which the
Agents, after consultation with an independent consultant to be retained on
behalf of the Agents (the “Consultant”),
determine that a mortgage or Transfer, as the case may be, is not cost
effective in relationship to the benefits to be received by the Lenders from
the mortgage or Transfer of such property interest (a list of which real
property interests excluded from the requirements of Section 5.01(j)(I)
pursuant to clause (e) or (f) hereof will be provided to the Lenders as
promptly as practicable by BRW);


 


provided, however, that:


 


(A)                            for
purposes of this Section 5.01(j)(I)(3), the use of “best efforts” will not
require the payment of any monetary consideration or expending continued
efforts to obtain such consent if BRW has diligently followed all agreed upon
procedures in attempting to obtain such consent unless, after BRW advises that
it cannot obtain a particular consent, the Agents, in their discretion
reasonably exercised and in consultation with the Consultant, determine that
the value to the Lenders of such collateral warrants paying additional
consideration or expending continuing efforts to obtain such consent;


 


(B)                              notwithstanding
the foregoing, the  Agents may
request that BRW or its Subsidiaries (including BCI and its Subsidiaries) grant
mortgages on additional real property (other than real property that is held in
the Real Estate SPV) and provide surveys, title insurance or other reports
specified in Section 5.02(j)(I)(6) on any real property (other than real
property that is held in the Real Estate SPV) at any time in their sole
discretion; and


 


(C)                              in
the event that there is a change in the circumstances which gave rise to any
real property interest being excluded from the requirements of this Section
5.01(j)(I) or the restrictions which prevented delivering documents hereunder
or consummating a Transfer of such real property no longer exist, BRW and its
Subsidiaries (including BCI and its Subsidiaries) shall promptly Transfer such
real property to the Real Estate SPV or execute and deliver to the
Administrative Agent all applicable documents required to be delivered under
this Section 5.01(j)(I);


 


(D)                             if
(1) CBT ceases to be subject to all regulation relating to telecommunications
businesses by all federal, state and local


 


80

















 


governmental
authorities which prohibits, restricts or requires regulatory approval for the
(x) pledging of assets or (y) incurrence of indebtedness, and (2) any action
described in clause (x) or (y) could not in the determination of BRW reasonably
exercised be expected to result in any such regulatory authority taking an
action or refusing to take an action which action or refusal to take any action
could have a material adverse effect on CBT, then CBT shall cease to be an
Excluded Entity and shall as promptly as practicable deliver to the
Administrative Agent supplements to the Security Agreements and Subsidiary
Guaranties in form and substance satisfactory to the Administrative Agent and
shall as promptly as practicable take all steps necessary to comply with this
Section 5.01(j).


 


(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 to the Administrative Agent title
search reports (review of which shall be limited to the verification of the
transferees of such property except in the case of real properties for which
mortgages are being delivered) on all real property held by BRW and its
Subsidiaries (including BCI and its Subsidiaries but excluding Excluded
Entities) as requested by the Administrative Agent, and upon the request of the
Administrative Agent in its sole discretion, deliver 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
(review of which


 


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shall
be limited to the verification of the transferees of such property except in
the case of real properties for which mortgages are being delivered), 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 title insurance policies, surveys and engineering,
soils and other reports, and environmental assessment reports will not be
required for any real property that is held in the Real Estate SPV, provided further to the extent that any
Loan Party or any of its Subsidiaries shall have otherwise received any of the
foregoing items with respect to such real property, such items shall, promptly
after the receipt thereof, be delivered to the Administrative Agent,


 


(7)                                  upon
the occurrence and during the continuance of a Default, promptly cause to be
deposited any and all cash dividends paid or payable to it or any of its
Subsidiaries from any of its Subsidiaries from time to time into the
Administrative Agent’s Account, and with respect to all other dividends paid or
payable to it or any of its Subsidiaries from time to time, promptly execute
and deliver, or cause such Subsidiary to promptly execute and deliver, as the
case may be, any and all further instruments and take or cause such Subsidiary
to take, as the case may be, all such other action as the Administrative Agent
may deem necessary or desirable in order to obtain and maintain from and after
the time such dividend is paid or payable a perfected, first priority lien on and
security interest in such dividends,


 


(8)                                  at
any time and from time to time, promptly execute and deliver any and all
further instruments and documents and take all such other action as the
Administrative Agent may deem necessary or desirable in obtaining the full
benefits of, or in perfecting and preserving the Liens of, such guaranties,
mortgages, pledges, assignments, security agreement supplements and security
agreements;


 


provided, however, that the Agents, acting jointly,
may extend any of the time limits set forth above by up to 30 days (or up to an
additional (x) 90 days, solely in the case of obtaining required approvals or
consents for the pledging of assets, or (y) 120 days, solely in the case of
obtaining required regulatory approvals for the pledging of assets)(it being
understood that the Agents will grant any requested extension pursuant to this proviso if such extension is required
solely because of the need to obtain regulatory approvals and BRW, BCI and
their Subsidiaries are using their best efforts to obtain such approvals); 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 Excluded Equity Agreements 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:


 


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(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,


 


(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, in the case of each Borrower, correct, and cause each of its
Subsidiaries promptly to correct, any material defect or error that


 


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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, in the case of each Borrower, 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.


 


(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 (other than in
connection with a BCI Exchange to the extent permitted by Section 5.02),
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 BRW 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 BRW, 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 BRW, and
BRW hereby grants and agrees to cause any


 


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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 BRW 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.  Maintain in full
force and effect each of the interest rate Hedge Agreements in existence on the
Effective Date that were entered into pursuant to Section 5.01(o) of the
Existing Credit Agreement to the extent such Hedge Agreements were required
thereunder immediately prior to the occurrence of the Effective Date.


 


(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 BRW 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)                                 [Intentionally
Omitted].


 


(r)                                    Cash
Management System. Maintain the cash management system with Broadwing
Financial LLC, as more particularly described in the attached Schedule 5.01(r)
(the “BRW Cash
Management System”).


 


(s)                                  
Separate Corporate Existence of Special Purpose Vehicles.  Cause each of Wireless Holdco and, so long
as any Collateral is held thereby, Broadwing Communications Real Estate
Services LLC (each an “SPV”)
to comply in all respects with the terms and provisions of the corporate
separateness covenants set forth in the supplements to the Subsidiary
Guaranties to which each SPV is a party as if such covenants were set forth in
full in this Agreement.


 


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(t)                                       Separate
Corporate Existence of BCI Group.  
With respect to each Borrower, comply and cause each of its Subsidiaries
to comply with the following to the extent applicable to it:


 


(i)                                     to
the extent that any member of the BCI Group has cash, each member of the BCI
Group will maintain its own deposit account or accounts, separate from those of
the BRW Group, with commercial banking institutions and ensure that its funds
will not be used for other than its corporate uses, nor will such funds be
commingled with the funds of any member of the BRW Group and vice versa (except
as contemplated by paragraph (r) above);


 


(ii)                                  each
member of the BCI Group will maintain a separate address from the address of
any member of the BRW Group and vice versa, or to the extent any members of the
BCI Group have offices in the same location as any members of the BRW Group,
maintain a fair and appropriate allocation of overhead costs among them, with
each such entity bearing its fair share of such expense;


 


(iii)                               the
BCI Group will issue separate financial statements prepared not less frequently
than quarterly and prepared in accordance with GAAP (except for the omission of
certain footnotes and other presentation items required by GAAP with respect to
audited financial statements), which financial statements need not be
separately audited or reviewed by an independent accounting firm;


 


(iv)                              each
member of the BCI Group will conduct its affairs strictly in accordance with
its certificate of formation and limited liability company agreement (or
similar constitutive documents) and observe all necessary, appropriate and
customary company (or corporate) formalities, including, but not limited to,
holding all regular and special members’ and board of managers’ (or
stockholders’ and directors’ or other similar Persons) meetings appropriate to
authorize all company (or corporate) action, keeping separate and accurate
minutes of its meetings, passing all resolutions or consents necessary to
authorize actions taken or to be taken, and maintaining accurate and separate
books, records and accounts, including, but not limited to, payroll and
intercompany transaction accounts, to the extent applicable;


 


(v)                                 other
than as required under the Loan Documents or pursuant to the terms of any
documents governing any Existing Debt, and except for any transaction of the
type described on Schedule 1.01 and any non-cash transition arrangements or
other related services provided to or for the benefit of a buyer in connection
with a transaction permitted under Section 5.02(e)(ix), including any BRW Sale
Arrangements, each member of the BCI Group will refrain from assuming or
guaranteeing any of the liabilities or pledging any of its assets for the
benefit of any member of the BRW Group and each member of the BRW Group will
refrain from assuming or guaranteeing any of the liabilities or pledging any of
its assets for the benefit of any member of the BCI Group or holding out its 


 


86

















 


credit as being available
to satisfy the obligations of the BCI Group;


 


(vi)                              each
member of the BCI Group will use its best efforts to refrain from using the
stationery of any member of the BRW Group but instead effecting all written
communications in its own name (it being understood that it may use the same
domain name for electronic mail as members of the BRW Group) and vice versa;
and


 


(vii)                           each
member of the BCI Group will conduct all its business in its own name and use
its best efforts to avoid the appearance that it is conducting business on
behalf of any member of the BRW Group and vice versa; provided that in the event either Group
conducts business on behalf of any member of the other Group, such agency
relationship shall be fully disclosed to applicable third parties when acting
in such capacity, in each case except for any transaction of the type described
on Schedule 1.01 and any non-cash transition arrangements or other related services
provided to or for the benefit of a buyer in connection with a transaction
permitted under Section 5.02(e)(ix), including any BRW Sale Arrangements.


 


(u)                                 Minimum
Liquidity Plan.   In the event that
the Minimum Liquidity of BRW and its Subsidiaries is below $50,000,000 for more
than 5 consecutive Business Days, (i) notify the Agents thereof in writing
within 3 Business Days after the end of such 5 Business Day period, (ii)
prepare a contingent liquidity plan for BRW to be delivered to the Agents within
30 days after the date of such notification which plan shall demonstrate to the
reasonable satisfaction of the Agents the actions that BRW will take to ensure
that the Minimum Liquidity of BRW will be greater than $50,000,000 through
December 31, 2005 and (iii) meet with the Agents to discuss the contingent
liquidity plan and the finances of BRW as they may reasonably request and
provide the Agents access to the books and records of BRW so that the Agents
may complete such due diligence analysis of the liquidity and finances of BRW
as they reasonably deem necessary.


 


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:


 


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(i)                                     Liens
created under the Loan Documents;


 


(ii)                                  Permitted
Liens;


 


(iii)                               Liens existing on the
date hereof and described on Schedule 4.01(u) hereto;


 


(iv)                              purchase
money Liens upon or in real property or equipment acquired or held by such
Borrower 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 Sections 5.02(b)(iii)(B) and 5.02(b)(v)(B) at any time
outstanding;


 


(v)                                 Liens
arising in connection with Capitalized Leases permitted under Sections
5.02(b)(iii)(C) and 5.02(b)(v)(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


 


88

















 


Subsidiary
with such holders of Debt in the ordinary course of business of the Borrowers
or any such Subsidiary;


 


(ix)                                other
Liens that do not, in the aggregate, attach to a material portion of the assets
of the Borrowers or any of their Subsidiaries and do not secure obligations in
an aggregate amount in excess of $5,000,000;


 


(x)                                   Liens
for judgments not in excess of $30,000,000 for which appropriate reserves have
been maintained in accordance with GAAP and Liens for judgments in excess of
$30,000,000 in respect of which (i) no enforcement proceedings have been
commenced by any creditor upon such judgment or (ii) there has been no period
of 30 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, has not been in effect;


 


(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 BRW, BCI and their
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);


 


(xii)                           any Lien, lease or other
grant on or of any assets of BRW or its Subsidiaries other than assets
constituting Collateral under the Loan Documents that at the time created,
incurred, assumed or otherwise arising constituted or resulted from a Permitted
BCI Transaction so long as at such time no BCI Event of Default specified under
Section 7.03(b) shall have occurred with respect to BCI or any of its
Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or
a sale agreement executed prior to commencement of such proceedings which
agreement contemplates a sale of all or substantially all of the assets of BCI
and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code); and


 


(xiii)                        any escrow arrangement funded
with or constituted from asset sale proceeds in respect of any agreement
providing for Permitted Obligations (including escrow arrangements under each
of the Escrow Agreements) and Liens on Acquired Assets (as defined in the BCSI
Sale Agreement) under the Security Agreement (as defined in the BCSI Sale
Agreement).


 


(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 BRW,


 


(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,


 


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(B)                                New
Notes issued for cash (without duplication of clause (E) below); provided
that (x) 100% of the first $150 million (after giving effect to the issuance of
the Junior Notes) of Net Cash Proceeds from the issuance of New Notes shall be applied
to prepay the Facilities, with such prepayment to be allocated ratably to the
Revolving Credit Advances (as set forth in Section 2.06(b)(v)), the Term A
Advances, the Term B Advances and the Term C Advances and to the remaining
installments of the Term A Advances, 
Term B Advances and Term C Advances, respectively, pro rata and (y) 100%
of the Net Cash Proceeds in excess of $150 million (after giving effect to the
issuance of the Junior Notes) from the issuance of New Notes shall be applied
to prepay the Facilities, with such prepayment to be allocated first
ratably to the Term A Advances, the Term B Advances and the Term C Advances and
applied to the remaining installments thereof pro rata and second to the Revolving
Credit Advances as set forth in clause 2.06(b)(v) (it being understood that all
expenses or other amounts deducted in determining the calculation of Net Cash
Proceeds from the issuance of New Notes at the same time shall be applied
equally over the total principal amount of the New Notes being issued at such
time); provided that the
Administrative Agent shall have received a certificate of a Responsible Officer
of BRW certifying that after giving effect to such issuance, BRW and its
Subsidiaries are on a pro forma basis in compliance with Section 5.04
during the Facilities Period,


 


(C)                                Paid
in kind interest in respect of the Oak Hill Debt, the Junior Notes, and any
other Debt permitted under this Section,


 


(D)                               Debt
owed to a wholly owned Subsidiary of BRW permitted under Section 5.02(f)(xi); provided that such Debt (x) shall
constitute Pledged Debt, (y) shall be on terms acceptable to the Agents and
(z) if evidenced by promissory notes, shall be 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; provided
further, however, that
BRW may not incur such Debt to service Debt under the New Notes or make
payments in respect of Other Permitted Equity if a Blocking Event has occurred
and is continuing,


 


(E)                                 Debt
in respect of the Junior Notes and any Debt extending the maturity of, or
refunding, renewal or refinancing, in whole or in part, the Junior Notes, 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 Debt shall not be increased above the principal
amount thereof outstanding (plus accrued interest and fees thereon) immediately
prior to such


 


90

















 


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 Debt as so refunded,
refinanced or renewed shall not mature prior to the stated maturity date or
mandatory redemption date of the Junior Notes being so extended, refunded,
refinanced or renewed, (4) such extended, refunded, renewed or refinanced Debt
shall be subordinated to the Obligations under the Facilities to at least the
same extent as the Junior Notes, (5) such Debt as so refunded, refinanced or
renewed shall not contain any grant of collateral or rights to collateral or
any covenants or defaults that are more restrictive, or subordination terms
that are more narrow, in any material respect than the terms of the Junior
Notes being so extended, refunded, refinanced or renewed, and (6) such Debt as
so refunded, refinanced or renewed will not provide any put, redemption or
prepayment right, or any amortization or maturity date, prior to the end of the
Facilities Period, and


 


(F)                                 Debt
of BRW incurred in connection with a BCI Exchange including Debt of BRW issued
to a third party provided that the proceeds of such Debt are applied to the prepayment
or retirement of the BCI Senior Subordinated Notes (and any Debt extending the
maturity of, or refunding, renewing or refinancing, in whole or in part, such
Debt of BRW, 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,
satisfy the requirements set forth in clause (E) above with each reference
therein to Junior Notes being replaced with a reference to the Debt under this
clause (F)); provided that such
Debt (v) contains only pay in kind interest payment obligations during the
Facilities Period, (w) is not convertible or exchangeable for any Equity
Interests other than common stock of BRW, (x) the aggregate amount of cash paid
in respect of redemptions, repayments or fees in connection with all BCI
Exchanges shall not exceed the amounts agreed to in writing by BRW and the
Agents and (y) any instrument or agreement evidencing such Debt entered into in
connection with any BCI Exchange will not contain any grant of collateral or
rights to collateral or any covenants or defaults that are more restrictive, or
subordination terms that are more narrow (e.g., no less favorable to the Lender
Parties), in any material respect than the terms of the Oak Hill Indenture and
will not provide any put, redemption or prepayment right, or any amortization
or maturity date, prior to the end of the Facilities Period;


 


(ii)                                  in
the case of any Subsidiary of BRW (including BCI and its Subsidiaries), Debt owed
to BRW or to a wholly owned Subsidiary of BRW, provided that, in each case,
such Debt (A) shall constitute Pledged Debt, (B) shall be on terms acceptable
to the Agents, (C) 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


 


91

















 


Documents
to which such holder is a party and delivered to the Administrative Agent pursuant
to the terms of the Security Agreements and (D) in the case of BCI or any of
its Subsidiaries, the incurrence of such Debt is permitted under Section
5.02(f)(xiii); and


 


(iii)                              in the case of BRW and
its Subsidiaries other than Wireless LLC,


 


(A)                              Debt
under the Loan Documents,


 


(B)                                Debt
secured by Liens permitted by Section 5.02(a)(iv) not to exceed
$75,000,000 in aggregate principal amount at any time outstanding; provided
that any Debt outstanding under this clause (B) of a type described in Section
5.02(b)(v)(B), will automatically reduce the amount of Debt of such type
permitted to be outstanding at such time under Section 5.02(b)(v)(B),


 


(C)                                Capitalized
Leases not to exceed in the aggregate $125,000,000 at any time outstanding,  and
to the extent included in “Capitalized Leases” for purposes of GAAP, IRUs
incurred in the ordinary course of business; provided that any Debt outstanding
under this clause (C) of a type described in Section 5.02(b)(v)(C), will
automatically reduce the amount of Debt of such type permitted to be
outstanding at such time under Section 5.02(b)(v)(C),


 


(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,
(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, (5) such
Surviving Debt as so refunded, refinanced or renewed shall not contain any
grant of collateral or rights to collateral or any covenants or defaults that
are more restrictive, or


 


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subordination
terms that are more narrow, in any material respect than the terms of the
Surviving Debt being so extended, refunded, refinanced or renewed and (6) such
Surviving Debt as so refunded, refinanced or renewed will not provide any put,
redemption or prepayment right, or any amortization or maturity date, prior to the
end of the Facilities Period,


 


(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 Final
Maturity Date of the Term C Facility, 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)                                
unsecured short-term Debt in an aggregate principal amount not to exceed
$20,000,000,


 


(H)                               Contingent
Obligations of BRW or any of its Subsidiaries that are Subsidiary Guarantors
guaranteeing all or any portion of the outstanding Obligations of any of the
other Loan Parties other than with respect to the Senior Notes or in connection
with the BCI Exchange; provided that (i) such Obligations are not
otherwise prohibited under the terms of the Loan Documents and such Contingent
Obligations are unsecured or (ii) in the case of such outstanding Contingent
Obligations in respect of obligations of BCI or any of its Subsidiaries, such
Contingent Obligations are permitted under Section 5.02(f)(xiii),


 


(I)                                    Debt
consisting of debits and credits among the Subsidiaries of BRW arising under
the BRW Cash Management System,


 


(J)                                   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),


 


(K)                               Debt
consisting of guaranties of the obligations of BRW under the Junior Notes,


 


(L)                                 Debt
constituting Permitted Obligations, and


 


(M)                            Debt
that at the time created, incurred, assumed or otherwise arising constituted a
Permitted BCI Transaction so long as at such time no BCI Event of Default
specified under Section 7.03(b) shall have occurred with respect to BCI or any
of its Subsidiaries (other than a


 


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proceeding
in connection with a Prepackaged Plan or a sale agreement executed prior to
commencement of such proceedings which agreement contemplates a sale of all or
substantially all of the assets of BCI and its Subsidiaries pursuant to Section
363 of the Bankruptcy Code); and


 


(iv)                              in
the case of Wireless LLC,


 


(A)                              Debt
relating to the acquisition of the Spectrum Assets not to exceed $60,000,000 in
aggregate principal amount at any time outstanding,


 


(B)                                Capitalized
Leases, Debt secured by Liens permitted by Section 5.02 (a)(iv) or unsecured
Debt, in the case of such unsecured Debt, maturing after the Final Maturity Date
of the Term C Facility, in the ordinary course of business for borrowed money
or for the deferred purchase price of property or services, not to exceed
$50,000,000 in aggregate principal amount at any time outstanding under this
clause (B), provided that any
Debt outstanding under this clause (B) of a type described in Section
5.02(b)(iii)(B), (C) or (E), as the case may be, will automatically reduce the
amount of Debt of such type permitted to be outstanding at such time under such
clause (B), (C) or (E), as applicable,


 


(C)                                Debt
of the type and subject to the restrictions set forth in Sections 5.02(b)(ii)
and 5.02(b)(iii)(F) and (I), and


 


(D)                               Debt
(x) existing on May 1, 2002 and (y) refinancings of such Debt, in the case of
clause (y), subject to the restrictions set forth in Section 5.02(b)(iii)(D)
except that no Surviving Debt to be refinanced pursuant to this clause (D) that
is owed to BRW or to a Subsidiary of BRW may be refinanced with Debt owed to a
Person other than a Subsidiary of BRW; provided
that any Debt outstanding at any time under clause (x) of a type
described in any clause of Section 5.02(b)(iii) will automatically reduce the
amount of Debt of such type permitted to be outstanding at such time under such
clause of Section 5.02(b)(iii), as applicable.


 


(v)                                in
the case of BCI and its Subsidiaries,


 


(A)                              Debt
under the Loan Documents,


 


(B)                                Debt
secured by Liens permitted by Section 5.02(a)(iv) existing on the
Effective Date not to exceed $75,000,000 in aggregate principal amount at any
time outstanding, provided that
any Debt outstanding under this clause (B) of a type described in Section
5.02(b)(iii)(B), will automatically reduce the amount of Debt of such type
permitted to be outstanding at such time under Section 5.02(b)(iii)(B),


 


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(C)                                Capitalized
Leases existing on the Effective Date not to exceed in the aggregate
$125,000,000 at any time outstanding,  and to the extent included in
“Capitalized Leases” for purposes of GAAP, IRUs incurred in the ordinary course
of business provided that any
Debt outstanding under this clause (C) of a type described in Section
5.02(b)(iii)(C), will automatically reduce the amount of Debt of such type
permitted to be outstanding at such time under Section 5.02(b)(iii)(C),


 


(D)                               the
Surviving Debt (other than Debt under Section 5.02(b)(v)(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 (other than
in connection with a BCI Exchange), (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, (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, (5)
such Surviving Debt as so refunded, refinanced or renewed shall not contain any
grant of collateral or rights to collateral or any covenants or defaults that
are more restrictive, or subordination terms that are more narrow, in any
material respect than the terms of the Surviving Debt being so extended,
refunded, refinanced or renewed and (6) such Surviving Debt as so refunded,
refinanced or renewed will not provide any put, redemption or prepayment right,
or any amortization or maturity date, prior to the end of the Facilities
Period,


 


(E)                                 Debt
in respect of intercompany notes issued by BCI or its Subsidiaries to any
member of the BRW Group,


 


(F)                                 Debt
under the Escrow Agreements or under the Security Agreement (as defined in the
BCSI Sale Agreement) and all joint and several obligations of the Sellers (as
defined in the BCSI Sale Agreement) under the BCSI Sale Agreement,


 


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(G)                                endorsement
of negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business,


 


(H)                               Debt
consisting of debits and credits among BCI and its  Subsidiaries arising under the BRW Cash Management System,


 


(I)                                    unsecured
Debt in an amount not to exceed $10,000,000, and


 


(J)                                   Capitalized
Leases and vendor financing entered into after the Effective Date not to exceed
in the aggregate $10,000,000 at any time outstanding.


 


(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, it being agreed that no transaction
under Section 5.02(e)(ix) shall constitute such a change.


 


(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)                                     any
Subsidiary of BRW may merge into or consolidate with any other Subsidiary of
BRW and any Subsidiary of BCI may merge into or consolidate with any other
Subsidiary of BCI, 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 BRW or BCI, as the case may be, 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
BCSI is a party, a Borrower);


 


(ii)                                  BRW
may merge with or into any wholly owned Subsidiary of BRW that is formed solely
for the purpose of effecting a corporate name change and the transfer of
related intellectual property, provided that BRW is the surviving
corporation in respect of such merger;


 


(iii)                               after the consummation
of a sale of all or substantially all of the assets of BCI and its Subsidiaries
in accordance with Section 5.02(e)(ix) or the consummation of a confirmed plan
of reorganization under Chapter 11 of the Federal Bankruptcy Code with respect
to BCI, Cincinnati Bell Any Distance, Inc. may merge with or into Broadwing
Telecommunications Inc.; provided
that the surviving corporation in respect of such merger shall be deemed to be
a Subsidiary of BRW for all purposes hereunder notwithstanding that it may be a
Subsidiary of BCI, and BRW shall deliver written notice to the Administrative
Agent to that effect;


 


(iv)                              any
Mutual Subsidiary may merge into another Mutual Subsidiary or into BCSI, and


 


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(v)                                 following
the completion of a BCI Exchange in respect of 66 2/3% or more of the
outstanding BCI Exchangeable Preferred Stock, BCI may merge with a newly formed
special purpose Subsidiary of BRW, provided that
the surviving corporation in respect of such merger shall be deemed to be BCI
for all purposes hereunder, including without limitation, the covenants set
forth in Section  5.01(t);


 


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 BCSI is a party, BCSI 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 and any disposition of any Investment acquired as consideration
received in respect of or as a result of any transaction under Section
5.02(e)(ix);


 


(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


 


97

















 


course
of its business, in each case, not intended to constitute a financing
arrangement;


 


(viii)                        so long as immediately before
and after giving effect to such asset sale, no event shall occur and be
continuing that constitutes a Default, Restricted Asset Dispositions.  “Restricted Asset Dispositions” means


 


(A) any sale of assets of BRW and its Subsidiaries 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 BRW and its Subsidiaries so sold, leased, transferred or
otherwise disposed of pursuant to this clause (viii) does not exceed
$50,000,000 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; or


 


(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 BRW 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 BRW 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 BRW or any of its Subsidiaries that would interfere with
BRW’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,


 


provided that, BRW
shall, on the date of receipt by any Loan Party or any of its Subsidiaries of
the Net Cash Proceeds from any such sale, lease, transfer, or other disposition
pursuant to this subclause (viii), 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 such Net Cash Proceeds in an amount not to exceed
$20,000,000 in any Fiscal Year are reinvested in the existing lines of business
as of the Effective Date of BRW and its Subsidiaries with reasonable promptness
and, in any event, not later than 3 months from the date of receipt
thereof.  The failure of BRW to prepay
the Advances with such Net Cash Proceeds on the date of receipt of such
proceeds shall constitute a representation by BRW as of such date that the Net
Cash Proceeds from such sale, lease, transfer or other disposition will be
reinvested in the existing lines of business of BRW and its Subsidiaries with
reasonable promptness and, in any event, not later than 3 months from the date
of


 


98

















 


receipt
thereof and that such reinvested Net Cash Proceeds do not exceed $20,000,000 in
aggregate for such Fiscal Year.  The
quarterly compliance certificate of the Chief Financial Officer of BRW
delivered pursuant to Section 5.03(c) shall contain a certification by such
officer that all such Net Cash Proceeds received during such fiscal quarter
from each asset sale pursuant to this subclause (viii) will be so reinvested
within such time period and all such Net Cash Proceeds so reinvested during
such Fiscal Year do not exceed such dollar limit.  A Responsible Officer of BRW shall notify the Administrative
Agent in writing on the date of receipt of such Net Cash Proceeds in the event
that such Net Cash Proceeds will not be so reinvested within such 3 month
period or if the amount of reinvested Net Cash Proceeds exceeds $20,000,000 in
such Fiscal Year and such Net Cash Proceeds shall be applied within 3 Business
Days following receipt of such Net Cash Proceeds to prepay the Advances
outstanding at such time pursuant to, and in the amount and order of priority
set forth in Section 2.06(b)(ii);


 


(ix)                                the
sale, lease, transfer or other disposition of all or substantially all of the
assets of BCI and its Subsidiaries for cash or other consideration and/or the
assumption of liabilities of BCI and its Subsidiaries; provided that:


 


(A)                              so
long as no BCI Event of Default specified under Section 7.03(b) shall have
occurred with respect to BCI or any of its Subsidiaries (other than a
proceeding in connection with a Prepackaged Plan or a sale agreement executed
prior to commencement of such proceedings which agreement contemplates a sale
of all or substantially all of the assets of BCI and its Subsidiaries pursuant
to Section 363 of the Bankruptcy Code), promptly after the determination of the
BCI Net Cash Proceeds in respect thereof, 60% of the BCI Net Cash Proceeds from
any such disposition shall be applied to prepay the Advances in the order of
priority set forth in Section 2.06(b)(ii),


 


(B)                                if
a BCI Event of Default specified under Section 7.03(b) (other than a proceeding
in connection with a Prepackaged Plan or a sale agreement executed prior to
commencement of such proceedings which agreement contemplates a sale of all or
substantially all of the assets of BCI and its Subsidiaries pursuant to Section
363 of the Bankruptcy Code) shall have occurred and be continuing with respect
to BCI or any of its Subsidiaries, promptly after the determination of the BCI
Net Cash Proceeds in respect thereof, 100% of the Net Cash Proceeds from any
such disposition shall be applied to prepay the Advances in the order of
priority set forth in Section 2.06(b)(ii),


 


(C)                                the
remaining 40% of BCI Net Cash Proceeds (together with any unused portion of the BCI Maximum Investment) may be
applied (x) to the prepayment of the BCI Senior Subordinated Notes and


 


99

















 


the
BCI 12 1/2% Senior Notes and (y) to amounts paid in connection with a BCI
Exchange to the extent permitted under Section 5.02(v),


 


(D)                               collected
cash balances remaining at BCI and its Subsidiaries on the first anniversary of
such disposition that are not required in the ongoing business of BCI and its
Subsidiaries and are not being held in reserves taken in respect of good faith
estimates of amounts that may be required to be paid in respect of
non-discharged liabilities or claims in the future shall be applied to prepay
the Advances in the order of priority set forth in Section 2.06(b)(ii),


 


(E)                                 BRW
may retain part of the Net Cash Proceeds for the payment of current ordinary
course operating expense obligations of BCI and its Subsidiaries and in respect
of  reserves in accordance with GAAP for
good faith estimates of amounts that may be required to be paid in respect of
non-discharged liabilities or claims in the future; provided that (w) BRW shall advise the Administrative Agent
of the aggregate amount so retained, (x) such amounts shall be applied to
prepay Revolving Credit Borrowings (without any reduction of the Revolving
Credit Commitments) and a portion of the Revolving Credit Commitments (the “Reserved Commitments”)
equal to such amount shall thereafter be available solely for the uses
specified in this paragraph (E) or to prepay the Advances in the order of
priority set forth in Section 2.06(b)(ii) (it being understood that if BRW
intends that any portion of the Revolving Credit Borrowing is to be used for
any such purpose it shall give the Administrative Agent written notice of the
amount thereof to be so used and the amount of the Reserved Commitments
remaining after giving effect to such use), (y) at the time BRW determines that
all such operating expenses or such non-discharged liabilities or contingent
liabilities are actually paid or otherwise satisfied, BRW shall so advise the
Administrative Agent and shall make a request for a Revolving Credit
Borrowing  in the amount of the unused
portion of the Reserved Commitments and shall apply the proceeds of such
Borrowing to prepay the Advances in the order of priority set forth in Section
2.06(b)(ii), and (z) from time to time, if BRW determines that the unused
portion of the Reserved Commitments exceeds the amount of all such operating
expenses or such non-discharged liabilities or contingent liabilities that have
not at such time yet been paid or otherwise satisfied, BRW may so advise the
Administrative Agent and make a request for a Revolving Credit Borrowing in the
amount of such excess and apply the proceeds of such Borrowing to prepay the Advances
in the order of priority set forth in Section 2.06(b)(ii), provided further that (1) upon the
occurrence of a


 


100

















 


Default
under Section 7.01(a), (f) or 7.03(b) or an Event of Default, a request for a Revolving
Credit Borrowing shall automatically be deemed to have been made by BRW in an
amount equal to the amount of Reserved Commitments or (2) upon the request of
the Agents upon the occurrence of any other Default (other than a Default
specified in clause (1) above) or in the event that the Minimum Liquidity
(including the amount of the Reserved Commitments) is less than $50,000,000,
BRW shall make a request for a Revolving Credit Borrowing in an amount equal to
such Reserved Commitments and upon such request or deemed request, (x) the
proceeds of such Revolving Credit Borrowing shall be deposited by BRW to a
deposit account maintained with the Administrative Agent in which the
Administrative Agent, for the benefit of the Lender Parties, has a security interest
pursuant to the terms of the Security Agreements, and (y) such funds will be
held in such deposit account as Collateral for the Obligations hereunder
pursuant to the terms of the Security Agreements; provided  still further
that (x) so long as no Default under Section 7.01(a), (f) or 7.03(b) or Event
of Default exists, BRW may withdraw funds from such account in accordance with
the terms of the Security Agreements for the uses specified in this paragraph
(E) or to prepay the Advances in the order of priority set forth in
Section 2.06(b)(ii) and (y) if, at the time such operating expenses or
such non-discharged liabilities or contingent liabilities are actually paid or
otherwise satisfied, the amount of the funds reserved therefor exceeds the amount
paid or otherwise satisfied, then BRW shall prepay the Advances in accordance
with Section 2.06(b)(ii) in an amount equal to such excess reserve, and


 


(F)                                 BRW
shall use commercially reasonable efforts to dispose of any consideration
(other than cash, assumption of liabilities and any Equity Interest in C III
Communications, LLC, or any Affiliate thereof not to exceed 5% of the total
Equity Interests outstanding of such issuance, in connection with the BCSI Sale
Agreement) received in respect of such sale, lease, transfer or other
disposition for cash as promptly as reasonably practicable and for fair value
subject to restrictions on sales of such non-cash assets contained in any
agreement or instrument in respect of such non-cash asset and shall promptly
thereafter prepay the Advances in accordance with Section 2.06(b)(ii) in an
amount equal to 60% of such BCI Net Cash Proceeds; and


 


(x)                                   any
sale, lease, transfer or other disposition of any asset of BRW and its
Subsidiaries that constituted or resulted from a Permitted BCI Transaction so
long as at such time no BCI Event of Default specified under Section 7.03(b)
shall have occurred with respect to BCI or any of its Subsidiaries (other than
a


 


101

















 


proceeding
in connection with a Prepackaged Plan or a sale agreement executed prior to
commencement of such proceedings which agreement contemplates a sale of all or
substantially all of the assets of BCI and its Subsidiaries pursuant to Section
363 of the Bankruptcy Code).


 


(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
(xiv) below:


 


(i)                                     equity
Investments by BRW and its Subsidiaries (including BCI and its Subsidiaries) in
their Subsidiaries outstanding on the date hereof and (A) additional
investments in wholly owned Subsidiaries of BRW that are Subsidiary
Guarantors, (B) additional investments in Excluded Entities other than the
Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 not
to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an
aggregate amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional
investments in Cincinnati Bell Wireless LLC (x) in an aggregate amount invested
from January 12, 2000 not to exceed $25,000,000 and (y) other investments
resulting in it or its Subsidiaries owning the Spectrum Assets;


 


(ii)                                  loans
and advances to employees in the ordinary course of the business of BRW 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; provided further that such loans and
advances are made in compliance with Section 5.01(t)(iv);


 


(iii)                               Investments by BRW and
its Subsidiaries (including BCI and its Subsidiaries) in Cash Equivalents;


 


(iv)                              Investments
existing on the date hereof and described on Schedule 4.01(v) hereto;


 


(v)                                 Investments
by BRW 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 made prior
to May 1, 2002 and other Investments made on or after May 1, 2002 (other than
Investments in BRW and the Mutual Subsidiaries made after April 15, 2002) in an
aggregate amount invested not to exceed $25,000,000 at any time 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


 


102

















 


subsequent
changes in the value of such Investment), provided that with respect to Investments
made under this clause (vii):  (1) any
newly acquired or organized Subsidiary of BRW or any of its Subsidiaries shall
be a wholly owned Subsidiary of BRW or 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 (vii) shall be in the same line of
business (or a related line of business) as the business of BRW or any of its
Subsidiaries; (4) immediately after giving effect to the acquisition of a
company or business pursuant to this clause (vii), BRW 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 BRW delivered to the Lender
Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such
newly created or acquired Subsidiary shall comply with the requirements of
5.01(j); (6) any Investment made under this clause (vii) that is not an
acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is
a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may
be made in BCI or any of its Subsidiaries unless such Investment is a Permitted
BCI Transaction and BCI and/or such Subsidiary and such newly created or
acquired Subsidiary shall comply with the requirements of 5.01(j);


 


(viii)                        Investments other than
Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in 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 BRW 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 BRW or any of its
Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or
acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither
the Borrowers nor any of their Subsidiaries (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; and (6) any company or business acquired or
invested in pursuant to this clause (viii) shall not be or become a
Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI
and such newly created or acquired Subsidiary shall comply with the
requirements of 5.01(j);


 


(ix)                                Investments
consisting of debits and credits between Broadwing Financial LLC and BRW and
its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash
Management System; provided that
such Investments


 


103

















 


between
Broadwing Financial LLC and BRW shall be subject to the restrictions set forth
in Section 5.02(f)(xi), and Investments that arose under the centralized cash
management system between BRW and its Subsidiaries (including BCI and its Subsidiaries)
prior to May 31, 2002; provided  further that all such Investments made by
BRW and each Subsidiary Guarantor are evidenced by promissory notes and
constitute Pledged Debt;


 


 (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;


 


(xi)                                Investments
consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y)
dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g)
and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are
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, (2) such advances are not made earlier than 1 Business
Day before the day that the obligations are to be paid and (3) the proceeds of
such advances are either deposited directly to a deposit account maintained
with the Administrative Agent or another Lender and in which the Administrative
Agent, for the benefit of the Lenders, has a security interest pursuant to the
terms of the Security Agreements or applied directly for a purpose referred to
in clause (x), (y) or (z) above; provided
further, however, that
if a Blocking Event has occurred and is continuing, no such Investments shall
be made in respect of a payment on the New Notes or the Other Permitted Equity;


 


(xii)                             Investments
in respect of Permitted Obligations;


 


(xiii)                          (I)
Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding
on the date hereof, and (II) each additional Investment by BRW and its
Subsidiaries in BCI and its Subsidiaries that at the time created, incurred,
assumed, made or otherwise arising constituted or resulted from a Permitted BCI
Transaction so long as at such time no BCI Event of Default specified under
Section 7.03(b) shall have occurred with respect to BCI or any of its
Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or
a sale agreement executed prior to commencement of such proceedings which
agreement contemplates a sale of all or substantially all of the assets of BCI
and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);


 


(xiv) any Investment acquired as consideration received in respect of
or as a result of any transaction under Section 5.02(e)(ix); and


 


(xv) Investments by BCI and its Subsidiaries in BCI and its
Subsidiaries;


 


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provided that  no
Investments shall be made on or after April 15, 2002 in Excluded Entities other
than (x) Investments in Wireless LLC, (y) Investments consisting of debits and
credits arising pursuant to the BRW Cash Management System (including such
Investments made by Excluded Entities that are Subsidiaries of BCI prior to the
date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded
Entities constitute Pledged Debt; provided
further that all such Investments
made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in
aggregate at any time, and (z) in the case of CBT, Investments made pursuant to
Section 5.02(f)(vi)).


 


(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 BRW or to issue or sell any Equity Interests
therein (each a “Restricted
Payment”), except that, so long as no Default shall have
occurred and be continuing at the time of any action described below or would
result therefrom:


 


(i)                                     BRW
may declare and pay dividends and distributions payable only in common stock of
BRW or issue common stock of BRW to officers, directors and employees as part
of compensation arrangements,


 


(ii)                                  any
Subsidiary may (A) declare and pay cash dividends to any other wholly owned
Subsidiary of BRW (including BCI and its Subsidiaries) of which it is a
Subsidiary and (B) accept capital contributions from its parent to the extent
permitted under Sections 5.02(f)(i) and 5.02(f)(xii),


 


(iii)                               BCI may declare and pay
scheduled dividend payments on the BCI Exchangeable Preferred Stock,


 


(iv)                              BRW
may declare and pay scheduled dividend payments on the Convertible Preferred
Stock and the Other Permitted Equity,


 


(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),


 


(vi)                              any
Subsidiary of BRW (including BCI and its Subsidiaries) may:


 


(A)                              declare
and pay cash dividends to BRW to pay (x) BRW Administrative Expenses, (y)
dividends and payments referred to in


 


105

















 


clauses (iv) and
(v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted
under this Agreement; provided
that (1) such dividends are not paid earlier than 1 Business Day before the day
that the obligations are to be paid and (2) the proceeds of such dividends are
deposited directly to a deposit account maintained with the Administrative Agent
in which the Administrative Agent, for the benefit of the Lenders, has a
security interest pursuant to the terms of the Security Agreements or applied
directly for a purpose referred to in clause (x), (y) or (z) above, and


 


(B)                                distribute
non-cash assets to BRW in connection with the merger or consolidation of a
Subsidiary; provided that no
Default has occurred and is continuing at the time of such transfer and the
distribution of such non-cash assets is accompanied by a substantially
simultaneous transfer of such non-cash assets from BRW to another Subsidiary,


 


(vii)                           (x) any Subsidiary of BRW
(including BCI and its Subsidiaries) may make a dividend of Equity Interests,
or distribution of Equity Interests, of any of its Subsidiaries to BRW or any
wholly-owned Subsidiary of BRW that is a Subsidiary Guarantor and (y) Mutual
Signal Holding Corp. may distribute all or substantially all of its assets to
BCSI; provided
in the case of clauses (x) and (y) such dividend or distribution is not
materially adverse to the Lenders in the sole determination of the
Administrative Agent.


 


(viii)                        BRW may
issue and sell additional common stock for cash; provided that 50% of the Net Cash Proceeds of such issuance
of additional common stock (other than common stock issued to employees,
officers and directors as part of compensation arrangements) in excess of the
first $50,000,000 in aggregate of such Net Cash Proceeds received pursuant to
this clause (viii) and clause (x) below shall be applied to prepay the
Facilities first
ratably to the Term A Advances, the Term B Advances and the Term C Advances and
to the remaining installments thereof pro rata and second to the Revolving
Credit Advances as set forth in clause 2.06(b)(v); provided further that the Administrative Agent shall have
received a certificate of a Responsible Officer of BRW certifying that after
giving effect to such issuance, BRW and its Subsidiaries are on a pro forma
basis in compliance with Section 5.04 during the Facilities Period,


 


(ix)                                BRW
may issue additional common stock upon the conversion of any of the Convertible
Preferred Stock and the Other Permitted Equity,


 


(x)                                   BRW
may issue and sell Other Permitted Equity for cash; provided that 50% of the Net Cash Proceeds of the issuance
of such Other Permitted Equity in excess of the first $50,000,000 in aggregate
of such Net Cash Proceeds received pursuant to this clause (x) and clause
(viii) above shall be applied to prepay the Facilities first ratably to the Term A
Advances, the Term B Advances


 


106

















 


and the Term C
Advances and to the remaining installments thereof pro rata and second
to the Revolving Credit Advances as set forth in clause 2.06(b)(v); provided further that the Administrative
Agent shall have received a certificate of a Responsible Officer of BRW
certifying that after giving effect to such issuance, BRW and its Subsidiaries
are on a pro forma basis in compliance with Section 5.04 during the
Facilities Period,


 


(xi)                                as
part of any BCI Exchange, (1) BCI may redeem the BCI Exchangeable Preferred
Stock and (2) BRW may issue capital or preferred stock or other Equity
Interests of BRW (including capital or preferred stock or other Equity
Interests of BRW issued to a third party provided that the proceeds of such
issuance are applied to the prepayment or retirement of the BCI Senior
Subordinated Notes); provided that
(A) any such preferred stock or other Equity Interest (x) contains only pay in
kind interest payment obligations during the Facilities Period, and (y) is not
convertible or exchangeable for any Equity Interests other than common stock of
BRW, (B) the aggregate amount of cash paid in respect of redemptions,
repayments or fees in connection with all BCI Exchanges shall not exceed the
amounts agreed to in writing by BRW and the Agents and (C) any instrument or
agreement evidencing such preferred stock or other Equity Interest entered into
in connection with a BCI Exchange will not contain any grant of collateral or
rights to collateral or any covenants or defaults that are more restrictive, or
subordination terms that are more narrow, in any material respect than the
terms of the Oak Hill Indenture and will not provide any put, redemption or
prepayment right, or any amortization or maturity date, prior to the end of the
Facilities Period,


 


(xii)                           BRW may
issue the Warrants and additional shares of common stock of BRW upon exercise
of the Warrants in accordance with the terms of the Warrant Agreement as in
effect on the date hereof, and


 


(xiii)                        BRW and its
Subsidiaries may effect any such transaction that at the time so effected
constituted or resulted from a Permitted BCI Transaction so long as at such
time no BCI Event of Default specified under Section 7.03(b) shall have
occurred with respect to BCI or any of its Subsidiaries (other than a
proceeding in connection with a Prepackaged Plan or a sale agreement executed
prior to commencement of such proceedings which agreement contemplates a sale
of all or substantially all of the assets of BCI and its Subsidiaries pursuant
to Section 363 of the Bankruptcy Code).


 


(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 (i) in connection with any BCI
Exchange, or (ii) 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


 


107

















 


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 (other than BCI and its Subsidiaries) to make or
permit, any change in (i) accounting policies or reporting practices,
except as required by generally accepted accounting principles, or
(ii) Fiscal Year.


 


(j)                                     Prepayments,
Etc., of Debt.  Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner, or make any payment in violation of any subordination terms of,
any Debt, except (i) the prepayment of the Advances in accordance with the
terms of this Agreement, (ii) the repurchase of the BCI Senior
Subordinated Notes and the BCI 12 1/2% Senior Notes to the extent permitted
under Section 5.02(e)(ix)(C) or otherwise repurchase the BCI 12 1/2% Senior
Notes for an aggregate amount not to exceed an amount agreed to in writing by
BRW and the Agents or, (iii) regularly scheduled or required repayments or
redemptions of Surviving Debt so long as such repayment or redemption does not
violate any subordination terms of such Surviving Debt, (iv) consummation of
any BCI Exchange to the extent permitted under Sections 5.02(b)(i)(F) and
5.02(g)(xi), (v) the payment of guaranty obligations of BRW in respect of
Permitted Obligations, or (vi) the tender of Junior Notes to effect the
exercise of the Warrants to the extent provided in the Junior Note Documents in
effect on the date hereof, 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 provided that, with respect to any
prepayment of Debt of any member of the BCI Group by any member of the BRW
Group, such prepayment is permitted under Section 5.02(f)(xiii), and
amendments, modifications or changes to any instrument relating to the BCI
Senior Subordinated Notes in connection with any BCI Exchange to the extent
permitted under Sections 5.02(b)(i)(F).


 


(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, in each case if such action
would in any material respect impair the value of the interest or rights of any
Loan Party thereunder or the rights or interests of any Agent or any Lender
Party, or permit any of its Subsidiaries to do any of the foregoing, other than
amendments, modifications or changes to the Related Documents in connection
with (i) effecting any BCI Exchange or (ii) to the extent permitted under
Section 5.02(v).


 


(l)                                     Negative
Pledge.  Enter into or suffer to
exist, or permit any of its Subsidiaries (other than BCI and its Subsidiaries)
to enter into or suffer to exist, any agreement prohibiting or conditioning the
creation or assumption of any Lien upon any of


 


108

















 


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 or (iii)
provisions in the Junior Notes and customary provisions in the New Notes; provided such provisions permit Liens
under the Loan Documents.


 


(m)                               Partnerships,
Etc.  Become a general partner in any
general or limited partnership or joint venture, or permit any of its
Subsidiaries (other than BCI and 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 BRW or any Subsidiary is liable therefor) is permitted
pursuant to Section 5.02(b).


 


(n)                                 Speculative
Transactions.  Engage, or permit any
of its Subsidiaries (other than BCI and 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 BRW or any of its
Subsidiaries is exposed in the conduct of its business or the management of its
liabilities (including but not limited to transactions entered into in order to
effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise)).


 


(o)                                 Formation
of Subsidiaries; Existing Lines of Business.  (i) Organize or invest, or permit any Subsidiary (other than BCI
and its Subsidiaries) to organize or invest, in any new Subsidiary except as
permitted under Sections 5.02(d) and 5.02(f)(i) or (ii) enter into, or
permit any Subsidiary to enter into, any line of business other than the lines
of business currently engaged in by BRW and its Subsidiaries on the Effective
Date.


 


(p)                                 Payment
Restrictions Affecting Subsidiaries. 
Directly or indirectly, enter into or suffer to exist, or permit any of
its Subsidiaries (other than BCI and 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, BRW 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, (iii) any Permitted
Preferred Stock Documents, (iv) the Junior Notes and (v) any Debt or preferred
stock issued pursuant to a BCI Exchange in accordance with Sections
5.02(b)(i)(F) or 5.02(g)(xi).


 


109

















 


(q)                                 Section 355(e). With respect to BRW, take any action that
could reasonably be expected to result in BRW being required to recognize gain
under Section 355(e) of the Code.


 


(r)                                  Exchange
of BCI Exchangeable Preferred Stock. 
Exchange the BCI Exchangeable Preferred Stock into Debt except to the
extent such Debt is permitted under Section 5.02(b)(i)(F).


 


(s)                                  Deposit
Accounts.  (i) Except for accounts
subject to the Escrow Agreements or any similar escrow accounts entered into
pursuant to a sale agreement in accordance with Section 5.02(e)(ix) in lieu of
the BCSI Sale Agreement, hold any deposit accounts of either Borrower or any of
their Subsidiaries (other than payroll, workmen’s compensation, health and
welfare, PAC accounts and similar types of accounts) that are not held with the
Administrative Agent or with a third party bank subject to a control agreement
that is in form and substance reasonably satisfactory to the Administrative
Agent.


 


(ii)                                  Upon
release to the Borrowers or any of their Subsidiaries of any amounts in any
account subject to an Escrow Agreement or any similar escrow accounts entered
into pursuant to a sale agreement in accordance with Section 5.02(e)(ix) in
lieu of the BCSI Sale Agreement, if BRW makes a good faith determination that
additional amounts are needed to pay liabilities pursuant to Section
5.02(e)(ix)(E), BRW shall apply such amounts to prepay Revolving Credit
Borrowings (without any reduction of the Revolving Credit Commitments) and such
amounts shall increase the Reserved Commitments under Section 5.02(e)(ix)(E); provided that if the Reserved Commitments
shall previously have been drawn to fund a collateral account pursuant to
Section 5.02(e)(ix)(E), such amount shall instead be deposited to such account;
provided further that if BRW
makes a good faith determination that additional amounts are not needed to pay
liabilities pursuant to Section 5.02(e)(ix)(E), such Net Cash Proceeds shall be
applied to repay the Advances in accordance with clauses (A), (B) and (C) of
Section 5.02(e)(ix).


 


(t)                                    Negative
Covenants Applicable to Wireless Holdco. 
Notwithstanding Section 5.02, permit Wireless Holdco to enter into or
conduct any business, or engage in any activity (including, without limitation,
any action or transaction that is restricted under Section 5.02 without regard
to any of the enumerated exceptions to such covenants) other than providing general
management services to Wireless LLC, holding the Equity Interests of Wireless
LLC, exercising the voting rights and obligations as a member of Wireless LLC,
holding and operating the Spectrum Assets, performing any obligations under the
Loan Documents and engaging in other activities incidental and directly related
to its existence and the foregoing.


 


(u)                                 Negative
Covenants Applicable to the Real Estate SPV.  Notwithstanding Section 5.02, so long as the Real Estate SPV
holds any Collateral, permit the Real Estate SPV to enter into or conduct any
business, or engage in any activity (including, without limitation, any action
or transaction that is restricted under Section 5.02 without regard to any of
the enumerated exceptions to such covenants) other than holding real property


 


110

















 


interests
and entering into and performing its obligations under leases with respect
thereto, performing its obligations under the Loan Documents and engaging in
other activities incidental and directly related to its existence and the
foregoing.


 


(v)                                 
Covenant Regarding Other Debt Holders. 
In connection with obtaining the Oak Hill Waiver or any other waiver or
forbearance by any holder of any Debt of any right to accelerate such Debt as a
result of a Specified Default, (i) prior to the end of the Facilities Period,
pay or otherwise provide cash fees, additional cash pay interest or other cash
pay financial consideration in excess of the amounts agreed to in writing by
BRW and the Agents to any holder of any such Debt or (ii) modify any existing
agreement or instrument or enter into any additional agreement or instrument
after the date hereof with any holder of any such Debt in connection with
effecting any of the foregoing unless such modifications or additional
agreements or instruments provide that (A) any additional payment obligations
arising under any such modification or additional agreement or  instrument shall be (x) permitted under
clause (i) above or (y) payable in kind and not be subject to any put,
redemption or prepayment right during the Facilities Period, and (B) no such
modification will (w) add any collateral or rights to collateral, (x) advance
any amortization requirement or maturity date, (y) change any covenant, default
or provision with the result that it is in any material respect more
restrictive (e.g., less favorable to the Borrowers or their Subsidiaries or the
Lender Parties) than the terms of the Junior Notes Indenture or change any term
of subordination with the result that it is in any material respect more narrow
(e.g., less favorable to the Borrowers or their Subsidiaries or the Lender
Parties) than the terms of the Junior Notes Indenture or (z) add any new
covenant or default provision that is in any material respect more restrictive
(e.g., less favorable to the Borrowers or their Subsidiaries or the Lender
Parties) than the terms of the Junior Notes Indenture.


 


(w)                             Covenant
Regarding BCI Cash and Cash Expenditures. 
Permit BCI and its Subsidiaries to (A) except as a result of any
transaction permitted under Section 5.02(e)(ix), hold collected cash balances
(net of any cash in accounts subject to the Escrow Agreements or other escrow
arrangements permitted under Section 5.02(a)(xiii) or required under Section
5.02(e)(ix)(E)) in excess of $15,000,000 at any time, and (B) other than in
connection with the payment of claims and liabilities following any transaction
permitted under Section 5.02(e)(ix), make cash expenditures other than in the
ordinary course of business consistent with past practices.


 


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 BRW setting forth details of such Default and the action that the
Borrowers have taken and proposes to take with respect thereto.


 


111

















 


(b)                                 Annual
Financials.  As soon as available
and in any event within 95 days after the end of each Fiscal Year, a copy of
(1) the annual audit report for such year for BRW and its Subsidiaries
(including BCI and its Subsidiaries), including therein a Consolidated balance
sheet of BRW and its Subsidiaries (including BCI 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 BRW and its Subsidiaries (including
BCI and its Subsidiaries) for such Fiscal Year, in each case accompanied by an
opinion acceptable to the Required Lenders of PWC or other independent public
accountants of recognized standing acceptable to the Required Lenders ( it
being understood and agreed that a qualified opinion for Fiscal Year 2002 shall
not be deemed to be not “acceptable” solely because of such qualification
provided that  the Agents receive confirmation
from PWC as to the absence of significant factors resulting in the
qualification other than the financial condition and liquidity of BCI and the
bankruptcy default relating to BCI in the Oak Hill Indenture), 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 BRW and its
Subsidiaries (including BCI and its Subsidiaries), which audit was conducted by
such accounting firm in accordance with generally accepted auditing standards,
such accounting firm has obtained no knowledge that a Default has occurred and
is continuing, or if, in the opinion of such accounting firm, a Default has
occurred and is continuing, a statement as to the nature thereof, (ii) a
schedule in form satisfactory to the Administrative Agent of the computations
used by such accountants in determining, as of the end of such Fiscal Year,
compliance with the covenants contained in Section 5.04, provided
that in the event of any change in GAAP used in the preparation of such
financial statements, BRW shall also provide, if necessary for the
determination of compliance with Section 5.04, a statement of reconciliation
conforming such financial statements to GAAP, (2)  the annual unaudited report for such year for BRW and its
Subsidiaries (other than BCI and its Subsidiaries), including therein a
Consolidated balance sheet of BRW 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 BRW and its Subsidiaries for such
Fiscal Year, all in reasonable detail and duly certified (subject to normal
year-end audit adjustments) by the Chief Financial Officer of BRW as
having been prepared in accordance with GAAP, and (3) a certificate of the
Chief Financial Officer of BRW 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 BRW 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
BRW and its Subsidiaries (including BCI and its Subsidiaries) and of BRW and
its Subsidiaries (other than BCI and its Subsidiaries), in each case, as of the
end of such quarter and Consolidated and consolidating statements of income and
a Consolidated and consolidating statement of cash flows of BRW and its
Subsidiaries (including BCI and its Subsidiaries) and of BRW and its
Subsidiaries (other than BCI and its Subsidiaries), in each case, for the
period commencing at the end of the previous fiscal quarter and ending with the
end of such fiscal quarter and Consolidated


 


112

















 


and
consolidating statements of income and a Consolidated and consolidating
statement of cash flows of BRW and its Subsidiaries (including BCI and its
Subsidiaries) and of BRW and its Subsidiaries (other than BCI and its
Subsidiaries), in each case, 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 BRW 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 BRW 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 BRW 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, BRW shall also provide, if necessary for the
determination of compliance with Section 5.04, a statement of reconciliation
conforming such financial statements to GAAP.


 


(d)                                 Annual
Forecasts.  As soon as available and
in any event no later than 15 days before the end of each Fiscal Year,
forecasts prepared by management of BRW in form satisfactory to the Agents, 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 Final Maturity Date of the Term C Facility.


 


(e)                                Quarterly
Cash Budget.  As soon as available
and in any event no later than 20 Business Days after the commencement of each
fiscal quarter, (i) a forecasted budget of BCI’s cash expenditures for such
fiscal quarter, (ii) a reconciliation of actual results to the budget for the
immediately preceding fiscal quarter and (iii) a review and reconciliation for
the immediately preceding fiscal quarter of all reserves referred to under
Section 5.02(e)(ix)(E), with a copy delivered to FTI by BRW, which items shall
be reviewed by FTI in consultation with BRW for one day each fiscal quarter at
the expense of BRW not to exceed $10,000 plus reasonable out-of-pocket expenses
per review; provided that the expense of each such review may be increased to
not more than $25,000 plus reasonable out-of-pocket expenses if the First Stage
Closing Date (as defined in the BCSI Sale Agreement) does not occur by June 30,
2003 or if the Agents reasonably determine that the scope of FTI’s review
should be increased.


 


(f)                                    Litigation.  Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and proceedings before
any court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of its
Subsidiaries of the type described in Section 4.01(f).


 


(g)                                 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


 


113

















 


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 BRW 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).


 


(h)                                 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.


 


(i)                                     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.


 


(j)                                     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 BRW describing such ERISA Event and the action, if any,
that such Loan Party or such ERISA Affiliate has taken and proposes to take
with respect thereto and (B) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan pursuant to
Section 4010 of ERISA, a copy of such records, documents and information;


 


(ii)                                  Plan
Terminations.  Promptly and in any
event within five Business Days after receipt thereof by any Loan Party or any
ERISA Affiliate, copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any Plan;


 


(iii)                               Plan Annual Reports.  Promptly upon the request of either Agent,
copies of each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) with respect to each Plan; and


 


(iv)                              Multiemployer
Plan Notices.  Promptly and in any
event within five Business Days after receipt thereof by any Loan Party or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within the meaning
of Title IV of ERISA, of any such Multiemployer Plan or (C) the
amount of liability incurred, or that


 


114

















 


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.


 


(k)                                  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.


 


(l)                                     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.


 


(m)                               BCI Sale Information.  At
the end of each fiscal quarter following the First Stage Closing Date (as
defined in the BCSI Sale Agreement) or any other closing of the sale of all or
substantially all of the assets of BCI and its Subsidiaries pursuant to Section
5.02(e)(ix) if other than pursuant to the BCSI Sale Agreement, a report
summarizing the amount of funds held in the accounts subject to an Escrow
Agreement, all amounts held in reserve pursuant to Section 5.02(e)(ix)(E), and
the status of the sale of assets of BCI and its Subsidiaries pursuant to the
BCSI Sale Agreement (or any similar agreement entered into pursuant to Section
5.02(e)(ix) if other than the BCSI Sale Agreement).


 


115

















 


(n)                                 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.  BRW 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 during each period set forth
below:


 


 




	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  From January 1, 2003 through March 31, 2003

  	
   

  	
  5.20

  	
   

  
	
  From April 1, 2003 through June 30, 2003

  	
   

  	
  5.60

  	
   

  
	
  From July 1, 2003 through September 30, 2003

  	
   

  	
  5.90

  	
   

  
	
  From October 1, 2003 through March 30, 2004

  	
   

  	
  6.20

  	
   

  
	
  From March 31, 2004 through June 29, 2004

  	
   

  	
  6.10

  	
   

  
	
  From June 30, 2004 through September 29, 2004

  	
   

  	
  5.95

  	
   

  
	
  From September 30, 2004 through December 30, 2004

  	
   

  	
  5.85

  	
   

  
	
  From December 31, 2004 through March 30, 2005

  	
   

  	
  5.75

  	
   

  
	
  From March 31, 2005 through June 29, 2005

  	
   

  	
  5.60

  	
   

  
	
  From June 30, 2005 through September 29, 2005

  	
   

  	
  5.45

  	
   

  
	
  From September 30, 2005 through December 30, 2005

  	
   

  	
  5.25

  	
   

  
	
  From December 31, 2005 through March 30, 2006

  	
   

  	
  5.10

  	
   

  
	
  From March 31, 2006 through June 29, 2006

  	
   

  	
  5.00

  	
   

  
	
  From June 30, 2006 through September 29, 2006

  	
   

  	
  4.90

  	
   

  
	
  From September 30, 2006 December 30, 2006

  	
   

  	
  4.75

  	
   

  
	
  From December 31, 2006 through March 30, 2007

  	
   

  	
  4.70

  	
   

  
	
  From March 31, 2007 through June 29, 2007

  	
   

  	
  4.65

  	
   

  
	
  From June 30, 2007 and thereafter

  	
   

  	
  4.55

  	
   

  






 


116

















 


(b)                                 Senior
Secured Debt to EBITDA Ratio.  BRW
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
during each period set forth below:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  From January 1, 2003 through March 31, 2003

  	
   

  	
  3.45

  	
   

  
	
  From April 1, 2003 through June 30, 2003

  	
   

  	
  3.70

  	
   

  
	
  From July 1, 2003 through September 30, 2003

  	
   

  	
  3.85

  	
   

  
	
  From October 1, 2003 through March 30, 2004

  	
   

  	
  4.00

  	
   

  
	
  From March 31, 2004 through June 29, 2004

  	
   

  	
  3.85

  	
   

  
	
  From June 30, 2004 through September 29, 2004

  	
   

  	
  3.75

  	
   

  
	
  From September 30, 2004 through December 30, 2004

  	
   

  	
  3.60

  	
   

  
	
  From December 31, 2004 through March 30, 2005

  	
   

  	
  3.50

  	
   

  
	
  From March 31, 2005 through June 29, 2005

  	
   

  	
  3.35

  	
   

  
	
  From June 30, 2005 through September 29, 2005

  	
   

  	
  3.25

  	
   

  
	
  From September 30, 2005 thorough December 30, 2005

  	
   

  	
  3.05

  	
   

  
	
  From December 31, 2005 through March 30, 2006

  	
   

  	
  2.95

  	
   

  
	
  From March 31, 2006 through June 29, 2006

  	
   

  	
  2.85

  	
   

  
	
  From June 30, 2006 through September 29, 2006

  	
   

  	
  2.75

  	
   

  
	
  From September 30, 2006 through December 30, 2006

  	
   

  	
  2.60

  	
   

  
	
  From December 31, 2006 through March 30, 2007

  	
   

  	
  2.60

  	
   

  
	
  From March 31, 2007 through June 29, 2007

  	
   

  	
  2.50

  	
   

  
	
  From June 30, 2007 and thereafter

  	
   

  	
  2.45

  	
   

  



 


117

















 


(c)                                  Interest
Coverage Ratio.  BRW 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 during each period
set forth below:


 




	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  From January 1, 2003 through March 31, 2003

  	
   

  	
  3.75

  	
   

  
	
  From April 1, 2003 through June 30, 2003

  	
   

  	
  3.30

  	
   

  
	
  From July 1, 2003 through September 30, 2003

  	
   

  	
  2.95

  	
   

  
	
  From October 1, 2003 through December 31, 2003

  	
   

  	
  2.70

  	
   

  
	
  From January 1, 2004 through March 31, 2004

  	
   

  	
  2.65

  	
   

  
	
  From April 1, 2004 through June 30, 2004

  	
   

  	
  2.80

  	
   

  
	
  From July 1, 2004 through September 30, 2004

  	
   

  	
  2.70

  	
   

  
	
  From October 1, 2004 through December 31, 2004

  	
   

  	
  2.60

  	
   

  
	
  From January 1, 2005 through March 31, 2005

  	
   

  	
  2.45

  	
   

  
	
  From April 1, 2005 through June 30, 2005

  	
   

  	
  2.35

  	
   

  
	
  From July 1, 2005 through September 30, 2005

  	
   

  	
  2.35

  	
   

  
	
  From October 1, 2005 through December 31, 2005

  	
   

  	
  2.35

  	
   

  
	
  From January 1, 2006 through March 31, 2006

  	
   

  	
  2.40

  	
   

  
	
  From April 1, 2006 through June 30, 2006

  	
   

  	
  2.40

  	
   

  
	
  From July 1, 2006 through September 30, 2006

  	
   

  	
  2.45

  	
   

  
	
  From October 1, 2006 through December 31, 2006

  	
   

  	
  2.45

  	
   

  
	
  From January 1, 2007 through March 31, 2007

  	
   

  	
  2.50

  	
   

  
	
  From April 1, 2007 through June 30, 2007 and
  thereafter

  	
   

  	
  2.50

  	
   

  






 


118

















 


(d)                                 Maximum
Capital Expenditures.  BRW will not
make, or permit any of its Subsidiaries to make, any Capital Expenditures that
would cause the aggregate of all such Capital Expenditures made by BRW and such
Subsidiaries in any period set forth below to exceed the amount set forth below
for such period:






	
  Period

  	
   

  	
  Amount

  	
   

  
	
  January
  1, 2003 through December 31, 2003

  	
   

  	
  $

  	
  146,000,000

  	
   

  
	
  January
  1, 2004 through December 31, 2004

  	
   

  	
  $

  	
  114,000,000

  	
   

  
	
  January
  1, 2005 through December 31, 2005

  	
   

  	
  $

  	
  114,000,000

  	
   

  
	
  January
  1, 2006 through December 31, 2006

  	
   

  	
  $

  	
  112,000,000

  	
   

  
	
  January
  1, 2007 through June 29, 2007 and thereafter

  	
   

  	
  $

  	
  118,000,000

  	
   

  






 


provided that (i)
any amount permitted above that is not used in any Fiscal Year may be carried
forward to the next Fiscal Year (but not to succeeding years) it being
understood that any such amounts carried forward will be the first funds used
in such next Fiscal Year, (ii) BRW shall be permitted to make any Capital
Expenditures that are required pursuant to any binding direction or requirement
of any applicable telecommunications regulatory authority or any regulatory
authority having jurisdiction over BRW’s telecommunications operations or
equipment which becomes effective after the date hereof not to exceed
$25,000,000  in any Fiscal Year or
$50,000,000 in aggregate for the term of the Facilities, so long as BRW
provides satisfactory documentation thereof, (iii) the amount of permitted
Capital Expenditures in any Fiscal Year will be increased by the amount of Net
Cash Proceeds from issuances of common stock or Other Permitted Equity that are
retained by BRW pursuant to Sections 5.02(g)(viii) and 5.02(g)(x) (after giving
effect to all required prepayments of the Facilities) in an amount not to
exceed $25,000,000 per Fiscal Year and (iv) any amount permitted under clause
(iii) that is not used in the Fiscal Year in which such additional amount
arises may be carried forward to the next Fiscal Year (but not to succeeding
years) it being understood that any such amounts carried forward will be the
first funds used in such next Fiscal Year after the application of any amount
under clause (i) in such Fiscal Year. 
To the extent that any consideration paid for Capital Expenditures
constitutes capital stock of BRW, such consideration shall not constitute a
Capital Expenditure for purposes of the limitations in this Section 5.04(d).


 


119

















 


ARTICLE VI


 


BRW GUARANTY


 


SECTION 6.01.  BRW Guaranty.  (a) 
BRW hereby unconditionally and irrevocably guarantees (the undertaking
by BRW under this Article VI being, as amended from time to time, the “BRW 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 BRW
Guaranty.  Without limiting the
generality of the foregoing, the liability of BRW 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)                                 BRW
and, by its acceptance of this BRW Guaranty, the Administrative Agent and each
of the other Secured Parties, hereby confirm that it is the intention of all
such Persons that this BRW Guaranty and the Obligations of BRW 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 BRW Guaranty and the BRW Obligations
hereunder.  To effectuate the foregoing
intention, BRW, 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 BRW under this BRW 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 BRW 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 BRW in respect of the Obligations of such Subsidiary
under the Subsidiaries Guarantees and, in the case of this BRW Guaranty, result
in the Guaranteed Obligations and all other liabilities of BRW under this
BRW  Guarantee not constituting a
fraudulent transfer or conveyance.


 


(c)                                  BRW
hereby unconditionally and irrevocably agrees that, in the event any payment
shall be required to be made to the Secured Parties under this BRW Guaranty or
the Subsidiary Guaranties or any other guarantee, BRW will contribute, to the
maximum extent


 


120

















 


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)  BRW 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 BRW under this BRW
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 BRW to
enforce this BRW 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 BRW under this BRW Guaranty shall be absolute,
unconditional and irrevocable irrespective of, and BRW 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;


 


(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;


 


121

















 


(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, BRW, such Borrower, any of the other Loan Parties or any
other guarantor or surety.


 


This BRW 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 BRW
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)                                 BRW
hereby further agrees that, as between BRW on the one hand, and the
Administrative Agent and the Secured Parties, on the other hand, (i) the
Guaranteed Obligations of BRW 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 Obligations (whether or
not due and payable by any other Person) shall forthwith become due and payable
by BRW for all purposes of this Guarantee.


 


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SECTION 6.03.  Waivers and
Acknowledgments.  (a)  BRW 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 BRW 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)                                 BRW
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 BRW or any other rights of BRW 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 BRW under this BRW
Guaranty.


 


(c)                                  BRW
hereby unconditionally and irrevocably waives any duty on the part of the
Administrative Agent or any of the other Secured Parties to disclose to BRW 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)                                 BRW
hereby unconditionally waives any right to revoke this BRW Guaranty, and
acknowledges that this BRW Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.


 


(e)                                  BRW
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.  BRW 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
BRW under this BRW 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 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 BRW Guaranty shall have been paid in
full in cash, all of the Secured Hedge Agreements shall have expired or


 


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been terminated and the Commitments shall have expired or
terminated.  If any amount shall be paid
to BRW 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 BRW Guaranty, (b)
the expiration or termination of all of the Secured 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 BRW 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 BRW 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 BRW Guaranty thereafter
arising.  If (i) BRW 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 BRW
Guaranty shall have been paid in full in cash, (iii) all of the Secured 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 BRW’s  request and
expense, execute and deliver to BRW appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer of
subrogation to BRW of an interest in the Guaranteed Obligations resulting from
the payment made by BRW under this BRW Guaranty.


 


SECTION 6.05.  Continuing
Guarantee; Assignments.  This BRW
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 BRW
Guaranty, (ii) the expiration or termination of all of the Secured Hedge
Agreements and (iii) the Termination Date, (b) be binding upon BRW 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.


 


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


 


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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; provided that the
failure by BCSI to pay any such amount upon an acceleration of Advances made to
BCSI due to a BCI Event of Default shall not constitute an Event of Default of
BRW; or


 


(b)                                 any
representation or warranty made by BRW or any of its Subsidiaries (or any of
its officers) under or in connection with any Loan Document shall prove to have
been incorrect in any material respect (except to the extent relating to BCI or
any Subsidiary of BCI) on the date as of which it was made or deemed made; or


 


(c)                                  BRW
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)                                 BRW
or any of its Subsidiaries 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
BRW by any Agent or any Lender Party; or


 


(e)                                  BRW
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 BRW (other
than amounts under the Sellers’ Parent Guaranty (as defined in the BCSI Sale
Agreement) that are the subject of a good faith dispute by BRW) or such
Subsidiary (as the case may be) that is outstanding in a principal amount (or,
in the case of any Hedge Agreement, an Agreement Value) of at least $20,000,000
either individually or in the aggregate (but excluding Debt outstanding
hereunder), when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any such
Debt and shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt to
mature; or any such Debt shall be declared to be due and payable or required to
be 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; provided that
any Specified Default under the Oak Hill Indenture shall not constitute an
Event of Default under this clause (e) at any time after the Part II Effective
Date; or


 


(f)                                    BRW
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


 


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make a
general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against BRW 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 BRW 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 BRW 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 BRW 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 of BRW or any of its Subsidiaries 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 such Loan Party party to it,
or any such Loan Party shall so state in writing; or


 


(j)                                     any
Collateral Document of BRW or any of its Subsidiaries 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; if such Collateral is property of BRW or its
Subsidiaries; or


 


(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


 


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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 Junior Notes Indenture or the Oak Hill
Indenture, as the case may be) shall have occurred and be continuing under the
Junior Notes Indenture or the Oak Hill Indenture other than an Event of Default
specified in clause (p)(i) below; or


 


(p)                                 (i)
prior to the occurrence of the Part II Effective Date, the occurrence of any of
(x) an “Event of Default” (as defined in the Oak Hill Indenture) under Section
6.1(f) or (g) of the Oak Hill Indenture (as in effect on the date hereof) in
respect of any default of the type specified in clause (f) above by, against or
with respect to BCI or any of its Subsidiaries or (y) any default of the type
specified in clause (f) shall have occurred by, against or with respect to BCI
or any of its Subsidiaries or (ii) repayment of the Oak Hill Debt shall have
been accelerated,


 


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 Borrowers, 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 forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Required Lenders, (A) by notice to the Borrowers,
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 Borrowers
and (B) by notice to each applicable 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 such Issuing Bank shall deliver such Default
Termination Notices; provided, however,  that,


 


(A) prior to the Part II Effective Date, in the event
of an actual or deemed entry of an order for relief with respect to either
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


 


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Credit Lender pursuant to Section 2.03(c) and
Swing Line Advances by a Revolving Credit Lender pursuant to
Section 2.02(b)) and of each Issuing Bank to issue Letters of Credit shall
automatically be terminated and (y) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrowers, and


 


(B) on
and after the Part II Effective Date, in the event of an actual or deemed entry
of an order for relief with respect to BRW or any of its Subsidiaries under the
Federal Bankruptcy Code, (1) the Commitments of each Lender Party and the
obligation of each Lender Party to make Advances (other than Letter of Credit
Advances by an Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c)
and Swing Line Advances by a Revolving Credit Lender pursuant to
Section 2.02(b)) and of each Issuing Bank to issue Letters of Credit shall
automatically be terminated and (2) the Notes of the Borrowers, 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.


 


For the avoidance of doubt, the Administrative Agent
and the Lenders agree that a BCI Default or BCI Event of Default shall not
under any circumstances give rise to any right to accelerate any of the
Obligations of BRW or any of its Subsidiaries or to seek any recourse under the
Guarantees or Collateral provided by BRW or its Subsidiaries to support the
Obligations of BCSI prior to the earlier of (a) the final maturity date of the
Facilities and (b) the acceleration of the Notes of BRW resulting from an
independent Event of Default.


 


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.


 


SECTION 7.03.  BCI Events of
Default. If any of the following events (“BCI Events of Default”) shall occur and
be continuing:


 


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(a)                                  any
default of the type specified in clauses (b), (c), (d), (e), (g), (h), (i) or
(j) of Section 7.01 shall have occurred by, against or with respect to BCI or
any of its Subsidiaries; or


 


(b)                                 any
default of the type specified in clause (f) of Section 7.01 shall have occurred
by, against or with respect to BCI or any of its Subsidiaries;


 


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 Borrowers, declare the Notes
of BCSI, all interest thereon and all other amounts payable by BCSI under this
Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Notes of BCSI, all such interest thereon 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
Borrowers and (ii) by notice to each applicable Issuing Bank, direct such
Issuing Bank to deliver a Default Termination Notice to the beneficiary of each
Letter of Credit issued by it for the account of BCSI or any of its
Subsidiaries and each such 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 BCI
or any of its Subsidiaries under the Federal Bankruptcy Code, the Notes of
BCSI, all such interest and all such amounts due by BCSI 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 BCSI, it being
understood and agreed that any such entry of an order for relief with respect
to BCI or any of its Subsidiaries will not at any time after the Part II
Effective Date, constitute an Event of Default or cause an automatic
acceleration of the Notes of BRW or the termination of the Commitments of each
Lender Party or the obligation of each Lender Party to make Advances or of each
Issuing Bank to issue Letters of Credit to BRW.


 


For the avoidance of doubt, the Administrative Agent
and the Lenders agree that a BCI Default or BCI Event of Default shall not
under any circumstances give rise to any right to accelerate any of the
Obligations of BRW or any of its Subsidiaries or to seek any recourse under the
Guarantees or Collateral provided by BRW or its Subsidiaries to support the
Obligations of BCSI prior to the earlier of (a) the final maturity date of the
Facilities and (b) the acceleration of the Notes of BRW resulting from an
independent Event of Default.


 


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


 


129

















 


limitation, enforcement or collection of the Notes), no Agent shall be
required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
provided,
however, that no Agent shall be required to take any action that
exposes such Agent to personal liability or that is contrary to this Agreement
or applicable law.  Each Agent agrees to
give to each Lender Party prompt notice of each notice given to it by the
Borrowers 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


 


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or observance of any of the terms, covenants or conditions of any Loan
Document on the part of any Loan Party or to inspect the property (including
the books and records) of any Loan Party; (e) shall not be responsible to
any Lender Party for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, any Loan Document or any other instrument or document furnished pursuant
thereto; and (f) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, telecopy or telex) believed by it to be
genuine and signed or sent by the proper party or parties.


 


SECTION 8.03.  The Administrative
Agent, the Syndication Agent, the Co-Arrangers and Affiliates.  With respect to its Commitments, the
Advances made by it and the Notes issued to it, CUSA, Bank of America, SSBI and
BAS shall have the same rights and powers under the Loan Documents as any other
Lender Party and may exercise the same as 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


 


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not any such claim, investigation, litigation or proceeding is brought
by such Agent, any of the Lender Parties or a third party.  Without limiting any of the provisions of
the immediately preceding sentence, each of the Lender Parties hereby agrees to
reimburse the Agents promptly upon demand for its ratable share of any costs and
expenses (including, reasonable fees and expenses of counsel) incurred by such
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Loan Documents, to
the extent that such Agent is not promptly reimbursed for such costs and
expenses by the Borrowers.


 


(b)                                 Each
Lender Party severally agrees to indemnify each Issuing Bank (to the extent not
promptly reimbursed by the Borrowers) from and against such Lender Party’s
ratable share (determined as provided below) of any and all liabilities,
obligations, losses, 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.


 


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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 Borrowers 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.


 


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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 Borrowing under any Facility, 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 BRW 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
Advance then outstanding under the Term A Facility, the Term B Facility, the
Term C 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


 


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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
A Facility, the Term B Facility, the Term C 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 A Facility, the
Term B Facility or the Term C Facility remains in effect or permanently reduce
the Revolving Credit Facility;


 


and provided further that no amendment, waiver
or consent shall, unless in writing and signed by each Swing Line Bank or each
Issuing Bank, as the case may be, in addition to the Lenders required above to
take such action, affect the rights or duties of such Swing Line Bank or such
Issuing Bank under this Agreement or any of the other Loan Documents; and provided
further that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lender
Parties required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any of the other Loan
Documents.  Notwithstanding any of the
foregoing provisions of this Section 9.01, none of the defined terms set forth
in Section 1.01 shall be amended, supplemented or otherwise modified
hereafter in any manner that would change the meaning, purpose or effect of
this Section 9.01 or any section referred to herein unless such amendment, supplement
or modification is agreed to in writing by the number and percentage of Lenders
(and each Swing Line Bank, each Issuing Bank and the Administrative Agent, in
each case, if applicable) otherwise required to amend such section under the
terms of this Section 9.01.


 


SECTION 9.02.  Notices, Etc.  All
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telecopy or telex communication) and mailed,
telegraphed, telecopied, telexed or delivered, if to any of the Borrowers, at
its address at 201 East Fourth Street, 102-760, P.O. Box 2301, Cincinnati, Ohio
45201-2301, Attention:  Treasurer,
Telecopier No.: 513-397-4177; if to any Initial Lender Party, at its Domestic
Lending Office specified opposite its name on Schedule I hereto; if to any
other Lender Party, at its Domestic Lending Office specified in the Assignment
and Acceptance pursuant to which it became a Lender Party; if to the
Syndication Agent, at its address at 1101Wootton Parkway, Third Floor, Rockville,
Maryland 20852-1059, Attention: Michael Heredia, Telecopier No.: (301)
517-3236, with a copy to Wayne Gero, One Independence Center, 101 N. Tryon St.,
Charlotte, NC  28255, Telecopier No.:
704-409-0050; and if to the Administrative Agent, at its


 


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address at 388 Greenwich Street, 21st Floor, New York, NY
10013, Attention:  John Judge; Telecopier No.: 212-816-8084; or, as
to the Borrowers 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 Borrowers 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).


 


(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


 


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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 BRW or any of its
Subsidiaries (including BCI and 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 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 


 


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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.


 


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


 


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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.  The amendment and restatement contemplated
by this Agreement shall become effective as set forth in Section 3.01 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 BRW (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 $1,000,000 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; provided, that in
the event of concurrent assignments to two or more Related Funds, all such
concurrent assignments shall be aggregated in determining compliance with this
requirement, (iii) each such assignment shall be to an Eligible Assignee,
(iv) each such assignment made as a result of a demand by the Borrowers
pursuant to this Section 9.07(a) shall be arranged by the Borrowers after
consultation with the Administrative Agent and shall be either an assignment of
all of the rights and obligations of the assigning Lender under this Agreement
or an assignment of a portion of such rights and obligations made concurrently
with another such assignment or other such assignments that together cover all
of the rights and obligations of the assigning Lender under this Agreement,
(v) no Lender shall be obligated to make any such assignment as a result
of a demand by the Borrowers pursuant to this Section 9.07(a) unless and
until such Lender shall have received one or more payments from either the
Borrowers or one or more Eligible Assignees in an aggregate amount at least
equal to the aggregate outstanding principal amount of the Advances owing to
such Lender, together with accrued interest thereon to the date of payment of
such principal amount and all other amounts payable to such Lender under this
Agreement, (vi) [intentionally omitted] 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 


 


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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;
provided further, that no such fee shall be payable in the case of
any assignment to a Related Fund; and provided
still further that, in the case of contemporaneous assignments by a
Lender to more than one fund managed by the same investment advisor (which
funds are not then Lenders hereunder), only a single such fee shall be payable
for such contemporaneous assignments.


 


(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 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.


 


140

















 


(d)                                 The
Administrative Agent, acting for this purpose (but only for this purpose) as
the agent of each of the Borrowers, 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.


 


(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


 


141

















 


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 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 


 


142

















 


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.


 


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


 


143

















 


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.
(a) The parties hereto hereby agree that each party (and each employee,
representative or other agent of such party) may disclose to any and all
Persons, without limitation of any kind, the tax treatment and tax structure
(as such terms are used in Sections 6011, 6111 and 6112 of the Internal Revenue
Code and the Treasury  Regulations
promulgated thereunder) of the Transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to such party relating
to such tax treatment and tax structure, other than any information for which
nondisclosure is reasonably necessary in order to comply with applicable
securities laws.  For this purpose, tax
treatment and tax structure shall not include the identity of any existing or
future party (or any Affiliate of such party) to the Transaction.


 


(b)
Subject to paragraph (a) of this Section 9.10, neither the Agents nor any
Lender Party may disclose to any Person any confidential, proprietary or
non-public information of the Borrowers furnished to the Agents or the Lender
Parties by the Borrowers (such information being referred to collectively
herein as the “Borrower Information”), except that each of the Agents and
each of the Lender Parties may disclose Borrower Information (i) to its
and its affiliates’ employees, officers, directors, agents, accountants,
attorneys and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Borrower
Information and instructed to keep such Borrower Information confidential on
substantially the same terms as provided herein), (ii) to the extent
requested by any regulatory authority or self regulatory body operating
pursuant to statutory authority having or claiming authority to regulate or
oversee any aspect of any business of any Lender or that of any of its
Affiliates, (iii) to the extent required by applicable laws or regulations
or by any subpoena or similar legal process, (iv) to any other party to
this Agreement who have agreed to hold the Borrower Information in confidence
on substantially the same terms as provided herein, (v) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder,
(vi) subject to an agreement containing provisions substantially the same
as those of this Section 9.10, to any assignee of or participant in, or any
prospective assignee of or participant in, any of its rights or obligations
under this Agreement, (vii) to the extent such Borrower Information (A) is or
becomes generally available to the public on a non-confidential basis other
than as a result of a breach of this Section 9.10 by such Agent or such Lender
Party, or (B) is or becomes available to such Agent or such Lender Party on a
nonconfidential basis from a source other than the Borrowers, (viii) with
the consent of the Borrowers, or (xi) 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 is subject to the confidentiality obligations of
this Agreement). Any Person required to maintain the confidentiality of
Borrower Information as provided in this Section 9.10 shall be considered to 


 


144

















 


have
complied with its obligation to do so if such Person has exercised the same degree
of care to maintain the confidentiality of such Borrower Information as such
Person would accord to its own confidential information; provided, however,
that with respect to disclosures pursuant to clauses (ii) and (iii) of this
Section 9.10 (other than disclosures pursuant to routine regulatory
examinations), unless prohibited by law or applicable court order, each Lender
Party and each Agent shall attempt to notify the Borrowers of any request by
any governmental agency or representative thereof or other Person for
disclosure of Borrower Information after receipt of such request, and if
reasonable, practicable and permissible, before disclosure of such Borrower
Information.  It is understood and
agreed that the Borrowers and their respective Affiliates may rely upon this
Section 9.10 for any purpose, including without limitation to comply with
Regulation FD promulgated by the Securities and Exchange Commission.


 


(c)                                  Subject
to paragraph (a) of this Section 9.10, 
the Borrowers may not disclose to any Person the amount or terms of any
fees (other than as set forth in this Agreement) payable to the Agents (such
information being collectively referred to herein as the “Facility Information”),
except  that the Borrowers may disclose
the Facility Information (i) to its and its affiliates’ employees, officers,
directors, agents and advisors who have a need to know the Facility Information
in connection with this Agreement and the transactions contemplated hereby or
(ii) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process.


 


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. 
Without limiting the foregoing, the lenders hereby authorize and direct
the Administrative Agent, at the Borrowers’ expense, in connection with any
transaction permitted under Section 5.02(e)(ix) to take any and all actions
required to release from the assignment and security interest granted under the
Collateral Documents any and all Collateral consisting of assets of BCI and its
Subsidiaries subject to such transaction and to terminate any and all other
arrangements for the benefit of the Lenders in respect of assets of BCI and its
Subsidiaries subject to such transaction (including but not limited to the
arrangements in respect of the Real Estate SPV).


 


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


 


145

















 


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 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.


 


SECTION 9.16.  BCSI Sale
Agreement.  Each of the Borrowers,
the Agents and the Lender Parties agrees that it is their intent to permit the
BCSI Sale Agreement and the transactions contemplated thereby. Notwithstanding
any other provision of any Loan Document to the contrary, (a) the BCSI Sale
Agreement and each transaction contemplated thereby shall be permitted and (b)
no action taken or omitted to be taken in compliance with or in furtherance of
the BCSI Sale Agreement and the transactions contemplated thereby shall for any
purpose constitute a Default or Event of Default, a BCI Default or BCI Event of
Default or a breach of any representation or warranty, covenant or other
agreement under any Loan Document.


 


146

















 


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


 


	
   

  	
  BROADWING INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Mark W.
  Peterson

  	
   

  
	
   

  	
  Title:  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
  BROADWING
  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/ John T.
  Judge

  	
   

  
	
   

  	
  Title:  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA,
  N.A.,

  
	
   

  	
  as Syndication
  Agent, Initial Lender, Initial

  Issuing Bank and Swing Line Lender

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Michael R.
  Heredia

  	
   

  
	
   

  	
  Title:  Managing Director

  



 


147

















 


Lenders:


 


	
   

  	
   

  	
   

  
	
   

  	
  Name of
  Institution

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Title: 

  	
   

  
				



 


148

















 


Schedule II to the


Credit
Agreement


 


List of Subsidiary
Guarantors


 


BRW Guarantors:


Broadwing Financial LLC


Broadwing Holdings Inc.


Zoomtown.Com Inc.


Cincinnati Bell Any Distance Inc.


Cincinnati Bell Wireless Company


Cincinnati Bell Wireless Holdings LLC


Cincinnati Bell Public Communications Inc.


Cincinnati Bell Telecommunications Services Inc.


 


BCSI Guarantors:


Broadwing Financial LLC


Broadwing Communications Inc.


Broadwing Communications Services Inc.


Broadwing Holdings Inc.


Zoomtown.Com Inc.


Cincinnati Bell Any Distance Inc.


Cincinnati Bell Wireless Company


Cincinnati Bell Wireless Holdings LLC


Broadwing Telecommunications Inc.


IXC Business Services, LLC


Broadwing Communications Services of Virginia, Inc.


IXC Internet Services, Inc.


Broadwing Communications Real Estate Services LLC


Broadwing Technology Solutions Inc.


Cincinnati Bell Public Communications Inc.


Cincinnati Bell Telecommunications Services Inc.


Broadwing Services LLC


Broadwing Logistics LLC


 


149

















 


Schedule 5.01(r)

to the Credit Agreement


 


Description
of Centralized

BRW Cash Management System:  Cash Management

Procedures and Intercompany Lending


 


BRW and its
Subsidiaries (including, for all purposes of this Schedule 5.01(r), BCI and its
Subsidiaries) each maintain a cash concentration account at PNC Bank, N.A., in
Cincinnati, Ohio.  These accounts are
directly connected to each other through daily sweeping transactions.  The sweeping transactions are set up to
automatically transfer any excess balances at BRW and its Subsidiaries into the
cash concentration account (the “Cash Concentration Account”) held by Broadwing
Financial LLC at the end of each business day. 
If BRW or a Subsidiary concentration account has a negative balance at
the end of a business day, funds are automatically transferred from the Cash
Concentration Account into BRW’s or such Subsidiary’s account.  Sweeping transfers made from the Cash
Concentration Account into the BRW account or a Subsidiary account are booked
as a loan to BRW or such Subsidiary, as the case may be.  Sweeping transfers made from the BRW account
or a Subsidiary account to the Cash Concentration Account are booked as a loan
to Broadwing Financial LLC.  The net
amount borrowed or loaned by BRW or each Subsidiary is added to BRW’s or such
Subsidiary’s previous outstanding loan balance with Broadwing Financial LLC and
rolled forward.


 


No amount may be transferred to the BRW concentration account in
respect of a payment on the New Notes or the Other Permitted Equity if a
Blocking Event has occurred and is continuing.


 


150

















 


EXHIBITS D-1, D-2, E-1 and E-2


 


PLEASE SEE SEPARATELY
EXECUTED DOCUMENTS.


 


 


151

















 


EXECUTION
COPY


 


$1,605,041,000


 


SECOND
AMENDMENT AND RESTATEMENT


OF THE


CREDIT
AGREEMENT


 


Dated as of March 26,
2003


 


Among


 


BROADWING INC.


and


BROADWING COMMUNICATIONS
SERVICES INC.


as  Borrowers


 


 


and


 


BROADWING INC.


as  Parent  Guarantor


 


THE INITIAL LENDERS, INITIAL ISSUING BANKS AND


 SWING LINE BANKS NAMED HEREIN


as  Initial  Lenders, Initial
Issuing  Banks  and  Swing  Line  Banks


 


and BANK OF AMERICA, N.A.


as  Syndication  Agent


and


 


CITICORP USA, INC.


as  Administrative  Agent


and


 


CREDIT SUISSE FIRST BOSTON

and


 


THE BANK OF NEW YORK


as  Co-Documentation  Agents


and


 


PNC BANK, N.A.


as Agent


 


and


 


SALOMON SMITH BARNEY INC.


BANC OF AMERICA SECURITIES LLC


as Joint Lead Arrangers
and  Joint  Book  Managers


 


152

















 


Table of Contents


 


S&S
DRAFT


 


	
  ARTICLE
  I

  
	
   

  
	
  SECTION 1.01.  Certain Defined Terms.

  
	
   

  
	
  ARTICLE II

  
	
   

  
	
  SECTION
  2.01.  The Advances and the Letters of Credit

  
	
   

  
	
  SECTION
  2.02.  Making the Advances

  
	
   

  
	
  SECTION 2.03.  Issuance of and Drawings and Reimbursement
  Under Letters of Credit

  
	
   

  
	
  SECTION
  2.04.  Repayment of Advances

  
	
   

  
	
  SECTION 2.05.  Termination or Reduction of the
  Commitments; Increase of the Commitments.

  
	
   

  
	
  SECTION 2.06.  Prepayments.

  
	
   

  
	
  SECTION
  2.07.  Interest.

  
	
   

  
	
  SECTION 2.08  Fees.

  
	
   

  
	
  SECTION
  2.09  Conversion of Advances

  
	
   

  
	
  SECTION
  2.10.  Increased Costs, Etc.

  
	
   

  
	
  SECTION
  2.11.  Payments and Computations.

  
	
   

  
	
  SECTION
  2.12.  Taxes.

  
	
   

  
	
  SECTION
  2.13.  Sharing of Payments, Etc.

  
	
   

  
	
  SECTION 2.14.  Use of Proceeds.

  
	
   

  
	
  SECTION 2.15.  Defaulting Lenders

  
	
   

  
	
  SECTION
  2.16.  Evidence of Debt

  
	
   

  
	
  ARTICLE III

  
	
   

  
	
  SECTION 3.01.  (I) Conditions Precedent to Effectiveness of this Agreement.

  



 


153

















 


	
  SECTION 3.02.  Conditions Precedent to Each Borrowing and
  Issuance and Renewal.

  
	
   

  
	
  SECTION 3.03.  Determinations Under Section 3.01

  
	
   

  
	
  ARTICLE IV

  
	
   

  
	
  SECTION 4.01.  Representations and Warranties of the
  Borrowers.

  
	
   

  
	
  ARTICLE V

  
	
   

  
	
  SECTION 5.01.  Affirmative Covenants

  
	
   

  
	
  SECTION 5.02.  Negative Covenants.

  
	
   

  
	
  SECTION
  5.03.  Reporting Requirements.

  
	
   

  
	
  SECTION 5.04.  Financial Covenants.

  
	
   

  
	
  ARTICLE VI

  
	
   

  
	
  SECTION 6.01.  BRW Guaranty

  
	
   

  
	
  SECTION
  6.02.  Guarantee Absolute

  
	
   

  
	
  SECTION 6.03.  Waivers and Acknowledgments.

  
	
   

  
	
  SECTION 6.04.  Subrogation.

  
	
   

  
	
  SECTION 6.05.  Continuing Guarantee; Assignments.

  
	
   

  
	
  ARTICLE VII

  
	
   

  
	
  SECTION
  7.01.  Events of Default.

  
	
   

  
	
  SECTION 7.03.  BCI Events of Default.

  
	
   

  
	
  ARTICLE VIII

  
	
   

  
	
  SECTION 8.01.  Authorization and Action.

  
	
   

  
	
  SECTION
  8.02.  Agents’ Reliance, Etc.

  
	
   

  
	
  SECTION 8.03.  The Administrative Agent, the Syndication
  Agent, the Co-Arrangers and Affiliates.

  
	
   

  
	
  SECTION
  8.04.  Lender Party Credit Decision.

  
	
   

  
	
  SECTION 8.05.  Indemnification.

  



 


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  SECTION 8.06.  Successor Agents.

  
	
   

  
	
  ARTICLE IX

  
	
   

  
	
  SECTION 9.01.  Amendments, Etc.

  
	
   

  
	
  SECTION 9.02.  Notices, Etc.

  
	
   

  
	
  SECTION
  9.03.  No Waiver; Remedies.

  
	
   

  
	
  SECTION
  9.04.  Costs and Expenses

  
	
   

  
	
  SECTION
  9.05.  Right of Set-off

  
	
   

  
	
  SECTION
  9.06.  Binding Effect

  
	
   

  
	
  SECTION 9.07.  Assignments and Participations.

  
	
   

  
	
  SECTION
  9.08.  Execution in Counterparts

  
	
   

  
	
  SECTION 9.09.  No Liability of the Issuing Banks

  
	
   

  
	
  SECTION 9.10.  Confidentiality.

  
	
   

  
	
  SECTION
  9.11.  Release of Collateral.

  
	
   

  
	
  SECTION 9.12.  Jurisdiction, Etc.

  
	
   

  
	
  SECTION 9.13.  Integration.

  
	
   

  
	
  SECTION
  9.14.  Governing Law.

  
	
   

  
	
  SECTION
  9.15.  Waiver of Jury Trial.

  
	
   

  
	
  SECTION 9.16.  BCSI Sale Agreement.

  



 


155

















 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule I

  	
  -

  	
  Commitments
  and Applicable Lending Offices

  
	
  Schedule II

  	
  -

  	
  Subsidiary
  Guarantors

  
	
  Schedule 1.01

  	
  -

  	
  BCI
  Group Transactions

  
	
  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(t)

  	
  -

  	
  Surviving
  Debt

  
	
  Schedule 4.01(u)

  	
  -

  	
  Liens

  
	
  Schedule 4.01(v)

  	
  -

  	
  Investments

  
	
  Schedule 4.01(w)

  	
  -

  	
  Material
  Contracts

  
	
  Schedule 5.01(r)

  	
  -

  	
  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 BCSI Subsidiary Guaranty

  
	
  Exhibit E-2

  	
  -

  	
  Form
  of BRW Subsidiary Guaranty

  



 


156