Exhibit

10.1




 




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




 




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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




 




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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




 




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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




 




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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




 




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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




 




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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.




 




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(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;




 




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(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




 




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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.




 




85





























 




(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:




 




87





























 




(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,




 




89





























 




(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




 




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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;




 




104





























 




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;




 




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(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




 




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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.




 




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(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 & 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.


  





 




154





























 




	

  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