**Exhibit10.1**

 

**SECOND AMENDMENT AND RESTATEMENT**

**OF THE**

**CREDITAGREEMENT**

** **

SECONDAMENDMENT 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 BROADWINGCOMMUNICATIONS SERVICES INC.  (f/k/a IXCCommunications Services, Inc.), a Delaware corporation (“***BCSI***”, and together with BRW, each a “***Borrower***” andcollectively the “***Borrowers***”),the banks, financial institutions and other institutional lenders that areparty to the Existing Credit Agreement (as hereinafter defined) on the datehereof as the Initial Lenders (the “***Initial Lenders***”), the banks listed on the signaturepages hereof as the Initial Issuing Banks (the “***Initial Issuing Banks***” and, together with theInitial Lenders, the “***Initial Lender Parties***”) and the Swing Line Banks (ashereinafter defined), BANK OF AMERICA, N.A. (“***Bank of America***”), as syndication agent(together with any successor syndication agent appointed pursuant toArticle VII, the “***Syndication Agent***”), CITICORP USA, INC. (“***CUSA***”), asadministrative agent (together with any successor administrative agentappointed pursuant to Article VII, the “***Administrative Agent***”, together with theSyndication Agent, the “***Agents***”), Credit Suisse First Boston (“***CSFB****”*)and The Bank of New York (“***BNY****”*), asco-documentation agents (collectively, the “***Co-Documentation Agents****”*) for the Lender Parties (ashereinafter defined), PNC Bank, N.A. (“***PNC,****”* andcollectively with CSFB and BNY, the “***Co-Arrangers****”*), SALOMON SMITHBARNEY INC. (“***SSBI***”)and BANC OF AMERICA SECURITIES LLC (“***BAS***”), as joint lead arrangers and joint book managers(collectively, the “***Arrangers***”).

 

PRELIMINARY STATEMENTS:

 

(1)                                  Inconnection with the acquisition by BRW of all of the issued and outstandingEquity Interests in IXC Communications, Inc. (“***IXC***”), a Delaware corporation, and themerger of IXC and a wholly owned subsidiary of BRW into a corporationsubsequently renamed Broadwing Communications Inc. (“***BCI***”), the Borrowersentered into a Credit Agreement dated as of November 9, 1999 (the “***Original Credit Agreement***”)with the banks, financial institutions and other institutional lenders partythereto (the “***OriginalLenders***”), BRW, as guarantor, the Agents, the Co-DocumentationAgents, the Arrangers and the Co-Arrangers. Pursuant to the terms of theOriginal Credit Agreement, the Original Lenders made advances to the Borrowersin order to consummate such acquisition, to refinance certain Indebtedness ofBRW and IXC and its Subsidiaries outstanding at such time, to fund capitalexpenditures and to pay fees and expenses incurred in connection with theconsummation of such acquisition and refinancing and the other transactionsdescribed in the Original Credit Agreement.

 

(2)                                  Inconnection with the implementation of an incremental term B facility, theBorrowers entered into an amendment and restatement of the Original CreditAgreement dated as of January 12, 2000 (the “***Existing Credit Agreement***”) with thebanks, financial institutions and other institutional lenders party thereto,BRW, as guarantor, the Agents, the Co-Documentation Agents, the Arrangers andthe Co-Arrangers.  Pursuant to theFourth Amendment

 

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

 

(3)                                  Concurrentlywith the effectiveness of this Agreement, BRW will issue $350,000,000 of seniorsubordinated discount notes due 2009 (the “***Junior Notes***”) pursuant to the terms of anindenture (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 thereofdated  March 26, 2003, by and among BRW,the guarantors party thereto and The Bank of New York, as trustee and thePurchase 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 GSMezzanine Partners II Offshore, L.P. (together with GSMP, “***Goldman***”) togetherwith warrants to purchase shares of common stock of BRW (the “***Warrants***”) pursuantto the terms of the Warrant Agreement not materially less favorable to theLenders than the form of the draft thereof dated March 26, 2003 among BRW andGoldman (as amended in accordance with the terms of this Agreement, the “***Warrant Agreement***”).

 

(4)                                  TheBorrowers have requested that the Lenders amend and restate the terms of theExisting Credit Agreement in its entirety to provide, in part, for an extensionof the maturity date of the Revolving Credit Facility to March 1, 2006, suchamendments as shall be required to permit the issuance of the Junior Notes andpermit the satisfaction of the conditions precedent to such issuance, approvalof certain matters relating to BCI and its Subsidiaries and a modification ofcertain of the Lender Parties’ rights with respect to BCI in exchange for apartial prepayment of outstanding Advances and reduction of the Commitments ofthe Lender Parties under the Facilities as otherwise hereinafter setforth.  The Lender Parties have indicatedtheir willingness to amend and restate the Existing Credit Agreement on theterms and conditions set forth below.

 

NOW,THEREFORE, in consideration of the premises and of the mutual covenants andagreements contained herein, the Existing Credit Agreement is hereby amendedand restated in its entirety and the parties hereto hereby agree as follows:

 

# **ARTICLE I**

# ** **

**DEFINITIONSAND ACCOUNTING TERMS**

** **

## SECTION 1.01.  Certain DefinedTerms.

##  

Asused in this Agreement, the following terms shall have the following meanings(such meanings to be equally applicable to both the singular and plural formsof the terms defined):

 

“***Administrative Agent***” has the meaning specified in therecital of parties to this Agreement.

 

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“***Administrative Agent’s Account***” means the account of theAdministrative Agent maintained by the Administrative Agent with Citibank, N.A.at its office at 399 Park Avenue, New York, New York 10043, AccountNo.  36852248, Attention:  JohnJudge, or such other account as the Administrative Agent shall specify inwriting to the Lender Parties.

 

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

 

“***Affiliate***” means, as to any Person, any other Personthat, directly or indirectly, controls, is controlled by or is under commoncontrol 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 commoncontrol with”) of a Person means the possession, direct or indirect, of thepower to vote 5% or more of the Voting Interests of such Person or to direct orcause the direction of the management and policies of such Person, whetherthrough the ownership of Voting Interests, by contract or otherwise.

 

“***Agents***” has the meaning specified in the recital ofparties to this Agreement.

 

“***Agreement Value***” means, for each Hedge Agreement, on anydate of determination, an amount determined by the Administrative Agent equalto:  (a) in the case of a HedgeAgreement documented pursuant to the Master Agreement (Multicurrency-CrossBorder) published by the International Swap and Derivatives Association, Inc.,as amended from time to time (the “***Master Agreement***”), the amount, if any, that would bepayable by any Loan Party or any of its Subsidiaries to its counterparty tosuch Hedge Agreement, as if (i) such Hedge Agreement was being terminated earlyon such date of determination, (ii) such Loan Party or Subsidiary was the sole“Affected Party”, and (iii) the Administrative Agent was the sole partydetermining such payment amount (with the Administrative Agent making suchdetermination 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-marketvalue of such Hedge Agreement, which will be the unrealized loss on such HedgeAgreement to the Loan Party or Subsidiary of a Loan Party party to such Hedge Agreementdetermined by the Administrative Agent based on the settlement price of suchHedge Agreement on such date of determination, or (c) in all other cases, themark-to-market value of such Hedge Agreement, which will be the unrealized losson such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party partyto 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 bysuch Loan Party or Subsidiary exceeds (ii) the present value of the future cashflows to be received by such Loan Party or Subsidiary pursuant to such HedgeAgreement; capitalized terms used and not otherwise defined in this definitionshall have the respective meanings set forth in the above described MasterAgreement.

 

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“***Applicable Lending Office***” means, with respect to eachLender Party, such Lender Party’s Domestic Lending Office in the case of a BaseRate Advance and such Lender Party’s Eurodollar Lending Office in the case of aEurodollar Rate Advance.

 

“***Applicable Margin”*** means (i) in the case of theRevolving Credit Facility, 4.25% per annum for Eurodollar Rate Advances and3.25% per annum for Base Rate Advances, and (ii) in the case of each TermFacility, 3.75% per annum for Eurodollar Rate Advances and 2.75% per annum forBase Rate Advances.

 

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

 

“***Approved Fund***” means, with respect to any Lender that isa fund that invests in bank loans, any other fund that invests in bank loansand is advised or managed by the same investment advisor as such Lender or byan 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 anEligible Assignee, and accepted by the Administrative Agent, in accordance withSection 9.07 and in substantially the form of Exhibit C hereto.

 

“***Available Amount***” of any Letter of Credit means, at anytime, the maximum amount available to be drawn under such Letter of Credit atsuch 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 meaningspecified in the recital of parties to this Agreement.

 

“***Base Rate***” means a fluctuating interest rate per annumin effect from time to time, which rate per annum shall at all times be equalto the higher of:

 

(a)                                  therate 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)                                 1⁄2of 1% per annum above the Federal Funds Rate.

 

“***Base Rate Advance***” means an Advance that bears interestas provided in Section 2.07(a)(i).

 

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

 

 “***BCI Default***” meansany BCI Event of Default or any event that would constitute a BCI Event ofDefault but for the requirement that notice be given or time elapse orboth.  For the avoidance of doubt, a BCIDefault is not for any purpose a Default under any Loan Document.  Any express statement to the effect that areference to a Default does not include a BCI Default is made solely for thesake of clarity and does not imply that a BCI Default might in any circumstancebe a Default.

 

“***BCIEvent of Default***” means a BCI Event of Default under Section7.03.  For the avoidance of doubt, a BCIEvent of Default is not for any purpose under any Loan Document an Event ofDefault.  Any express statement to theeffect that a reference to an Event of Default does not include a BCI Event ofDefault is made solely for the sake of clarity and does not imply that a BCIEvent of Default might in any circumstance be an Event of Default.

 

“***BCIExchange***” means the exchange of common or preferred stock orother Equity Interests of BRW or Subordinated Debt of BRW for the BCIExchangeable Preferred Stock and/or the BCI Senior Subordinated Notes, including by way of a sale ofcommon or preferred stock or other Equity Interests of BRW or Subordinated Debtof BRW to a third party in accordance with Sections 5.02(b)(i)(F) or5.02(g)(xi).

 

“***BCI******Exchangeable PreferredStock***” means the 121⁄2% Series B Junior Exchangeable Preferred StockDue 2009 of BCI.

 

“***BCIGroup***” means BCI and its Subsidiaries.

 

“***BCILetters of Credit***” means all letters of credit issued for theaccount of BCSI pursuant to Section 2.01(d) of the Existing Credit Agreement.

 

“***BCIMaximum Investment***” means the sum of (1) $118,000,000 (includingAdvances made to BCSI after October 1, 2002) plus (2) the aggregateamount of net cash dividends and net cash distributions paid by any member ofthe BCI Group after October 1, 2002 to any member of the BRW Group plus(3) the aggregate amount of Revolving Credit Borrowings made under Section5.02(e)(ix)(E) plus (4) without duplication, the net amount of cashadvanced or otherwise transferred by BCI or any of its Subsidiaries to BRW orany of its Subsidiaries pursuant to the BRW Cash Management System or so that aDefault under Section 5.02(w) shall not occur or be continuing.

 

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

 

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amounts in respect of liabilities and claims notassumed by the buyer of such assets, including, without limitation:

 

(i)                                     claimspaid in cash in settlement of trade payables incurred in the ordinary course ofbusiness,

 

(ii)                                  amountspaid in cash to terminate circuit lease obligations, capital leases, realproperty leases, leasehold interests and contractual obligations for networkelements,

 

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

 

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

 

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

 

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

 

(vii)                           other current ordinarycourse operating expense obligations, and

 

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

 

but not to include prepayment or repayment ofprincipal, interest, liquidation preference, dividends or any other amountspayable 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 theextent, but only to the extent, that the amounts so deducted are properlyattributable to BCI or any of its Subsidiaries and are actually required to bepaid substantially contemporaneously with such transaction (or reflect goodfaith estimates of amounts taken in reserve pursuant to clause (viii)) to aPerson that is not an Affiliate of such Person or any of the Loan Parties or ofany 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 BCIand The Bank of New York (as successor to IBJ Schroder Bank & TrustCompany), as trustee pursuant to which the BCI Senior Subordinated Notes wereissued.

 

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

 

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“***BCI12 1/2% Senior Notes***” means the 12 1/2% Senior Notes of BCI due2005.

 

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

 

“***BCSISale Agreement***” means the Agreement for the Purchase and Sale ofAssets dated as of February 22, 2003, by and between BCSI and the other Sellersparty thereto and the Buyers party thereto, together with all the exhibits andschedules thereto and all other agreements contemplated to be entered intothereunder as and when such other agreements become effective, in each case asamended in accordance with the terms of this Agreement.

 

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

 

“***BlockingEvent***” means any of the following events:

 

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

 

(b)                                 aDefault described in Section 7.01(f) or an Event of Default  (other than an Event of Default described inSection 7.01(a)) occurs and is continuing and delivery by the AdministrativeAgent 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 asubsequent Blockage Notice unless and until at least 360 consecutive days shallhave elapsed since the day of delivery of the immediately prior Blockage Noticeand (y) no such Default or Event of Default that existed or was continuing onthe date of delivery of any Blockage Notice shall be, or be made, the basis ofa subsequent Blockage Notice unless such Default or Event of Default shall havebeen waived for a period of not less than 180 consecutive days);

 

*provided*,*however*, that a Blocking Eventshall cease to occur upon the earlier of:

 

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

 

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

 

“***BNY***” has the meaning specified in the recital of partiesto this Agreement.

 

“***BofA Credit Agreement***” means the 364-Day CreditAgreement dated as of September 27, 1999 among BRW, as borrower, thelenders party thereto, CUSA, as administrative agent, Bank of America, assyndication agent, and SSBI and BAS, as joint lead arrangers and joint bookmanagers.

 

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

 

“***Borrower’s Account***” means (a) an account maintained byBRW with Citibank at its office at 399 Park Avenue, New York, New York10043, or (b) such other account as BRW shall specify in writing to theAdministrative 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.

 

“***BRWAdministrative Expenses***” means all administrative expensesincurred by BRW in the ordinary course of business, including, withoutlimitation, 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’sBoard of Directors and payments to investment banks, advisors and consultants.

 

“***BRWCash Management System***” has the meaning set forth in Section5.01(r).

 

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

 

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

 

“***BRWSale Arrangements***” means the arrangements under the Sellers’Parent Guaranty, the APTIS Software Agreement, the Intellectual Property RightsAssignment Agreement, the Transition Services Agreement and the IntercompanyAgreements, in each case as defined in the BCSI Sale Agreement.

 

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

 

“***BRW Subsidiary Guaranty***” has the meaning specified inSection 3.01(a)(iii).

 

“***Business Day***” means a day of the year on which banks arenot required or authorized by law to close in New York City and, if the applicableBusiness Day relates to any Eurodollar Rate Advances, on which dealings arecarried on in the London interbank market.

 

“***Capital Expenditures***” means, for any Person for anyperiod, the sum of, without duplication, (a) all expenditures made, directlyor indirectly, by such Person or any of its Subsidiaries during such period forequipment, fixed assets, real property or improvements, or for replacements orsubstitutions therefor or additions thereto, that have been or should be, inaccordance with GAAP, reflected as additions to property, plant or equipment ona Consolidated balance sheet of such Person, plus (b) the aggregateprincipal amount of all Obligations under Capitalized Leases assumed orincurred in connection with any such expenditures.  For purposes of this definition, the purchase

 

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priceof equipment that is purchased simultaneously with the trade-in ofexisting equipment or with insurance proceeds shall be included in CapitalExpenditures only to the extent of the gross amount of such purchase price lessthe credit granted by the seller of such equipment for the equipment beingtraded in at such time or the amount of such proceeds, as the case may be.

 

“***Capitalized Leases***” means all leases that have been orshould be, in accordance with GAAP, recorded as capitalized leases.

 

“***Cash Equivalents***” means any of the following, to theextent owned by BRW or any of its Subsidiaries (including BCI and itsSubsidiaries) free and clear of all Liens other than Liens created under theCollateral Documents and having a maturity of not greater than 90 days from thedate of acquisition thereof:

 

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

 

(b) insured certificates of deposit of or timedeposits with any commercial bank that is a Lender Party or a member of theFederal Reserve System, issues (or the parent of which issues) commercial paperrated as described in clause (c) below, is organized under the laws of theUnited States or any State thereof and has combined capital and surplus of atleast $1 billion,

 

(c) commercial paper issued by any corporationorganized 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 thenequivalent grade) by S&P’s, or

 

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

 

“***CBT”*** means Cincinnati Bell Telephone Company, an Ohiocorporation.

 

“***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 ofdesignation for the BCI Exchangeable Preferred Stock, as amended in accordancewith the terms of this Agreement.

 

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“***CFC***” means a “controlled foreign corporation” underSection 957 of the Internal Revenue Code of 1968, as amended from time totime.

 

“***Change of Control***” means the occurrence of any of thefollowing:  (a) any Person or twoor more Persons acting in concert shall have acquired beneficial ownership(within the meaning of Rule 13d-3 of the Securities and ExchangeCommission under the Securities Exchange Act of 1934), directly or indirectly,of Voting Interests of BRW (or other securities convertible into such VotingInterests) representing 20% or more of the combined voting power of all VotingInterests 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 thebeginning of such 24-month period were, or who were nominated byindividuals who were, directors of BRW shall cease for any reason to constitutea majority of the board of directors of BRW; or (c) any Person or two ormore Persons acting in concert shall have acquired by contract or otherwise, orshall have entered into a contract or arrangement that, upon consummation, willresult in its or their acquisition of the power to exercise, directly orindirectly, 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 theEquity Interests in BCSI or BCI (other than in connection with a sale or otherdisposition of assets of BCI and its Subsidiaries pursuant to Section5.02(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 OakHill Indenture or in the Junior Notes.

 

 “***Citibank***” meansCitibank, N.A., a national banking association.

 

“***Co-Arrangers***” has the meaning specified in the recitalof parties to this Agreement.

 

“***Co-Documentation Agents***” has the meaning specified inthe recital of parties to this Agreement.

 

“***Collateral***” means all “Collateral” referred to in theCollateral Documents and all other property that is or is intended to besubject to any Lien in favor of the Administrative Agent for the benefit of theSecured Parties.

 

“***Collateral Account***” has the meaning specified in theSecurity Agreements.

 

“***Collateral Documents***” means, collectively, the SharedCollateral Security Agreement, the Non-Shared Collateral Security Agreement,the Collateral Trust Agreement and any other agreement that creates or purportsto create a Lien in favor of the Administrative Agent for the benefit of theSecured Parties.

 

“***Collateral Trust Agreement***” means the Second Amendmentand Restatement of the Collateral Trust Agreement dated as of the date hereofby and between BRW and Wilmington Trust Company, and John M. Beeson, ascollateral trustees, as amended from time to time in accordance with its terms.

 

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“***Commitment***” means a Term A Commitment, a Term BCommitment, a Term C Commitment, a Revolving Credit Commitment or a Letter ofCredit Commitment.

 

“***Company***” has the meaning specified in the PreliminaryStatements.

 

“***Confidential Information***” means all information,including material nonpublic information within the meaning of Regulation FDpromulgated by the Securities and Exchange Commission, received from theBorrowers relating to the Borrowers or their respective businesses, other than anysuch information that is available to any Agent or any Lender Party on anonconfidential basis prior to disclosure by the Borrowers; providedthat, 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 inaccordance with GAAP.

 

“***Consolidated EBITDA***” means, with respect to any Personfor any period, the sum of (a) net income (or net loss) of such Person andits Subsidiaries, plus (b) the sum of the following expenses that have beendeducted from the determination of consolidated net income of such Person andits Subsidiaries for such period:

 

(i)                                                       allConsolidated 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 thecomputation of Consolidated Interest Expense under clause (C) or (D) of thedefinition thereof, all interest not payable in cash and any amortization offinancing fees or other charges or expenses incurred in connection with theissuance 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 underclause (e) of the definition thereof, dividends paid in cash in respect ofpreferred stock, in each case of such Person and its Subsidiaries for suchperiod,

 

(ii)                                                    incometax expense of such Person and its Subsidiaries for such period,

 

(iii)                                                 alldepreciation expense of such Person and its Subsidiaries for such period,

 

(iv)                                                withoutduplication of clause (i) above, all amortization expense of such Person andits Subsidiaries for such period,

 

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

 

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

 

(vi)                                                minorityinterest expense (income),

 

(vii)                                             non-cashlosses for such period not to exceed $200,000,000 (in aggregate for allimpacted 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 2001Restructuring and deducted in determining the consolidated net income of BRW inthe first quarter of Fiscal Year 2002 and all other quarters impacted as aresult of the 2001 Restructuring,

 

(viii)                                          all chargestaken in accordance with SFAS 142,

 

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

 

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

 

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

 

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“***Consolidated Interest Expense***”means, with respect to any Person for any period, the interest expense paid orpayable on all Debt (excluding all indebtedness and payment Obligationsreferred to in clauses (g) and (h) of the definition of “Debt” herein, otherthan the BCI Exchangeable Preferred Stock) of such Person and its Subsidiaries forsuch 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 fromAdvances and (ii) all fees paid or payable pursuant to Section 2.08(a),(b) the interest component of all Obligations in respect of CapitalizedLeases, (c) commissions, discounts and other fees and charges paid or payablein connection with letters of credit (including, without limitation, the Lettersof Credit), (d) the net payment, if any, paid or payable in connectionwith Hedge Agreements *less* the net credit, if any, received inconnection with Hedge Agreements, and (e) dividends paid in cash inrespect of preferred stock, but excluding (A) any amortization of originalissue discount, (B) the interest portion of any deferred paymentobligation, (C) any other interest not payable in cash, (D) anyamortization of financing fees or other charges or expenses incurred inconnection with the issuance of any Debt or preferred stock or the obtaining ofany amendment, waiver or other modification in respect of any Debt or preferredstock, (E) to the extent included in “interest expense” in accordance withGAAP, any penalties paid or payable in connection with the prepayment of anyDebt and (F) all non-cash interest expense due to the initial recording of anyexpense item in respect of an obligation classified as a debt obligation underFASB Interpretation No. 45 and all subsequent non-cash adjustments to suchamount.  It is understood and agreedthat, using calculations based on the interim financial statements that havebeen delivered to the Lenders, Consolidated Interest Expense of BRW and itsSubsidiaries for the fiscal quarter ended March 31, 2002 was $31,800,000,Consolidated Interest Expense of BRW and its Subsidiaries for the fiscalquarter ended June 30, 2002 was $32,500,000 and Consolidated Interest Expenseof 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 anyPerson, any Obligation or arrangement of such Person to guarantee or intendedto guarantee any Debt, leases, dividends or other payment Obligations (“***primary obligations***”)of any other Person (the “***primary obligor***”) in any manner, whether directly orindirectly, including, without limitation, (a) the direct or indirectguarantee, endorsement (other than for collection or deposit in the ordinarycourse of business), co-making, discounting with recourse or sale withrecourse by such Person of the Obligation of a primary obligor, (b) theObligation to make take-or-pay or similar payments, if required, regardless ofnonperformance by any other party or parties to an agreement or (c) anyObligation of such Person, whether or not contingent, (i) to purchase anysuch primary obligation or any property constituting direct or indirectsecurity therefor, (ii) to advance or supply funds (A) for thepurchase or payment of any such primary obligation or (B) to maintainrevolving credit or equity capital of the primary obligor or otherwise tomaintain the net worth or solvency of the primary obligor, (iii) topurchase property, assets, securities or services primarily for the purpose ofassuring the owner of any such primary obligation of the ability of the primary

 

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obligorto make payment of such primary obligation or (iv) otherwise to assure orhold harmless the holder of such primary obligation against loss in respectthereof.  The amount of any ContingentObligation shall be deemed to be an amount equal to the stated or determinableamount of the primary obligation in respect of which such Contingent Obligationis made (or, if less, the maximum amount of such primary obligation for whichsuch Person may be liable pursuant to the terms of the instrument evidencingsuch Contingent Obligation) or, if not stated or determinable, the maximumreasonably anticipated liability in respect thereof (assuming such Person isrequired to perform thereunder), as determined by such Person in good faith.

 

“***Conversion***”, “***Convert***” and “***Converted***” each refer to a conversion of Advances of oneType into Advances of the other Type pursuant to Section 2.09 or 2.10.

 

“***Convertible Certificate of Designation***” means thecertificate of designation for the Convertible Preferred Stock, as amended inaccordance with the terms of this Agreement.

 

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

 

“***CSFB***” has the meaning specified in the recital ofparties to this Agreement.

 

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

 

“***CUSA***” has the meaningspecified in the recital of parties to this Agreement.

 

“***Debt***” of any Person means, without duplication forpurposes of calculating financial ratios, (a) all indebtedness of suchPerson for borrowed money, (b) all Obligations of such Person for the deferredpurchase price of property or services (other than trade payables not overdueby more than 60 days incurred in the ordinary course of such Person’sbusiness), (c) all Obligations of such Person evidenced by notes, bonds,debentures or other similar instruments, (d) all Obligations of suchPerson created or arising under any conditional sale or other title retentionagreement with respect to property acquired by such Person (even though therights and remedies of the seller or lender under such agreement in the eventof default are limited to repossession or sale of such property), (e) allObligations of such Person as lessee under Capitalized Leases, (f) allObligations of such Person under acceptance, letter of credit or similarfacilities, (g) all Obligations of such Person to purchase, redeem,retire, defease or otherwise make any payment in respect of any EquityInterests in such Person or any other Person or any warrants, rights or optionsto acquire such capital stock, valued, in the case of Redeemable PreferredInterests, at the greater of its voluntary or involuntary liquidationpreference *plus*accrued and unpaid dividends, (h) all Obligations of such Person inrespect of Hedge Agreements, valued at the Agreement Value thereof,(i) all Contingent Obligations of such Person and (j) allindebtedness and other payment Obligations referred to in clauses (a)through (i) above of another Person secured by (or for which the

 

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holderof such Debt has an existing right, contingent or otherwise, to be secured by)any Lien on property (including, without limitation, accounts and contractrights) owned by such Person, even though such Person has not assumed or becomeliable for the payment of such indebtedness or other payment Obligations; *provided* that for purposes of calculatingthe financial ratios set forth in the financial covenants in Section 5.04, thedefinition of Debt shall not include contingent obligations under the Sellers’Parent Guaranty (as defined in the BCSI Sale Agreement) or any other similarguaranty by BRW of obligations of BCI and its Subsidiaries under a saleagreement entered into pursuant to Section 5.02(e)(ix) in lieu of the BCSI SaleAgreement until either a claim is made thereunder (unless the obligationunderlying such claim is paid by BCI or its Subsidiaries or the total amount ofsuch obligation is being disputed in good faith by BCI or its Subsidiaries) orBCI has defaulted on its obligations with respect to the BCSI Sale Agreement orsuch 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 allindebtedness and payment Obligations referred to in clauses (g) and (h) of thedefinition of “Debt” herein) as at such date of determination to ConsolidatedEBITDA of BRW and its Subsidiaries for the period of four consecutive fiscalquarters of BRW ended on or immediately prior to such date.

 

“***Default***” means any Event of Default or any event thatwould constitute an Event of Default but for the requirement that notice begiven or time elapse or both.

 

“***Default Termination Notice***” has the meaning specified inSection 2.01(d).

 

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

 

“***Defaulted Amount***” means, with respect to any LenderParty at any time, any amount required to be paid by such Lender Party to anyAgent or any other Lender Party hereunder or under any other Loan Document ator 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) anySwing Line Bank pursuant to Section 2.02(b) to purchase a portion of aSwing Line Advance made by such Swing Line Bank, (b) any Issuing Bankpursuant to Section 2.03(c) to purchase a portion of a Letter of CreditAdvance made by such Issuing Bank, (c) the Administrative Agent pursuantto Section 2.02(e) to reimburse the Administrative Agent for the amount ofany Advance made by the Administrative Agent for the account of such LenderParty, (d) any other Lender Party pursuant to

 

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Section 2.13to purchase any participation in Advances owing to such other Lender Party and(e) any Agent or any Issuing Bank pursuant to Section 8.05 toreimburse such Agent or such Issuing Bank for such Lender Party’s ratable shareof any amount required to be paid by the Lender Parties to such Agent or suchIssuing Bank as provided therein.  Inthe event that a portion of a Defaulted Amount shall be deemed paid pursuant toSection 2.15(b), the remaining portion of such Defaulted Amount shall beconsidered a Defaulted Amount originally required to be paid hereunder or underany other Loan Document on the same date as the Defaulted Amount so deemed paidin part.

 

“***Defaulting Lender***” means, at any time, any Lender Partythat, 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 ofa type described in Section 7.01(f). For purposes of Section 9.01(a) and (b) only, the definition ofDefaulting 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 andits Subsidiaries as prepared according to GAAP classified as deferred revenueto the extent of cash received in connection therewith.

 

“***Disputing Lender”*** shall mean any Lender that becomes aDefaulting Lender because such Lender in good faith has determined that theconditions precedent to funding the applicable Advance set forth in Section3.02 of this Agreement have not been satisfied.

 

“***Domestic Lending Office***” means, with respect to anyLender Party, the office of such Lender Party specified as its “DomesticLending Office” opposite its name on Schedule I hereto or in theAssignment and Acceptance pursuant to which it became a Lender Party, as thecase may be, or such other office of such Lender Party as such Lender Party mayfrom time to time specify to the Borrowers and the Administrative Agent.

 

“***Domestic Subsidiary***” means any Subsidiary other than aForeign Subsidiary.

 

“***Effective Date***” has the meaning specified in Section3.01(I).

 

“***Eligible Assignee***” means (a) with respect to anyFacility (other than the Letter of Credit Facility), (i) a Lender; (ii) anAffiliate or an Approved Fund of a Lender; or (iii) any other Person approvedby the Administrative Agent and, so long as no Default has occurred and iscontinuing at the time any assignment is effected pursuant toSection 9.07, BRW, such approval not to be unreasonably withheld ordelayed and, in the case of BRW, such approval to be deemed to have been givenif no objection thereto is received by the Administrative Agent and theassigning Lender within two Business Days after the date on which notice of theproposed assignment is sent to BRW; and (b) with respect to the Letter ofCredit Facility, a Person that is an Eligible Assignee under clause (a) of thisdefinition and is a commercial bank organized under the laws of the UnitedStates of America or any state thereof; * provided,however,* that neither any Loan Party

 

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norany Affiliate of a Loan Party shall qualify as an Eligible Assignee under thisdefinition.

 

“***Environmental Action***” means any action, suit, demand,demand letter, claim, notice of non-compliance or violation, notice ofliability or potential liability, investigation, proceeding, consent order orconsent agreement relating in any way to any Environmental Law, anyEnvironmental Permit or Hazardous Material or arising from alleged injury orthreat 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 anygovernmental 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 pollutionor 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 HazardousMaterials.

 

“***Environmental Permit***” means any permit, approval,identification number, license or other authorization required under anyEnvironmental Law.

 

 “***Equity Interests***”means, with respect to any Person, shares of capital stock of (or otherownership or profit interests in) such Person, warrants, options or otherrights for the purchase or other acquisition from such Person of shares ofcapital stock of (or other ownership or profit interests in) such Person,securities convertible into or exchangeable for shares of capital stock of (orother ownership or profit interests in) such Person or warrants, rights oroptions for the purchase or other acquisition from such Person of such shares(or such other interests), and other ownership or profit interests in suchPerson (including, without limitation, partnership, member or trust intereststherein), whether voting or nonvoting, and whether or not such shares,warrants, options, rights or other interests are authorized or otherwiseexisting on any date of determination.

 

“***ERISA***” means the Employee Retirement Income Security Actof 1974, as amended from time to time, and the regulations promulgated andrulings issued thereunder.

 

“***ERISA Affiliate***” means any Person that for purposes ofTitle 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 ofSection 414 of the Internal Revenue Code.

 

“***ERISA Event***” means (a)(i) the occurrence of areportable event, within the meaning of Section 4043 of ERISA, withrespect to any Plan unless the 30-day notice requirement with respect tosuch event has been waived by the PBGC or (ii) the requirements of  Section 4043(b) of ERISA apply with respectto a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of aPlan, and an event described in paragraph (9), (10), (11), (12) or (13) ofSection 4043(c) of ERISA is reasonably

 

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expectedto occur with respect to such Plan within the following 30 days; (b) the filingpursuant to Section 412(d) of the Code or Section 303(d) of ERISA ofan application for a minimum funding waiver with respect to a Plan;(c) the provision by the administrator of any Plan of a notice of intentto terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (includingany such notice with respect to a plan amendment referred to inSection 4041(e) of ERISA); (d) the incurrence by any Loan Party or anyERISA Affiliate of any liability under Title IV of ERISA with respect toany Plan; (e) the conditions for imposition of a lien underSection 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 ofsecurity to such Plan pursuant to Section 307 of ERISA; or (g) theinstitution by the PBGC of proceedings to terminate a Plan pursuant toSection 4042 of ERISA, or the occurrence of any event or condition describedin Section 4042 of ERISA that constitutes grounds for the termination of,or the appointment of a trustee to administer, such Plan.

 

“***EscrowAgreements***” means each of the Escrow Agreement (CranberryAdjustment), the Escrow Agreement (Closing Adjustment Receivables), the EscrowAgreement (Second Stage Closing) and the Escrow Agreement (WorkingCapital/Indemnity), in each case as defined in the BCSI Sale Agreement.

 

“***Eurocurrency Liabilities***” has the meaning specified inRegulation D of the Board of Governors of the Federal Reserve System, asin effect from time to time.

 

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

 

“***Eurodollar Rate***” means, for any Interest Period for allEurodollar Rate Advances comprising part of the same Borrowing, an interestrate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)obtained by dividing (a) the rate per annum appearing on TeleratePage 3750 (or any successor page) as the London interbank offered rate fordeposits in U.S. dollars at 11:00 A.M. (London time) two Business Daysbefore the first day of such Interest Period for a period equal to such InterestPeriod (*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 comprisingpart 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 Londoninterbank 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 Periodfor a term comparable to such Interest Period; *provided, however,* if morethan one rate is specified on Reuters Screen LIBO Page, the applicable rateshall be the arithmetic mean of all such rates) by (b) a percentage equalto 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period.

 

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“***Eurodollar Rate Advance***” means an Advance that bearsinterest as provided in Section 2.07(a)(ii).

 

“***Eurodollar Rate Reserve Percentage***” for any InterestPeriod for all Eurodollar Rate Advances comprising part of the same Borrowingmeans the reserve percentage applicable two Business Days before the first dayof such Interest Period under regulations issued from time to time by the Boardof Governors of the Federal Reserve System (or any successor) for determiningthe maximum reserve requirement (including, without limitation, any emergency,supplemental or other marginal reserve requirement) for a member bank of theFederal Reserve System in New York City with respect to liabilities orassets consisting of or including Eurocurrency Liabilities (or with respect toany other category of liabilities that includes deposits by reference to whichthe interest rate on Eurodollar Rate Advances is determined) having a termequal to such Interest Period.

 

“***Events of Default***” has the meaning specified inSection 7.01.

 

“***Excess Cash Flow***” means, for any period (withoutduplication),

 

(a)                                  thesum of:

 

(i)                                     Consolidatednet income (or loss) of BRW and its Subsidiaries for such period adjusted toexclude any cash gains attributable to any transaction that requires prepaymentof Term Advances pursuant to Section 2.06(b); *plus*

 

(ii)                                  theaggregate amount of depreciation, amortization and all other non-cashcharges deducted in arriving at such Consolidated net income (or loss); *plus*

 

(iii)                               the sum of (i) theamount, if any, by which Net Working Capital decreased plus (ii) the netamount, if any, by which Deferred Revenues of BRW and its Subsidiariesincreased; *minus*

 

(b)                                 thesum of:

 

(i)                                     thesum of (A) the aggregate amount of all non-cash credits included inarriving at such Consolidated net income (or loss) *plus* (B) the amount, ifany, by which Net Working Capital increased plus (c) the net amount, ifany, by which Deferred Revenues of BRW and its Subsidiaries decreased; *plus*

 

(ii)                                  thesum of (A) the aggregate amount of Capital Expenditures of BRW and itsSubsidiaries paid in cash during such period to the extent permitted by thisAgreement (except to the extent attributable to the incurrence of Obligationsunder Capitalized Leases or otherwise financed by long term Debt or with fundsthat would have constituted Net

 

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CashProceeds) plus (B) cash consideration paid during such fiscal yearby BRW and its Subsidiaries to make acquisitions or other capital investments(except to the extent financed by incurring long-term Debt or with funds thatwould otherwise have constituted Net Cash Proceeds) plus (C) the netamount of cash used by BRW and its Subsidiaries in Permitted BCI Transactionsduring such Fiscal Year (except to the extent financed with Advances under theRevolving Credit Facility or by incurring long-term Debt); *plus*

 

(iii)                               the aggregate amount ofall regularly scheduled principal payments of Funded Debt made during suchperiod; *plus*

 

(iv)                              theaggregate principal amount of all optional prepayments of Term Advances madeduring such period pursuant to Section 2.06(a); *plus*

 

(v)                                 theaggregate principal amount of all cash payments or prepayments of the RevolvingCredit Advances that permanently reduce the Revolving Credit Commitments.

 

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

 

“***ExcludedEquity Agreements***” means the (i) Operating Agreement of WirelessLLC between AT&T Wireless PCS Inc. and Wireless Co., dated as of December31, 1998 and (ii) Network Membership License Agreement between AT&T Corp.and its affiliated companies, including AT&T Wireless Services, Inc., andWireless LCC, dated as of February 4, 1998, as amended as of April 16, 1999.

 

“***ExistingCredit Agreement***” has the meaning specified in the PreliminaryStatements.

 

*** “******Existing Debt***” means Debt of each Loan Partyand its Subsidiaries outstanding immediately before giving effect to theconsummation of the Transaction.

 

“***Extraordinary Receipt***” means any cash received by orpaid to or for the account of any Person not in the ordinary course ofbusiness, including, without limitation, tax refunds, pension plan reversions,proceeds of insurance (including, without limitation, any key man lifeinsurance but excluding proceeds of business interruption insurance to theextent such proceeds constitute compensation for lost earnings), condemnationawards (and payments in lieu thereof), indemnity payments and any purchaseprice adjustment received in connection with any purchase agreement; *provided,however,* that an Extraordinary Receipt shall not include cashreceipts received from proceeds of insurance, condemnation awards (or paymentsin lieu thereof) or indemnity payments to the extent that such proceeds, awardsor payments (A) in respect of loss or damage to equipment, fixed assets or realproperty are applied (or in respect of which expenditures were previouslyincurred) to replace or repair the equipment, fixed assets or real property inrespect of which such proceeds were received in accordance with the terms ofthe Loan

 

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Documents,so long as the applicable Borrower or its Subsidiaries have entered into alegal, valid and binding agreement with respect thereto within 12 months afterthe occurrence of such damage or loss and with a closing thereunder andapplication of such proceeds within 6 months thereafter or (B) are received byany Person in respect of any third party claim against such Person and appliedto pay (or to reimburse such Person for its prior payment of) such claim andthe costs and expenses of such Person with respect thereto.

 

“***FacilitiesPeriod***” means the period commencing on the Effective Date andending December 29, 2007.

 

“***Facility***” means the Term A Facility, the Term BFacility, the Term C Facility, the Revolving Credit Facility, the Swing LineFacility or the Letter of Credit Facility.

 

“***Federal Funds Rate***” means, for any period, a fluctuatinginterest rate per annum equal for each day during such period to the weightedaverage of the rates on overnight Federal funds transactions with members ofthe Federal Reserve System arranged by Federal funds brokers, as published forsuch day (or, if such day is not a Business Day, for the next precedingBusiness Day) by the Federal Reserve Bank of New York, or, if such rate isnot so published for any day that is a Business Day, the average of thequotations for such day for such transactions received by the AdministrativeAgent from three Federal funds brokers of recognized standing selected by it.

 

“***Fee Letters***” means collectively, (i) the fee letterdated as of October 20, 1999 between BRW and the Agents, (ii) the feeletter dated as of January 27, 2003 between BRW, SSBI and the AdministrativeAgent, and (iii) the fee letter dated as of January 27, 2003 between BRW andBAS.

 

“***FinalMaturity 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 theTerm A Commitments pursuant to Section 2.05 or 7.01, (ii) in the case ofthe Term B Facility, the earlier of December 30, 2006 and the date oftermination in whole of the Term B Commitments pursuant to Section 2.05 or7.01, 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 toSection 2.05 or 7.01.

 

“***Fiscal Year***” means a fiscal year of BRW and itsConsolidated Subsidiaries ending on December 31 in any calendar year.

 

“***Foreign Subsidiary***” means a Subsidiary organized underthe laws of a jurisdiction other than the United States or any State thereof orthe District of Columbia.

 

“***FTI***”means FTI Consulting, Inc.

 

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

 

“***Funded Debt***” of any Person means Debt in respect of theAdvances, in the case of the Borrowers, and all other Debt of such Person thatby its terms matures more than one year after the date of determination ormatures within one year from such date but is renewable or extendible, at theoption of such Person, to a date more than one year after such date or arisesunder a revolving credit or similar agreement that obligates the lender orlenders 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 meaningspecified in the Preliminary Statements.

 

 “***Granting Lender”*** hasthe meaning specified in Section 9.07(j).

 

“***Guaranties***” means the BRW Guaranty and the SubsidiaryGuaranties.

 

“***Guarantors***” means BRW and the Subsidiary Guarantors.

 

“***Guaranty Supplement***” has the meaning specified in theSubsidiary Guaranties.

 

“***Hazardous Materials***” means (a) petroleum orpetroleum 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 orregulated as hazardous or toxic or as a pollutant or contaminant under anyEnvironmental Law.

 

“***Hedge Agreements***” means interest rate swap, cap orcollar agreements, interest rate future or option contracts, currency swapagreements, currency future or option contracts and other hedging agreements.

 

“***Hedge Bank***” means any Lender Party or an Affiliate of aLender 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***” meanslong-term senior unsecured Debt of BRW that is not guaranteed or otherwisecredit enhanced.

 

“***Information Materials***” means the Amendment Package datedas of January 2003, and the other information materials (other than the FTIReport) reviewed by BRW and posted to the BRW IntraLinks website by theAdministrative Agent on January 28, 2003 and distributed to the Lenders at thebank meeting with BRW held on the same date and used by the Arrangers inconnection with the seeking of approvals of the amendments effected by thisAgreement.

 

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 “***Initial Issuing Banks***”,“***Initial Lender Parties***”and “***Initial Lenders***” eachhas the meaning specified in the recital of parties to this Agreement.

 

“***Interest Coverage Ratio***” means, at any date ofdetermination, the ratio of (a) Consolidated EBITDA to (b) ConsolidatedInterest Expense, in each case, of or by BRW and its Subsidiaries during thefour consecutive fiscal quarters most recently ended for which financialstatements are required to be delivered to the Lender Parties pursuant toSection 5.03(b) or (c), as the case may be.

 

“***Interest Period***” means, for each Eurodollar Rate Advancecomprising part of the same Borrowing, the period commencing on the date ofsuch Eurodollar Rate Advance or the date of the Conversion of any Base RateAdvance into such Eurodollar Rate Advance, and ending on the last day of theperiod selected by either Borrower pursuant to the provisions below and,thereafter, each subsequent period commencing on the last day of theimmediately preceding Interest Period and ending on the last day of the periodselected by such Borrower pursuant to the provisions below.  The duration of each such Interest Periodshall be one, two, three or six months, and, subject to clause (c) of thisdefinition, nine or twelve months as such Borrower may, upon notice received bythe Administrative Agent not later than 11:00 A.M. (New York Citytime) on the third Business Day prior to the first day of such Interest Period,select; *provided,however,* that:

 

(a)                                  suchBorrower may not select any Interest Period with respect to any Eurodollar RateAdvance under a Facility that ends after any principal repayment installmentdate for such Facility unless, after giving effect to such selection, theaggregate principal amount of Base Rate Advances and of Eurodollar RateAdvances having Interest Periods that end on or prior to such principalrepayment installment date for such Facility shall be at least equal to theaggregate principal amount of Advances under such Facility due and payable onor prior to such date;

 

(b)                                 InterestPeriods commencing on the same date for Eurodollar Rate Advances comprisingpart of the same Borrowing shall be of the same duration;

 

(c)                                  noBorrower shall be entitled to select an Interest Period having a duration ofnine or twelve months unless, by 3:00 P.M. (New York City time) on thethird Business Day prior to the first day of such Interest Period, each of theAppropriate Lenders notifies the Administrative Agent that such Lender Partywill be providing funding for such Borrowing with such Interest Period (thefailure of any of the Appropriate Lenders to so respond by such time beingdeemed for all purposes of this Agreement as an objection by such Lender Partyto the requested duration of such Interest Period); *provided* that if any of theAppropriate Lenders objects (or is deemed to have objected) to the requestedduration of such Interest Period, the duration of the Interest Period for suchBorrowing shall be one, two, three or six months, as specified by such Borrower

 

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in theapplicable Notice of Borrowing or notice of Conversion as the desiredalternative to the requested Interest Period of nine or twelve months therefor;

 

(d)                                 wheneverthe last day of any Interest Period would otherwise occur on a day other than aBusiness Day, the last day of such Interest Period shall be extended to occuron the next succeeding Business Day, *provided, however,* that, if such extensionwould cause the last day of such Interest Period to occur in the next followingcalendar month, the last day of such Interest Period shall occur on the nextpreceding Business Day; and

 

(e)                                  wheneverthe first day of any Interest Period occurs on a day of an initial calendarmonth for which there is no numerically corresponding day in the calendar monththat succeeds such initial calendar month by the number of months equal to thenumber of months in such Interest Period, such Interest Period shall end on thelast Business Day of such succeeding calendar month.

 

“***Internal Revenue Code***” means the Internal Revenue Codeof 1986, as amended from time to time, and the regulations promulgated andrulings issued thereunder.

 

“***Investment***” in any Person means any loan or advance tosuch Person, any purchase or other acquisition of any Equity Interests or Debtor the assets comprising a division or business unit or a substantial part orall of the business of such Person, any capital contribution to such Person orany other direct or indirect investment in such Person, including, withoutlimitation, any acquisition by way of a merger or consolidation and anyarrangement pursuant to which the investor incurs Debt of the types referred toin clause (i) or (j) of the definition of “***Debt***” in respect of such Person.

 

“***Investment Grade Date***” means the first day on which theratings 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 ortelecommunications capacity.

 

“***Issuing Banks***” means each Initial Issuing Bank and anyother Revolving Credit Lender approved as an Issuing Bank by the AdministrativeAgent and the Borrowers and any Eligible Assignee to which a Letter of CreditCommitment hereunder has been assigned pursuant to Section 9.07 so long as eachsuch Revolving Credit Lender or each such Eligible Assignee expressly agrees toperform in accordance with their terms all of the obligations that by the termsof this Agreement are required to be performed by it as an Issuing Bank andnotifies the Administrative Agent of its Applicable Lending Office and theamount of its Letter of Credit Commitment (which information shall be recordedby the Administrative Agent in the Register), for so long as such InitialIssuing 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 RestatedCredit Agreement, as amended, among BCSI, as borrower, the lenders partythereto,

 

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NationsBank,N.A., as administrative agent, Credit Suisse First Boston, TD Securities (USA),Inc. and Export Development Corporation, as co-syndication agents and BAS assole lead arranger and sole book runner.

 

* “**Junior Notes**”*****has the meaningspecified in the Preliminary Statements.

 

*“**JuniorNotes Documents***” means the Junior Notes, theJunior Notes Indenture, the Purchase Agreement, the Warrants, the WarrantAgreement and any other agreements, indentures and instruments pursuant towhich the Junior Notes or the Warrants are issued.

 

*“**JuniorNotes Indenture**”*****hasthe meaning specified in the Preliminary Statements.

 

“***L/C Cash Collateral Account***” has the meaning specifiedin the Security Agreements.

 

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

 

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

 

“***Lenders***” means the Initial Lenders and each Person thatshall become a Lender hereunder pursuant to Section 9.07 for so long assuch Initial Lender or Person, as the case may be, shall be a party to thisAgreement.

 

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

 

“***Letter of Credit Agreement***” has the meaning specified inSection 2.03(a).

 

“***Letter of Credit Commitment***” means, with respect to anyIssuing Bank at any time, the amount set forth opposite such Issuing Bank’sname on Schedule I hereto under the caption “Letter of Credit Commitment”or, if such Issuing Bank has entered into one or more Assignment andAcceptances, set forth for such Issuing Bank in the Register maintained by theAdministrative 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 tosuch time pursuant to Section 2.05.

 

“***Letter of Credit Facility***” means, at any time, an amountequal to the lesser of (a) the aggregate amount of the Issuing Banks’ Letter ofCredit Commitments at such time and (b) $20,000,000, as such amount may bereduced at or prior to such time pursuant to Section 2.05.

 

“***Letters of Credit***” has the meaning specified inSection 2.01(d).

 

“***Lien***” means any lien, security interest or other chargeor encumbrance of any kind, or any other type of preferential arrangement,including, without limitation, the lien

 

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orretained security title of a conditional vendor and any easement, right of wayor other encumbrance on title to real property.

 

“***Loan Documents***” means (a) for purposes of this Agreementand 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 FeeLetter, and (vi) each Letter of Credit Agreement and (b) for purposesof the Guaranties and the Collateral Documents and for all other purposes otherthan for purposes of this Agreement and the Notes, (i) this Agreement,(ii) the Notes, (iii) the Guaranties, (iv) the CollateralDocuments, (v) the Fee Letters and the CSFB Fee Letter, (vi) eachLetter of Credit Agreement, and (vii) each Secured Hedge Agreement, ineach case as amended.

 

“***Loan Parties***” means the Borrowers and each of theGuarantors.

 

“***Margin Stock***” has the meaning specified in Regulation U.

 

“***Material Adverse Change***” means any material adversechange 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 effecton (a) the business, assets, condition (financial or otherwise), operations orprospects of BRW and its Subsidiaries, taken as a whole, (b) the rightsand 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 materialObligations under the Related Documents and its Obligations under the LoanDocuments 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 whichbreach, nonperformance, cancellation or failure to renew could be expected tohave a Material Adverse Effect.

 

“***MinimumLiquidity***” means the sum of (i) collected cash balances and CashEquivalents of BRW and its Subsidiaries and (ii) the amount available to bedrawn under the Revolving Credit Facility.

 

“***Moody’s***” means Moody’s Investors Service Inc.

 

“***Multiemployer Plan***” means a multiemployer plan, asdefined in Section 4001(a)(3) of ERISA, to which any Loan Party or anyERISA Affiliate is making or accruing an obligation to make contributions, orhas within any of the preceding five plan years made or accrued an obligationto make contributions.

 

“***Multiple Employer Plan***” means a single employer plan, asdefined in Section 4001(a)(15) of ERISA, that (a) is maintained foremployees of any Loan Party or any ERISA Affiliate and at least one Personother than the Loan Parties and the ERISA Affiliates or (b) was somaintained and in respect of which any Loan Party or any ERISA

 

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Affiliatecould have liability under Section 4064 or 4069 of ERISA in the event suchplan has been or were to be terminated.

 

“***MutualSubsidiaries***” means Mutual Signal Holding Corporation, MutualSignal Corporation, Mutual Signal Corporation of Michigan and MSM AssociatesLimited Partnership.

 

“***Net Cash Proceeds***” means, with respect to any sale,lease, transfer or other disposition of any asset or the incurrence or issuanceof any Debt or the sale or issuance of any Equity Interests (including, withoutlimitation, any capital contribution) by any Person, or any ExtraordinaryReceipt received by or paid to or for the account of any Person, the aggregateamount of cash received from time to time (whether as initial consideration orthrough payment or disposition of deferred consideration) by or on behalf ofsuch 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 similarfees and commissions;

 

(b) the amount of taxes payable in connectionwith or as a result of such transaction;

 

(c) the amount of any Debt secured by a Lien onsuch asset that, by the terms of the agreement or instrument governing suchDebt, is required to be repaid upon such disposition; and

 

(d) in the case of any sale, lease, transfer or otherdisposition of any property or asset, the amount required to be reserved, inaccordance with GAAP as in effect on the date on which the Net Cash Proceedsfrom such sale, lease, transfer or other disposition are determined, and soreserved, against liabilities under indemnification obligations, pension andother post-employment benefit liabilities or other similar contingentliabilities associated with the property and assets subject to such sale,lease, transfer or other disposition that are required to be so provided forunder the terms of the documentation for such sale, lease, transfer or otherdisposition;

 

ineach case to the extent, but only to the extent, that the amounts so deductedare properly attributable to such transaction or to the property or asset thatis the subject thereof and (i) in the case of clauses (a) and (c) of thisdefinition, are actually paid substantially contemporaneously with the receiptof such cash to a Person that is not an Affiliate of such Person or any of theLoan Parties or of any Affiliate of any of the Loan Parties and (ii) in thecase of clauses (b) and (d) of this definition, are actually paid substantiallycontemporaneously with the receipt of such cash to a Person that is not anAffiliate of such Person or any of the Loan Parties or any Affiliate of any ofthe Loan Parties or, so long as such Person is not otherwise indemnifiedtherefor, are reserved for in accordance with GAAP at the time of receipt ofsuch cash, based upon such Person’s reasonable estimate of such taxes orcontingent liabilities, as the case may be (as

 

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determinedreasonably and in good faith by the treasurer or chief financial officer ofsuch Person); *provided, however,* that if, at the time such taxes or suchcontingent liabilities are actually paid or otherwise satisfied, the amount ofthe reserve therefor exceeds the amount paid or otherwise satisfied, then theBorrowers shall reduce the Commitments in accordance with the terms of Section2.05(b), and shall prepay the outstanding Advances in accordance with the termsof Section 2.06(b)(ii) and (iii), in an amount equal to the amount of suchexcess reserve.

 

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

 

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

 

 “***Non-Shared Collateral SecurityAgreement***” has the meaning specified inSection 3.01(a)(ii).

 

“***Note***” means a Term A Note, a Term B Note, a Term C Noteor a Revolving Credit Note.

 

“***Notice of Borrowing***” has the meaning specified in Section 2.02(a).

 

“***Notice of Issuance***” has the meaning specified inSection 2.03(a).

 

“***Notice of Renewal***” has the meaning specified inSection 2.01(d).

 

“***Notice of Swing Line Borrowing***” has the meaningspecified in Section 2.02(b).

 

“***Notice of Termination***” has the meaning specified inSection 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 ofJuly 21, 1999, between BRW, as Issuer, and The Bank of New York, as Trustee, asamended in accordance with the terms of this Agreement.

 

“***OakHill Waiver***” has the meaning specified in Section 3.01(II)(b).

 

“***Obligation***” means, with respect to any Person, anypayment, performance or other obligation of such Person of any kind, including,without limitation, any liability of such Person on any claim, whether or notthe right of any creditor to payment in respect of such claim is reduced tojudgment, liquidated, unliquidated, fixed, contingent, matured, disputed,undisputed, legal, equitable, secured or unsecured, and whether or not suchclaim is discharged, stayed or otherwise affected by any proceeding referred toin

 

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Section 7.01(f).  Without limiting the generality of theforegoing, the Obligations of any Loan Party under the Loan Documents include(a) the obligation to pay principal, interest, Letter of Creditcommissions, charges, expenses, fees, attorneys’ fees and disbursements,indemnities and other amounts payable by such Loan Party under any LoanDocument and (b) the obligation of such Loan Party to reimburse any amountin respect of any of the foregoing that any Lender Party, in its solediscretion, may elect to pay or advance on behalf of such Loan Party.

 

“***OECD***” means the Organization for Economic Cooperationand Development.

 

“***OriginalCredit Agreement***” has the meaning specified in the PreliminaryStatements.

 

“***OtherPermitted Equity***” means an Equity Interest of BRW other thancommon stock that (i) is a security that is not guaranteed or secured and ranksjunior to the Facilities and the New Notes in all respects, (ii) has a termextending to at least December 31, 2007 and is not mandatorily redeemable orputable prior to such date (other than pursuant to a customary change ofcontrol provision), (iii) has covenants and change of control provisions nomore restrictive than those customarily contained in senior subordinated orsubordinated public high yield issues for similar issuers and (iv) ifconvertible or exchangeable, is convertible or exchangeable only into BRW’scommon stock.

 

 “***Other Taxes***” has themeaning specified in Section 2.12(b).

 

“***PartII Effective Date***” has the meaning specified in Section3.01(II).

 

“***PBGC***” means the Pension Benefit Guaranty Corporation (orany successor).

 

“***PermittedBCI Transaction***” means:

 

(A) any (a) Investment in the BCI Group, (b)Restricted Payment made to the BCI Group, (c) Debt incurred for the benefit ofthe BCI Group or in connection with a sale of the BCI Group permitted underSection 5.02(e)(ix), (d) Lien incurred for the benefit of the BCI Group or inconnection 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 orallocation to the BCI Group, (f) payment in respect of operating expenses ornet operating losses of the BCI Group (including payments for direct expensesof the BCI Group that are made by the BRW Group and not charged or allocated tothe BCI Group or payments made by the BRW Group for shared expenses that arenot charged or allocated to the BCI Group), (g) tax reimbursement allowed forthe benefit of any member of the BCI Group, (h) Equity Interest of any memberof the BRW Group issued to the BCI Group, and (i) any other transaction in, toor for the benefit of the BCI Group, excluding in each case items set forth inclause (B) below, in each case (1) made or incurred directly or indirectly bythe BRW Group after October 1, 2002 and (2) after giving effect to which theaggregate amount of cash plus the fair value of non-cash property transferredfrom the BRW Group to the BCI Group in such transaction plus the 

 

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valueof any obligations incurred or assumed by the BRW Group in connection with suchtransaction does not exceed the BCI Maximum Investment for all suchtransactions specified in clauses (a) through (i) in aggregate, and

 

(B) each of the following transactions:

 

(i)                                     theissuance of Equity Interests or the incurrence of Debt in connection with anyBCI Exchange and the application of proceeds thereof to the extent permittedunder Section 5.02,

 

(ii)                                  theGuarantees,

 

(iii)                               Liens under the LoanDocuments,

 

(iv)                              scheduledprincipal and interest payments (or capital contributions made solely for thepurpose of funding such payments) made or guaranteed by any member of the BRWGroup in respect of the Obligations of BCSI under the Loan Documents,

 

(v)                                 paymentsmade by any member of the BRW Group under the Guarantees in respect of theObligations of BCSI under the Loan Documents,

 

(vi)                              non-cashpayments made solely through reductions in the principal amount of anyintercompany notes issued by any member of the BCI Group to any member of theBRW Group in respect of net operating losses of the BCI Group used by the BRWGroup or other Investments in the form of reductions of such intercompanynotes,

 

(vii)                           Permitted Obligations,

 

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

 

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

 

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

 

**(xi)****                             **anytransactions of the type described on Schedule 1.01, and

 

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

 

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*provided* no Default or Event of Defaulthas occurred and is continuing at the time of such transaction; *provided further* that any such PermittedBCI Transaction is also permitted under Section 5.11 of the Junior NotesIndenture.

 

“***Permitted Liens***” means such of the following as to whichno enforcement, collection, execution, levy or foreclosure proceeding shallhave been commenced:  (a) Liens fortaxes, 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 ordinarycourse of business securing obligations that (i) are not overdue for aperiod of more than 30 days and (ii) individually or together with allother Permitted Liens outstanding on any date of determination do notmaterially adversely affect the use of the property to which they relate;(c) pledges or deposits to secure obligations under workers’ compensationlaws or similar legislation or to secure public or statutory obligations; and(d) easements, rights of way and other encumbrances on title to realproperty that do not render title to the property encumbered thereby unmarketableor materially adversely affect the use of such property for its presentpurposes.

 

“***PermittedObligations***” means, in connection with:

 

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

 

(B) any other sale, transfer or other disposition ofthe 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 theBCI Group not assumed by the purchaser as expressly set forth in the relatedpurchase and sale agreement or (b) any obligation of the types referred to inclause (i) of the definition of “Debt” in respect of any such obligationspecified in clause (a) created, incurred or otherwise arising in connectionwith such sale, transfer or other disposition of  assets of BCI.

 

“***Permitted Preferred Stock***” means the ConvertiblePreferred Stock and the BCI Exchangeable Preferred Stock.

 

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

 

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jointventure or other entity, or a government or any political subdivision or agencythereof.

 

“***Plan***” means a Single Employer Plan or a MultipleEmployer Plan.

 

“***Pledged Debt***” has the meaning specified inSection 1(a)(iv) of the Shared Collateral Security Agreement andSection 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 theNon-Shared Collateral Security Agreement.

 

“***PNC***” has the meaning specified in the recital of partiesto this Agreement.

 

“***Preferred Interests***” means, with respect to any Person,Equity Interests issued by such Person that are entitled to a preference orpriority over any other Equity Interests issued by such Person upon anydistribution of such Person’s property and assets, whether by dividend or uponliquidation.

 

“***PrepackagedPlan***” means a plan of reorganization filed in a proceeding underChapter 11 of the Bankruptcy Code which plan shall have been accepted prior tosuch filing by the holders of the minimum amount of each class of claims orinterests impaired under such plan that would be necessary to achieveacceptance thereof pursuant to Section 1126 of the Bankruptcy Code.

 

“***Pro Rata Share***” of any amount means, with respect to anyRevolving Credit Lender at any time, the product of such amount *times*a fraction the numerator of which is the amount of such Lender’s RevolvingCredit Commitment at such time (or, if the Commitments shall have beenterminated pursuant to Section 2.05 or 7.01, such Lender’s RevolvingCredit Commitment as in effect immediately prior to such termination) and thedenominator of which is the Revolving Credit Facility at such time (or, if theCommitments shall have been terminated pursuant to Section 2.05 or 7.01,the Revolving Credit Facility as in effect immediately prior to such termination).

 

*“**PurchaseAgreement**”*****hasthe meaning specified in the Preliminary Statements.

 

*“**PWC***”means PricewaterhouseCoopers LLP.

 

*“**RealEstate SPV**”* means Broadwing Communications RealEstate Services LLC, a Delaware limited liability company.

 

 “***Redeemable***” means, withrespect to any Equity Interest, any Debt or any other right or Obligation, anysuch Equity Interest, Debt, right or Obligation that (a) the issuer hasundertaken to redeem at a fixed or determinable date or dates, whether byoperation of a sinking fund or otherwise, or upon the occurrence of a conditionnot solely within the control of the issuer or (b) is redeemable at theoption of the holder.

 

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“***Register***” has the meaning specified inSection 9.07(d).

 

“***Regulation U***” means Regulation U of the Board ofGovernors of the Federal Reserve System, as in effect from time to time.

 

“***Related Documents***” means the Junior Notes Documents, theOak Hill Indenture, the BCSI Sale Agreement, the Subordinated Debt Documents,any intercompany notes issued pursuant to Section 5.02(b)(ii) and Section5.02(b)(i)(D), all agreements, indentures and instruments pursuant to which theSenior Notes are issued, the certificate of incorporation of Wireless Holdco,documents related to the Surviving Debt and the Permitted Preferred StockDocuments.

 

“***RelatedFund***” means, with respect to any Lender which is a fund thatinvests in loans, any other fund that invests in loans and is controlled by thesame investment advisor as such Lender or by an Affiliate of such investmentadvisor.

 

 “***Required Lenders***”means, at any time, Lenders owed or holding at least  a majority in interest of the sum of (a) the aggregateprincipal amount of the Advances outstanding at such time, (b) theaggregate Available Amount of all Letters of Credit outstanding at such timeand (c) the aggregate Unused Revolving Credit Commitments at such time; *provided,however,* that if any Lender shall be a Defaulting Lender at suchtime, there shall be excluded from the determination of Required Lenders atsuch time (A) the aggregate principal amount of the Advances owing to suchLender (in its capacity as a Lender) and outstanding at such time,(B) such Lender’s Pro Rata Share of the aggregate Available Amount of allLetters of Credit outstanding at such time, (C) the aggregate unused TermCommitments of such Lender at such time and (D) the Unused Revolving CreditCommitment of such Lender at such time. For purposes of this definition, the aggregate principal amount of SwingLine Advances owing to any Swing Line Bank and of Letter of Credit Advancesowing to any Issuing Bank and the Available Amount of each Letter of Creditshall be considered to be owed to the Revolving Credit Lenders ratably inaccordance with their respective Revolving Credit Commitments.

 

“***Responsible Officer***” means the chief executive officer,the president, the chief financial officer, the principal accounting officer orthe treasurer (or the equivalent of any of the foregoing) of a Borrower or anyof its Subsidiaries or any other officer, partner or member (or personperforming similar functions) of such Borrower or any of its Subsidiariesresponsible for overseeing the administration of, or reviewing compliance with,all or any portion of this Agreement and the other Loan Documents.

 

“***RestrictedPayment***” 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 consistingof simultaneous Revolving Credit Advances of the same Type made by theRevolving Credit Lenders.

 

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“***Revolving Credit Commitment***” means, with respect to anyRevolving Credit Lender at any time, the amount set forth opposite suchLender’s name on Schedule I hereto under the caption “Revolving CreditCommitment” or, if such Lender has entered into one or more Assignment andAcceptances, set forth for such Lender in the Register maintained by theAdministrative Agent pursuant to Section 9.07(d) as such Lender’s“Revolving Credit Commitment”, as such amount may be reduced at or prior tosuch time pursuant to Section 2.05.

 

“***Revolving Credit Facility***” means, at any time, theaggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitmentsat such time.

 

“***Revolving Credit Lender***” means any Lender that has aRevolving Credit Commitment.

 

“***Revolving Credit Note***” means a promissory note of aBorrower payable to the order of any Revolving Credit Lender, in substantiallythe form of Exhibit A-1 hereto, evidencing the aggregate indebtedness ofsuch Borrower to such Lender resulting from the Revolving Credit Advances,Letter of Credit Advances and Swing Line Advances made by such Lender, asamended.

 

“***Secured Hedge Agreement***” means any Hedge Agreementrequired or permitted under Article V that is entered into by and between anyBorrower and any Hedge Bank.

 

“***Secured Obligations***” has the meaning specified inSection 2 of the Security Agreements.

 

“***Secured Parties***” means the Agents and the LenderParties.

 

“***Security Agreements***” means the Shared CollateralSecurity Agreement or the Non-Shared Collateral Security Agreement.

 

“***SeniorNotes***” means senior unsubordinated notes of BRW which havecustomary high yield covenants for similar issuers, are unsecured and have thebenefit 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 ofdetermination, the ratio of Consolidated Senior Secured Debt of BRW and itsSubsidiaries as at such date of determination to Consolidated EBITDA of BRW andits Subsidiaries for the period of four consecutive fiscal quarters of BRWended on or immediately prior to such date.

 

“***Senior Secured Debt***” means, as of any date, the Advancesand that portion of  the Debt (excludingall indebtedness and payment Obligations referred to in clauses (g) and (h) ofthe definition of “Debt” herein) of BRW and its Subsidiaries that ranks paripassu 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 themedium term notes of CBT issued under CBT’s indenture dated as of October

 

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

 

“***Shared Collateral Security Agreement***” has the meaningspecified 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 ERISAAffiliate 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 ERISAAffiliate could have liability under Section 4069 of ERISA in the eventsuch plan has been or were to be terminated.

 

“***Solvent***” and “***Solvency***” mean, with respect to any Person on aparticular date, that on such date (a) the fair value of the property ofsuch Person is greater than the total amount of liabilities, including, withoutlimitation, contingent liabilities, of such Person, (b) the present fairsalable value of the assets of such Person is not less than the amount that willbe required to pay the probable liability of such Person on its debts as theybecome absolute and matured, (c) such Person does not intend to, and doesnot believe that it will, incur debts or liabilities beyond such Person’sability to pay such debts and liabilities as they mature and (d) suchPerson is not engaged in business or a transaction, and is not about to engagein business or a transaction, for which such Person’s property would constitutean unreasonably small capital.  Theamount of contingent liabilities at any time shall be computed as the amountthat, 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 ormatured liability.

 

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

 

“***SpecifiedDefault***” means any default or event of default under any Debt ofBRW or any of its Subsidiaries of the type described in Section 7.01(p) or byreason of a cross default to the Oak Hill Indenture resulting from a default orevent of default under the Oak Hill Indenture of the type described in Section7.01(p).

 

“***SpectrumAssets***” means the E-Block spectrum license granted by theFederal 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 TheMcGraw-Hill Companies, Inc.

 

“***SSBI***” has the meaning specified in the recital ofparties to this Agreement.

 

 “***Subordinated Debt***”means any Debt of any Loan Party that is subordinated to the Obligations ofsuch Loan Party under the Loan Documents and that either (a) contains

 

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termsand conditions that comply with the requirements of Section 5.02(b)(i)(F)(y) or(b) contains terms and conditions reasonably satisfactory to the RequiredLenders.

 

“***Subordinated Debt Documents***” means all agreements,indentures and instruments pursuant to which Subordinated Debt is issued andthat either (a) contains terms and conditions that comply with the requirementsof Section 5.02(b)(i)(F)(y) or (b) contains terms and conditions reasonablysatisfactory to the Required Lenders, in each case as amended, to the extentpermitted 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 capitalstock having ordinary voting power to elect a majority of the Board ofDirectors of such corporation (irrespective of whether at the time capitalstock of any other class or classes of such corporation shall or might havevoting power upon the occurrence of any contingency), (b) the interest inthe capital or profits of such partnership, joint venture or limited liabilitycompany or (c) the beneficial interest in such trust or estate is at thetime directly or indirectly owned or controlled by such Person, by such Personand one or more of its other Subsidiaries or by one or more of such Person’sother Subsidiaries.  Notwithstanding theforegoing, for purposes of this Agreement only but not the other LoanDocuments, references to “*Subsidiaries*”of BRW shall not include BCI or any Subsidiary of BCI unless an expressreference to BCI or BCI and its Subsidiaries is made, except that at all timesafter BRW shall deliver written notice to the Administrative Agent stating thatBroadwing Telecommunications Inc. shall thereafter be deemed to be a Subsidiaryof BRW for all purposes hereunder in accordance with Section 5.02(d)(iii),Broadwing Telecommunications Inc. shall thereafter be deemed to be a Subsidiaryof BRW notwithstanding that it may at any such time be a Subsidiary of BCI.

 

“***Subsidiary Guaranties***” has the meaning specified inSection 3.01(a)(iii).

 

“***Subsidiary Guarantors***” means the Subsidiaries of BRW(including BCI and its Subsidiaries) listed on Schedule II hereto and eachother Subsidiary of BRW (including BCI and its Subsidiaries) that shall berequired to execute and deliver a guaranty pursuant to Section 5.01(j).

 

“***Surviving Debt***” means Debt of each Loan Party and itsSubsidiaries 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) anyRevolving Credit Lender pursuant to Section 2.02(b).

 

“***Swing Line Bank***” means, initially, each of CUSA, Bank ofAmerica and  PNC or any other Lenderselected by BRW pursuant to Section 2.01(c).

 

“***Swing Line Borrowing***” means a borrowing consisting of aSwing 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).

 

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“***Swing Line Facility***” has the meaning specified inSection 2.01(c).

 

***“Syndication Agent”***has the meaning specified in the recital of parties to this Agreement.

 

“***Taxes***” has the meaning specified inSection 2.12(a).

 

“***Term A Advance”*** has the meaning specified in Section2.01(a)(i).

 

 “***Term A******Borrowing”*** means aborrowing consisting of simultaneous Term A Advances of the same Type made bythe Term A Lenders.

 

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

 

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

 

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

 

“***Term B Advance”*** has the meaning specified in Section2.01(a)(ii).

 

“***TermB******Borrowing”***means a borrowing consisting of simultaneous Term B Advances of the same Typemade by the Term B Lenders.

 

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

 

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

 

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

 

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

 

“***TermBorrowings***” means, collectively, Term A Borrowings, Term BBorrowings and Term C Borrowings.

 

“***Term C Advance”*** has the meaning specified in Section2.01(a)(iii).

 

“***TermC******Borrowing”***means a borrowing consisting of simultaneous Term C Advances of the same Typemade by the Term C Lenders.

 

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

 

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

 

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

 

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

 

 “***Term Commitments”***means, collectively, Term A Commitments, Term B Commitments and Term CCommitments.

 

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

 

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

 

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 “***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 andthe execution, delivery and performance of the Loan Documents.

 

“***Transaction Documents***” means, collectively, the LoanDocuments and the Related Documents.

 

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

 

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

 

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

 

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

 

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

 

“***WarrantAgreement***” has the meaning specified in the PreliminaryStatements.

 

*“**Warrants**”*****has the meaningspecified in the Preliminary Statements.

 

“***Welfare Plan***” means a welfare plan, as defined inSection 3(1) of ERISA, that is maintained for employees of any Loan Partyor in respect of which any Loan Party could have liability.

 

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“***WirelessCo.***” means Cincinnati Bell Wireless Company, an Ohiocorporation.

 

“***WirelessHoldco***”**meansCincinnati Bell Wireless Holdings LLC, a Delaware limited liability company.

 

“***WirelessLLC***” means Cincinnati Bell Wireless LLC, an Ohio limited liabilitycompany.

 

“***Withdrawal Liability***” has the meaning specified inPart I of Subtitle E of Title IV of ERISA.

 

SECTION1.02.  Computation of Time Periods;Other Definitional Provisions.  Inthis Agreement and the other Loan Documents in the computation of periods oftime from a specified date to a later specified date, the word “***from***” means “from andincluding” and the words “***to***” and “***until***” each mean “to but excluding”.  References in the Loan Documents to anyagreement or contract “***as amended***” shall mean and be a reference to suchagreement or contract as amended, amended and restated, supplemented orotherwise modified from time to time in accordance with its terms.

 

SECTION1.03.  Accounting Terms.  All accounting terms not specificallydefined herein shall be construed in accordance with generally acceptedaccounting principles in effect on the Effective Date (“***GAAP***”).

 

# **ARTICLE II**

# ** **

**AMOUNTS ANDTERMS OF THE ADVANCES**

**AND THELETTERS OF CREDIT**

** **

SECTION 2.01.  TheAdvances and the Letters of Credit                            (a)  The Term Advances.  (i) Each Term A Lender made advances (each a“***Term A Advance***”) tothe Borrowers prior to the Effective Date under Section 2.01(a)(i) of theExisting Credit Agreement in an aggregate amount equal to such Lender’s Term ACommitment.  All Term A Advancesoutstanding on the Effective Date shall for all purposes be deemed to have beenmade hereunder and shall constitute use of the Term A Facility. Amountsoutstanding under this Section 2.01(a)(i) and repaid or prepaid may not bereborrowed.

 

(ii)Each Term B Lender made incremental term B advances (each a “***Term B Advance***”) tothe Borrowers prior to the Effective Date under Sections 2.01(a)(ii) and2.05(c) of the Existing Credit Agreement in an aggregate amount equal to suchLender’s Term B Commitment.  All Term BAdvances outstanding on the Effective Date shall for all purposes be deemed tohave been made hereunder and shall constitute use of the Term B Facility.Amounts outstanding under this Section 2.01(a)(ii) and repaid or prepaidmay not be reborrowed.

 

(iii)Each Term C Lender made a single incremental term C advance (each a “***Term C Advance***”) tothe Borrowers prior to the Effective Date under Sections 2.01(a)(iii) and2.05(c) of the Existing Credit Agreement in an aggregate amount equal to suchLender’s Term C Commitment.  All Term CAdvances outstanding on the Effective Date shall for all purposes be

 

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deemedto 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 prepaidmay not be reborrowed.

 

(b)                                 TheRevolving Credit Advances.  EachRevolving Credit Lender severally agrees, on the terms and conditionshereinafter set forth, to make advances (each a “***Revolving Credit Advance***”) to BRW from timeto time on any Business Day during the period from the date hereof until theTermination Date in an amount for each such Advance not to exceed such Lender’sUnused Revolving Credit Commitment at such time.  Each Revolving Credit Borrowing shall be in an aggregate amountof (i) $10,000,000 or an integral multiple of $1,000,000 in excess thereofin respect of Eurodollar Rate Advances and (ii) $10,000,000 or an integralmultiple of $1,000,000 in excess thereof in respect of Base Rate Advances (ineach case, other than a Borrowing the proceeds of which shall be used solely torepay or prepay in full outstanding Swing Line Advances or outstanding Letterof Credit Advances) and shall consist of Revolving Credit Advances madesimultaneously by the Revolving Credit Lenders ratably according to theirRevolving Credit Commitments.  TheRevolving Credit Advances made to BRW and to BCSI under Section 2.01(b) of theExisting Credit Agreement and outstanding on the Effective Date shall for allpurposes be deemed to have been made hereunder and shall constitute use of theRevolving Credit Facility.  Within thelimits of each Revolving Credit Lender’s Unused Revolving Credit Commitment ineffect from time to time, the Borrowers may borrow under thisSection 2.01(b), prepay pursuant to Section 2.06(a) and reborrowunder this Section 2.01(b). BCSI may not borrow any new Revolving CreditAdvances under this Section 2.01(b).

 

(c)                                  TheSwing Line Advances.  BRW mayrequest any Swing Line Bank to make, and such Swing Line Bank may, if in itssole discretion it elects to do so, make, on the terms and conditionshereinafter set forth, Swing Line Advances to BRW from time to time on anyBusiness 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 atany time outstanding $75,000,000 (the “***Swing Line Facility***”) and (ii) in an amount foreach such Swing Line Borrowing not to exceed the aggregate of the Unused RevolvingCredit Commitments of the Revolving Credit Lenders at such time.  No Swing Line Advance shall be used for thepurpose of funding the payment of principal of any other Swing Line Advance.  Each Swing Line Borrowing shall be in anamount of $500,000 or an integral multiple of $100,000 in excess thereof andshall be made as a Base Rate Advance. Any Swing Line Advances made to BRW and to BCSI under Section 2.01(c) ofthe Existing Credit Agreement and outstanding on the Effective Date shall forall purposes be deemed to have been made hereunder and shall constitute use ofthe Swing Line Facility.  Within thelimits of the Swing Line Facility and within the limits referred to inclause (ii) above, so long as any Swing Line Bank, in its sole discretion,elects to make Swing Line Advances, BRW may borrow under thisSection 2.01(c), repay pursuant to Section 2.04(c) or prepay pursuantto Section 2.06(a) and reborrow under this Section 2.01(c).  BCSI may not borrow any new Swing LineAdvances under this Section 2.01(c). BRW may select any Lender to act as a Swing Line Bank or remove anyLender as a Swing Line Bank at its discretion; *provided*that (i) each such Lender expressly agrees to perform in accordancewith their terms all of the obligations that by the terms of this Agreement arerequired to be performed by it as a Swing Line Bank and notifies theAdministrative Agent of its acceptance of such

 

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appointmentand (ii) there are no more than four Swing Line Banks (including all Swing LineBanks that have issued Swing Line Advances that remain outstanding) at any onetime.

 

(d)                                 TheLetters of Credit.  Each IssuingBank severally agrees, on the terms and conditions hereinafter set forth, toissue (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 totime on any Business Day during the period from the date hereof until 5Business Days before the Termination Date in an aggregate Available Amount(i) for all Letters of Credit issued by such Issuing Bank not to exceed atany 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 theUnused Revolving Credit Commitments of the Revolving Credit Lenders at suchtime.  The 2004 Letters of Credit andall 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 shallfor all purposes be deemed to have been issued hereunder and shall constituteuse of the Letter of Credit Facility. No Letter of Credit shall have an expiration date (including all rightsof the Borrowers or the beneficiary to require renewal) later than the earlierof 5 Business Days before the Termination Date and one year after the date ofissuance 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 theAdministrative Agent on or prior to any date for notice of renewal set forth insuch Letter of Credit but in any event at least three Business Days prior tothe date of the proposed renewal of such Letter of Credit and upon fulfillmentof the applicable conditions set forth in Article III unless such Issuing Bankhas notified such Borrower (with a copy to the Administrative Agent) on orprior to the date for notice of termination set forth in such Letter of Creditbut in any event at least 30 Business Days prior to the date of automaticrenewal of its election not to renew such Letter of Credit (a “***Notice of Termination***”).  If either a Notice of Renewal is not givenby such Borrower or a Notice of Termination is given by the relevant IssuingBank pursuant to the immediately preceding sentence, such Letter of Creditshall expire on the date on which it otherwise would have been automaticallyrenewed; *provided,however,* that even in the absence of receipt of a Notice of Renewalthe relevant Issuing Bank may in its discretion, unless instructed to thecontrary by the Administrative Agent or such Borrower, deem that a Notice ofRenewal had been timely delivered and in such case, a Notice of Renewal shallbe deemed to have been so delivered for all purposes under this Agreement.  Each Letter of Credit shall contain aprovision authorizing the Issuing Bank that issued such Letter of Credit to deliverto the beneficiary of such Letter of Credit, upon the occurrence and during thecontinuance of an Event of Default, a notice (a “***Default Termination Notice***”) terminating suchLetter of Credit and giving such beneficiary 15 days to draw such Letter ofCredit.  Within the limits of the Letterof Credit Facility, and subject to the limits referred to above, BRW mayrequest the issuance of Letters of Credit under this Section 2.01(d),repay any Letter of Credit Advances resulting from drawings thereunder pursuantto Section 2.04(d) and request the issuance of additional Letters ofCredit under this Section 2.01(d). BCSI may not request the issuance of any new Letters of Credit underthis Section 2.01(d).

 

SECTION 2.02.  Making the Advances  (a) Except as otherwise provided in Section 2.02(b) or 2.03, eachBorrowing 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 theproposed Borrowing in 

 

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the case of a Borrowing consisting of Eurodollar Rate Advances, or thefirst Business Day prior to the date of the proposed Borrowing in the case of aBorrowing consisting of Base Rate Advances, by BRW to the Administrative Agent,which shall give to each Appropriate Lender prompt notice thereof by telex ortelecopier.  Each such notice of aBorrowing (a “***Notice of Borrowing***”)shall be by telephone, confirmed immediately in writing, or telex ortelecopier, in substantially the form of Exhibit B hereto, specifying thereinthe requested (i) date of such Borrowing, (ii) Facility under whichsuch Borrowing is to be made, (iii) Type of Advances comprising suchBorrowing, (iv) aggregate amount of such Borrowing and (v) in thecase of a Borrowing consisting of Eurodollar Rate Advances, initial InterestPeriod for each such Advance.  EachAppropriate Lender shall, before 11:00 A.M. (New York City time) onthe date of such Borrowing, make available for the account of its ApplicableLending Office to the Administrative Agent at the Administrative Agent’sAccount, in same day funds, such Lender’s ratable portion of such Borrowing inaccordance with the respective Commitments under the applicable Facility ofsuch Lender and the other Appropriate Lenders. After the Administrative Agent’s receipt of such funds and uponfulfillment of the applicable conditions set forth in Article III, theAdministrative Agent will make such funds available to BRW by crediting theBorrower’s Account; *provided, however,* that, in the case ofany Revolving Credit Borrowing, the Administrative Agent shall first make aportion of such funds equal to the aggregate principal amount of any Swing LineAdvances and Letter of Credit Advances made by any Swing Line Bank or anyIssuing Bank, as the case may be, and by any other Revolving Credit Lender andoutstanding on the date of such Revolving Credit Borrowing, plus interestaccrued and unpaid thereon to and as of such date, available to such Swing LineBank or such Issuing Bank, as the case may be, and such other Revolving Credit Lendersfor repayment of such Swing Line Advances and Letter of Credit Advances.

 

(b)                                 EachSwing Line Borrowing shall be made on notice, given not later than1:00 P.M. (New York City time) on the date of the proposed Swing LineBorrowing, 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 ortelecopier, 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 dateof such Borrowing).  If, in its solediscretion, it elects to make the requested Swing Line Advance, such Swing LineBank will make the amount thereof available to the Administrative Agent at theAdministrative Agent’s Account, in same day funds.  After the Administrative Agent’s receipt of such funds and uponfulfillment of the applicable conditions set forth in Article III, theAdministrative Agent will make such funds available to BRW by crediting theBorrower’s Account.  Upon written demandby any Swing Line Bank with an outstanding Swing Line Advance, with a copy ofsuch demand to the Administrative Agent, each other Revolving Credit Lendershall purchase from such Swing Line Bank, and such Swing Line Bank shall selland assign to each such other Revolving Credit Lender, such other Lender’s ProRata Share of such outstanding Swing Line Advance as of the date of suchdemand, by making available for the account of its Applicable Lending Office tothe Administrative Agent for the account of such Swing Line Bank, by deposit tothe Administrative Agent’s Account, in same day funds, an amount equal to the portionof the outstanding principal amount of such Swing Line Advance to be purchasedby such Lender.  BRW hereby agrees toeach such sale and assignment.  EachRevolving Credit Lender agrees to purchase its Pro Rata

 

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Shareof an outstanding Swing Line Advance on (i) the Business Day on whichdemand 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 BusinessDay next succeeding such demand if notice of such demand is given after suchtime.  Upon any such assignment by aSwing Line Bank to any other Revolving Credit Lender of a portion of a SwingLine Advance, such Swing Line Bank represents and warrants to such other Lenderthat such Swing Line Bank is the legal and beneficial owner of such interestbeing assigned by it, but makes no other representation or warranty and assumesno responsibility with respect to such Swing Line Advance, the Loan Documentsor any Loan Party.  If and to the extentthat any Revolving Credit Lender shall not have so made the amount of suchSwing Line Advance available to the Administrative Agent, such Revolving CreditLender agrees to pay to the Administrative Agent forthwith on demand suchamount together with interest thereon, for each day from the date of demand bysuch Swing Line Bank until the date such amount is paid to the AdministrativeAgent, at the Federal Funds Rate.  Ifsuch Lender shall pay to the Administrative Agent such amount for the accountof such Swing Line Bank on any Business Day, such amount so paid in respect ofprincipal shall constitute a Swing Line Advance made by such Lender on suchBusiness Day for purposes of this Agreement, and the outstanding principalamount of the Swing Line Advance made by such Swing Line Bank shall be reducedby such amount on such Business Day.

 

(c)                                  Anythingin subsection (a) above to the contrary notwithstanding, (i) BRW maynot select Eurodollar Rate Advances for any Borrowing if the aggregate amountof such Borrowing is less than $10,000,000 or if the obligation of theAppropriate Lenders to make Eurodollar Rate Advances shall then be suspendedpursuant to Section 2.09 or 2.10 and (ii) the Term Advances may notbe outstanding as part of more than five separate Borrowings and the RevolvingCredit Advances may not be outstanding as part of more than five separateBorrowings.

 

(d)                                 EachNotice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable andbinding on BRW.  In the case of anyBorrowing that the related Notice of Borrowing specifies is to be comprised ofEurodollar Rate Advances, BRW shall indemnify each Appropriate Lender againstany loss, cost or expense incurred by such Lender as a result of any failure tofulfill on or before the date specified in such Notice of Borrowing for suchBorrowing the applicable conditions set forth in Article III, including,without limitation, any loss (including loss of anticipated profits), cost orexpense incurred by reason of the liquidation or reemployment of deposits orother funds acquired by such Lender to fund the Advance to be made by suchLender as part of such Borrowing when such Advance, as a result of suchfailure, is not made on such date.

 

(e)                                  Unlessthe Administrative Agent shall have received notice from an Appropriate Lenderprior to the date of any Borrowing under a Facility under which such Lender hasa Commitment that such Lender will not make available to the AdministrativeAgent such Lender’s ratable portion of such Borrowing, the Administrative Agentmay assume that such Lender has made such portion available to theAdministrative Agent on the date of such Borrowing in accordance withsubsection (a) of this Section 2.02 and the Administrative Agent may,in reliance upon such assumption, make available to BRW on such date acorresponding

 

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amount.  If and to the extent that such Lender shallnot have so made such ratable portion available to the Administrative Agent,such Lender and BRW severally agree to repay or pay to the Administrative Agentforthwith on demand such corresponding amount and to pay interest thereon, foreach day from the date such amount is made available to BRW until the date suchamount is repaid or paid to the Administrative Agent, at (i) in the caseof BRW, the interest rate applicable at such time under Section 2.07 toAdvances comprising such Borrowing and (ii) in the case of such Lender,the Federal Funds Rate.  If such Lendershall pay to the Administrative Agent such corresponding amount, such amount sopaid shall constitute such Lender’s Advance as part of such Borrowing for allpurposes.

 

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

 

SECTION 2.03.  Issuance of and Drawingsand Reimbursement Under Letters of Credit (a)  Request for Issuance.  Each Letter of Credit shall be issued uponnotice, given not later than 11:00 A.M. (New York City time) on thefifth Business Day prior to the date of the proposed issuance of such Letter ofCredit, by BRW to any Issuing Bank, which shall give to the AdministrativeAgent and each Revolving Credit Lender prompt notice thereof by telex or telecopier.  Each such notice of issuance of a Letter ofCredit (a “***Notice of Issuance***”)shall be by telephone, confirmed immediately in writing, or telex ortelecopier, specifying therein the requested (A) date of such issuance(which shall be a Business Day), (B) Available Amount of such Letter ofCredit, (C) expiration date of such Letter of Credit, (D) name andaddress of the beneficiary of such Letter of Credit and (E) form of suchLetter of Credit, and shall be accompanied by such application and agreementfor letter of credit as such Issuing Bank may specify to BRW for use inconnection with such requested Letter of Credit (a “***Letter of Credit Agreement***”).  If (x) the requested form of suchLetter 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 Lendersholding at least 50% of the Revolving Credit Commitments such Issuing Bankwill, upon fulfillment of the applicable conditions set forth inArticle III, make such Letter of Credit available to BRW at its officereferred to in Section 9.02 or as otherwise agreed with BRW in connectionwith such issuance.  In the event and tothe extent that the provisions of any Letter of Credit Agreement shall conflictwith this Agreement, the provisions of this Agreement shall govern.

 

(b)                                 Letterof Credit Reports.  Each IssuingBank shall furnish (A) to the Administrative Agent on the first BusinessDay of each week a written report summarizing issuance and expiration dates ofLetters of Credit issued by such Issuing Bank during the previous week anddrawings during such week under all Letters of Credit issued by such IssuingBank, (B) to each Revolving Credit Lender on the first Business Day ofeach month a written report summarizing issuance and expiration dates ofLetters of Credit issued by such Issuing Bank during the preceding month anddrawings during such month under all Letters of Credit issued by such IssuingBank and (C) to the Administrative Agent and each Revolving Credit Lenderon the first Business Day of each calendar quarter a written report settingforth the

 

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averagedaily aggregate Available Amount during the preceding calendar quarter of allLetters of Credit issued by such Issuing Bank.

 

(c)                                  Drawingand Reimbursement.  The payment byany Issuing Bank of a draft drawn under any Letter of Credit shall constitutefor all purposes of this Agreement the making by such Issuing Bank of a Letterof Credit Advance, which shall be a Base Rate Advance, in the amount of suchdraft.  Upon written demand by anyIssuing Bank with an outstanding Letter of Credit Advance, with a copy of suchdemand to the Administrative Agent, each Revolving Credit Lender shall purchasefrom such Issuing Bank, and such Issuing Bank shall sell and assign to eachsuch Revolving Credit Lender, such Lender’s Pro Rata Share of such outstandingLetter of Credit Advance as of the date of such purchase, by making availablefor the account of its Applicable Lending Office to the Administrative Agentfor the account of such Issuing Bank, by deposit to the Administrative Agent’sAccount, in same day funds, an amount equal to the portion of the outstandingprincipal amount of such Letter of Credit Advance to be purchased by suchLender.  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 theforegoing, each Revolving Credit Lender hereby absolutely and unconditionallyagrees 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 theIssuing Bank and not reimbursed by the Borrower on the date made, or of anyreimbursement payment required to be refunded to the Borrower for anyreason.  Each Revolving Credit Lenderacknowledges and agrees that its obligation to purchase its Pro Rata Sharepursuant to this paragraph in respect of Letters of Credit is absolute andunconditional and shall not be affected by any circumstance whatsoever,including any amendment, renewal or extension of any Letter of Credit or theoccurrence and continuance of a Default or reduction or termination of the RevolvingCredit Commitments, and that each such payment shall be made without anyoffset, abatement, withholding or reduction whatsoever. Each Revolving CreditLender agrees to purchase its Pro Rata Share of an outstanding Letter of CreditAdvance on (i) the Business Day on which demand therefor is made by theIssuing Bank which made such Advance, *provided* that notice of such demand isgiven not later than 11:00 A.M. (New York City time) on such BusinessDay, or (ii) the first Business Day next succeeding such demand if noticeof such demand is given after such time. Upon any such assignment by an Issuing Bank to any Revolving CreditLender of a portion of a Letter of Credit Advance, such Issuing Bank representsand warrants to such other Lender that such Issuing Bank is the legal andbeneficial owner of such interest being assigned by it, free and clear of anyliens, but makes no other representation or warranty and assumes noresponsibility with respect to such Letter of Credit Advance, the LoanDocuments or any Loan Party.  If and tothe extent that any Revolving Credit Lender shall not have so made the amountof such Letter of Credit Advance available to the Administrative Agent, suchRevolving Credit Lender agrees to pay to the Administrative Agent forthwith ondemand such amount together with interest thereon, for each day from the dateof demand by such Issuing Bank until the date such amount is paid to theAdministrative Agent, at the Federal Funds Rate for its account or the accountof such Issuing Bank, as applicable.  Ifsuch Lender shall pay to the Administrative Agent such amount for the accountof such Issuing Bank on any Business Day, such amount so paid in respect ofprincipal shall constitute a Letter of Credit Advance made by such Lender onsuch Business Day for purposes of this Agreement, and 

 

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theoutstanding principal amount of the Letter of Credit Advance made by suchIssuing Bank shall be reduced by such amount on such Business Day.

 

(d)                                 Failureto Make Letter of Credit Advances. The failure of any Lender to make the Letter of Credit Advance to bemade by it on the date specified in Section 2.03(c) shall not relieve any otherLender of its obligation hereunder to make its Letter of Credit Advance on suchdate, but no Lender shall be responsible for the failure of any other Lender tomake the Letter of Credit Advance to be made by such other Lender on such date.

 

SECTION 2.04.  Repaymentof Advances  (a)  Term Advances.  (i) The Borrowers shall repay to theAdministrative Agent for the ratable account of the Term A Lenders theaggregate outstanding principal amount of the Term A Advances on the followingdates in the amounts set forth opposite such dates (in each case which amountsshall be reduced as a result of the application of prepayments in accordancewith 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 ofthis Section 2.04(a)(i), the final principal repayment installment of the TermA Advances shall be repaid in full on the Final Maturity Date and in any eventshall be in an amount equal to the aggregate principal amount of all Term AAdvances outstanding on such date.

 

(ii)The Borrowers shall repay to the Administrative Agent for the ratable accountof the Term B Lenders the aggregate outstanding principal amount of the Term BAdvances on the following dates in an amount equal to the percentage of theaggregate principal amount of all of the Term B Advances outstanding on January12, 2002 under the Existing Credit Agreement (after giving effect to allBorrowings 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 amountsshall be reduced as a result of the application of prepayments in accordancewith the order of priority set forth in Section 2.06):

 

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| **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 ofthis Section 2.04(a)(ii), the final principal repayment installment of the TermB Advances shall be repaid in full on the Final Maturity Date and in any eventshall be in an amount equal to the aggregate principal amount of all Term BAdvances outstanding on such date.

 

(iii)                               The Borrowers shallrepay to the Administrative Agent for the ratable account of the Term C Lendersthe aggregate outstanding principal amount of the Term C Advances on thefollowing dates in an amount equal to the percentage of the aggregate principalamount of all of the Term C Advances outstanding on January 12, 2002 under theExisting Credit Agreement set forth opposite such dates (in each case whichamounts shall be reduced as a result of the application of prepayments inaccordance 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         | %      |

 

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*provided,however*, that, notwithstanding the foregoing provisions ofthis Section 2.04(a)(iii), the final principal repayment installment of theTerm C Advances shall be repaid in full on the Final Maturity Date and in anyevent shall be in an amount equal to the aggregate principal amount of all TermC Advances outstanding on such date.

 

(b)                                 RevolvingCredit Advances.  Each of theBorrowers shall repay to the Administrative Agent for the ratable account ofthe Revolving Credit Lenders on the Termination Date the aggregate principalamount of the Revolving Credit Advances made to such Borrower and outstandingon such date.

 

(c)                                  SwingLine Advances.  Each of theBorrowers shall repay to the Administrative Agent for the account of each SwingLine Bank and each other Revolving Credit Lender that has made a Swing LineAdvance the outstanding principal amount of each Swing Line Advance made tosuch Borrower by each of them on the earlier of the maturity date specified inthe applicable Notice of Swing Line Borrowing (which maturity shall be no laterthan the seventh day after the requested date of such Borrowing) and theTermination Date.

 

(d)                                 Letterof Credit Advances.  (i) Each of theBorrowers shall repay to the Administrative Agent for the account of eachIssuing Bank and each other Revolving Credit Lender that has made a Letter ofCredit Advance on the earlier of the day on which such Advance was made and theTermination Date, the outstanding principal amount of each Letter of CreditAdvance made to such Borrower by each of them; provided, that to theextent not promptly repaid by such Borrower, a Base Rate Advance shall bedeemed made automatically by each Issuing Bank and each other Revolving CreditLender, in an amount equal to such Issuing Bank’s or Lender’s Pro Rata Share ofsuch outstanding Letter of Credit Advance, on the date on which such repaymentis required in the aggregate amount of such Letter of Credit Advance, withoutregard to minimum borrowing amounts or to the conditions set forth in Section3.02.

 

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(ii)                                  TheObligations of each of the Borrowers under this Agreement, any Letter of CreditAgreement and any other agreement or instrument relating to any Letter ofCredit shall be unconditional and irrevocable, and shall be paid strictly inaccordance with the terms of this Agreement, such Letter of Credit Agreementand such other agreement or instrument under all circumstances, including,without limitation, the following circumstances:

 

(A)                              anylack of validity or enforceability of any Loan Document, any Letter of CreditAgreement, any Letter of Credit or any other agreement or instrument relatingthereto (all of the foregoing being, collectively, the “***L/C Related Documents***”);

 

(B)                                anychange in the time, manner or place of payment of, or in any other term of, allor any of the Obligations of such Borrower in respect of any L/C RelatedDocument or any other amendment or waiver of or any consent to departure fromall or any of the L/C Related Documents;

 

(C)                                theexistence of any claim, set-off, defense or other right that such Borrower mayhave at any time against any beneficiary or any transferee of a Letter ofCredit (or any Persons for which any such beneficiary or any such transfereemay be acting), any Issuing Bank or any other Person, whether in connectionwith the transactions contemplated by the L/C Related Documents or anyunrelated transaction;

 

(D)                               anystatement or any other document presented under a Letter of Credit proving tobe forged, fraudulent, invalid or insufficient in any respect or any statementtherein being untrue or inaccurate in any respect;

 

(E)                                 paymentby any Issuing Bank under a Letter of Credit against presentation of a draft orcertificate that does not strictly comply with the terms of such Letter ofCredit;

 

(F)                                 anyexchange, release or non-perfection of any Collateral or other collateral, orany release or amendment or waiver of or consent to departure from the Guarantiesor any other guarantee, for all or any of the Obligations of such Borrower inrespect of the L/C Related Documents; or

 

(G)                                anyother circumstance or happening whatsoever, whether or not similar to any ofthe foregoing, including, without limitation, any other circumstance that mightotherwise constitute a defense available to, or a discharge of, such Borroweror a guarantor.

 

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

 

SECTION 2.05.  Termination orReduction 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

 

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Credit Facility and the Unused Revolving Credit Commitments; *provided,however,* that each partial reduction of a Facility shall be in anaggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excessthereof. Each reduction of the Unused Revolving Credit Commitments pursuant tothis Section 2.05(a) shall be applied to the scheduled commitment reductioninstallments of the Revolving Credit Facility on a pro rata basis.

 

(b)                                 Mandatory.  (i) Each Term Facility shall beautomatically and permanently reduced, on a pro rata basis, on each date onwhich the Term Advances outstanding thereunder are repaid or prepaid by anamount equal to the amount by which the aggregate Term Commitments for suchFacility immediately prior to such reduction exceed the aggregate unpaidprincipal amount of such Term Advances then outstanding.

 

(ii)                                  TheLetter of Credit Facility shall be permanently reduced from time to time on thedate 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 CreditFacility after giving effect to such reduction of the Revolving CreditFacility.

 

(iii)                             TheSwing Line Facility shall be permanently reduced from time to time on the dateof each reduction in the Revolving Credit Facility by the amount, if any, by whichthe amount of the Swing Line Facility exceeds the Revolving Credit Facilityafter giving effect to such reduction of the Revolving Credit Facility.

 

(iv)                              TheRevolving Credit Facility shall be automatically and permanently reduced, onthe following dates in the amount set forth opposite such dates (after givingeffect to all reductions in such amounts on or prior to any such date as aresult of the application of commitment reductions in accordance with the orderof 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 ratablyamong the Revolving Credit Lenders in accordance with their Revolving CreditCommitments:

 
| **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 ofthis clause (iv), all of the Revolving Credit Commitments of the RevolvingCredit Lenders shall be terminated in whole on the Termination Date.

 

(v)                 The RevolvingCredit Facility shall be automatically and permanently reduced ratably amongthe Revolving Credit Lenders in accordance with their Revolving CreditCommitments in an amount equal to the prepayments of the Revolving CreditAdvances pursuant to clause (x) of the *proviso*in Section 5.02(b)(i)(B), and each reduction of the

 

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

 

SECTION 2.06.  Prepayments.  (a)  Optional.  Each Borrower may, upon at least oneBusiness Day’s notice in the case of Base Rate Advances and three BusinessDays’ notice in the case of Eurodollar Rate Advances, in each case to theAdministrative Agent stating the proposed date and aggregate principal amountof the prepayment, and if such notice is given such Borrower shall, prepay theoutstanding aggregate principal amount of the Advances comprising part of thesame Borrowing made by such Borrower in whole or ratably in part, together withaccrued interest to the date of such prepayment on the aggregate principalamount prepaid; *provided, however,* that (x) each partial prepaymentshall be in an aggregate principal amount of $10,000,000 or an integralmultiple of $1,000,000 in excess thereof and (y) if any prepayment of aEurodollar Rate Advance is made on a date other than the last day of anInterest Period for such Advance, such Borrower shall also pay any amountsowing pursuant to Section 9.04(c). Each such prepayment of any Term Advances shall be applied to theinstallments thereof for such Facility pro rata to the remaining installmentsthereof.

 

(b)                                 Mandatory.  (i)  Following the end of each FiscalYear of BRW commencing with the Fiscal Year ending December 31, 2003, theBorrowers shall, on the 90th day following the end of such Fiscal Year, prepayan aggregate principal amount of the Advances comprising part of the sameBorrowings made by such Borrower in an amount equal to 75% of the Excess CashFlow for such Fiscal Year.  Each suchprepayment shall be applied ratably *first* to the Term Facilities and to theinstallments thereof pro rata to the remaining installments thereof, and *second*to the Revolving Credit Facility as set forth in clause (vi) below.

 

(ii)                                  TheBorrowers shall, on the date of receipt of the Net Cash Proceeds by any LoanParty or any of its Subsidiaries from (A) the sale, lease, transfer orother disposition of any assets of any Loan Party or any of its Subsidiaries(other than any sale, lease, transfer or other disposition of assets pursuantto (x) clauses (i) through (vii) and (ix) of Section 5.02(e) or (y) pursuant toclause (viii) of Section 5.02(e) if the proceeds are being reinvested in theexisting lines of business of BRW and its Subsidiaries in accordance with suchclause (viii)) or (B) any Extraordinary Receipt received by or paid to or for theaccount of any Loan Party or any of its Subsidiaries and not otherwise includedin clause (A) above, prepay an aggregate principal amount of the Advancescomprising part of the same Borrowings in an amount equal to the amount of suchNet Cash Proceeds.  Each such prepaymentshall be applied ratably *first* to the Term Facilities and to theinstallments thereof pro rata to the remaining installments thereof and *second*to the Revolving Credit Facility as set forth in clause (vi) below.

 

(iii)                               TheBorrowers shall, on the date of the incurrence or issuance by any Loan Party orany of its Subsidiaries of any Debt (other than Debt incurred or issuedpursuant to Section 5.02(b)), prepay an aggregate principal amount of theAdvances comprising part of the same Borrowings in an amount equal to theamount of such Net Cash Proceeds.  Eachsuch prepayment shall be applied ratably *first* to the Term Facilities and to theinstallments 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)                              TheBorrowers shall, on each Business Day, prepay an aggregate principal amount ofthe Revolving Credit Advances comprising part of the same Borrowings, theLetter of Credit Advances and the Swing Line Advances in an amount equal to theamount by which (A) the sum of the aggregate principal amount of (x) theRevolving Credit Advances, (y) the Letter of Credit Advances and (z) theSwing Line Advances then outstanding plus the aggregate Available Amount of allLetters of Credit then outstanding exceeds (B) the Revolving CreditFacility on such Business Day.

 

(v)                                 TheBorrowers shall, on each Business Day, pay to the Administrative Agent fordeposit in the L/C Cash Collateral Account an amount sufficient to cause theaggregate amount on deposit in the L/C Cash Collateral Account to equal theamount by which the aggregate Available Amount of all Letters of Credit thenoutstanding exceeds the Letter of Credit Facility on such Business Day.

 

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

 

(vii)                           Allprepayments under this subsection (b) shall be made together with accruedinterest to the date of such prepayment on the principal amount prepaid.

 

(viii)                        Anythingcontained in this Section 2.06(b) to the contrary notwithstanding, (A) if,following the occurrence of any “Asset Disposition” (as such term is defined inthe Junior Notes Indenture or any comparable definition in any other Debtdocument 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 tocommit by a particular date (a “***Commitment Date***”) to apply or cause its Subsidiaries toapply an amount equal to any of the “Net Proceeds” (as defined in the JuniorNotes Indenture or any comparable definition in any Other Debt Document, as thecase 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 eithercase in order to excuse such Borrower from being required to make an “AssetSale Offer” (as defined in the Junior Notes Indenture or any comparabledefinition in any Other Debt Document, as the case may be) or any otherprepayment of such Debt under such Other Debt Document (a “***Debt Prepayment***”) inconnection with such “Asset Sale” or other Prepayment Event, as the case maybe, and such Borrower shall have failed to so commit or to so apply an amountequal to such “Net Proceeds” at least 30 days before the Commitment Date or theApplication Date, as the case may be, or (B) if either Borrower at any othertime shall have failed to apply or commit or cause to be applied any amountequal to any such “Net Proceeds” and ,

 

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within30 days thereafter assuming no further application or commitment of an amountequal to such “Net Proceeds” such Borrower would otherwise be required to makean “Asset Sale Offer” or Debt Prepayment, as the case may be, in respectthereof, then in either such case such Borrower shall immediately apply orcause to be applied an amount equal to such “Net Proceeds” to the payment ofthe Advances in the manner set forth in Section 2.06(b)(ii) in such amounts asshall excuse such Borrower from making any such “Asset Sale Offer” or DebtPrepayment, as the case may be.

 

(c)                                  ProRata Treatment. All prepayments of the Term Facilities under this Section2.06 shall be applied to prepay the Term A Advances then outstanding, the TermB Advances then outstanding and the Term C Advances then outstanding on a prorata basis.

 

(d)                                 Designationof Prepayments.  BRW may elect tohave any prepayment of the Facilities made pursuant to this Section 2.06applied to the Advances made to BRW rather than the Advances made to BCSI uponprior notice to the Administrative Agent.

 

SECTION 2.07.  Interest.  (a)  ScheduledInterest.  Each Borrower shall payinterest on the unpaid principal amount of each Advance owing to each Lenderfrom such Borrower from the date of such Advance until such principal amountshall be paid in full, at the following rates per annum:

 

(i)                                     BaseRate Advances.  During such periodsas such Advance is a Base Rate Advance, a rate per annum equal at all times tothe 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 arrearsquarterly on the last day of each month March, June, September and Decemberduring such periods and on the date such Base Rate Advance shall be Convertedor paid in full.

 

(ii)                                  EurodollarRate Advances.  During such periodsas such Advance is a Eurodollar Rate Advance, a rate per annum equal at alltimes during each Interest Period for such Advance to the sum of (A) theEurodollar Rate for such Interest Period for such Advance *plus* (B) the ApplicableMargin in effect from time to time, payable in arrears on the last day of suchInterest Period and, if such Interest Period has a duration of more than threemonths, on each day that occurs during such Interest Period every three monthsfrom the first day of such Interest Period and on the date such Eurodollar RateAdvance shall be Converted or paid in full.

 

(b)                                 DefaultInterest.  Upon the occurrence andduring the continuance of a Default under 7.01(a), (e) or (f), theBorrowers shall pay interest on (i) the unpaid principal amount of eachAdvance owing to each Lender, payable in arrears on the dates referred to inclause (a)(i) or (a)(ii) above and on demand, at a rate per annum equal atall times to 2% per annum above the rate per annum required to be paid on suchAdvance pursuant to clause (a)(i) or (a)(ii) above and (ii) to thefullest extent permitted by law, the amount of any interest, fee or otheramount payable under the Loan Documents that is not paid when due, from thedate such amount shall be due until such amount shall be paid in full, payablein arrears on the date such amount shall be paid in full and on demand, at arate per annum equal at all times to 2% per annum above the rate per annumrequired to be paid, in the case of interest, on the Type of 

 

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

 

SECTION 2.08  Fees.  (a)  CommitmentFee.  BRW shall pay to the AdministrativeAgent for the account of the Lenders a commitment fee, from the date hereof inthe case of each Initial Lender and from the effective date specified in theAssignment and Acceptance pursuant to which it became a Lender in the case ofeach other Lender until the Termination Date, payable in arrears on the date ofthe initial Borrowing hereunder, thereafter quarterly on the last day of eachMarch, June, September and December, and on the Termination Date, at a rate perannum equal to 0.625% on the sum of the average daily Unused Revolving CreditCommitment of such Lender *plus* its Pro Rata Share of the averagedaily outstanding Swing Line Advances during such quarter; *provided, however,* that nocommitment fee shall accrue on any of the Commitments of a Defaulting Lender solong as such Lender shall be a Defaulting Lender.

 

(b)                                 Letterof Credit Fees, Etc.  (i)  BRW shall pay to the Administrative Agentfor the account of each Revolving Credit Lender a commission, payable inarrears quarterly on the last day of each March, June, September and Decemberand on the earliest to occur of the full drawing, expiration, termination orcancellation of any Letter of Credit and on the Termination Date, on suchLender’s Pro Rata Share of the average daily aggregate Available Amountduring such quarter of all Letters of Credit outstanding from time to time atthe Applicable Margin from time to time on Eurodollar Rate Advances.

 

(ii)                                  BRWshall 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 andDecember and on the Termination Date, on the average daily amount of its Letterof Credit Commitment during such quarter, from the date hereof until theTermination Date, at the rate of 0.25% per annum, (B) customary fees forissuance of letters of credit for each Letter of Credit issued by such IssuingBank in an amount to be agreed upon between the Borrowers and such Issuing Bankon 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 connectionwith the issuance or administration of each Letter of Credit as the Borrowersand such Issuing Bank shall agree.

 

(c)                                  Agents’Fees.  BRW shall pay to each Agentfor its own account such fees as may from time to time be agreed between BRWand such Agent.

 

SECTION 2.09  Conversion ofAdvances  (a)  Optional.  Each Borrower may on any Business Day, upon notice given to theAdministrative 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

 

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and subject to the provisions of Sections 2.07 and 2.10, Convertall or any portion of the Advances of one Type comprising the same Borrowingmade by such Borrower into Advances of the other Type; *provided, however,* that anyConversion of Eurodollar Rate Advances into Base Rate Advances shall be madeonly 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 inan 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 permittedunder Section 2.02(c) and each Conversion of Advances comprising part ofthe same Borrowing under any Facility shall be made ratably among theAppropriate Lenders in accordance with their Commitments under such Facility.  Each such notice of Conversion shall, withinthe restrictions specified above, specify (i) the date of such Conversion,(ii) the Advances to be Converted and (iii) if such Conversion isinto Eurodollar Rate Advances, the duration of the initial Interest Period forsuch Advances.  Each notice ofConversion shall be irrevocable and binding on such Borrower.

 

(b)                                 Mandatory.  (i) On the date on which the aggregate unpaid principal amount of EurodollarRate Advances comprising any Borrowing shall be reduced, by payment orprepayment or otherwise, to less than $10,000,000, such Advances shallautomatically Convert into Base Rate Advances.

 

(ii)                                  Ifa Borrower shall fail to select the duration of any Interest Period for anyEurodollar Rate Advances in accordance with the provisions contained in thedefinition of “Interest Period” in Section 1.01, the Administrative Agentwill forthwith so notify such Borrower and the Appropriate Lenders, whereuponeach such Eurodollar Rate Advance will automatically, on the last day of thethen existing Interest Period therefor, Convert into a Base Rate Advance.

 

(iii)                               Uponthe occurrence and during the continuance of any Default, (x) eachEurodollar Rate Advance will automatically, on the last day of the thenexisting 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 inor in the interpretation of any law or regulation or (ii) the compliancewith any guideline or request from any central bank or other governmentalauthority (whether or not having the force of law), there shall be any increasein the cost to any Lender Party of agreeing to make or of making, funding ormaintaining Eurodollar Rate Advances or of agreeing to issue or of issuing ormaintaining or participating in Letters of Credit or of agreeing to make or ofmaking or maintaining Letter of Credit Advances (excluding, for purposes ofthis Section 2.10, any such increased costs resulting from (x) Taxesor Other Taxes (as to which Section 2.12 shall govern) and (y) changes inthe basis of taxation of overall net income or overall gross income by theUnited States or by the foreign jurisdiction or state under the laws of whichsuch Lender Party is organized or has its Applicable Lending Office or anypolitical subdivision thereof), then the Borrowers shall from time to time,upon demand by such Lender Party (with a copy of such demand to theAdministrative Agent), pay to the Administrative Agent for the account of suchLender Party additional amounts sufficient to compensate such Lender Party forsuch increased cost; *provided, however,* that a Lender Partyclaiming additional amounts under this Section 2.10(a)

 

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agrees to use reasonable efforts (consistent with its internal policyand legal and regulatory restrictions) to designate a different ApplicableLending Office if the making of such a designation would avoid the need for, orreduce the amount of, such increased cost that may thereafter accrue and wouldnot, in the reasonable judgment of such Lender Party, be otherwisedisadvantageous to such Lender Party.  Acertificate as to the amount of such increased cost, submitted to the Borrowersby such Lender Party, shall be conclusive and binding for all purposes, absentmanifest error.

 

(b)                                 Ifany Lender Party determines that compliance with any law or regulation or anyguideline or request from any central bank or other governmental authority(whether or not having the force of law) affects or would affect the amount ofcapital required or expected to be maintained by such Lender Party or anycorporation controlling such Lender Party and that the amount of such capitalis increased by or based upon the existence of such Lender Party’s commitmentto lend or to issue or participate in Letters of Credit hereunder and othercommitments of such type or the issuance or maintenance of or participation inthe Letters of Credit (or similar contingent obligations), then, upon demand bysuch Lender Party or such corporation (with a copy of such demand to theAdministrative Agent), the Borrowers shall pay to the Administrative Agent forthe account of such Lender Party, from time to time as specified by such LenderParty, additional amounts sufficient to compensate such Lender Party in thelight of such circumstances, to the extent that such Lender Party reasonablydetermines such increase in capital to be allocable to the existence of suchLender Party’s commitment to lend or to issue or participate in Letters ofCredit hereunder or to the issuance or maintenance of or participation in anyLetters of Credit.  A certificate as tosuch amounts submitted to the Borrowers by such Lender Party shall beconclusive and binding for all purposes, absent manifest error.

 

(c)                                  If,with respect to any Eurodollar Rate Advances under any Facility, Lenders owedor holding not less than a majority in interest of the then aggregate unpaidprincipal amount thereof notify the Administrative Agent that the Eurodollar Rate for anyInterest Period for such Advances will not adequately reflect the cost to suchLenders of making, funding or maintaining their Eurodollar Rate Advances forsuch Interest Period, the Administrative Agent shall forthwith so notify theBorrowers and the Appropriate Lenders, whereupon (i) each such EurodollarRate Advance under such Facility will automatically, on the last day of thethen existing Interest Period therefor, Convert into a Base Rate Advance and(ii) the obligation of the Appropriate Lenders to make, or to ConvertAdvances into, Eurodollar Rate Advances shall be suspended until theAdministrative Agent shall notify the Borrowers that such Lenders havedetermined that the circumstances causing such suspension no longer exist.

 

(d)                                 Notwithstandingany other provision of this Agreement, if the introduction of or any change inor in the interpretation of any law or regulation shall make it unlawful, orany central bank or other governmental authority shall assert that it isunlawful, for any Lender or its Eurodollar Lending Office to perform itsobligations hereunder to make Eurodollar Rate Advances or to continue to fundor maintain Eurodollar Rate Advances hereunder, then, on notice thereof anddemand therefor by such Lender to the Borrowers through the AdministrativeAgent, (i) each Eurodollar Rate Advance under each Facility under whichsuch Lender has a Commitment will automatically, upon such demand, Convert intoa Base Rate Advance and (ii) the obligation of the Appropriate Lenders tomake, or to Convert Advances into, Eurodollar

 

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RateAdvances shall be suspended until the Administrative Agent shall notify theBorrowers that such Lender has determined that the circumstances causing suchsuspension no longer exist; *provided, however,* that, before making anysuch demand, such Lender agrees to use reasonable efforts (consistent with itsinternal policy and legal and regulatory restrictions) to designate a differentEurodollar Lending Office if the making of such a designation would allow suchLender or its Eurodollar Lending Office to continue to perform its obligationsto make Eurodollar Rate Advances or to continue to fund or maintain EurodollarRate Advances and would not, in the judgment of such Lender, be otherwisedisadvantageous to such Lender.

 

SECTION 2.11.  Payments andComputations.  (a)  The Borrowers shall make each payment hereunderand 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 theAdministrative Agent at the Administrative Agent’s Account in same day funds,with payments being received by the Administrative Agent after such time beingdeemed to have been received on the next succeeding Business Day.  The Administrative Agent will promptlythereafter cause like funds to be distributed (i) if such payment by suchBorrower is in respect of principal, interest, commitment fees or any otherObligation then payable hereunder and under the Notes to more than one LenderParty, to such Lender Parties for the account of their respective ApplicableLending Offices ratably in accordance with the amounts of such respectiveObligations then payable to such Lender Parties and (ii) if such paymentby such Borrower is in respect of any Obligation then payable hereunder to oneLender Party, to such Lender Party for the account of its Applicable LendingOffice, in each case to be applied in accordance with the terms of thisAgreement.  Upon its acceptance of anAssignment and Acceptance and recording of the information contained therein inthe Register pursuant to Section 9.07(d), from and after the effectivedate of such Assignment and Acceptance, the Administrative Agent shall make allpayments hereunder and under the Notes in respect of the interest assignedthereby to the Lender Party assignee thereunder, and the parties to suchAssignment and Acceptance shall make all appropriate adjustments in suchpayments for periods prior to such effective date directly between themselves.

 

(b)                                 EachBorrower hereby authorizes each Lender Party and each of its Affiliates, if andto the extent payment owed to such Lender Party is not made when due hereunderor, in the case of a Lender, under the Note held by such Lender, to charge fromtime to time, to the fullest extent permitted by law, against any or all ofsuch Borrower’s accounts with such Lender Party or such Affiliate any amount sodue.

 

(c)                                  Allcomputations of interest based on the Base Rate shall be made by theAdministrative Agent on the basis of a year of 365 or 366 days, as the case maybe, and all computations of interest based on the Eurodollar Rate or theFederal Funds Rate and of fees and Letter of Credit commissions shall be madeby the Administrative Agent on the basis of a year of 360 days, in each casefor the actual number of days (including the first day but excluding the lastday) occurring in the period for which such interest, fees or commissions arepayable.  Each determination by theAdministrative Agent of an interest rate, fee or commission hereunder shall beconclusive and binding for all purposes, absent manifest error.

 

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(d)                                 Wheneverany payment hereunder or under the Notes shall be stated to be due on a dayother than a Business Day, such payment shall be made on the next succeedingBusiness Day, and such extension of time shall in such case be included in thecomputation of payment of interest or commitment fee, as the case may be; *provided,however,* that, if such extension would cause payment of interest onor principal of Eurodollar Rate Advances to be made in the next followingcalendar month, such payment shall be made on the next preceding Business Day.

 

(e)                                  Unlessthe Administrative Agent shall have received notice from the applicableBorrower prior to the date on which any payment is due to any Lender Partyhereunder that such Borrower will not make such payment in full, theAdministrative Agent may assume that such Borrower has made such payment infull to the Administrative Agent on such date and the Administrative Agent may,in reliance upon such assumption, cause to be distributed to each such LenderParty on such due date an amount equal to the amount then due such LenderParty.  If and to the extent suchBorrower shall not have so made such payment in full to the AdministrativeAgent, each such Lender Party shall repay to the Administrative Agent forthwithon demand such amount distributed to such Lender Party together with interestthereon, for each day from the date such amount is distributed to such LenderParty until the date such Lender Party repays such amount to the AdministrativeAgent, at the Federal Funds Rate.

 

(f)                                    Ifthe Administrative Agent receives funds for application to the Obligationsunder the Loan Documents under circumstances for which the Loan Documents donot specify the Advances or the Facility to which, or the manner in which, suchfunds are to be applied, the Administrative Agent may, but shall not beobligated to, elect to distribute such funds to each Lender Party ratably inaccordance with such Lender Party’s proportionate share of the principal amountof all outstanding Advances and the Available Amount of all Letters of Creditthen outstanding, in repayment or prepayment of such of the outstandingAdvances or other Obligations owed to such Lender Party, and for application tosuch 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 shallbe made, in accordance with Section 2.11, free and clear of and withoutdeduction 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 onits overall net income (including franchise taxes imposed in lieu thereof) bythe United States and taxes that are imposed on its overall net income (andfranchise taxes imposed in lieu thereof) by the state or foreign jurisdictionunder the laws of which such Lender Party or such Agent, as the case may be, isorganized or in which its principal office is located or any politicalsubdivision thereof, (ii) in the case of each Lender Party, taxes that areimposed on its overall net income (and franchise taxes imposed in lieu thereof)by the state or foreign jurisdiction of such Lender Party’s Applicable LendingOffice or any political subdivision thereof and (iii) any branch profits taxesimposed by the United States or any similar tax imposed by any otherjurisdiction described in clauses (i) or (ii) above (all such non-excludedtaxes, levies, imposts, deductions, charges, withholdings and liabilities inrespect of payments hereunder or under the Notes being hereinafter referred toas “***Taxes***”).  If any Borrower shall be required by law todeduct any Taxes from or in respect of any sum payable hereunder or under

 

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any Note to any Lender Party or any Agent, (i) the sum payable bysuch Borrower shall be increased as may be necessary so that after suchBorrower and the Administrative Agent have made all required deductions(including deductions applicable to additional sums payable under thisSection 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 suchdeductions been made, (ii) such Borrower shall make all such deductionsand (iii) such Borrower shall pay the full amount deducted to the relevanttaxation authority or other authority in accordance with applicable law.

 

(b)                                 Inaddition, the Borrowers shall pay any present or future stamp, documentary,excise, property or similar taxes, charges or levies that arise from anypayment made hereunder or under the Notes or from the execution, delivery orregistration of, performance under, or otherwise with respect to, thisAgreement or the Notes (hereinafter referred to as “***Other Taxes***”).

 

(c)                                  TheBorrowers shall indemnify each Lender Party and each Agent for and hold themharmless against the full amount of Taxes and Other Taxes (including Taxes orOther Taxes imposed on amounts payable under this Section 2.12) imposed onor paid by such Lender Party or such Agent (as the case may be) and anyliability (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 suchLender Party or such Agent (as the case may be) makes written demand therefor.

 

(d)                                 Promptlyafter the date of any payment of Taxes, the Borrowers shall furnish to theAdministrative Agent, at its address referred to in Section 9.02, theoriginal or a certified copy of a receipt evidencing such payment, a copy ofthe return reporting such payment or other evidence of such payment reasonablysatisfactory to the Administrative Agent.

 

(e)                                  EachLender Party organized under the laws of a jurisdiction outside the UnitedStates shall, on or prior to the date of its execution and delivery of thisAgreement in the case of each Initial Lender Party, on or prior to the date ofits designation of a new lending office and on the date of the Assignment andAcceptance pursuant to which it becomes a Lender Party in the case of eachother Lender Party, and from time to time thereafter as requested in writing bythe Borrowers (but only so long thereafter as such Lender Party remainslawfully able to do so), provide each of the Administrative Agent and theBorrowers with two properly completed original Internal Revenue Serviceforms W-8BEN or W-8ECI, as appropriate, or any properly completedsuccessor or other form prescribed by the Internal Revenue Service, certifyingthat such Lender Party is exempt from or entitled to a reduced rate of UnitedStates withholding tax on payments pursuant to this Agreement or theNotes.  If the forms provided by aLender Party at the time such Lender Party first becomes a party to thisAgreement (or designates a new lending office) accurately indicate a UnitedStates interest withholding tax rate in excess of zero, withholding tax at suchrate shall be considered excluded from Taxes unless and until such Lender Partyprovides the appropriate forms accurately certifying that a lesser rateapplies, whereupon withholding tax at such lesser rate only shall be consideredexcluded from Taxes for periods governed by such forms; *provided, however,* that if,at the effective date of the Assignment and Acceptance pursuant to which aLender Party becomes a party to this Agreement, the Lender Party assignor wasentitled to payments under subsection (a) of this

 

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Section 2.12in respect of United States withholding tax with respect to interest paid atsuch date, then, to such extent, the term Taxes shall include (in addition towithholding taxes that may be imposed in the future or other amounts otherwiseincludable in Taxes) United States withholding tax, if any, applicable withrespect 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 tocompute the tax payable and information required on the date hereof by InternalRevenue Service form W-BEN or W-8ECI, that the applicable Lender Partyreasonably considers to be confidential, such Lender Party shall give noticethereof to the Borrowers and shall not be obligated to include in such form ordocument such confidential information.

 

(f)                                    Forany period with respect to which a Lender Party has failed to provide suchBorrower 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 aform originally was required to be provided (but only so long as such LenderParty is not lawfully able to provide such form) or if such form otherwise isnot required under subsection (e) above), such Lender Party shall not beentitled to indemnification under subsection (a) or (c) of thisSection 2.12 with respect to Taxes imposed by the United States by reasonof such failure; *provided, however,* that should a Lender Party become subjectto Taxes because of its failure to deliver a form required hereunder, theBorrowers shall take such steps as such Lender Party shall reasonably requestto assist such Lender Party to recover such Taxes.

 

(g)                                 Inthe event that an additional payment is made under Section 2.12 for the accountof any Lender Party and such Lender Party, in its sole opinion, determines thatit has finally and irrevocably received or been granted a refund in respect ofany Taxes or Other Taxes paid pursuant to this Section 2.12, such Lender Partyshall promptly remit such refund to the Borrowers, net of all out-of-pocketexpenses of Lender Party; provided, however, that the Borrowers, upon requestof such Lender Party, agree to promptly return such refund to such Lender Partyin the event such Lender Party is required to repay such refund to the relevanttaxing authority.  Nothing containedherein shall interfere with the right of a Lender Party to arrange its taxaffairs in whatever manner it thinks fit nor oblige any Lender Party to applyfor any refund or to disclose any information relating to its tax affairs orany computations in respect thereof.

 

SECTION 2.13.  Sharing ofPayments, Etc.  If any Lender Partyshall obtain at any time any payment (whether voluntary, involuntary, throughthe exercise of any right of set-off, or otherwise, other than as a result ofan assignment pursuant to Section 9.07) (a) on account of Obligationsdue and payable to such Lender Party hereunder and under the Notes at such timein excess of its ratable share (according to the proportion of (i) theamount 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 LenderParties hereunder and under the Notes at such time) of payments on account ofthe Obligations due and payable to all Lender Parties hereunder and under theNotes 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 suchLender Party hereunder and under the Notes at such time in excess of itsratable share (according to the proportion of (i) the amount of suchObligations owing to such Lender Party at such time to (ii) the aggregateamount of the Obligations owing (but not due and payable) to all Lender Partieshereunder and under the Notes

 

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at such time) of payments on account of the Obligations owing (but notdue and payable) to all Lender Parties hereunder and under the Notes at suchtime obtained by all of the Lender Parties at such time, such Lender Partyshall forthwith purchase from the other Lender Parties such interests or participatinginterests in the Obligations due and payable or owing to them, as the case maybe, as shall be necessary to cause such purchasing Lender Party to share theexcess payment ratably with each of them; *provided, however,* that if all or anyportion of such excess payment is thereafter recovered from such purchasingLender Party, such purchase from each other Lender Party shall be rescinded andsuch other Lender Party shall repay to the purchasing Lender Party the purchaseprice to the extent of such Lender Party’s ratable share (according to theproportion of (i) the purchase price paid to such Lender Party to(ii) the aggregate purchase price paid to all Lender Parties) of suchrecovery together with an amount equal to such Lender Party’s ratable share (accordingto the proportion of (i) the amount of such other Lender Party’s requiredrepayment to (ii) the total amount so recovered from the purchasing LenderParty) of any interest or other amount paid or payable by the purchasing LenderParty in respect of the total amount so recovered; *provided further* that, solong as the Obligations under the Loan Documents shall not have beenaccelerated, any excess payment received by any Appropriate Lender shall beshared on a pro rata basis only with other Appropriate Lenders.  Each Borrower agrees that any Lender Partyso purchasing an interest or participating interest from another Lender Partypursuant 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) withrespect to such interest or participating interest, as the case may be, asfully as if such Lender Party were the direct creditor of such Borrower in theamount of such interest or participating interest, as the case may be.

 

SECTION 2.14.  Use of Proceeds.  The proceeds of the Term Advances were usedprior to the Effective Date (and each Borrower represents that it used suchproceeds) as follows: (i) by BCSI solely to refinance certain existing debtoutstanding on the closing date of the Original Credit Agreement, including theJune BCSI Agreement, to fund Capital Expenditures, to pay transaction fees andexpenses under the Original Credit Agreement and other general corporatepurposes, in each case, to the extent permitted hereunder and under applicableSurviving Debt documents (as defined under the Original Credit Agreement) andto repurchase a portion of the BCI Senior Subordinated Notes; and (ii) byBRW solely to refinance the BofA Credit Agreement, to pay transaction fees andexpenses under the Original Credit Agreement, to make equity contributions andintercompany loans to BCI and its Subsidiaries, to enable BCI to refinancecertain existing debt outstanding on the closing date of the Original CreditAgreement and to repurchase a portion of the BCI Senior Subordinated Notes andfor other general corporate purposes, in each case, to the extent permittedhereunder and under applicable Surviving Debt documents (as defined under theOriginal Credit Agreement).  Theproceeds of the Revolving Credit Advances and issuances of Letters of Creditshall be available to BRW (and BRW agrees that it shall use such proceeds andLetters of Credit) solely to fund Capital Expenditures, to make limited equitycontributions and intercompany loans to BCI and its Subsidiaries and for othergeneral corporate purposes, in each case, to the extent permitted hereunder andunder the applicable Surviving Debt documents and the Junior Notes.

 

SECTION 2.15.  Defaulting Lenders.  (a)  In the event that, at any onetime, (i) any Lender Party shall be a Defaulting Lender, (ii) suchDefaulting Lender shall owe a Defaulted Advance to BRW and (iii) BRW shallbe required to make any payment hereunder or

 

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under any other Loan Document to or for the account of such DefaultingLender, then BRW may, so long as no Default shall occur or be continuing atsuch time and to the fullest extent permitted by applicable law, set off andotherwise apply the Obligation of BRW to make such payment to or for theaccount of such Defaulting Lender against the obligation of such DefaultingLender to make such Defaulted Advance. In the event that, on any date, BRWshall so set off and otherwise apply its obligation to make any such paymentagainst the obligation of such Defaulting Lender to make any such DefaultedAdvance on or prior to such date, the amount so set off and otherwise appliedby BRW shall constitute for all purposes of this Agreement and the other LoanDocuments an Advance by such Defaulting Lender made on the date of such setoffunder the Facility pursuant to which such Defaulted Advance was originallyrequired to have been made pursuant to Section 2.01.  Such Advance shall be considered, for allpurposes of this Agreement, to comprise part of the Borrowing in connectionwith which such Defaulted Advance was originally required to have been madepursuant to Section 2.01, even if the other Advances comprising suchBorrowing shall be Eurodollar Rate Advances on the date such Advance is deemedto be made pursuant to this subsection (a).  BRW shall notify the Administrative Agent at any time BRWexercises its right of set-off pursuant to this subsection (a) and shallset forth in such notice (A) the name of the Defaulting Lender and theDefaulted Advance required to be made by such Defaulting Lender and(B) the amount set off and otherwise applied in respect of such DefaultedAdvance pursuant to this subsection (a). Any portion of such payment otherwise required to be made by BRW to orfor the account of such Defaulting Lender which is paid by BRW, after givingeffect to the amount set off and otherwise applied by BRW pursuant to thissubsection (a), shall be applied by the Administrative Agent as specifiedin subsection (b) or (c) of this Section 2.15.

 

(b)                                 Inthe event that, at any one time, (i) any Lender Party shall be aDefaulting Lender, (ii) such Defaulting Lender shall owe a DefaultedAmount to any Agent or any of the other Lender Parties and (iii) the applicableBorrower shall make any payment hereunder or under any other Loan Document tothe Administrative Agent for the account of such Defaulting Lender, then theAdministrative Agent may, on its behalf or on behalf of such other Agents orsuch other Lender Parties and to the fullest extent permitted by applicablelaw, apply at such time the amount so paid by such Borrower to or for theaccount of such Defaulting Lender to the payment of each such Defaulted Amountto the extent required to pay such Defaulted Amount.  In the event that the Administrative Agent shall so apply anysuch amount to the payment of any such Defaulted Amount on any date, the amountso applied by the Administrative Agent shall constitute for all purposes ofthis Agreement and the other Loan Documents payment, to such extent, of suchDefaulted Amount on such date.  Any suchamount so applied by the Administrative Agent shall be retained by theAdministrative Agent or distributed by the Administrative Agent to such otherAgents or such other Lender Parties, ratably in accordance with the respectiveportions of such Defaulted Amounts payable at such time to the AdministrativeAgent, such other Agents and such other Lender Parties and, if the amount ofsuch payment made by such Borrower shall at such time be insufficient to payall Defaulted Amounts owing at such time to the Administrative Agent, suchother 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 capacitiesas such, ratably in accordance with such respective Defaulted Amounts thenowing to the Agents;

 

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

 

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

 

Any portion of such amount paid by such Borrower forthe account of such Defaulting Lender remaining, after giving effect to theamount applied by the Administrative Agent pursuant to thissubsection (b), shall be applied by the Administrative Agent as specifiedin subsection (c) of this Section 2.15.

 

(c)                                  Inthe event that, at any one time, (i) any Lender Party shall be aDefaulting Lender, (ii) such Defaulting Lender shall not owe a DefaultedAdvance or a Defaulted Amount and (iii) any Borrower, any Agent or anyother Lender Party shall be required to pay or distribute any amount hereunderor under any other Loan Document to or for the account of such DefaultingLender, then such Borrower or such Agent or such other Lender Party shall paysuch amount to the Administrative Agent to be held by the Administrative Agent,to the fullest extent permitted by applicable law, in escrow or the AdministrativeAgent shall, to the fullest extent permitted by applicable law, hold in escrowsuch amount otherwise held by it.  Anyfunds held by the Administrative Agent in escrow under this subsection (c)shall be deposited by the Administrative Agent in an account with Citibank, inthe name and under the control of the Administrative Agent, but subject to theprovisions of this subsection (c). The terms applicable to such account, including the rate of interestpayable with respect to the credit balance of such account from time to time,shall be Citibank’s standard terms applicable to escrow accounts maintainedwith it.  Any interest credited to suchaccount from time to time shall be held by the Administrative Agent in escrowunder, and applied by the Administrative Agent from time to time in accordancewith the provisions of, this subsection (c).  The Administrative Agent shall, to the fullest extent permittedby applicable law, apply all funds so held in escrow from time to time to theextent necessary to make any Advances required to be made by such DefaultingLender and to pay any amount payable by such Defaulting Lender hereunder andunder the other Loan Documents to the Administrative Agent or any other LenderParty, as and when such Advances or amounts are required to be made or paidand, if the amount so held in escrow shall at any time be insufficient to makeand 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 tothem hereunder, in their capacities as such, ratably in accordance with suchrespective 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 andpayable to them hereunder, in their capacities as such, by such DefaultingLender, ratably in accordance with such respective amounts then due and payableto the Issuing Banks and the Swing Line Banks;

 

(iii)*                               third*,to any other Lender Parties for any amount then due and payable by suchDefaulting Lender to such other Lender Parties hereunder, ratably in accordancewith 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 Lenderpursuant to a Commitment of such Defaulting Lender.

 

In the event that any Lender Party that is aDefaulting Lender shall, at any time, cease to be a Defaulting Lender, anyfunds held by the Administrative Agent in escrow at such time with respect tosuch Lender Party shall be distributed by the Administrative Agent to suchLender Party and applied by such Lender Party to the Obligations owing to suchLender Party at such time under this Agreement and the other Loan Documentsratably in accordance with the respective amounts of such Obligationsoutstanding at such time.

 

(d)                                 Therights and remedies against a Defaulting Lender under this Section 2.15are in addition to other rights and remedies that BRW may have against suchDefaulting Lender with respect to any Defaulted Advance and that any Agent orany Lender Party may have against such Defaulting Lender with respect to anyDefaulted Amount.

 

SECTION 2.16.  Evidence of Debt.  (a) Each Lender Party shall maintain in accordance with its usual practicean account or accounts evidencing the indebtedness of each Borrower to suchLender resulting from each Advance owing to such Lender Party from time totime, including the amounts of principal and interest payable and paid to suchLender from time to time hereunder. Each Borrower agrees that upon notice by any Lender Party to suchBorrower (with a copy of such notice to the Administrative Agent) to the effectthat a promissory note or other evidence of indebtedness is required orappropriate in order for such Lender Party to evidence (whether for purposes ofpledge, enforcement or otherwise) the Advances owing to, or to be made by, suchLender Party, such Borrower shall promptly execute and deliver to such LenderParty, with a copy to the Administrative Agent, a Revolving Credit Note and oneor more Term Notes, as applicable, in substantially the form of Exhibits A-1and A-2 hereto, as the case may be, payable to the order of such Lender Partyin a principal amount equal to the Revolving Credit Commitment, the Term ACommitment, the Term B Commitment and the Term C Commitment, as the case maybe, of such Lender Party.  Allreferences to Notes in the Loan Documents shall mean Notes, if any, to theextent issued hereunder.

 

(b)                                 TheRegister maintained by the Administrative Agent pursuant toSection 9.07(d) shall include a control account, and a subsidiary accountfor 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 ofAdvances comprising such Borrowing and, if appropriate, the Interest Period applicablethereto, (ii) the terms of each Assignment and Acceptance delivered to andaccepted by it, (iii) the amount of any principal or interest due andpayable or to become due and payable 

 

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fromsuch Borrower to each Lender Party hereunder, and (iv) the amount of anysum received by the Administrative Agent from such Borrower hereunder and eachLender Party’s share thereof.

 

(c)                                  Entriesmade in good faith by the Administrative Agent in the Register pursuant tosubsection (b) above, and by each Lender Party in its account or accountspursuant to subsection (a) above, shall be *prima facie* evidence of the amount ofprincipal and interest due and payable or to become due and payable from eachBorrower to, in the case of the Register, each Lender Party and, in the case ofsuch account or accounts, such Lender Party, under this Agreement, absentmanifest error; *provided, however,* that the failure of the AdministrativeAgent or such Lender Party to make an entry, or any finding that an entry isincorrect, in the Register or such account or accounts shall not limit orotherwise affect the obligations of the Borrowers under this Agreement.

 

# **ARTICLE III**

# ** **

**CONDITIONS OFEFFECTIVENESS, LENDING AND**

**ISSUANCES OFLETTERS OF CREDIT**

** **

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

 

(a)                                  TheAdministrative Agent shall have received on or before the Effective Date thefollowing, each dated such day (unless otherwise specified), in form andsubstance satisfactory to the Agents (unless otherwise specified) and (exceptfor the Notes) in sufficient copies for each Lender Party:

 

(i)                                     TheNotes payable to the order of the Lenders that have requested replacement Notesprior to the Effective Date.

 

(ii)                                  Anamended and restated security agreement from (a) BRW in substantially the formof Exhibit D-1 hereto (the “***Shared Collateral Security Agreement***”) and (b) theother Loan Parties in substantially the form of Exhibit D-2 hereto (the “***Non-Shared Collateral SecurityAgreement***”; together with the Shared Collateral SecurityAgreement, each other security agreement and security agreement supplementdelivered 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 restatedguaranty from (a) the Subsidiary Guarantors who have guaranteed theObligations of BCSI and its Subsidiaries under the Loan Documents (the “***BCSI Subsidiary Guaranty***”)and (b) the Subsidiary Guarantors who have guaranteed the Obligations ofBRW and its Subsidiaries under the Loan Documents (the “***BRW Subsidiary Guaranty***”), in each case, insubstantially the form of Exhibit E hereto (together with each otherguaranty and guaranty supplement delivered pursuant to Section 5.01(j), ineach

 

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

 

(iv)                              Certifiedcopies of the resolutions of the Board of Directors (or persons performingsimilar functions), or, in the case of wholly owned Subsidiaries, action byunanimous written consent of the sole shareholder, of each Loan Party approvingthe Transaction and each Loan Document to which it is or is to be a party, theconsummation of each aspect of the Transaction involving or affecting such LoanParty and the other transactions contemplated by any of the foregoing, and ofall documents evidencing other necessary corporate action and governmental andother third party approvals, consents, authorizations, notices and filings ofactions with respect to the Transaction and each Loan Document to which it isor is to be a party.

 

(v)                                 Acertificate of each Loan Party, signed on behalf of such Loan Party by itsPresident or a Vice President or Treasurer and its Secretary or any AssistantSecretary (or persons performing similar functions), dated the Effective Date(the statements made in which certificate shall be true on and as of theEffective Date), certifying as to (A) the absence of any amendments to thecharter, articles of incorporation or certificate of formation, as applicable,of such Loan Party since the date such documents were delivered to theAdministrative Agent under the Existing Credit Agreement, (B) the absenceof any amendments to the bylaws or limited liability company agreement, asapplicable, of such Loan Party since the date such documents were delivered tothe Administrative Agent under the Existing Credit Agreement, (C) noproceeding for dissolution or liquidation of such Loan Party has been commencedby such Loan Party, (D) the truth of the representations and warrantiescontained in the Loan Documents as they relate to such Loan Party as thoughmade on and as of the Effective Date (except to the extent they expresslyrelate to an earlier date, in which case certifying that such representationsand warranties are true and correct as of such earlier date) and (E) theabsence of any event relating to such Loan Party occurring and continuing, orreasonably expected to result from the consummation of the Transaction, thatconstitutes a Default.

 

(vi)                              Acertificate of the Secretary or an Assistant Secretary of each Loan Partycertifying the names and true signatures of the officers, partners, members orequivalent persons of such Loan Party authorized to sign each TransactionDocument to which it is or is to be a party and the other documents to bedelivered hereunder and thereunder.

 

(vii)                            A favorable opinion ofCravath, Swaine & Moore, with respect to the Loan Documents, in formreasonably acceptable to the Agents.

 

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

 

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(ix)                                Afavorable opinion of Shearman & Sterling, counsel for theAdministrative Agent, in form and substance satisfactory to the AdministrativeAgent.

 

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

 

(xi)                              Such other documents andcertificates as the Administrative Agent or its counsel may reasonably requestrelating to the authorization of the Transaction and other legal mattersrelating to the Borrowers and the Transaction.

 

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

 

(c)                                  Thereshall exist no action, suit, investigation, litigation or proceeding affectingany Loan Party or any of its Subsidiaries pending or, to the best knowledge ofany Loan Party or any of its Subsidiaries, threatened before any court,governmental agency or arbitrator that (i) could be reasonably likely tohave a Material Adverse Effect or (ii) purports to affect the legality,validity or enforceability of any Transaction Document except for the mattersdescribed in Schedule 4.01(f) hereto (the “***Disclosed Litigation***”), as they relateto the consummation of  the Transaction;and there shall have been no material adverse change in the status, or thereasonably anticipated financial effect on any Loan Party or any of itsSubsidiaries, of such Disclosed Litigation from that described onSchedule 4.01(f) hereto.

 

(d)                                 Allgovernmental and third party consents and approvals and authorizations of,notices and filings to or with, and other actions by any other Person necessaryin connection with any aspect of the Transaction, any of the Loan Documents orthe Related Documents or any of the other transactions contemplated thereby,shall have been obtained (without the imposition of any conditions that are notacceptable to the Lender Parties) and shall remain in effect; all applicablewaiting periods in connection with the Transaction shall have expired withoutany action being taken by any competent authority, and no law or regulationshall be applicable in the judgment of the Lender Parties, in each case thatrestrains, prevents or imposes materially adverse conditions upon theTransaction or the rights of the Loan Parties or their Subsidiaries freely totransfer or otherwise dispose of, or to create any Lien on, any properties nowowned or hereafter acquired by any of them.

 

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

 

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

 

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proceedsshall have been applied to the prepayment of the Facilities in accordance withclause (x) of the *proviso* inSection 5.02(b)(i)(B) and not less than $50,250,000 of such net cash proceedsshall have been applied as a prepayment to the Revolving Credit Advances madeby BRW with a corresponding permanent reduction in the Revolving CreditCommitment.

 

(g)                                 TheBorrowers shall have paid all accrued fees of the Agents and the Lender Parties(including the amendment fees payable to the Lender Parties on the EffectiveDate as agreed among the Agents and BRW) and all accrued expenses of the Agents(including the reasonable accrued fees and expenses of counsel to theAdministrative Agent to the Lender Parties).

 

(II)  Conditions Precedent to Effectiveness ofthe Part II Effective Date**.** The Part II Effective Date shall becomeeffective without any further action on the part of any party hereto on and asof the first date (the “***PartII Effective Date***”) on which all of the following conditionsprecedent shall have been satisfied:

 

(a)                                  TheEffective Date shall have occurred.

 

(b)                                 BRWshall have obtained a waiver (the “***Oak Hill Waiver***”) from the holders of the OakHill Debt of all default provisions in Sections 6.1(f) or (g) of the Oak HillIndenture by, against or with respect to BCI or any of its Subsidiaries andsimilar provisions, if any, in the notes issued in connection therewith in formand substance reasonably satisfactory to the Agents.

 

(c)                                  Asof the date of effectiveness of the Oak Hill Waiver, no other Debt of BRW orany of its Subsidiaries shall have been accelerated by reason of a SpecifiedDefault.

 

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

 

(e)                                  TheFacilities, or any part thereof, shall not have been accelerated pursuant toSection 7.01.

 

SECTION 3.02.  Conditions Precedentto 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 RevolvingCredit Lender pursuant to Section 2.03(c) and a Swing Line Advance made bya Revolving Credit Lender pursuant to Section 2.02(b)) on the occasion ofeach Borrowing (including the initial Borrowing), and the obligation of eachIssuing Bank to issue a Letter of Credit (including the initial issuance) orrenew a Letter of Credit and the right of BRW to request a Swing LineBorrowing, shall be subject to the further conditions precedent that on thedate of such Borrowing or issuance or renewal (a) the following statementsshall 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 theacceptance by BRW of the proceeds of such Borrowing or of such Letter of Creditor the

 

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renewal of such Letter of Credit shall constitute a representation andwarranty by BRW, on its behalf and on behalf of BCSI, that both on the date ofsuch notice and on the date of such Borrowing or issuance or renewal suchstatements are true):

 

(i)                                     therepresentations and warranties contained in each Loan Document (except to theextent made by or relating to BCI or any Subsidiary of BCI) are correct on andas of such date, before and after giving effect to such Borrowing or issuanceor renewal as though made on and as of such date; and

 

(ii)                                  noDefault has occurred and is continuing, or would result from such Borrowing orissuance or renewal or from the application of the proceeds therefrom; and

 

(b) the Administrative Agent shall have receivedsuch other certificates, opinions and other documents as any Appropriate Lender through the AdministrativeAgent may reasonably request in order to confirm (i) the accuracy of BRW’srepresentations and warranties (except to the extent relating to BCI or anySubsidiary of BCI), (ii) BRW’s timely compliance with the terms, covenantsand agreements set forth in this Agreement and (iii) the absence of anyDefault; and (c) prior to and after giving effect to any Revolving CreditAdvance (and giving effect to any debt service and other payments anticipatedto be made within 20 days of such Revolving Credit Advance), the total cash andCash Equivalents held by BRW and its Subsidiaries, on a Consolidated basis,shall not exceed (A) prior to the completion of the Second Stage Closing underthe BCSI Sale Agreement (or the final consummation of any transaction effectedunder Section 5.02(e)(ix) in lieu of a transaction under the BCSI SaleAgreement), $50,000,000 and (B) thereafter, $40,000,000, excluding, in eachcase in clauses (A) and (B), amounts held in cash collateral accounts pursuantto Section 5.02(e)(ix)(E).

 

SECTION 3.03.  Determinations UnderSection 3.01.  For purposes ofdetermining compliance with the conditions specified in Section 3.01, eachLender Party shall be deemed to have consented to, approved or accepted or tobe satisfied with each document or other matter required thereunder to beconsented to or approved by or acceptable or satisfactory to the Lender Partiesunless an officer of the Administrative Agent responsible for the transactionscontemplated by the Loan Documents shall have received notice from such LenderParty prior to the Effective Date specifying its objection thereto and, if aninitial Borrowing is requested to be made on the Effective Date, such LenderParty shall not have made available to the Administrative Agent such LenderParty’s ratable portion of such Borrowing.

 

# **ARTICLE IV**

# ** **

**REPRESENTATIONSAND WARRANTIES**

** **

SECTION 4.01.  Representationsand Warranties of the Borrowers. Each Borrower represents and warrants as follows:

 

(a)                                  EachLoan Party and each of its Subsidiaries (i) is a corporation or limitedliability company duly organized, validly existing and in good standing underthe laws of the jurisdiction of its organization, (ii) is duly qualifiedand in good standing as a foreign corporation or limited liability company ineach other jurisdiction in which it owns or

 

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leasesproperty or in which the conduct of its business requires it to so qualify orbe licensed except where the failure to so qualify or be licensed could not bereasonably likely to have a Material Adverse Effect and (iii) has allrequisite power and authority (including, without limitation, all governmentallicenses, permits and other approvals) to own or lease and operate itsproperties and to carry on its business as now conducted and as proposed to beconducted.  Each of the Loan Parties hasall of the requisite power and authority, and the legal right, to execute anddeliver each of the Loan Documents and the Related Documents to which it is oris to be a party, to perform all of its Obligations hereunder and thereunderand to consummate the Transaction and all of the other transactionscontemplated hereby and thereby.

 

(b)                                 Setforth on Schedule 4.01(b) hereto is a complete and accurate list of allSubsidiaries of each Loan Party, showing as of the date hereof (as to each suchSubsidiary) the jurisdiction of its organization, the number and type of eachclass of its Equity Interests authorized, and the number outstanding, on thedate 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 byall outstanding options, warrants, rights of conversion or purchase and similarrights at the date hereof.  All of theoutstanding Equity Interests in each Loan Party’s Subsidiaries has been validlyissued, are fully paid and non-assessable and are owned by such LoanParty or one or more of its Subsidiaries free and clear of all Liens, exceptthose created under the Collateral Documents.

 

(c)                                  Theexecution, delivery and performance by each Loan Party of each TransactionDocument to which it is or is to be a party, and the consummation of theTransaction, are within such Loan Party’s corporate powers, have been dulyauthorized by all necessary corporate action, and do not (i) contravenesuch Loan Party’s charter or bylaws, (ii) violate any law, rule,regulation (including, without limitation, Regulation X of the Board ofGovernors of the Federal Reserve System), order, writ, judgment, injunction,decree, determination or award, (iii) conflict with or result in thebreach of, or constitute a default or, except as set forth in the attachedSchedule 4.01(c)(iii), require any payment to be made under, any contract, loanagreement, indenture, mortgage, deed of trust, lease or other instrumentbinding on or affecting any Loan Party, any of its Subsidiaries or any of theirproperties or (iv) except for the Liens created under the Loan Documents,result in or require the creation or imposition of any Lien upon or withrespect to any of the properties of any Loan Party or any of itsSubsidiaries.  No Loan Party or any ofits Subsidiaries is in violation of any such law, rule, regulation, order,writ, judgment, injunction, decree, determination or award or in breach of anysuch contract, loan agreement, indenture, mortgage, deed of trust, lease orother instrument, the violation or breach of which could have a MaterialAdverse Effect.

 

(d)                                 Noauthorization or approval or other action by, and no notice to or filing with,any governmental authority or regulatory body or any other third party isrequired for (i) the due execution, delivery, recordation, filing orperformance by any Loan Party of any Transaction Document to which it is or isto be a party, or for the consummation of the Transaction, (ii) the grantby any Loan Party of the Liens granted by it pursuant to the CollateralDocuments, (iii) the perfection or maintenance of the Liens created under

 

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theCollateral Documents (including the first priority nature thereof) or(iv) the exercise by any Agent or any Lender Party of its rights under theLoan Documents or the remedies in respect of the Collateral pursuant to theCollateral Documents, except for the authorizations, approvals, actions,notices and filings listed on Schedule 4.01(d) hereto, all of which havebeen duly obtained, taken, given or made and are in full force and effect.  Notwithstanding the foregoing, it isunderstood that (i) no regulatory approvals have been obtained in connectionwith the pledge of shares of any regulated entity and (ii) as of the datehereof no regulatory approvals have been obtained or are being sought inconnection with the possible exercise of remedies under this Agreement or anyof the Collateral Documents.  Allapplicable waiting periods in connection with the Transaction have expiredwithout any action having been taken by any competent authority restraining,preventing or imposing materially adverse conditions upon the Transaction orthe rights of the Loan Parties or their Subsidiaries freely to transfer orotherwise dispose of, or to create any Lien on, any properties now owned orhereafter acquired by any of them.

 

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

 

(f)                                    Thereis no action, suit, investigation, litigation or proceeding affecting any LoanParty or any of its Subsidiaries pending or, to the best knowledge of any LoanParty, threatened before any court, governmental agency or arbitrator of anykind that (i) either individually or in the aggregate, could be reasonablylikely to have a Material Adverse Effect other than any such action, suit,investigation, litigation or proceeding affecting BCI or any of itsSubsidiaries after the Part II Effective Date which does not affect BRW or anyof its Subsidiaries, or (ii) in which there is a reasonable likelihood ofan adverse determination and which purports to affect the legality, validity orenforceability of any Transaction Document or the consummation of theTransaction, any of the Loan Documents or the Related Documents or any of theother transactions contemplated hereby.

 

(g)                                 TheConsolidated balance sheets of BRW and its Subsidiaries (including BCI and itsSubsidiaries) as at December 31, 2001, and the related Consolidated andconsolidating, if any, statements of income and Consolidated statement of cashflows of BRW and its Subsidiaries (including BCI and its Subsidiaries) for thefiscal year then ended, accompanied by an unqualified opinion of PWCindependent 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 consolidatingstatements of income and Consolidated statement of cash flows of BRW and itsSubsidiaries (including BCI and its Subsidiaries) for the nine months thenended, duly certified by the Chief Financial Officer of BRW, copies of whichhave been furnished to each Lender Party, fairly present the Consolidated andconsolidating financial condition of BRW and its Subsidiaries (including BCIand its

 

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Subsidiaries)as at such dates and the Consolidated and consolidating results of operationsof BRW and its Subsidiaries (including BCI and its Subsidiaries) for theperiods ended on such dates, all in accordance with generally acceptedaccounting principles applied on a consistent basis, and sinceDecember 31, 2001, there has been no Material Adverse Change;

 

(h)                                 [IntentionallyOmitted.]

 

(i)                                     TheConsolidated and consolidating forecasted balance sheets, statements of incomeand statements of cash flows of BRW and its Subsidiaries included in theInformation Materials (as applicable) or delivered to the Lender Partiespursuant to Section 5.03 were prepared in good faith on the basis of theassumptions stated therein, which assumptions were fair in light of theconditions existing at the time of delivery of such forecasts, and represented,at the time of delivery, BRW’s best estimate of its future financialperformance.

 

(j)                                     Neitherthe Information Materials nor any other information, exhibit or reportfurnished by or on behalf of any Loan Party to any Agent or any Lender Party inconnection with the Loan Documents or pursuant to the terms of the LoanDocuments contained any untrue statement of a material fact or omitted to statea material fact necessary to make the statements made therein not misleading.

 

(k)                                  NoBorrower is engaged in the business of extending credit for the purpose ofpurchasing or carrying Margin Stock, and following the application of the proceedsof each Advance or drawing under each Letter of Credit, not more than 25% ofthe value of the assets (of BRW and its Subsidiaries (including BCI and itsSubsidiaries) on a Consolidated basis) subject to the provisions ofSection 5.02(a) or 5.02(e) or subject to any restriction contained in anyagreement or instrument between BRW and any Lender Party or any Affiliate ofany Lender Party relating to Debt within the scope of 7.01(e) will be MarginStock.  For purposes of thisSection 4.01(k), “assets” of BRW or any of its Subsidiaries includes,without limitation, treasury stock of BRW that has not been retired.

 

(l)                                     Neitherany 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 Actof 1940, as amended.  Neither any LoanParty nor any of its Subsidiaries is a “holding company”, or a “subsidiarycompany” of a “holding company”, or an “affiliate” of a “holding company” or ofa “subsidiary company” of a “holding company”, as such terms are defined in thePublic Utility Holding Company Act of 1935, as amended.  Neither the making of any Advances, nor theissuance of any Letters of Credit, nor the application of the proceeds orrepayment thereof by such Borrower, nor the consummation of the othertransactions contemplated by the Transaction Documents, will violate anyprovision of any such Act or any rule, regulation or order of the Securitiesand Exchange Commission thereunder.

 

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(m)                               Neitherany Loan Party nor any of its Subsidiaries is a party to any indenture, loan orcredit agreement or any lease or other agreement or instrument or subject to anycharter or corporate restriction that could have a Material Adverse Effect.

 

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

 

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

 

(p)                                 (i)  No ERISA Event has occurred or is reasonablyexpected to occur with respect to any Plan that has resulted in or isreasonably expected to have a Material Adverse Effect on any Loan Party or anyERISA Affiliate.

 

(ii)                                  ScheduleB (Actuarial Information) to the most recent annual report (Form 5500Series) for each Plan, copies of which have been filed with the InternalRevenue Service and furnished or made available to the Lender Parties, iscomplete and accurate in all material respects and fairly presents the fundingstatus of such Plan, and since the date of such Schedule B there has beenno material adverse change in such funding status.

 

(iii)                               Neither any Loan Partynor any ERISA Affiliate has incurred or to the best knowledge of any Loan Partyor any ERISA Affiliate is reasonably expected to incur any Withdrawal Liabilityin respect of any Multiemployer Plan.

 

(iv)                              Neitherany Loan Party nor any ERISA Affiliate has been notified by the sponsor of aMultiemployer Plan that such Multiemployer Plan is in reorganization or hasbeen terminated, within the meaning of Title IV of ERISA, and no suchMultiemployer Plan to the best knowledge of any Loan Party or any ERISAAffiliate is reasonably expected to be in reorganization or to be terminated,within the meaning of Title IV of ERISA.

 

(q)                                 Exceptfor such matters that could not be reasonably likely to have a Material AdverseEffect (i) the operations and properties of each Loan Party and each of itsSubsidiaries comply in all respects with all Environmental Laws andEnvironmental Permits, all past non-compliance with such Environmental Laws andEnvironmental Permits has been resolved without ongoing obligations or costs,and no circumstances exist that could be reasonably likely to (A) form thebasis of an Environmental Action

 

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againstany 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/orenvironmental transfer act restrictions under any Environmental Law.  In addition to the foregoing, it isunderstood and agreed that the Borrowers will comply with regulatoryrequirements set forth in Schedule 4.01(q);

 

(ii)                                  noneof the properties currently or formerly owned or operated by any Loan Party orany of its Subsidiaries is listed or, to the knowledge of any Loan Party or anyof their Subsidiaries, proposed for listing on the NPL or on the CERCLIS or anyanalogous foreign, state or local list; and during the ownership or operationthereof by any Loan Party or any of their Subsidiaries, Hazardous Materialswere not and have not been released, discharged or disposed of on any propertycurrently or formerly owned or operated by any Loan Party or any of itsSubsidiaries; and

 

(iii)                               neither any Loan Partynor any of its Subsidiaries is undertaking, and has not completed, eitherindividually or together with other potentially responsible parties, anyinvestigation or assessment or remedial or response action relating to anyactual or threatened release, discharge or disposal of Hazardous Materials atany site, location or operation, either voluntarily or pursuant to the order ofany governmental or regulatory authority or the requirements of anyEnvironmental Law; and during the ownership or operation thereof by any LoanParty or any of their Subsidiaries, all Hazardous Materials generated, used,treated, handled or stored at, or transported to or from, any propertycurrently or formerly owned or operated by any Loan Party or any of itsSubsidiaries were and have been disposed of in a manner not reasonably expectedto result in liability to any Loan Party or any of its Subsidiaries.

 

(r)                                    (i)  Each Loan Party and each of its Subsidiariesand Affiliates has filed, has caused to be filed or has been included in allmaterial tax returns (Federal, state, local and foreign) required to be filedand has paid all taxes shown thereon to be due, together with applicableinterest and penalties, except any taxes that are being contested in good faithby appropriate proceedings and for which the Loan Party, its Subsidiaries orits Affiliates, as the case may be, has set aside on its books adequate reserves;

 

(ii)                                  Theaggregate 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 ofits Subsidiaries and Affiliates proposed by the Internal Revenue Service or by any state, local andforeign taxing authorities with respect to any years for which the expirationof the applicable statute of limitations for assessment or collection has notoccurred by reason of extension or otherwise along with any issues raised bythe Internal Revenue Service in respect of such years could not, in theaggregate, reasonably be expected to have a Material Adverse Effect; and

 

(s)                                  [IntentionallyOmitted.]

 

(t)                                    Setforth on Schedule 4.01(t) hereto is a complete and accurate list of allSurviving Debt, showing as of the date hereof the obligor and the principalamount outstanding thereunder, the maturity date thereof and the amortizationschedule therefor.

 

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(u)                                 Setforth on Schedule 4.01(u) hereto is a complete and accurate list of allLiens as of the date of the Existing Credit Agreement on the property or assetsof any Loan Party or any of its Subsidiaries; provided**that each Borrower further represents andwarrants that no Liens exist on such property or assets other than Lienscreated under the Loan Documents, those listed on Schedule 4.01(u) and thosepermitted under Section 5.02(a).

 

(v)                                 Setforth on Schedule 4.01(v) hereto is a complete and accurate list of allInvestments held by any Loan Party or any of its Subsidiaries on the datehereof, showing as of the date hereof the amount, obligor or issuer andmaturity, if any, thereof.

 

(w)                               Setforth on Schedule 4.01(w) hereto is a complete and accurate list of allMaterial Contracts of each Loan Party and its Subsidiaries, showing as of thedate hereof the parties, subject matter and term thereof.  Each such Material Contract has been dulyauthorized, executed and delivered by all parties thereto, has not been amendedor otherwise modified, is in full force and effect and is binding upon andenforceable against all parties thereto in accordance with its terms, and thereexists no default under any Material Contract by any party thereto.

 

# **ARTICLE V**

# ** **

**COVENANTS OFTHE BORROWERS**

** **

SECTION 5.01.  Affirmative Covenants.  So long as any Advance or any otherObligation of any Loan Party under any Loan Document shall remain unpaid, anyLetter of Credit shall be outstanding or any Lender Party shall have anyCommitment hereunder, BRW and, where specifically indicated, BCSI will:

 

(a)                                  Compliancewith Laws, Etc.  (i) Comply, andcause each of its Subsidiaries to comply, in all material respects, with allapplicable laws, rules, regulations and orders, such compliance to include,without limitation, compliance with ERISA and the Racketeer Influenced andCorrupt Organizations Chapter of the Organized Crime Control Act of 1970and (ii) except as provided in Section 5.01(e), obtain and maintain ineffect all Governmental Authorizations that are necessary (A) to own or leaseand operate their respective property and assets and to conduct theirrespective businesses as now conducted and as proposed to be conducted, exceptwhere and to the extent that the failure to obtain or maintain in effect anysuch Governmental Authorization, either individually or in the aggregate, couldnot reasonably be expected to have a Material Adverse Effect, or (B) for thedue execution, delivery or performance by BRW or any of its Subsidiaries of anyof the Loan Documents or the Related Documents to which it is or is to be aparty, or for the consummation of any aspect of the Transaction or any of theother transactions contemplated hereby and thereby.  This Section 5.01(a) shall not apply to compliance withEnvironmental Laws or Environmental Permits (which is the subject of Section5.01(c)).

 

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(b)                                 Paymentof Taxes, Etc.  Pay and discharge,and cause each of its Subsidiaries to pay and discharge, before the same shallbecome delinquent, (i) all taxes, assessments and governmental charges orlevies imposed upon it or upon its property and (ii) all lawful claimsthat, if unpaid, might by law become a Lien upon its property; *provided,however,* that neither BRW nor any of its Subsidiaries shall berequired to pay or discharge any such tax, assessment, charge or claim that isbeing contested in good faith and by proper proceedings and as to whichappropriate reserves are being maintained, unless and until any Lien resultingtherefrom attaches to its property and becomes enforceable against its othercreditors.

 

(c)                                  Compliancewith Environmental Laws.  Comply,cause each of its Subsidiaries and use its best efforts (which efforts shallinclude ensuring that all applicable leases, licenses or other such agreementsinclude provisions requiring such compliance) to cause all lessees and otherPersons operating or occupying its properties to comply, in all materialrespects, with all Environmental Laws and Environmental Permits; obtain andrenew and cause each of its Subsidiaries to obtain and renew all EnvironmentalPermits necessary for its operations and properties; and conduct, and causeeach of its Subsidiaries to conduct, any investigation, study, sampling andtesting, and undertake any cleanup, removal, remedial or other action necessaryto remove and clean up Hazardous Materials from any of its properties, to theextent required by Environmental Laws, except where and to the extent that thefailure to comply with Environmental Laws, obtain or renew EnvironmentalPermits or to conduct such cleanup, removal, remedial or other action,individually or in the aggregate, could not reasonably be expected to have aMaterial Adverse Effect; *provided, however,* that neither BRW norany 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 isbeing contested in good faith and by proper proceedings and appropriatereserves are being maintained with respect to such circumstances.

 

(d)                                 Maintenanceof Insurance.  Maintain, and causeeach of its Subsidiaries to maintain, insurance with responsible and reputableinsurance companies or associations in such amounts and covering such risks asis usually carried by companies engaged in similar businesses and owningsimilar properties in the same general areas in which BRW or such Subsidiaryoperates (it being understood that, to the extent consistent with prudentbusiness 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 inan aggregate amount not to exceed $50,000,000).

 

(e)                                  Preservationof Corporate Existence, Etc.  Exceptas otherwise permitted under Section 5.02(d) or 5.02(e)(ix), preserve andmaintain, and cause each of its Subsidiaries to preserve and maintain, itsexistence, legal structure, legal name (it being understood that legal namechanges for BRW and any of its Subsidiaries (including BCI and itsSubsidiaries) may be made so long as BRW makes arrangements acceptable to theAgents to timely refile financing statements and other filings relating tosecurity interests), rights (charter and statutory), permits, licenses,approvals, privileges and franchises.

 

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(f)                                    VisitationRights.  Upon reasonable notice, atany reasonable time and from time to time, permit any of the Agents or any ofthe Lender Parties (coordinated through the Administrative Agent), or anyagents or representatives thereof, to examine and, with the consent of BRW,which consent shall not be unreasonably withheld, make copies of and abstractsfrom the records and books of account of, and visit the properties of, eachBorrower and any of its Subsidiaries, and to discuss the affairs, finances andaccounts of each Borrower and any of its Subsidiaries with any of theirofficers or directors and, together with an authorized representative of a LoanParty, with their independent certified public accountants.

 

(g)                                 Keepingof Books.  Keep, and cause each ofits Subsidiaries to keep, proper books of record and account, in which full andcorrect entries shall be made of all financial transactions and the assets andbusiness of BRW and each such Subsidiary in accordance with generally acceptedaccounting principles in effect from time to time.

 

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

 

(i)                                     Transactionswith Affiliates.  With respect toeach Borrower, conduct, and cause each of its Subsidiaries to conduct, alltransactions otherwise permitted under the Loan Documents with any of theirAffiliates on terms that are fair and reasonable and no less favorable to eachBorrower or such Subsidiary than it would obtain in a comparable arm’s-lengthtransaction with a Person not an Affiliate (it being understood that anytransaction involving the Oak Hill Debt, the Junior Notes or any RelatedDocument that is expressly permitted under Section 5.02, any Permitted BCITransaction, any transaction of the type described in Schedule 1.01 and anynon-cash transition arrangements or other related services provided to or forthe benefit of a buyer in connection with a transaction permitted under Section5.02(e)(ix), including under any BRW Sale Arrangements, shall be deemed not toviolate this Section 5.01(i)).

 

(j)                                     Covenantto Guarantee Obligations and Give Security.  (I) Upon (A) the occurrence and during the continuance of aDefault or (B) the Index Debt of BRW being rated lower than BB- by S&Por Ba3 by Moody’s, then each Borrower shall, in each case at such Borrower’sexpense and to the fullest extent permitted under the Certificate ofDesignation and the BCI 9% Indenture (it being acknowledged by the Agents thatall actions required to be taken under this subsection (j)(I) on or prior tothe Effective Date have already been taken):

 

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

 

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(2)                                  byJune 2, 2002, cause each Subsidiary (other than the Excluded Entities and aCFC) (to the extent it has not already done so), to duly execute and deliver tothe Administrative Agent a guaranty or Guaranty Supplement, in form andsubstance satisfactory to the Administrative Agent, guaranteeing the other LoanParties’ obligations under the Loan Documents,

 

(3)                                within15 days thereafter duly execute and deliver, and cause each such Subsidiary(other than the Excluded Entities) and each direct and indirect parent of suchSubsidiary (if it has not already done so) to duly execute and deliver, to theAdministrative Agent mortgages, pledges, assignments, security agreementsupplements and other security agreements, as specified by and in form andsubstance satisfactory to the Administrative Agent, securing payment of all theObligations of the applicable Loan Party, such Subsidiary or such parent, asthe case may be, under the Loan Documents and constituting Liens on all suchreal and personal properties other than:

 

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

 

b.                                                                                      theEquity Interests of Wireless LLC held by Wireless Holdco;

 

c.                                                                                       theSpectrum Assets;

 

d.                                                                                      anyitem of real property of BRW or such Subsidiaries that has been irrevocablytransferred under title documents satisfactory to the Agents to the Real EstateSPV under terms and conditions acceptable to the Agents (a “***Transfer***”); *provided*that if such real property istransferred out of the Real Estate SPV, the Real Estate SPV will be required todeliver mortgages, assignments, surveys (if requested by the AdministrativeAgent) and title insurance all in form and substance satisfactory to the Agentson such real property at or before the time of such transfer unless such realproperty is sold or otherwise transferred to a Person in a transactionpermitted by Section 5.02(e);

 

e.                                                                                       anyitem of real property, the mortgage or Transfer, as the case may be, of whichis prohibited by or would constitute a breach of or a default under or giverise to a right of termination under the underlying documentation, wheredespite the use of best efforts by BRW or such Subsidiaries to obtain a consentto so mortgage or Transfer, such consent cannot be obtained; *provided* that BRW or such Subsidiarieswill attempt to obtain the

 

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consent toTransfer if a consent to mortgage any such property interest cannot beobtained;

 

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

 

provided, *however*, that:

 

(A)                            forpurposes of this Section 5.01(j)(I)(3), the use of “best efforts” will notrequire the payment of any monetary consideration or expending continuedefforts to obtain such consent if BRW has diligently followed all agreed uponprocedures in attempting to obtain such consent unless, after BRW advises thatit cannot obtain a particular consent, the Agents, in their discretionreasonably exercised and in consultation with the Consultant, determine thatthe value to the Lenders of such collateral warrants paying additionalconsideration or expending continuing efforts to obtain such consent;

 

(B)                              notwithstandingthe foregoing, the****Agents mayrequest that BRW or its Subsidiaries (including BCI and its Subsidiaries) grantmortgages on additional real property (other than real property that is held inthe Real Estate SPV) and provide surveys, title insurance or other reportsspecified in Section 5.02(j)(I)(6) on any real property (other than realproperty that is held in the Real Estate SPV) at any time in their solediscretion; and

 

(C)                              inthe event that there is a change in the circumstances which gave rise to anyreal property interest being excluded from the requirements of this Section5.01(j)(I) or the restrictions which prevented delivering documents hereunderor consummating a Transfer of such real property no longer exist, BRW and itsSubsidiaries (including BCI and its Subsidiaries) shall promptly Transfer suchreal property to the Real Estate SPV or execute and deliver to theAdministrative Agent all applicable documents required to be delivered underthis Section 5.01(j)(I);

 

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

 

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governmentalauthorities which prohibits, restricts or requires regulatory approval for the(x) pledging of assets or (y) incurrence of indebtedness, and (2) any actiondescribed in clause (x) or (y) could not in the determination of BRW reasonablyexercised be expected to result in any such regulatory authority taking anaction or refusing to take an action which action or refusal to take any actioncould have a material adverse effect on CBT, then CBT shall cease to be anExcluded Entity and shall as promptly as practicable deliver to theAdministrative Agent supplements to the Security Agreements and SubsidiaryGuaranties in form and substance satisfactory to the Administrative Agent andshall as promptly as practicable take all steps necessary to comply with thisSection 5.01(j**)**.

 

(4)                                  within30 days thereafter, take, and cause such Subsidiary or such parent to take,whatever action (including, without limitation, the recording of mortgages, thefiling of Uniform Commercial Code financing statements, the giving of noticesand the endorsement of notices on title documents) may be necessary oradvisable in the opinion of the Administrative Agent to vest in theAdministrative Agent (or in any representative of the Administrative Agentdesignated by it) valid and subsisting Liens on and security interests in thereal and personal properties purported to be subject to the mortgages, pledges,assignments, security agreement supplements and security agreements deliveredpursuant to this Section 5.01(j), enforceable against all third parties inaccordance with their terms,

 

(5)                                  within35 days thereafter, deliver to the Administrative Agent, upon the request ofthe Administrative Agent in its sole discretion, a signed copy of a favorableopinion, 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, asto such guaranties, guaranty supplements, mortgages, pledges, assignments,security agreement supplements and security agreements being legal, valid andbinding obligations of each Loan Party party thereto enforceable in accordancewith their terms, (y) as to the matters contained in clause (4)above, as to such recordings, filings, notices, endorsements and other actionsbeing sufficient to create valid perfected Liens on such properties, and(z) as to such other matters as the Administrative Agent may reasonablyrequest,

 

(6)                                  aspromptly as practicable thereafter, deliver to the Administrative Agent titlesearch reports (review of which shall be limited to the verification of thetransferees of such property except in the case of real properties for whichmortgages are being delivered) on all real property held by BRW and itsSubsidiaries (including BCI and its Subsidiaries but excluding ExcludedEntities) as requested by the Administrative Agent, and upon the request of theAdministrative Agent in its sole discretion, deliver to the AdministrativeAgent with respect to each parcel of real property owned or held by the entitythat is the subject of such request, formation or acquisition title reports(review of which

 

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shallbe limited to the verification of the transferees of such property except inthe case of real properties for which mortgages are being delivered), surveysand 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 berequired for any real property that is held in the Real Estate SPV, *provided further* to the extent that anyLoan Party or any of its Subsidiaries shall have otherwise received any of theforegoing items with respect to such real property, such items shall, promptlyafter the receipt thereof, be delivered to the Administrative Agent,

 

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

 

(8)                                  atany time and from time to time, promptly execute and deliver any and allfurther instruments and documents and take all such other action as theAdministrative Agent may deem necessary or desirable in obtaining the fullbenefits of, or in perfecting and preserving the Liens of, such guaranties,mortgages, pledges, assignments, security agreement supplements and securityagreements;

 

*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 anadditional (x) 90 days, solely in the case of obtaining required approvals orconsents for the pledging of assets, or (y) 120 days, solely in the case ofobtaining required regulatory approvals for the pledging of assets)(it beingunderstood that the Agents will grant any requested extension pursuant to this *proviso* if such extension is requiredsolely because of the need to obtain regulatory approvals and BRW, BCI andtheir Subsidiaries are using their best efforts to obtain such approvals); and

 

(II)  Upon(A) the formation or acquisition of any new direct or indirectSubsidiaries 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 datehereof that limit, restrict or prohibit the creation, pledge or assignment of asecurity interest in the Excluded Equity Interests (as defined in the SecurityAgreements) are no longer in effect or (y) the creation, pledge or assignment ofsuch security interest is no longer prohibited, then each Borrower shall, ineach case at such Borrower’s expense:

 

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(1)                                  within10 days thereafter, cause each Subsidiary, to duly execute and deliver to theAdministrative Agent a guaranty or Guaranty Supplement, in form and substancesatisfactory to the Administrative Agent, guaranteeing the other Loan Parties’obligations under the Loan Documents,

 

(2)                                  within15 days thereafter duly execute and deliver, and cause each such Subsidiary andeach direct and indirect parent of such Subsidiary (if it has not already doneso) to duly execute and deliver, to the Administrative Agent pledges,assignments, security agreement supplements and other security agreements, asspecified by and in form and substance satisfactory to the AdministrativeAgent, securing payment of all the Obligations of the applicable Loan Party,such Subsidiary or such parent, as the case may be, under the Loan Documentsand constituting Liens on all such personal property,

 

(3)                                  within30 days thereafter, take, and cause such Subsidiary or such parent to take,whatever action (including, without limitation, the filing of UniformCommercial Code financing statements) may be necessary or advisable in theopinion of the Administrative Agent to vest in the Administrative Agent (or inany representative of the Administrative Agent designated by it) valid andsubsisting Liens on and security interests in the personal property purportedto be subject to the pledges, assignments, security agreement supplements andsecurity agreements delivered pursuant to this Section 5.01(j) enforceableagainst all third parties in accordance with their terms,

 

(4)                                  within35 days thereafter, deliver to the Administrative Agent, upon the request ofthe Administrative Agent in its sole discretion, a signed copy of a favorableopinion, addressed to the Administrative Agent and the other Secured Parties,of counsel for the Loan Parties acceptable to the Administrative Agent (x) asto the matters contained in clauses (1) through (3) above, as to suchguaranties, Guaranty Supplements, pledges, assignments, security agreementsupplements and security agreements being legal, valid and binding obligationsof each Loan Party party thereto enforceable in accordance with their terms,(y) as to the matters contained in clause (3) above, as to suchrecordings, filings, and other actions being sufficient to create validperfected Liens on such properties, and (z) as to such other matters asthe Administrative Agent may reasonably request, and

 

(5)                                  atany time and from time to time, promptly execute and deliver any and allfurther instruments and documents and take all such other action as theAdministrative Agent may deem necessary or desirable in obtaining the fullbenefits of, or in perfecting and preserving the Liens of, such guaranties,pledges, assignments, security agreement supplements and security agreements.

 

(k)                                  FurtherAssurances.  (i)  Promptlyupon request by any Agent, or any Lender Party through the AdministrativeAgent, in the case of each Borrower, correct, and cause each of itsSubsidiaries promptly to correct, any material defect or error that

 

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may be discoveredin any Loan Document or in the execution, acknowledgment, filing or recordationthereof, and

 

(ii)                                  Promptlyupon request by any Agent, or any Lender Party through the AdministrativeAgent, in the case of each Borrower, do, execute, acknowledge, deliver, record,re-record, file, re-file, register and re-register any and all such furtheracts, deeds, conveyances, pledge agreements, mortgages, deeds of trust, trustdeeds, assignments, financing statements and continuations thereof, terminationstatements, notices of assignment, transfers, certificates, assurances andother instruments as any Agent, or any Lender Party through the AdministrativeAgent, may reasonably require from time to time in order to (A) carry outmore effectively the purposes of the Loan Documents, (B) to the fullestextent permitted by applicable law, subject any Loan Party’s or any of itsSubsidiaries’ properties, assets, rights or interests to the Liens now orhereafter intended to be covered by any of the Collateral Documents,(C) perfect and maintain the validity, effectiveness and priority of anyof the Collateral Documents and any of the Liens intended to be createdthereunder and (D) assure, convey, grant, assign, transfer, preserve,protect and confirm more effectively unto the Secured Parties the rightsgranted or now or hereafter intended to be granted to the Secured Parties underany Loan Document or under any other instrument executed in connection with anyLoan Document to which any Loan Party or any of its Subsidiaries is or is to bea party, and cause each of its Subsidiaries to do so.

 

(l)                                     Performanceof Related Documents.  Perform andobserve, and cause each of its Subsidiaries to perform and observe, all of theterms and provisions of each Related Document to be performed or observed byit, maintain each such Related Document in full force and effect (other than inconnection with a BCI Exchange to the extent permitted by Section 5.02),enforce such Related Document in accordance with its terms, take all suchaction to such end as may be from time to time requested by the AdministrativeAgent and, upon request of the Administrative Agent, make to each other partyto each such Related Document such demands and requests for information andreports or for action BRW or any of its Subsidiaries is entitled to make undersuch Related Document.

 

(m)                               Preparationof Environmental Reports.  Upon theoccurrence of a Default or other circumstances that may reasonably be likely tohave a Material Adverse Effect, at the request of the Administrative Agent,provide to the Lender Parties within 60 days after such request, at the expenseof BRW, an environmental site assessment report in connection with such Defaultor other circumstances for any of its or its Subsidiaries’ properties describedin such request, prepared by an environmental consulting firm acceptable to theAdministrative Agent, indicating the presence or absence of Hazardous Materialsand the estimated cost of any compliance, removal or remedial action inconnection with any Hazardous Materials on such properties; without limitingthe generality of the foregoing, if the Administrative Agent determines at anytime that a material risk exists that any such report will not be providedwithin the time referred to above, the Administrative Agent may retain anenvironmental consulting firm to prepare such report at the expense of BRW, andBRW hereby grants and agrees to cause any

 

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Subsidiarythat owns any property described in such request to grant at the time of suchrequest to the Agents, the Lender Parties, such firm and any agents orrepresentatives thereof an irrevocable non-exclusive license, subject tothe rights of tenants, to enter onto their respective properties to undertakesuch an assessment.

 

(n)                                 Compliancewith Terms of Leaseholds.  Make allpayments and otherwise perform all obligations in respect of all leases of realproperty to which BRW or any of its Subsidiaries is a party, keep such leasesin full force and effect and not allow such leases to lapse or be terminated orany rights to renew such leases to be forfeited or cancelled, notify theAdministrative Agent of any default by any party with respect to such leasesand cooperate with the Administrative Agent in all respects to cure any suchdefault, 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 notbe reasonably likely to have a Material Adverse Effect.

 

(o)                                 InterestRate Hedging.  Maintain in fullforce and effect each of the interest rate Hedge Agreements in existence on theEffective Date that were entered into pursuant to Section 5.01(o) of theExisting Credit Agreement to the extent such Hedge Agreements were requiredthereunder immediately prior to the occurrence of the Effective Date.

 

(p)                                 Performanceof Material Contracts.  Perform andobserve all the terms and provisions of each Material Contract to be performedor observed by it, maintain each such Material Contract in full force andeffect, enforce each such Material Contract in accordance with its terms, takeall such action to such end as may be from time to time requested by theAdministrative Agent and, upon request of the Administrative Agent, make toeach other party to each such Material Contract such demands and requests forinformation and reports or for action as BRW or any of its Subsidiaries isentitled to make under such Material Contract, and cause each of itsSubsidiaries to do so, except, in any case, where the failure to do so, eitherindividually or in the aggregate, could not be reasonably likely to have aMaterial Adverse Effect.

 

(q)                                 [IntentionallyOmitted].

 

(r)                                    CashManagement System. Maintain the cash management system with BroadwingFinancial LLC, as more particularly described in the attached Schedule 5.01(r)(the “***BRW CashManagement System***”).

 

(s)                                  Separate Corporate Existence of Special Purpose Vehicles.  Cause each of Wireless Holdco and, so longas any Collateral is held thereby, Broadwing Communications Real EstateServices LLC (each an “***SPV***”)to comply in all respects with the terms and provisions of the corporateseparateness covenants set forth in the supplements to the SubsidiaryGuaranties to which each SPV is a party as if such covenants were set forth infull in this Agreement.

 

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

 

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

 

(ii)                                  eachmember of the BCI Group will maintain a separate address from the address ofany member of the BRW Group and vice versa, or to the extent any members of theBCI 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, witheach such entity bearing its fair share of such expense;

 

(iii)                               theBCI Group will issue separate financial statements prepared not less frequentlythan quarterly and prepared in accordance with GAAP (except for the omission ofcertain footnotes and other presentation items required by GAAP with respect toaudited financial statements), which financial statements need not beseparately audited or reviewed by an independent accounting firm;

 

(iv)                              eachmember of the BCI Group will conduct its affairs strictly in accordance withits certificate of formation and limited liability company agreement (orsimilar constitutive documents) and observe all necessary, appropriate andcustomary company (or corporate) formalities, including, but not limited to,holding all regular and special members’ and board of managers’ (orstockholders’ and directors’ or other similar Persons) meetings appropriate toauthorize all company (or corporate) action, keeping separate and accurateminutes of its meetings, passing all resolutions or consents necessary toauthorize actions taken or to be taken, and maintaining accurate and separatebooks, records and accounts, including, but not limited to, payroll andintercompany transaction accounts, to the extent applicable;

 

(v)                                 otherthan as required under the Loan Documents or pursuant to the terms of anydocuments governing any Existing Debt, and except for any transaction of thetype described on Schedule 1.01 and any non-cash transition arrangements orother related services provided to or for the benefit of a buyer in connectionwith a transaction permitted under Section 5.02(e)(ix), including any BRW SaleArrangements, each member of the BCI Group will refrain from assuming orguaranteeing any of the liabilities or pledging any of its assets for thebenefit of any member of the BRW Group and each member of the BRW Group willrefrain from assuming or guaranteeing any of the liabilities or pledging any ofits assets for the benefit of any member of the BCI Group or holding out its 

 

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credit as being availableto satisfy the obligations of the BCI Group;

 

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

 

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

 

(u)                                 MinimumLiquidity Plan.   In the event thatthe Minimum Liquidity of BRW and its Subsidiaries is below $50,000,000 for morethan 5 consecutive Business Days, (i) notify the Agents thereof in writingwithin 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 Agentswithin 30 days after the date of such notification which plan shall demonstrateto the reasonable satisfaction of the Agents the actions that BRW will take toensure that the Minimum Liquidity of BRW will be greater than $50,000,000through December 31, 2005 and (iii) meet with the Agents to discuss thecontingent liquidity plan and the finances of BRW as they may reasonablyrequest and provide the Agents access to the books and records of BRW so thatthe Agents may complete such due diligence analysis of the liquidity andfinances of BRW as they reasonably deem necessary.

 

SECTION 5.02.  NegativeCovenants.  So long as any Advanceor any other Obligation of any Loan Party under any Loan Document shall remainunpaid, any Letter of Credit shall be outstanding or any Lender Party shallhave 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 itsproperties of any character (including, without limitation, accounts) whethernow owned or hereafter acquired, or sign or file or suffer to exist, or permitany of its Subsidiaries to sign or file or suffer to exist, under the UniformCommercial Code of any jurisdiction, a financing statement that names anyBorrower or any of its Subsidiaries as debtor, or sign or suffer to exist, orpermit any of its Subsidiaries to sign or suffer to exist, any securityagreement authorizing any secured party thereunder to file such financingstatement, or assign, or permit any of its Subsidiaries to assign, any accountsor other right to receive income, except:

 

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(i)                                     Lienscreated under the Loan Documents;

 

(ii)                                  PermittedLiens;

 

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

 

(iv)                              purchasemoney Liens upon or in real property or equipment acquired or held by suchBorrower or any of its Subsidiaries in the ordinary course of business tosecure the purchase price of such property or equipment or to secure Debtincurred solely for the purpose of financing the acquisition, construction orimprovement of any such property or equipment to be subject to such Liens, orLiens existing on any such property or equipment at the time of acquisition(other than any such Liens created in contemplation of such acquisition that donot secure the purchase price), or extensions, renewals, refundings orreplacements of any of the foregoing for the same or a lesser amount; *provided,however*, that no such Lien shall extend to or cover any propertyother than the property or equipment being acquired, constructed orimproved, and no such extension, renewal, refunding or replacement shall extendto or cover any property not theretofore subject to the Lien being extended,renewed, refunded or replaced (except to the extent of financed construction orimprovement); and *provided further* that the aggregate principal amount of theDebt secured by Liens permitted by this clause (iv) shall not exceed theamount permitted under Sections 5.02(b)(iii)(B) and 5.02(b)(v)(B) at any timeoutstanding;

 

(v)                                 Liensarising in connection with Capitalized Leases permitted under Sections5.02(b)(iii)(C) and 5.02(b)(v)(C); *provided* that no such Lien shall extend toor cover any Collateral or assets other than the assets subject to suchCapitalized Leases;

 

(vi)                              Liens(including financing statements and undertakings to file financing statements)arising solely from precautionary filings of financing statements under theUniform Commercial Code of the applicable jurisdiction in respect of equipmentleases 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 theequipment being leased under such lease and the proceeds thereof;

 

(vii)                           Leases, subleases, licensesand sublicenses of the type referred to in Section 5.02(e)(vii) granted tothird parties in the ordinary course of business, in each case not interferingin any respect with the Liens of the Administrative Agent or the Lendersgranted by the Loan Documents and not otherwise prohibited by the terms of theLoan Documents;

 

(viii)                        banker’s liens and rights ofoffset of the holders of Debt of the Borrowers or any Subsidiary on moniesdeposited by the Borrowers or any

 

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Subsidiarywith such holders of Debt in the ordinary course of business of the Borrowersor any such Subsidiary;

 

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

 

(x)                                   Liensfor judgments not in excess of $30,000,000 for which appropriate reserves havebeen maintained in accordance with GAAP and Liens for judgments in excess of$30,000,000 in respect of which (i) no enforcement proceedings have beencommenced by any creditor upon such judgment or (ii) there has been no periodof 30 consecutive days during which a stay of enforcement of such judgment ororder, 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 similarrights in respect of capacity, dark fiber and similar assets of BRW, BCI andtheir Subsidiaries in the ordinary course of business either existing as of thedate hereof or as permitted under Section 5.02(e)(i) or 5.02(e)(viii)(B);

 

(xii)                           any Lien, lease or other granton or of any assets of BRW or its Subsidiaries other than assets constitutingCollateral under the Loan Documents that at the time created, incurred, assumedor otherwise arising constituted or resulted from a Permitted BCI Transactionso 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 thana proceeding in connection with a Prepackaged Plan or a sale agreement executedprior to commencement of such proceedings which agreement contemplates a saleof all or substantially all of the assets of BCI and its Subsidiaries pursuantto Section 363 of the Bankruptcy Code); and

 

(xiii)                        any escrow arrangement fundedwith or constituted from asset sale proceeds in respect of any agreementproviding for Permitted Obligations (including escrow arrangements under eachof the Escrow Agreements) and Liens on Acquired Assets (as defined in the BCSISale Agreement) under the Security Agreement (as defined in the BCSI SaleAgreement).

 

(b)                                 Debt.  Create, incur, assume or suffer to exist, orpermit any of its Subsidiaries to create, incur, assume or suffer to exist, anyDebt, except:

 

(i)                                     inthe case of BRW,

 

(A)                              Debtin respect of Hedge Agreements maintained under Section 5.01(o) and otherHedge Agreements not in violation of Section 5.02(n); *provided* that no HedgeAgreement with any Person other than a Lender Party (or Affiliate of a LenderParty) may be a Secured Hedge Agreement,

 

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(B)                                NewNotes issued for cash (without duplication of clause (E) below); *provided*that (x) 100% of the first $150 million (after giving effect to the issuance ofthe Junior Notes) of Net Cash Proceeds from the issuance of New Notes shall beapplied to prepay the Facilities, with such prepayment to be allocated ratablyto the Revolving Credit Advances (as set forth in Section 2.06(b)(v)), the TermA Advances, the Term B Advances and the Term C Advances and to the remaininginstallments 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 theissuance of the Junior Notes) from the issuance of New Notes shall be appliedto 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 andapplied to the remaining installments thereof pro rata and *second* to the RevolvingCredit Advances as set forth in clause 2.06(b)(v) (it being understood that allexpenses or other amounts deducted in determining the calculation of Net CashProceeds from the issuance of New Notes at the same time shall be appliedequally over the total principal amount of the New Notes being issued at suchtime);*provided*that theAdministrative Agent shall have received a certificate of a Responsible Officerof BRW certifying that after giving effect to such issuance, BRW and itsSubsidiaries are on a pro forma basis in compliance with Section 5.04during the Facilities Period,

 

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

 

(D)                               Debtowed to a wholly owned Subsidiary of BRW permitted under Section 5.02(f)(xi); *provided*that such Debt (x) shallconstitute Pledged Debt, (y) shall be on terms acceptable to the Agents and(z) if evidenced by promissory notes, shall be in form and substancesatisfactory to the Agents and such promissory notes shall be pledged as securityfor the Obligations of the holder thereof under the Loan Documents to whichsuch holder is a party and delivered to the Administrative Agent pursuant tothe terms of the Security Agreements; *providedfurther*, *however*, thatBRW may not incur such Debt to service Debt under the New Notes or makepayments in respect of Other Permitted Equity if a Blocking Event has occurredand is continuing,

 

(E)                                 Debtin respect of the Junior Notes and any Debt extending the maturity of, orrefunding, 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 connectiontherewith, are otherwise permitted by the Loan Documents, *provided further* that (1)the principal amount of such Debt shall not be increased above the principalamount thereof outstanding (plus accrued interest and fees thereon) immediatelyprior to such

 

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extension,refunding, renewal or refinancing, (2) the direct and contingent obligorstherefor shall not be changed, as a result of or in connection with suchextension, refunding, renewal or refinancing, (3) such Debt as so refunded,refinanced or renewed shall not mature prior to the stated maturity date ormandatory redemption date of the Junior Notes being so extended, refunded,refinanced or renewed, (4) such extended, refunded, renewed or refinanced Debtshall be subordinated to the Obligations under the Facilities to at least thesame extent as the Junior Notes, (5) such Debt as so refunded, refinanced orrenewed shall not contain any grant of collateral or rights to collateral orany covenants or defaults that are more restrictive, or subordination termsthat are more narrow, in any material respect than the terms of the JuniorNotes being so extended, refunded, refinanced or renewed, and (6) such Debt asso refunded, refinanced or renewed will not provide any put, redemption orprepayment right, or any amortization or maturity date, prior to the end of theFacilities Period, and

 

(F)                                 Debtof BRW incurred in connection with a BCI Exchange including Debt of BRW issuedto a third party provided that the proceeds of such Debt are applied to theprepayment or retirement of the BCI Senior Subordinated Notes (and any Debtextending the maturity of, or refunding, renewing or refinancing, in whole orin part, such Debt of BRW, *provided*thatthe terms of any such extending, refunding, renewal or refinancing Debt, and ofany agreement entered into and of any instrument issued in connectiontherewith, satisfy the requirements set forth in clause (E) above with eachreference therein to Junior Notes being replaced with a reference to the Debtunder this clause (F)); *provided*thatsuch Debt (v) contains only pay in kind interest payment obligations during theFacilities Period, (w) is not convertible or exchangeable for any EquityInterests other than common stock of BRW, (x) the aggregate amount of cash paidin respect of redemptions, repayments or fees in connection with all BCIExchanges shall not exceed the amounts agreed to in writing by BRW and theAgents and (y) any instrument or agreement evidencing such Debt entered into inconnection with any BCI Exchange will not contain any grant of collateral orrights to collateral or any covenants or defaults that are more restrictive, orsubordination terms that are more narrow (e.g., no less favorable to the LenderParties), in any material respect than the terms of the Oak Hill Indenture andwill not provide any put, redemption or prepayment right, or any amortizationor maturity date, prior to the end of the Facilities Period;

 

(ii)                                  inthe case of any Subsidiary of BRW (including BCI and its Subsidiaries), Debtowed 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 acceptableto the Agents, (C) if evidenced by promissory notes, in form and substancesatisfactory to the Agents and such promissory notes shall be pledged assecurity for the Obligations of the holder thereof under the Loan

 

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Documentsto which such holder is a party and delivered to the Administrative Agent pursuantto the terms of the Security Agreements and (D) in the case of BCI or any ofits Subsidiaries, the incurrence of such Debt is permitted under Section5.02(f)(xiii); and

 

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

 

(A)                              Debtunder the Loan Documents,

 

(B)                                Debtsecured by Liens permitted by Section 5.02(a)(iv) not to exceed$75,000,000 in aggregate principal amount at any time outstanding; providedthat any Debt outstanding under this clause (B) of a type described in Section5.02(b)(v)(B), will automatically reduce the amount of Debt of such typepermitted to be outstanding at such time under Section 5.02(b)(v)(B),

 

(C)                                CapitalizedLeases not to exceed in the aggregate $125,000,000 at any time outstanding,**andto the extent included in “Capitalized Leases” for purposes of GAAP, IRUsincurred in the ordinary course of business; provided that any Debt outstandingunder this clause (C) of a type described in Section 5.02(b)(v)(C), willautomatically reduce the amount of Debt of such type permitted to beoutstanding at such time under Section 5.02(b)(v)(C),

 

(D)                               theSurviving Debt (other than Debt under (iii)(C) above), and any Debt extendingthe maturity of, or refunding, renewal or refinancing, in whole or in part, anySurviving Debt, *provided* that the terms of any such extending, refunding,renewal or refinancing Debt, and of any agreement entered into and of anyinstrument issued in connection therewith, are otherwise permitted by the LoanDocuments, *providedfurther* that (1) the principal amount of such Surviving Debt shallnot be increased above the principal amount thereof outstanding (plus accruedinterest and fees thereon) immediately prior to such extension, refunding,renewal or refinancing, (2) the direct and contingent obligors therefor shallnot be changed, as a result of or in connection with such extension, refunding,renewal or refinancing, (3) such Surviving Debt as so refunded, refinanced orrenewed shall not mature prior to the stated maturity date or mandatory redemptiondate of the Surviving Debt being so extended, refunded, refinanced or renewed,(4) if the Surviving Debt being so extended, refunded, refinanced or renewed issubordinated in right of payment or otherwise to the Obligations of theBorrowers or any of their Subsidiaries under and in respect of the LoanDocuments, such extended, refunded, renewed or refinanced Surviving Debt shallbe subordinated to such Obligations to at least the same extent, (5) suchSurviving Debt as so refunded, refinanced or renewed shall not contain anygrant of collateral or rights to collateral or any covenants or defaults thatare more restrictive, or

 

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

 

(E)                                 unsecuredDebt incurred in the ordinary course of business for borrowed money or for thedeferred purchase price of property or services, maturing after the FinalMaturity 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 timeoutstanding,

 

(F)                                 endorsementof negotiable instruments for deposit or collection or similar transactions inthe ordinary course of business,

 

(G)                                unsecured short-term Debt in an aggregate principal amount not to exceed$20,000,000,

 

(H)                               ContingentObligations of BRW or any of its Subsidiaries that are Subsidiary Guarantorsguaranteeing all or any portion of the outstanding Obligations of any of theother Loan Parties other than with respect to the Senior Notes or in connectionwith the BCI Exchange; *provided* that (i) such Obligations are nototherwise prohibited under the terms of the Loan Documents and such ContingentObligations are unsecured or (ii) in the case of such outstanding ContingentObligations in respect of obligations of BCI or any of its Subsidiaries, suchContingent Obligations are permitted under Section 5.02(f)(xiii),

 

(I)                                    Debtconsisting of debits and credits among the Subsidiaries of BRW arising underthe BRW Cash Management System,

 

(J)                                   Debtof one or more Foreign Subsidiaries arising in the ordinary course of businessin an aggregate principal amount not to exceed $5,000,000 at any timeoutstanding; provided that all such Debt incurred pursuant to this subclause(K) shall be nonrecourse in all respects to the property and assets of the LoanParties and their Subsidiaries (other than one or more of the ForeignSubsidiaries),

 

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

 

(L)                                 Debtconstituting Permitted Obligations, and

 

(M)                            Debtthat at the time created, incurred, assumed or otherwise arising constituted aPermitted BCI Transaction so long as at such time no BCI Event of Defaultspecified under Section 7.03(b) shall have occurred with respect to BCI or anyof its Subsidiaries (other than a

 

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proceedingin connection with a Prepackaged Plan or a sale agreement executed prior tocommencement of such proceedings which agreement contemplates a sale of all orsubstantially all of the assets of BCI and its Subsidiaries pursuant to Section363 of the Bankruptcy Code); and

 

(iv)                              inthe case of Wireless LLC,

 

(A)                              Debtrelating to the acquisition of the Spectrum Assets not to exceed $60,000,000 inaggregate principal amount at any time outstanding,

 

(B)                                CapitalizedLeases, Debt secured by Liens permitted by Section 5.02 (a)(iv) or unsecuredDebt, in the case of such unsecured Debt, maturing after the Final MaturityDate of the Term C Facility, in the ordinary course of business for borrowedmoney 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 thisclause (B), *provided* that anyDebt outstanding under this clause (B) of a type described in Section5.02(b)(iii)(B), (C) or (E), as the case may be, will automatically reduce theamount of Debt of such type permitted to be outstanding at such time under suchclause (B), (C) or (E), as applicable,

 

(C)                                Debtof 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 ofclause (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) thatis owed to BRW or to a Subsidiary of BRW may be refinanced with Debt owed to aPerson other than a Subsidiary of BRW; *provided*that any Debt outstanding at any time under clause (x) of a typedescribed in any clause of Section 5.02(b)(iii) will automatically reduce theamount of Debt of such type permitted to be outstanding at such time under suchclause of Section 5.02(b)(iii), as applicable.

 

(v)                                inthe case of BCI and its Subsidiaries,

 

(A)                              Debtunder the Loan Documents,

 

(B)                                Debtsecured by Liens permitted by Section 5.02(a)(iv) existing on theEffective Date not to exceed $75,000,000 in aggregate principal amount at anytime outstanding, *provided* thatany Debt outstanding under this clause (B) of a type described in Section5.02(b)(iii)(B), will automatically reduce the amount of Debt of such typepermitted to be outstanding at such time under Section 5.02(b)(iii)(B),

 

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(C)                                CapitalizedLeases 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 courseof business*provided* that anyDebt outstanding under this clause (C) of a type described in Section5.02(b)(iii)(C), will automatically reduce the amount of Debt of such typepermitted to be outstanding at such time under Section 5.02(b)(iii)(C),

 

(D)                               theSurviving Debt (other than Debt under Section 5.02(b)(v)(C) above), and anyDebt extending the maturity of, or refunding, renewal or refinancing, in wholeor in part, any Surviving Debt, *provided* that the terms of any suchextending, refunding, renewal or refinancing Debt, and of any agreement enteredinto and of any instrument issued in connection therewith, are otherwisepermitted by the Loan Documents, *provided further* that (1) the principalamount of such Surviving Debt shall not be increased above the principal amountthereof outstanding (plus accrued interest and fees thereon) immediately priorto such extension, refunding, renewal or refinancing, (2) the direct andcontingent obligors therefor shall not be changed, as a result of or inconnection with such extension, refunding, renewal or refinancing (other thanin connection with a BCI Exchange), (3) such Surviving Debt as so refunded,refinanced or renewed shall not mature prior to the stated maturity date ormandatory 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 theObligations of the Borrowers or any of their Subsidiaries under and in respectof the Loan Documents, such extended, refunded, renewed or refinanced SurvivingDebt 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 anygrant of collateral or rights to collateral or any covenants or defaults thatare more restrictive, or subordination terms that are more narrow, in anymaterial 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 FacilitiesPeriod,

 

(E)                                 Debtin respect of intercompany notes issued by BCI or its Subsidiaries to anymember of the BRW Group,

 

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

 

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(G)                                endorsementof negotiable instruments for deposit or collection or similar transactions inthe ordinary course of business,

 

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

 

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

 

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

 

(c)                                  Changein Nature of Business.  Make, orpermit any of its Subsidiaries to make, any material change in the nature ofits business as carried on at the date hereof, it being agreed that no transactionunder Section 5.02(e)(ix) shall constitute such a change.

 

(d)                                 Mergers, Etc.  Mergeinto or consolidate with any Person or permit any Person to merge into it, orpermit any of its Subsidiaries to do so, except that:

 

(i)                                     anySubsidiary of BRW may merge into or consolidate with any other Subsidiary ofBRW and any Subsidiary of BCI may merge into or consolidate with any otherSubsidiary of BCI, *provided* that, in the case of any suchmerger or consolidation, the Person formed by such merger or consolidationshall be a wholly owned Subsidiary of BRW or BCI, as the case may be, *providedfurther* that, in the case of any such merger or consolidation towhich a Subsidiary Guarantor is a party, the Person formed by such merger orconsolidation shall be a Subsidiary Guarantor (or, any transaction to whichBCSI is a party, a Borrower);

 

(ii)                                  BRWmay merge with or into any wholly owned Subsidiary of BRW that is formed solelyfor the purpose of effecting a corporate name change and the transfer ofrelated intellectual property, *provided* that BRW is the survivingcorporation in respect of such merger;

 

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

 

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

 

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(v)                                 followingthe completion of a BCI Exchange in respect of 66 2/3% or more of theoutstanding BCI Exchangeable Preferred Stock, BCI may merge with a newly formedspecial purpose Subsidiary of BRW, *provided*thatthe surviving corporation in respect of such merger shall be deemed to be BCIfor all purposes hereunder, including without limitation, the covenants setforth in Section  5.01(t);

 

*provided, however,*that in each case, immediately after giving effect thereto, no event shalloccur and be continuing that constitutes a Default and, in the case of any suchmerger 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 orother right to purchase, lease or otherwise acquire any assets other thanInventory to be sold in the ordinary course of its business, except:

 

(i)                                     dispositionsof inventory in the ordinary course of its business,  including, without limitation, fiber swaps and capacity swaps inthe ordinary course of business;

 

(ii)                                  dispositionsof equipment which, in the aggregate during any Fiscal Year, have a fair marketvalue or book value, whichever is greater, of $250,000 or less;

 

(iii)                               dispositions of propertythat is substantially worn, damaged, obsolete or, in the reasonable judgment ofthe applicable Borrower, no longer best used or useful in the conduct of itsbusiness or operations or that of any of its Subsidiaries;

 

(iv)                              transfersof assets necessary to give effect to merger or consolidation transactionspermitted by Section 5.02(d); *provided*,*however*, that no assetsshall be transferred hereunder by any Loan Party to CBT or its Subsidiaries inan amount exceeding $1,000,000 in book value of assets;

 

(v)                                 thedisposition of cash or investment securities in the ordinary course ofmanagement of the investment portfolio of the applicable Borrower and itsSubsidiaries and any disposition of any Investment acquired as considerationreceived in respect of or as a result of any transaction under Section5.02(e)(ix);

 

(vi)                              thesale or discount without recourse of delinquent accounts receivable or notesreceivable for collection purposes, or the conversion or exchange of delinquentaccounts receivable into or for notes receivable in connection with thecompromise or collection thereof, each in the ordinary course of business andnot intended to constitute a financing arrangement;

 

(vii)                           operating leases enteredinto in the ordinary course of business and subleases of real property andlicenses of intellectual property in the ordinary

 

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courseof its business, in each case, not intended to constitute a financingarrangement;

 

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

 

(A) any sale of assets of BRW and its Subsidiaries nototherwise permitted to be sold, leased, transferred or disposed of pursuant tothis Section 5.02(e) so long as the fair market value of all of the propertyand assets of BRW and its Subsidiaries so sold, leased, transferred orotherwise disposed of pursuant to this clause (viii) does not exceed$50,000,000 per annum, *provided*, that (x) the gross proceedsreceived from any such sale shall be at least equal to the fair market value ofthe 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 anysuch sale, lease, transfer or other disposition shall be in cash and shall bereceived within 5 Business Days after the date of consummation of suchtransaction; or

 

(B) any sale of or granting of any interest in dark fiberor IRUs in dark fiber or fiber capacity, *provided* (i) that such sale or grantingwould not result in BRW and its Subsidiaries having the cumulative indefeasibleright to use the telecommunications capacity on less than 12 Backbone Fibers,and (ii) that the Responsible Officers or Board of Directors, as the case maybe, of BRW has determined in good faith that the disposition of the fibercapacity involved in such sale or granting would not cause a shortage of fibercapacity to BRW or any of its Subsidiaries that would interfere with BRW’s orany of its Subsidiaries’ ability to continue to provide telecommunicationsservices at the then current level and those levels projected over the term ofthis Agreement,

 

*provided* that, BRWshall, on the date of receipt by any Loan Party or any of its Subsidiaries ofthe Net Cash Proceeds from any such sale, lease, transfer, or other dispositionpursuant to this subclause (viii), prepay the Advances pursuant to, and in theamount and order of priority set forth in, Section 2.06(b)(ii), asspecified 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 businessas of the Effective Date of BRW and its Subsidiaries with reasonable promptnessand, in any event, not later than 3 months from the date of receiptthereof.  The failure of BRW to prepaythe Advances with such Net Cash Proceeds on the date of receipt of suchproceeds shall constitute a representation by BRW as of such date that the NetCash Proceeds from such sale, lease, transfer or other disposition will bereinvested in the existing lines of business of BRW and its Subsidiaries withreasonable promptness and, in any event, not later than 3 months from the dateof

 

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receiptthereof and that such reinvested Net Cash Proceeds do not exceed $20,000,000 inaggregate for such Fiscal Year.  Thequarterly compliance certificate of the Chief Financial Officer of BRWdelivered pursuant to Section 5.03(c) shall contain a certification by suchofficer that all such Net Cash Proceeds received during such fiscal quarterfrom each asset sale pursuant to this subclause (viii) will be so reinvestedwithin such time period and all such Net Cash Proceeds so reinvested duringsuch Fiscal Year do not exceed such dollar limit.  A Responsible Officer of BRW shall notify the AdministrativeAgent in writing on the date of receipt of such Net Cash Proceeds in the eventthat such Net Cash Proceeds will not be so reinvested within such 3 monthperiod or if the amount of reinvested Net Cash Proceeds exceeds $20,000,000 insuch Fiscal Year and such Net Cash Proceeds shall be applied within 3 BusinessDays following receipt of such Net Cash Proceeds to prepay the Advancesoutstanding at such time pursuant to, and in the amount and order of priorityset forth in Section 2.06(b)(ii);

 

(ix)                                thesale, lease, transfer or other disposition of all or substantially all of theassets of BCI and its Subsidiaries for cash or other consideration and/or theassumption of liabilities of BCI and its Subsidiaries; *provided* that:

 

(A)                              solong as no BCI Event of Default specified under Section 7.03(b) shall haveoccurred with respect to BCI or any of its Subsidiaries (other than a proceedingin connection with a Prepackaged Plan or a sale agreement executed prior tocommencement of such proceedings which agreement contemplates a sale of all orsubstantially all of the assets of BCI and its Subsidiaries pursuant to Section363 of the Bankruptcy Code), promptly after the determination of the BCI NetCash Proceeds in respect thereof, 60% of the BCI Net Cash Proceeds from anysuch disposition shall be applied to prepay the Advances in the order ofpriority set forth in Section 2.06(b)(ii),

 

(B)                                ifa BCI Event of Default specified under Section 7.03(b) (other than a proceedingin connection with a Prepackaged Plan or a sale agreement executed prior tocommencement of such proceedings which agreement contemplates a sale of all orsubstantially all of the assets of BCI and its Subsidiaries pursuant to Section363 of the Bankruptcy Code) shall have occurred and be continuing with respectto BCI or any of its Subsidiaries, promptly after the determination of the BCINet Cash Proceeds in respect thereof, 100% of the Net Cash Proceeds from anysuch disposition shall be applied to prepay the Advances in the order ofpriority set forth in Section 2.06(b)(ii),

 

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

 

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

 

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

 

(E)                                 BRWmay retain part of the Net Cash Proceeds for the payment of current ordinarycourse operating expense obligations of BCI and its Subsidiaries and in respectof  reserves in accordance with GAAP forgood faith estimates of amounts that may be required to be paid in respect ofnon-discharged liabilities or claims in the future; *provided*that (w) BRW shall advise the Administrative Agentof the aggregate amount so retained, (x) such amounts shall be applied toprepay Revolving Credit Borrowings (without any reduction of the RevolvingCredit Commitments) and a portion of the Revolving Credit Commitments (the “***Reserved Commitments***”)equal to such amount shall thereafter be available solely for the usesspecified in this paragraph (E) or to prepay the Advances in the order ofpriority set forth in Section 2.06(b)(ii) (it being understood that if BRWintends that any portion of the Revolving Credit Borrowing is to be used forany such purpose it shall give the Administrative Agent written notice of theamount thereof to be so used and the amount of the Reserved Commitmentsremaining after giving effect to such use), (y) at the time BRW determines thatall such operating expenses or such non-discharged liabilities or contingentliabilities are actually paid or otherwise satisfied, BRW shall so advise theAdministrative Agent and shall make a request for a Revolving CreditBorrowing  in the amount of the unusedportion of the Reserved Commitments and shall apply the proceeds of suchBorrowing to prepay the Advances in the order of priority set forth in Section2.06(b)(ii), and (z) from time to time, if BRW determines that the unusedportion of the Reserved Commitments exceeds the amount of all such operatingexpenses or such non-discharged liabilities or contingent liabilities that havenot at such time yet been paid or otherwise satisfied, BRW may so advise theAdministrative Agent and make a request for a Revolving Credit Borrowing in theamount of such excess and apply the proceeds of such Borrowing to prepay theAdvances in the order of priority set forth in Section 2.06(b)(ii), *provided further* that (1) upon theoccurrence of a

 

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Defaultunder Section 7.01(a), (f) or 7.03(b) or an Event of Default, a request for aRevolving Credit Borrowing shall automatically be deemed to have been made byBRW in an amount equal to the amount of Reserved Commitments or (2) upon therequest of the Agents upon the occurrence of any other Default (other than aDefault specified in clause (1) above) or in the event that the MinimumLiquidity (including the amount of the Reserved Commitments) is less than$50,000,000, BRW shall make a request for a Revolving Credit Borrowing in anamount equal to such Reserved Commitments and upon such request or deemedrequest, (x) the proceeds of such Revolving Credit Borrowing shall be depositedby BRW to a deposit account maintained with the Administrative Agent in whichthe Administrative Agent, for the benefit of the Lender Parties, has a securityinterest pursuant to the terms of the Security Agreements, and (y) such fundswill be held in such deposit account as Collateral for the Obligationshereunder pursuant to the terms of the Security Agreements; *provided**stillfurther* that (x) so long as no Default under Section 7.01(a), (f) or7.03(b) or Event of Default exists, BRW may withdraw funds from such account inaccordance with the terms of the Security Agreements for the uses specified inthis paragraph (E) or to prepay the Advances in the order of priority set forthin Section 2.06(b)(ii) and (y) if, at the time such operating expenses orsuch non-discharged liabilities or contingent liabilities are actually paid orotherwise satisfied, the amount of the funds reserved therefor exceeds theamount paid or otherwise satisfied, then BRW shall prepay the Advances inaccordance with Section 2.06(b)(ii) in an amount equal to such excess reserve,and

 

(F)                                 BRWshall use commercially reasonable efforts to dispose of any consideration(other than cash, assumption of liabilities and any Equity Interest in C IIICommunications, LLC, or any Affiliate thereof not to exceed 5% of the totalEquity Interests outstanding of such issuance, in connection with the BCSI SaleAgreement) received in respect of such sale, lease, transfer or otherdisposition for cash as promptly as reasonably practicable and for fair valuesubject to restrictions on sales of such non-cash assets contained in anyagreement or instrument in respect of such non-cash asset and shall promptlythereafter prepay the Advances in accordance with Section 2.06(b)(ii) in anamount equal to 60% of such BCI Net Cash Proceeds; and

 

(x)                                   anysale, lease, transfer or other disposition of any asset of BRW and itsSubsidiaries that constituted or resulted from a Permitted BCI Transaction solong 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 thana

 

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proceedingin connection with a Prepackaged Plan or a sale agreement executed prior tocommencement of such proceedings which agreement contemplates a sale of all orsubstantially all of the assets of BCI and its Subsidiaries pursuant to Section363 of the Bankruptcy Code).

 

(f)                                    Investmentsin Other Persons.  Make or hold, orpermit 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)                                     equityInvestments by BRW and its Subsidiaries (including BCI and its Subsidiaries) intheir Subsidiaries outstanding on the date hereof and (A) additionalinvestments in wholly owned Subsidiaries of BRW that are SubsidiaryGuarantors, (B) additional investments in Excluded Entities other than theMutual Subsidiaries in an aggregate amount invested from January 12, 2000 notto exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in anaggregate amount invested from January 12, 2000 not to exceed $2,000,000, and(D) additional investments in Cincinnati Bell Wireless LLC (x) in anaggregate amount invested from January 12, 2000 not to exceed $25,000,000 and(y) other investments resulting in it or its Subsidiaries owning the SpectrumAssets;

 

(ii)                                  loansand advances to employees in the ordinary course of the business of BRW and itsSubsidiaries as presently conducted in an aggregate principal amount not toexceed $25,000,000 at any time outstanding; *provided, however,* for purposes of thisSection, “advances” will not restrict advances for travel expenses to employeesadvanced and repaid in the ordinary course of business; *provided further*that such loans andadvances are made in compliance with Section 5.01(t)(iv);

 

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

 

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

 

(v)                                 Investmentsby BRW in Hedge Agreements permitted under Section 5.02(b)(i)(A);

 

(vi)                              Investmentsconsisting of intercompany Debt permitted under Section 5.02(b)(ii);

 

(vii)                           other Investments made priorto May 1, 2002 and other Investments made on or after May 1, 2002 (other thanInvestments in BRW and the Mutual Subsidiaries made after April 15, 2002) in anaggregate amount invested not to exceed $25,000,000 at any time withInvestments valued, in the case of each Investment, at the time such Investmentis made *less*the aggregate amount of Investments made under Section 5.02(f)(viii) (itbeing understood that any Investment may continue to be held if permitted whenmade notwithstanding

 

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subsequentchanges in the value of such Investment), *provided* that with respect to Investmentsmade under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW or any of itsSubsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries;(2) immediately before and after giving effect thereto, no Default shallhave occurred and be continuing or would result therefrom; (3) any companyor business acquired or invested in pursuant to this clause (vii) shall bein the same line of business (or a related line of business) as the business ofBRW or any of its Subsidiaries; (4) immediately after giving effect to theacquisition of a company or business pursuant to this clause (vii), BRWshall be in pro forma compliance with the covenants contained inSection 5.04, calculated based on the financial statements most recentlydelivered to the Lender Parties pursuant to Section 5.03 and as thoughsuch acquisition had occurred at the beginning of the four-quarter periodcovered thereby, as evidenced by a certificate of the Chief Financial Officerof BRW delivered to the Lender Parties demonstrating such compliance; (5) BRWand/or its Subsidiaries and such newly created or acquired Subsidiary shallcomply with the requirements of 5.01(j); (6) any Investment made under thisclause (vii) that is not an acquisition of an Equity Interest shall be made bya Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment madeunder this clause (vii) may be made in BCI or any of its Subsidiaries unlesssuch Investment is a Permitted BCI Transaction and BCI and/or such Subsidiaryand such newly created or acquired Subsidiary shall comply with therequirements of 5.01(j);

 

(viii)                        Investments other thanInvestments in BRW and the Mutual Subsidiaries made after April 15, 2002 in anaggregate amount of $50,000,000 for any investments valued as of the date suchInvestment is made, including, without limitation, joint ventures; *provided,however*, that with respect to any joint venture, such Investmentshall be (1) made through a newly organized bankruptcy remote special purposevehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediatelybefore and after giving effect thereto, no Default shall have occurred and becontinuing or would result therefrom; (3) any company or business acquiredor invested in pursuant to this clause (viii) shall be in the same line ofbusiness (or related line of business) as the business of BRW or any of itsSubsidiaries; (4) BRW and/or its Subsidiaries and such newly created oracquired Subsidiary shall comply with the requirements of 5.01(j); (5) neitherthe Borrowers nor any of their Subsidiaries (other than such special purposevehicle) shall become liable for the Debt of the joint venture except to theextent the Borrowers or such Subsidiary would be permitted under Section5.02(b) to incur such Debt; and (6) any company or business acquired orinvested in pursuant to this clause (viii) shall not be or become aSubsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCIand such newly created or acquired Subsidiary shall comply with therequirements of 5.01(j);

 

(ix)                                Investmentsconsisting of debits and credits between Broadwing Financial LLC and BRW andits Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW CashManagement System; *provided* thatsuch Investments

 

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

 

 (x)                                Investmentsconsisting of loans, advances and payables due from suppliers or customers madeby the Borrowers or their Subsidiaries in the ordinary course of business;

 

(xi)                                Investmentsconsisting 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 areevidenced by promissory notes, in form and substance satisfactory to theAgents, and such promissory notes shall be pledged as security for theObligations of the holder thereof under the Loan Documents to which such holderis a party and delivered to the Administrative Agent pursuant to the terms ofthe Security Agreements, (2) such advances are not made earlier than 1 BusinessDay before the day that the obligations are to be paid and (3) the proceeds ofsuch advances are either deposited directly to a deposit account maintainedwith the Administrative Agent or another Lender and in which the AdministrativeAgent, for the benefit of the Lenders, has a security interest pursuant to theterms of the Security Agreements or applied directly for a purpose referred toin clause (x), (y) or (z) above; *providedfurther*, *however*, thatif a Blocking Event has occurred and is continuing, no such Investments shallbe made in respect of a payment on the New Notes or the Other Permitted Equity;

 

(xii)                             Investmentsin respect of Permitted Obligations;

 

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

 

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

 

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

 

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*provided*that**noInvestments shall be made on or after April 15, 2002 in Excluded Entities otherthan (x) Investments in Wireless LLC, (y) Investments consisting of debits andcredits arising pursuant to the BRW Cash Management System (including suchInvestments made by Excluded Entities that are Subsidiaries of BCI prior to thedate that is 30 days after the Effective Date); *provided* that all such cash advances made to such ExcludedEntities constitute Pledged Debt; *provided**further* that all such Investmentsmade to the Mutual Subsidiaries be in an amount not to exceed $100,000 inaggregate at any time, and (z) in the case of CBT, Investments made pursuant toSection 5.02(f)(vi)).

 

(g)                                 RestrictedPayments.  Declare or pay anydividends, purchase, redeem, retire, defease or otherwise acquire for value anyof its Equity Interests now or hereafter outstanding, return any capital to itsstockholders, partners or members (or the equivalent Persons thereof) as such,make any distribution of assets, Equity Interests, obligations or securities toits stockholders, partners or members (or the equivalent Persons thereof) assuch 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 ofits Subsidiaries to purchase, redeem, retire, defease or otherwise acquire forvalue any Equity Interests in BRW or to issue or sell any Equity Intereststherein (each a “***RestrictedPayment***”), except that, so long as no Default shall haveoccurred and be continuing at the time of any action described below or wouldresult therefrom:

 

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

 

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

 

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

 

(iv)                              BRWmay declare and pay scheduled dividend payments on the Convertible PreferredStock and the Other Permitted Equity,

 

(v)                                 paymentspursuant to stock option plans or other stock related benefit plans approved bythe Board of Directors of the Borrowers and in the ordinary course of businessmade to directors, officers, and employees of the Borrowers to repurchasecapital stock of the Borrowers or equity equivalents of the Borrowers held bysuch Persons in case of resignation, the cessation of the employment orretirement of such Person (by death, disability or otherwise),

 

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

 

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

 

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

 

(B)                                distributenon-cash assets to BRW in connection with the merger or consolidation of aSubsidiary; *provided* that noDefault has occurred and is continuing at the time of such transfer and thedistribution of such non-cash assets is accompanied by a substantiallysimultaneous 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 anywholly-owned Subsidiary of BRW that is a Subsidiary Guarantor and (y) MutualSignal Holding Corp. may distribute all or substantially all of its assets toBCSI; *provided*in the case of clauses (x) and (y) such dividend or distribution is notmaterially adverse to the Lenders in the sole determination of theAdministrative Agent.

 

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

 

(ix)                                BRWmay issue additional common stock upon the conversion of any of the ConvertiblePreferred Stock and the Other Permitted Equity,

 

(x)                                   BRWmay issue and sell Other Permitted Equity for cash; *provided* that 50% of the Net Cash Proceeds of the issuanceof such Other Permitted Equity in excess of the first $50,000,000 in aggregateof 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 AAdvances, the Term B Advances

 

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and the Term CAdvances 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 AdministrativeAgent shall have received a certificate of a Responsible Officer of BRWcertifying that after giving effect to such issuance, BRW and its Subsidiariesare on a pro forma basis in compliance with Section 5.04 during theFacilities Period,

 

(xi)                                aspart of any BCI Exchange, (1) BCI may redeem the BCI Exchangeable PreferredStock and (2) BRW may issue capital or preferred stock or other EquityInterests of BRW (including capital or preferred stock or other EquityInterests of BRW issued to a third party provided that the proceeds of suchissuance are applied to the prepayment or retirement of the BCI SeniorSubordinated Notes); *provided*that(A) any such preferred stock or other Equity Interest (x) contains only pay inkind interest payment obligations during the Facilities Period, and (y) is notconvertible or exchangeable for any Equity Interests other than common stock ofBRW, (B) the aggregate amount of cash paid in respect of redemptions,repayments or fees in connection with all BCI Exchanges shall not exceed theamounts agreed to in writing by BRW and the Agents and (C) any instrument oragreement evidencing such preferred stock or other Equity Interest entered intoin connection with a BCI Exchange will not contain any grant of collateral orrights to collateral or any covenants or defaults that are more restrictive, orsubordination terms that are more narrow, in any material respect than theterms of the Oak Hill Indenture and will not provide any put, redemption orprepayment right, or any amortization or maturity date, prior to the end of theFacilities Period,

 

(xii)                           BRW mayissue the Warrants and additional shares of common stock of BRW upon exerciseof the Warrants in accordance with the terms of the Warrant Agreement as ineffect on the date hereof, and

 

(xiii)                        BRW and itsSubsidiaries may effect any such transaction that at the time so effectedconstituted or resulted from a Permitted BCI Transaction so long as at suchtime no BCI Event of Default specified under Section 7.03(b) shall haveoccurred with respect to BCI or any of its Subsidiaries (other than aproceeding in connection with a Prepackaged Plan or a sale agreement executedprior to commencement of such proceedings which agreement contemplates a saleof all or substantially all of the assets of BCI and its Subsidiaries pursuantto Section 363 of the Bankruptcy Code).

 

(h)                                 Amendmentsof Constitutive Documents.  Amend,or permit any of its Subsidiaries to amend, its certificate of incorporation orbylaws or other constitutive documents, except (i) in connection with any BCIExchange, or (ii) where such amendment could not reasonably be expected to havea Material Adverse Effect or to adversely affect the rights or interests of theLender Parties; *provided* that copies of any such amendment to thecertificate of incorporation, by-laws or other constitutive

 

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documentsof any Borrower or any Subsidiary shall be delivered promptly to theAdministrative Agent.

 

(i)                                     AccountingChanges.  Make or permit, or permitany of its Subsidiaries (other than BCI and its Subsidiaries) to make orpermit, 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 thereofin 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 theterms of this Agreement, (ii) the repurchase of the BCI SeniorSubordinated Notes and the BCI 12 1/2% Senior Notes to the extent permittedunder Section 5.02(e)(ix)(C) or otherwise repurchase the BCI 12 1/2% SeniorNotes for an aggregate amount not to exceed an amount agreed to in writing byBRW and the Agents or, (iii) regularly scheduled or required repayments orredemptions of Surviving Debt so long as such repayment or redemption does notviolate any subordination terms of such Surviving Debt, (iv) consummation ofany BCI Exchange to the extent permitted under Sections 5.02(b)(i)(F) and5.02(g)(xi), (v) the payment of guaranty obligations of BRW in respect ofPermitted Obligations, or (vi) the tender of Junior Notes to effect theexercise of the Warrants to the extent provided in the Junior Note Documents ineffect on the date hereof, or amend, modify or change in any manner any term orcondition of any Surviving Debt or Subordinated Debt**,** or permit any of its Subsidiaries to do any of the foregoingother than to prepay any Debt payable to the Borrowers *provided*that, with respect to anyprepayment of Debt of any member of the BCI Group by any member of the BRWGroup, such prepayment is permitted under Section 5.02(f)(xiii), andamendments, modifications or changes to any instrument relating to the BCISenior Subordinated Notes in connection with any BCI Exchange to the extentpermitted under Sections 5.02(b)(i)(F).

 

(k)                                  Amendment,Etc., of Related Documents.  Cancelor terminate any Related Document or consent to or accept any cancellation ortermination thereof, amend, modify or change in any manner any term orcondition of any Related Document or give any consent, waiver or approvalthereunder, waive any default under or any breach of any term or condition ofany Related Document, agree in any manner to any other amendment, modificationor change of any term or condition of any Related Document or take any otheraction in connection with any Related Document, in each case if such actionwould in any material respect impair the value of the interest or rights of anyLoan Party thereunder or the rights or interests of any Agent or any LenderParty, or permit any of its Subsidiaries to do any of the foregoing, other thanamendments, modifications or changes to the Related Documents in connectionwith (i) effecting any BCI Exchange or (ii) to the extent permitted underSection 5.02(v).

 

(l)                                     NegativePledge.  Enter into or suffer toexist, or permit any of its Subsidiaries (other than BCI and its Subsidiaries)to enter into or suffer to exist, any agreement prohibiting or conditioning thecreation or assumption of any Lien upon any of

 

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itsproperty or assets except (i) in favor of the Secured Parties or(ii) in connection with (A) any Surviving Debt to the extent suchagreement is in effect on the date hereof (and any extension, renewal,refunding or replacement thereof), (B) any purchase money Debt permitted bySection 5.02(b)(iii)(B) solely to the extent that the agreement orinstrument governing such Debt prohibits a Lien on the property acquired withthe proceeds of such Debt, and (C) any agreement setting forth customaryrestrictions on the subletting, assignment or transfer of any property or assetthat 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 Liensunder the Loan Documents.

 

(m)                               Partnerships,Etc.  Become a general partner inany general or limited partnership or joint venture, or permit any of itsSubsidiaries (other than BCI and its Subsidiaries) to do so except to theextent that the investment in any such partnership or joint venture is aninvestment permitted by Section 5.02(f) and the indebtedness of any suchentity (to the extent BRW or any Subsidiary is liable therefor) is permittedpursuant to Section 5.02(b).

 

(n)                                 SpeculativeTransactions.  Engage, or permit anyof its Subsidiaries (other than BCI and its Subsidiaries) to engage, in anytransaction speculative in nature, except those entered into in the ordinarycourse of business to eliminate or mitigate risks to which BRW or any of itsSubsidiaries is exposed in the conduct of its business or the management of itsliabilities (including but not limited to transactions entered into in order toeffectively cap, collar or exchange interest rates (from fixed to floatingrates, from one floating rate to another floating rate or otherwise)).

 

(o)                                 Formationof Subsidiaries; Existing Lines of Business.  (i) Organize or invest, or permit any Subsidiary (other than BCIand its Subsidiaries) to organize or invest, in any new Subsidiary except aspermitted under Sections 5.02(d) and 5.02(f)(i) or (ii) enter into, orpermit any Subsidiary to enter into, any line of business other than the linesof business currently engaged in by BRW and its Subsidiaries on the EffectiveDate.

 

(p)                                 PaymentRestrictions Affecting Subsidiaries. Directly or indirectly, enter into or suffer to exist, or permit any ofits Subsidiaries (other than BCI and its Subsidiaries) to enter into or sufferto exist, any agreement or arrangement limiting the ability of any of itsSubsidiaries to declare or pay dividends or other distributions in respect ofits Equity Interests or repay or prepay any Debt owed to, make loans oradvances to, or otherwise transfer assets to or invest in, BRW or any of itsSubsidiaries (whether through a covenant restricting dividends, loans, assettransfers or investments, a financial covenant or otherwise), except(i) the Loan Documents, (ii) any agreement or instrument evidencingSurviving Debt as in effect on the date hereof, (iii) any PermittedPreferred Stock Documents, (iv) the Junior Notes and (v) any Debt or preferredstock issued pursuant to a BCI Exchange in accordance with Sections5.02(b)(i)(F) or 5.02(g)(xi).

 

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

 

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

 

(s)                                  DepositAccounts.  (i) Except for accountssubject to the Escrow Agreements or any similar escrow accounts entered intopursuant to a sale agreement in accordance with Section 5.02(e)(ix) in lieu ofthe BCSI Sale Agreement, hold any deposit accounts of either Borrower or any oftheir Subsidiaries (other than payroll, workmen’s compensation, health andwelfare, PAC accounts and similar types of accounts) that are not held with theAdministrative Agent or with a third party bank subject to a control agreementthat is in form and substance reasonably satisfactory to the AdministrativeAgent.

 

(ii)                                  Uponrelease to the Borrowers or any of their Subsidiaries of any amounts in anyaccount subject to an Escrow Agreement or any similar escrow accounts enteredinto pursuant to a sale agreement in accordance with Section 5.02(e)(ix) inlieu of the BCSI Sale Agreement, if BRW makes a good faith determination thatadditional amounts are needed to pay liabilities pursuant to Section5.02(e)(ix)(E), BRW shall apply such amounts to prepay Revolving CreditBorrowings (without any reduction of the Revolving Credit Commitments) and suchamounts shall increase the Reserved Commitments under Section 5.02(e)(ix)(E); *provided* that if the Reserved Commitmentsshall previously have been drawn to fund a collateral account pursuant toSection 5.02(e)(ix)(E), such amount shall instead be deposited to such account;*provided further* that if BRWmakes a good faith determination that additional amounts are not needed to payliabilities pursuant to Section 5.02(e)(ix)(E), such Net Cash Proceeds shall beapplied to repay the Advances in accordance with clauses (A), (B) and (C) ofSection 5.02(e)(ix).

 

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

 

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

 

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interestsand entering into and performing its obligations under leases with respectthereto, performing its obligations under the Loan Documents and engaging inother activities incidental and directly related to its existence and theforegoing.

 

(v)                                 Covenant Regarding Other Debt Holders. In connection with obtaining the Oak Hill Waiver or any other waiver orforbearance by any holder of any Debt of any right to accelerate such Debt as aresult 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 cashpay financial consideration in excess of the amounts agreed to in writing byBRW and the Agents to any holder of any such Debt or (ii) modify any existingagreement or instrument or enter into any additional agreement or instrumentafter the date hereof with any holder of any such Debt in connection witheffecting any of the foregoing unless such modifications or additionalagreements or instruments provide that (A) any additional payment obligationsarising 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 orprepayment right during the Facilities Period, and (B) no such modificationwill (w) add any collateral or rights to collateral, (x) advance anyamortization requirement or maturity date, (y) change any covenant, default orprovision with the result that it is in any material respect more restrictive(e.g., less favorable to the Borrowers or their Subsidiaries or the LenderParties) than the terms of the Junior Notes Indenture or change any term ofsubordination with the result that it is in any material respect more narrow(e.g., less favorable to the Borrowers or their Subsidiaries or the LenderParties) than the terms of the Junior Notes Indenture or (z) add any newcovenant or default provision that is in any material respect more restrictive(e.g., less favorable to the Borrowers or their Subsidiaries or the LenderParties) than the terms of the Junior Notes Indenture.

 

(w)                             CovenantRegarding BCI Cash and Cash Expenditures. Permit BCI and its Subsidiaries to (A) except as a result of anytransaction permitted under Section 5.02(e)(ix), hold collected cash balances(net of any cash in accounts subject to the Escrow Agreements or other escrowarrangements permitted under Section 5.02(a)(xiii) or required under Section5.02(e)(ix)(E)) in excess of $15,000,000 at any time, and (B) other than inconnection with the payment of claims and liabilities following any transactionpermitted under Section 5.02(e)(ix), make cash expenditures other than in theordinary course of business consistent with past practices.

 

SECTION 5.03.  ReportingRequirements.  So long as anyAdvance or any other Obligation of any Loan Party under any Loan Document shallremain unpaid, any Letter of Credit shall be outstanding or any Lender Party shallhave any Commitment hereunder, the Borrowers will furnish to the Agents and theLender Parties:

 

(a)                                  DefaultNotice.  As soon as possible and inany event within two days after the occurrence of each Default or any event,development or occurrence reasonably likely to have a Material Adverse Effectcontinuing on the date of such statement, a statement of the chief financialofficer of BRW setting forth details of such Default and the action that theBorrowers have taken and proposes to take with respect thereto.

 

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(b)                                 AnnualFinancials.  As soon as availableand 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 balancesheet of BRW and its Subsidiaries (including BCI and its Subsidiaries)  as of the end of such Fiscal Year andConsolidated and consolidating statements of income and Consolidated andconsolidating statements of cash flows of BRW and its Subsidiaries (includingBCI and its Subsidiaries) for such Fiscal Year, in each case accompanied by anopinion acceptable to the Required Lenders of PWC or other independent publicaccountants of recognized standing acceptable to the Required Lenders ( itbeing understood and agreed that a qualified opinion for Fiscal Year 2002 shallnot be deemed to be not “acceptable” solely because of such qualificationprovided that  the Agents receive confirmationfrom PWC as to the absence of significant factors resulting in thequalification other than the financial condition and liquidity of BCI and thebankruptcy default relating to BCI in the Oak Hill Indenture), together with(i) a certificate of such accounting firm to the Lender Parties statingthat in the course of the regular audit of the business of BRW and itsSubsidiaries (including BCI and its Subsidiaries), which audit was conducted bysuch accounting firm in accordance with generally accepted auditing standards,such accounting firm has obtained no knowledge that a Default has occurred andis continuing, or if, in the opinion of such accounting firm, a Default hasoccurred and is continuing, a statement as to the nature thereof, (ii) a schedulein form satisfactory to the Administrative Agent of the computations used bysuch accountants in determining, as of the end of such Fiscal Year, compliancewith the covenants contained in Section 5.04, *provided* that in the eventof any change in GAAP used in the preparation of such financial statements, BRWshall also provide, if necessary for the determination of compliance withSection 5.04, a statement of reconciliation conforming such financialstatements to GAAP, (2)  the annualunaudited report for such year for BRW and its Subsidiaries (other than BCI andits Subsidiaries), including therein a Consolidated balance sheet of BRW andits Subsidiaries as of the end of such Fiscal Year and Consolidated andconsolidating statements of income and Consolidated and consolidatingstatements of cash flows of BRW and its Subsidiaries for such Fiscal Year, allin reasonable detail and duly certified (subject to normal year-end auditadjustments) by the Chief Financial Officer of BRW as having been prepared inaccordance with GAAP, and (3) a certificate of the Chief Financial Officerof BRW stating that no Default has occurred and is continuing or, if a defaulthas occurred and is continuing, a statement as to the nature thereof and theaction that BRW has taken and proposes to take with respect thereto.

 

(c)                                  QuarterlyFinancials.  As soon as availableand in any event within 50 days after the end of each of the first threequarters of each Fiscal Year, Consolidated and consolidating balance sheets ofBRW and its Subsidiaries (including BCI and its Subsidiaries) and of BRW andits Subsidiaries (other than BCI and its Subsidiaries), in each case, as of theend of such quarter and Consolidated and consolidating statements of income anda Consolidated and consolidating statement of cash flows of BRW and itsSubsidiaries (including BCI and its Subsidiaries) and of BRW and itsSubsidiaries (other than BCI and its Subsidiaries), in each case, for theperiod commencing at the end of the previous fiscal quarter and ending with theend of such fiscal quarter and Consolidated

 

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andconsolidating statements of income and a Consolidated and consolidatingstatement 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 eachcase, for the period commencing at the end of the previous Fiscal Year andending with the end of such quarter, setting forth in each case in comparativeform the corresponding figures for the corresponding date or period of thepreceding Fiscal Year, all in reasonable detail and duly certified (subject tonormal year-end audit adjustments) by the Chief Financial Officer of BRWas having been prepared in accordance with GAAP, together with (i) acertificate of said officer stating that no Default has occurred and iscontinuing or, if a Default has occurred and is continuing, a statement as tothe nature thereof and the action that BRW has taken and proposes to take withrespect thereto and (ii) a schedule in form satisfactory to theAdministrative Agent of the computations used by BRW in determining compliancewith the covenants contained in Section 5.04, *provided* that in the eventof any change in GAAP used in the preparation of such financial statements, BRWshall also provide, if necessary for the determination of compliance withSection 5.04, a statement of reconciliation conforming such financialstatements to GAAP.

 

(d)                                 AnnualForecasts.  As soon as available andin 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, ofbalance sheets, income statements and cash flow statements on a quarterly basisfor the Fiscal Year following such Fiscal Year and on an annual basis for eachFiscal Year thereafter until the Final Maturity Date of the Term C Facility.

 

(e)                                QuarterlyCash Budget.  As soon as availableand in any event no later than 20 Business Days after the commencement of eachfiscal quarter, (i) a forecasted budget of BCI’s cash expenditures for suchfiscal quarter, (ii) a reconciliation of actual results to the budget for theimmediately preceding fiscal quarter and (iii) a review and reconciliation forthe immediately preceding fiscal quarter of all reserves referred to underSection 5.02(e)(ix)(E), with a copy delivered to FTI by BRW, which items shallbe reviewed by FTI in consultation with BRW for one day each fiscal quarter atthe expense of BRW not to exceed $10,000 plus reasonable out-of-pocket expensesper review; provided that the expense of each such review may be increased tonot more than $25,000 plus reasonable out-of-pocket expenses if the First StageClosing 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 reviewshould be increased.

 

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

 

(g)                                 SecuritiesReports.  Promptly after the sendingor filing thereof, copies of all proxy statements, financial statements andreports that any Loan Party or any of its Subsidiaries sends to itsstockholders, and copies of all regular, periodic and special

 

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reports,and all registration statements, that any Loan Party or any of its Subsidiariesfiles with the Securities and Exchange Commission or any governmental authoritythat may be substituted therefor, or with any national securities exchange (or,unless any Lender Party requests otherwise, if any mailing or filing isavailable electronically on Edgar, any website maintained by BRW or any otherelectronic source generally accessible, in lieu of providing physical copies, anotice of such mailing or filing may be given to each Lender Party togetherwith instructions for the electronic retrieval thereof).

 

(h)                                 CreditorReports.  Promptly after thefurnishing thereof, copies of any statement or report furnished to any holderof Debt securities of any Loan Party or of any of its Subsidiaries pursuant tothe terms of any indenture, loan or credit or similar agreement and nototherwise required to be furnished to the Lender Parties pursuant to any otherclause of this Section 5.03.

 

(i)                                     AgreementNotices.  Promptly upon receiptthereof, copies of all notices, requests and other documents received by anyLoan Party or any of its Subsidiaries under or pursuant to any Related Documentor instrument, indenture, loan or credit or similar agreement and copies of allnotices of default or termination under or related to any Material Contractand, from time to time upon request by the Administrative Agent, suchinformation and reports regarding the Related Documents, the Material Contractsand such instruments, indentures and loan and credit and similar agreements asthe Administrative Agent may reasonably request.

 

(j)                                     ERISA.  (i)  ERISA Events and ERISAReports.  (A) Promptly and inany event within 10 days after any Loan Party or any ERISA Affiliate knows orhas reason to know that any ERISA Event has occurred, a statement of the ChiefFinancial 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 takewith respect thereto and (B) on the date any records, documents or otherinformation must be furnished to the PBGC with respect to any Plan pursuant toSection 4010 of ERISA, a copy of such records, documents and information;

 

(ii)                                  PlanTerminations.  Promptly and in anyevent within five Business Days after receipt thereof by any Loan Party or anyERISA Affiliate, copies of each notice from the PBGC stating its intention toterminate 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)                              MultiemployerPlan Notices.  Promptly and in anyevent within five Business Days after receipt thereof by any Loan Party or anyERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each noticeconcerning (A) the imposition of Withdrawal Liability by any suchMultiemployer Plan, (B) the reorganization or termination, within themeaning of Title IV of ERISA, of any such Multiemployer Plan or(C) the amount of liability incurred, or that

 

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may beincurred, by such Loan Party or any ERISA Affiliate in connection with anyevent described in clause (A) or (B);

 

*provided*, *however*,that the statement under Section 5.03(i)(i)(A) and the notice underSection 5.03(i)(iv) are required to be given only if the event orcircumstance identified in such statement or notice, when aggregated with anyother events or circumstances required to be reported under thisSection 5.03(i) could reasonably be expected to result in a MaterialAdverse Effect.

 

(k)                                  EnvironmentalConditions.  Promptly and in anyevent within five Business Days after a Responsible Officer becomes aware ofthe assertion or occurrence thereof, notice of:

 

(i)                                     anycondition or occurrence on or arising from any property owned or operated byany of the Loan Parties or any of their respective Subsidiaries that resultedor is alleged to have resulted in noncompliance by any such Loan Party or anysuch Subsidiary with any Environmental Law or Environmental Permit in such amanner as, either individually or in the aggregate, could reasonably beexpected to have a Material Adverse Effect; and

 

(ii)                                  anycondition or occurrence on any property owned or operated by any of the LoanParties or any of their respective Subsidiaries that could reasonably beexpected to cause such property to be subject to any restrictions on theownership, occupancy, use or transferability by any such Loan Party or any suchSubsidiary of such property under any Environmental Law which, eitherindividually or in the aggregate, could reasonably be expected to have aMaterial Adverse Effect.

 

Allsuch notices shall set forth in reasonable detail the nature of the condition,occurrence, removal or remedial action described therein and, in the case ofeach such condition or occurrence, the action that such Loan Party or suchSubsidiary has taken and/or proposes to take with respect thereto.

 

(l)                                     Insurance.  As soon as available and in any event within30 days after the end of each Fiscal Year, a report summarizing the insurancecoverage (specifying type, amount and carrier) in effect for each Loan Partyand 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.  Atthe end of each fiscal quarter following the First Stage Closing Date (asdefined in the BCSI Sale Agreement) or any other closing of the sale of all orsubstantially all of the assets of BCI and its Subsidiaries pursuant to Section5.02(e)(ix) if other than pursuant to the BCSI Sale Agreement, a reportsummarizing the amount of funds held in the accounts subject to an EscrowAgreement, all amounts held in reserve pursuant to Section 5.02(e)(ix)(E), andthe status of the sale of assets of BCI and its Subsidiaries pursuant to theBCSI Sale Agreement (or any similar agreement entered into pursuant to Section5.02(e)(ix) if other than the BCSI Sale Agreement).

 

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(n)                                 OtherInformation.  Such other informationrespecting the business, condition (financial or otherwise), operations,performance, properties or prospects of any Loan Party or any of itsSubsidiaries as any Agent, or any Lender Party through the AdministrativeAgent, may from time to time reasonably request.

 

SECTION 5.04.  FinancialCovenants.  So long as any Advanceor any other Obligation of any Loan Party under any Loan Document shall remainunpaid, any Letter of Credit shall be outstanding or any Lender Party shallhave any Commitment hereunder:

 

(a)                                  Debtto EBITDA Ratio.  BRW and itsSubsidiaries, on a consolidated basis, will maintain at all times a Debt/EBITDARatio of not more than the amount set forth below during each period set forthbelow:

 

 

| **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      |   |

 

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(b)                                 SeniorSecured Debt to EBITDA Ratio.  BRWand its Subsidiaries, on a consolidated basis, will maintain at all times aSenior Secured Debt/EBITDA Ratio of not more than the amount set forth belowduring 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      |   |

 

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(c)                                  InterestCoverage Ratio.  BRW and itsSubsidiaries, on a consolidated basis, will maintain at all times an InterestCoverage Ratio of not less than the amount set forth below during each periodset 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      |   |

 

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(d)                                 MaximumCapital Expenditures.  BRW will notmake, or permit any of its Subsidiaries to make, any Capital Expenditures thatwould cause the aggregate of all such Capital Expenditures made by BRW and suchSubsidiaries in any period set forth below to exceed the amount set forth belowfor 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 carriedforward to the next Fiscal Year (but not to succeeding years) it beingunderstood that any such amounts carried forward will be the first funds usedin such next Fiscal Year, (ii) BRW shall be permitted to make any CapitalExpenditures that are required pursuant to any binding direction or requirementof any applicable telecommunications regulatory authority or any regulatoryauthority having jurisdiction over BRW’s telecommunications operations orequipment 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 BRWprovides satisfactory documentation thereof, (iii) the amount of permittedCapital Expenditures in any Fiscal Year will be increased by the amount of NetCash Proceeds from issuances of common stock or Other Permitted Equity that areretained by BRW pursuant to Sections 5.02(g)(viii) and 5.02(g)(x) (after givingeffect to all required prepayments of the Facilities) in an amount not toexceed $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 amountarises may be carried forward to the next Fiscal Year (but not to succeedingyears) it being understood that any such amounts carried forward will be thefirst funds used in such next Fiscal Year after the application of any amountunder clause (i) in such Fiscal Year. To the extent that any consideration paid for Capital Expendituresconstitutes capital stock of BRW, such consideration shall not constitute aCapital Expenditure for purposes of the limitations in this Section 5.04(d).

 

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# **ARTICLE VI**

# ** **

**BRW GUARANTY**

** **

SECTION 6.01.  BRW Guaranty.  (a) BRW hereby unconditionally and irrevocably guarantees (the undertakingby BRW under this Article VI being, as amended from time to time, the “***BRW Guaranty***”) thepunctual payment when due, whether at scheduled maturity or at a date fixed forprepayment or by acceleration, demand or otherwise, of all of the Obligationsof each of the other Loan Parties now or hereafter existing under or in respectof the Loan Documents (including, without limitation, any extensions,modifications, substitutions, amendments or renewals of any or all of theforegoing Obligations), whether direct or indirect, absolute or contingent, andwhether for principal, interest, premium, fees, indemnification payments,contract causes of action, costs, expenses or otherwise (such Obligations beingthe “***Guaranteed Obligations***”),and agrees to pay any and all expenses (including, without limitation,reasonable fees and expenses of counsel) incurred by the Administrative Agentor any of the other Secured Parties in enforcing any rights under this BRWGuaranty.  Without limiting thegenerality of the foregoing, the liability of BRW shall extend to all amountsthat constitute part of the Guaranteed Obligations and would be owed by any ofthe other Loan Parties to the Administrative Agent or any of the other SecuredParties under or in respect of the Loan Documents but for the fact that theyare unenforceable or not allowable due to the existence of a bankruptcy,reorganization or similar proceeding involving such other Loan Party.

 

(b)                                 BRWand, by its acceptance of this BRW Guaranty, the Administrative Agent and eachof the other Secured Parties, hereby confirm that it is the intention of allsuch Persons that this BRW Guaranty and the Obligations of BRW hereunder notconstitute a fraudulent transfer or conveyance for purposes of the UnitedStates Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, theUniform Fraudulent Transfer Act or any similar federal or state Requirements ofLaw covering the protection of creditors’ rights or the relief of debtors tothe extent applicable to this BRW Guaranty and the BRW Obligationshereunder.  To effectuate the foregoingintention, BRW, the Administrative Agent and each of the other Secured Partieshereby irrevocably agree that, solely with respect to the GuaranteedObligations and the other liabilities of BRW under this BRW Guaranty whichresult from or arise out of its guarantee under subsection (a) of this Section6.01 of the Obligations of the Loan Parties under or in respect of the LoanDocuments, such Guaranteed Obligations and other liabilities shall be limitedto the maximum amount as will, after giving effect to such maximum amount andall other contingent and fixed liabilities of BRW that are relevant under suchRequirements of Law, and after giving effect to any collections from, anyrights to receive contributions from, or payments made by or on behalf of, anyof the Subsidiaries of BRW in respect of the Obligations of such Subsidiaryunder the Subsidiaries Guarantees and, in the case of this BRW Guaranty, resultin the Guaranteed Obligations and all other liabilities of BRW under thisBRW  Guarantee not constituting afraudulent transfer or conveyance.

 

(c)                                  BRWhereby unconditionally and irrevocably agrees that, in the event any paymentshall be required to be made to the Secured Parties under this BRW Guaranty orthe Subsidiary Guaranties or any other guarantee, BRW will contribute, to themaximum extent

 

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permittedby law, such amounts to each other guarantor as would maximize the aggregateamount payable to the Secured Parties under or in respect of the LoanDocuments.

 

SECTION 6.02.  GuaranteeAbsolute.  (a)  BRW guarantees that all of the GuaranteedObligations will be paid strictly in accordance with the terms of the LoanDocuments, regardless of any Requirements of Law now or hereafter in effect inany jurisdiction affecting any of such terms or the rights of theAdministrative Agent or any of the other Secured Parties with respectthereto.  The Obligations of BRW underthis BRW Guaranty are independent of the Guaranteed Obligations or any otherObligations of any of the other Loan Parties under or in respect of the LoanDocuments, and a separate action or actions may be brought and prosecutedagainst BRW to enforce this BRW Guaranty, irrespective of whether any action isbrought against any of the other Loan Parties or whether any of the other LoanParties 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 irrevocablywaives any defenses it may now have or may hereafter acquire in any wayrelating to, any and all of the following:

 

(i)                                     anylack of validity or enforceability of any of the Loan Documents or any otheragreement or instrument relating thereto;

 

(ii)                                  anychange in the time, manner or place of payment of, or in any other term of, allor any of the Guaranteed Obligations or any other Obligations of any of theLoan Parties under or in respect of the Loan Documents, or any other amendmentor waiver of, or any consent to departure from, any of the Loan Documents(including, without limitation, any increase in the Guaranteed Obligationsresulting from the extension of additional credit to any of the other LoanParties or any of their respective Subsidiaries or otherwise);

 

(iii)                               any taking, exchange,release or nonperfection of any of the Collateral, or any taking, release oramendment or waiver of, or consent to departure from, the Subsidiary Guarantiesor any other guarantee, for all or any of the Guaranteed Obligations;

 

(iv)                              anymanner of application of Collateral, or proceeds thereof, to all or any of theGuaranteed Obligations, or any manner of sale or other disposition of anyCollateral for all or any of the Guaranteed Obligations or any otherObligations of any of the other Loan Parties under or in respect of the LoanDocuments, or any other property and assets of any of the other Loan Parties orany of their respective Subsidiaries;

 

(v)                                 anychange, restructuring or termination of the legal structure or existence of anyof the other Loan Parties or any of their respective Subsidiaries;

 

(vi)                              anyfailure of any of the Secured Parties to disclose to any of the Loan Partiesany information relating to the business, condition (financial or otherwise),operations, performance, properties or prospects of any of the other LoanParties now or hereafter known to such Secured Party;

 

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(vii)                           the failure of any otherPerson to execute the Subsidiary Guaranties or any other guarantee or agreementor the release or reduction of liability of any of the other Loan Parties orany 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 ofor reliance on any representation by the Administrative Agent or any of theother Secured Parties) that might otherwise constitute a defense available to,or a discharge of, BRW, such Borrower, any of the other Loan Parties or anyother guarantor or surety.

 

This BRW Guaranty shall continue to be effective or bereinstated, as the case may be, if at any time any payment of any of theGuaranteed Obligations is rescinded or must otherwise be returned by theAdministrative Agent or any of the other Secured Parties or by any other Personupon the insolvency, bankruptcy or reorganization of any of the other LoanParties or otherwise, all as though such payment had not been made, and BRWhereby unconditionally and irrevocably agrees that it will indemnify theAdministrative Agent and each of the other Secured Parties, upon demand, forall of the costs and expenses (including, without limitation, reasonable feesand expenses of counsel) incurred by the Administrative Agent or such otherSecured Party in connection with any such rescission or restoration, includingany such costs and expenses incurred in defending against any claim allegingthat such payment constituted a preference, a fraudulent transfer or a similarpayment under any bankruptcy, insolvency or similar Requirements of Law.

 

(b)                                 BRWhereby further agrees that, as between BRW on the one hand, and theAdministrative Agent and the Secured Parties, on the other hand, (i) theGuaranteed Obligations of BRW may be declared to be forthwith due and payableas provided in Section 7.01 (and shall be deemed to have become automaticallydue and payable in the circumstances provided in Section 7.01) for purposes ofSection 6.01, notwithstanding any stay, injunction or other prohibitionpreventing such declaration in respect of the Obligations of any of the LoanParties guaranteed hereunder (or preventing such Guaranteed Obligations frombecoming automatically due and payable) as against any other Person and (ii) inthe event of any declaration of acceleration of such Guaranteed Obligations (orsuch Guaranteed Obligations being deemed to have become automatically due andpayable) as provided in Section 7.01, such Guaranteed Obligations (whether ornot due and payable by any other Person) shall forthwith become due and payableby BRW for all purposes of this Guarantee.

 

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SECTION 6.03.  Waivers andAcknowledgments.  (a)  BRW hereby unconditionally and irrevocablywaives promptness, diligence, notice of acceptance, presentment, demand forperformance, notice of nonperformance, default, protest, dishonor and any othernotice with respect to any of the Guaranteed Obligations and this BRW Guaranty,and any requirement that the Administrative Agent or any of the other SecuredParties protect, secure, perfect or insure any Lien or any property or assetssubject thereto or exhaust any right or take any action against any of theother Loan Parties or any other Person or any of the Collateral.

 

(b)                                 BRWhereby waives (i) any defense arising by reason of any claim or defensebased upon an election of remedies by the Administrative Agent or the otherSecured Parties which in any manner impairs, reduces, releases or otherwiseadversely affects the subrogation, reimbursement, exoneration, contribution orindemnification rights of BRW or any other rights of BRW to proceed against anyof the other Loan Parties, any other guarantor or any other Person or any ofthe Collateral, and (ii) any defense based on any right of setoff orcounterclaim against or in respect of the Obligations of BRW under this BRWGuaranty.

 

(c)                                  BRWhereby unconditionally and irrevocably waives any duty on the part of theAdministrative Agent or any of the other Secured Parties to disclose to BRW anymatter, fact or thing relating to the business, condition (financial orotherwise), operations, performance, properties or prospects of any of theother Loan Parties or any of their respective Subsidiaries or the property andassets thereof now or hereafter known by the Administrative Agent or such otherSecured Party.

 

(d)                                 BRWhereby unconditionally waives any right to revoke this BRW Guaranty, andacknowledges that this BRW Guaranty is continuing in nature and applies to allGuaranteed Obligations, whether existing now or in the future.

 

(e)                                  BRWhereby acknowledges that it will receive substantial direct and indirectbenefits from the financing arrangements contemplated by the Loan Documents andthat the waivers set forth in Section 6.02 and in this Section 6.03 areknowingly made in contemplation of such benefits.

 

SECTION 6.04.  Subrogation.  BRW hereby unconditionally and irrevocablyagrees not to exercise any rights that it may now have or may hereafter acquireagainst any of the other Loan Parties or any other insider guarantor that arisefrom the existence, payment, performance or enforcement of the Obligations ofBRW 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 orremedy of the Administrative Agent or any of the other Secured Parties againstsuch other Loan Party or any other insider guarantor or any Collateral, whetheror not such claim, remedy or right arises in equity or under contract, statute,common law or any other Requirements of Law, including, without limitation, theright to take or receive from such other Loan Party or any other insiderguarantor, directly or indirectly, in cash or other property or by set-off orin any other manner, payment or security on account of such claim, remedy orright, unless and until such time as all of the Guaranteed Obligations and allof the other amounts payable under this BRW Guaranty shall have been paid infull in cash, all of the Secured Hedge Agreements shall have expired or

 

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been terminated and the Commitments shall have expired orterminated.  If any amount shall be paidto BRW in violation of the immediately preceding sentence at any time prior tothe latest of (a) the payment in full in cash of all of the GuaranteedObligations 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 thebenefit of the Administrative Agent and the other Secured Parties, shall besegregated from the other property and funds of BRW and shall be deliveredforthwith to the Administrative Agent in the same form as so received (with anynecessary endorsement or assignment) to be credited and applied to theGuaranteed Obligations and the other amounts payable under this BRW Guaranty,whether matured or unmatured, in accordance with the terms of the LoanDocuments, or to be held as Collateral for any of the Guaranteed Obligations orany of the other amounts payable under this BRW Guaranty thereafterarising.  If (i) BRW shall pay to theAdministrative Agent all or any part of the Guaranteed Obligations, (ii) all ofthe Guaranteed Obligations and all of the other amounts payable under this BRWGuaranty shall have been paid in full in cash, (iii) all of the Secured HedgeAgreements shall have expired or been terminated and (iv) the TerminationDate shall have occurred, the Administrative Agent and the other SecuredParties will, at BRW’s  request andexpense, execute and deliver to BRW appropriate documents, without recourse andwithout representation or warranty, necessary to evidence the transfer ofsubrogation to BRW of an interest in the Guaranteed Obligations resulting fromthe payment made by BRW under this BRW Guaranty.

 

SECTION 6.05.  ContinuingGuarantee; Assignments.  This BRWGuaranty is a continuing guarantee and shall (a) remain in full force andeffect until the latest of (i) the payment in full in cash of all of theGuaranteed Obligations and all of the other amounts payable under this BRWGuaranty, (ii) the expiration or termination of all of the Secured HedgeAgreements and (iii) the Termination Date, (b) be binding upon BRW and itsrespective successors and assigns and (c) inure to the benefit of, and beenforceable by, the Administrative Agent and the other Secured Parties andtheir respective successors, transferees and assigns.  Without limiting the generality of clause (c) of theimmediately preceding sentence, any of the Lenders may assign or otherwisetransfer all or any portion of its rights and obligations under this Agreement(including, without limitation, all or any portion of its Commitment orCommitments, the Advances owing to it and the Note or Notes held by it) to anyother Person, and such other Person shall thereupon become vested with all thebenefits in respect thereof granted to such Lender under this Article VI orotherwise, in each case as provided in Section 9.07.

 

# **ARTICLE VII**

# ** **

**EVENTS OFDEFAULT**

** **

SECTION 7.01.  Events ofDefault.  If any of the followingevents (“***Events of Default***”)shall occur and be continuing:

 

(a)                                  (i)either Borrower shall fail to pay any principal of any Advance made to it whenthe same shall become due and payable, whether by scheduled maturity or at adate fixed for prepayment or by acceleration, demand or otherwise, or (ii)either

 

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Borrowershall fail to pay any interest on any Advance made to it, or any Loan Partyshall fail to make any other payment under or in respect of any Loan Documentrequired to have been made by it, whether by scheduled maturity or at a datefixed for prepayment or by acceleration, demand or otherwise in each case underthis clause (ii) within three Business Days after the same becomes due andpayable; *provided*that thefailure by BCSI to pay any such amount upon an acceleration of Advances made toBCSI due to a BCI Event of Default shall not constitute an Event of Default ofBRW; or

 

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

 

(c)                                  BRWshall fail to perform or observe any term, covenant or agreement contained inSection 2.14, 5.01(e), (f), (i), (j), (m) or (o), 5.02, 5.03 or 5.04; or

 

(d)                                 BRWor 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 beperformed or observed if such failure shall remain unremedied for 30 days afterthe earlier of the date on which (i) a Responsible Officer becomes awareof such failure or (ii) written notice thereof shall have been given toBRW by any Agent or any Lender Party; or

 

(e)                                  BRWor any of its Subsidiaries shall fail to pay any principal of, premium orinterest on or any other amount payable in respect of any Debt of BRW (otherthan amounts under the Sellers’ Parent Guaranty (as defined in the BCSI SaleAgreement) that are the subject of a good faith dispute by BRW) or suchSubsidiary (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 $20,000,000either individually or in the aggregate (but excluding Debt outstandinghereunder), when the same becomes due and payable (whether by scheduledmaturity, required prepayment, acceleration, demand or otherwise), and suchfailure shall continue after the applicable grace period, if any, specified inthe agreement or instrument relating to such Debt; or any other event shalloccur or condition shall exist under any agreement or instrument relating toany such Debt and shall continue after the applicable grace period, if any,specified in such agreement or instrument, if the effect of such event orcondition is to accelerate, or to permit the acceleration of, the maturity ofsuch Debt or otherwise to cause, or to permit the holder thereof to cause, suchDebt to mature; or any such Debt shall be declared to be due and payable orrequired to be prepaid or redeemed (other than by a regularly scheduledrequired prepayment or redemption), purchased or defeased, or an offer toprepay, redeem, purchase or defease such Debt shall be required to be made, ineach case prior to the stated maturity thereof; *provided*that any Specified Default under the Oak HillIndenture shall not constitute an Event of Default under this clause (e) at anytime after the Part II Effective Date; or

 

(f)                                    BRWor any of its Subsidiaries shall generally not pay its debts as such debtsbecome due, or shall admit in writing its inability to pay its debts generally,or shall

 

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make ageneral assignment for the benefit of creditors; or any proceeding shall beinstituted by or against BRW or any of its Subsidiaries seeking to adjudicateit a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,arrangement, adjustment, protection, relief, or composition of it or its debtsunder any law relating to bankruptcy, insolvency or reorganization or relief ofdebtors, or seeking the entry of an order for relief or the appointment of areceiver, trustee or other similar official for it or for any substantial partof 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 goodfaith, either such proceeding shall remain undismissed or unstayed for a periodof 30 days or any of the actions sought in such proceeding (including, withoutlimitation, the entry of an order for relief against, or the appointment of areceiver, trustee, custodian or other similar official for, it or anysubstantial part of its property) shall occur; or BRW or any of itsSubsidiaries shall take any corporate action to authorize any of the actionsset forth above in this subsection (f); or

 

(g)                                 anyjudgments or orders, either individually or in the aggregate, for the paymentof money in excess of $30,000,000 shall be rendered against BRW or any of itsSubsidiaries and either (i) enforcement proceedings shall have beencommenced by any creditor upon such judgment or order or (ii) there shallbe any period of 30 consecutive days during which a stay of enforcement of suchjudgment or order, by reason of a pending appeal or otherwise, shall not be ineffect; or

 

(h)                                 anynon-monetary judgment or order shall be rendered against BRW or any of itsSubsidiaries that could have a Material Adverse Effect, and there shall be anyperiod of 30 consecutive days during which a stay of enforcement of suchjudgment or order, by reason of a pending appeal or otherwise, shall not be ineffect; or

 

(i)                                     anyprovision of any Loan Document of BRW or any of its Subsidiaries after deliverythereof pursuant to Section 3.01 or 5.01(j) shall for any reason cease tobe 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)                                     anyCollateral Document of BRW or any of its Subsidiaries or financing statementafter delivery thereof pursuant to Section 3.01 or 5.01(j) shall for anyreason (other than pursuant to the terms thereof) cease to create a valid andperfected first priority lien on and security interest in the Collateralpurported to be covered thereby; if such Collateral is property of BRW or itsSubsidiaries; or

 

(k)                                  aChange of Control shall occur; or

 

(l)                                     anyERISA Event shall have occurred with respect to a Plan that could reasonably beexpected to have a Material Adverse Effect; or

 

(m)                               anyLoan Party or any ERISA Affiliate shall have been notified by the sponsor of aMultiemployer Plan that it has incurred Withdrawal Liability to suchMultiemployer Plan in an amount that, when aggregated with all other amountsrequired to be paid to Multiemployer Plans by the Loan Parties and the ERISAAffiliates as

 

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WithdrawalLiability (determined as of the date of such notification) could reasonably beexpected to have a Material Adverse Effect; or

 

(n)                                 anyLoan Party or any ERISA Affiliate shall have been notified by the sponsor of aMultiemployer Plan that such Multiemployer Plan is in reorganization or isbeing terminated, within the meaning of Title IV of ERISA, and as a resultof such reorganization or termination the aggregate annual contributions of theLoan Parties and the ERISA Affiliates to all Multiemployer Plans that are thenin reorganization or being terminated have been or will be increased over theamounts contributed to such Multiemployer Plans for the plan years of suchMultiemployer Plans immediately preceding the plan year in which suchreorganization or termination occurs by an amount that could reasonably beexpected to have a Material Adverse Effect; or

 

(o)                                 an“Event of Default” (as defined in the Junior Notes Indenture or the Oak HillIndenture, as the case may be) shall have occurred and be continuing under theJunior Notes Indenture or the Oak Hill Indenture other than an Event of Defaultspecified 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 Section6.1(f) or (g) of the Oak Hill Indenture (as in effect on the date hereof) inrespect of any default of the type specified in clause (f) above by, against orwith respect to BCI or any of its Subsidiaries or (y) any default of the typespecified in clause (f) shall have occurred by, against or with respect to BCIor any of its Subsidiaries or (ii) repayment of the Oak Hill Debt shall havebeen accelerated,

 

then, and in any suchevent, the Administrative Agent (i) shall at the request, or may with theconsent, of the Required Lenders, by notice to the Borrowers, declare theCommitments of each Lender Party and the obligation of each Lender Party tomake Advances (other than Letter of Credit Advances by an Issuing Bank or aRevolving Credit Lender pursuant to Section 2.03(c) and Swing LineAdvances by a Revolving Credit Lender pursuant to Section 2.02(b)) and ofeach Issuing Bank to issue Letters of Credit to be terminated, whereupon thesame shall forthwith terminate, and (ii) shall at the request, or may withthe consent, of the Required Lenders, (A) by notice to the Borrowers,declare the Notes, all interest thereon and all other amounts payable underthis 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 beforthwith due and payable, without presentment, demand, protest or furthernotice of any kind, all of which are hereby expressly waived by the Borrowersand (B) by notice to each applicable Issuing Bank, direct such Issuing Bank todeliver a Default Termination Notice to the beneficiary of each Letter ofCredit issued by it and each such Issuing Bank shall deliver such DefaultTermination Notices; *provided, however,**that*,

 

(A) prior to the Part II Effective Date, in the eventof an actual or deemed entry of an order for relief with respect to eitherBorrower under the Federal Bankruptcy Code, (x) the Commitments of eachLender Party and the obligation of each Lender Party to make Advances (otherthan Letter of Credit Advances by an Issuing Bank or a Revolving

 

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

 

(B) onand after the Part II Effective Date, in the event of an actual or deemed entryof an order for relief with respect to BRW or any of its Subsidiaries under theFederal Bankruptcy Code, (1) the Commitments of each Lender Party and theobligation of each Lender Party to make Advances (other than Letter of CreditAdvances by an Issuing Bank or a Revolving Credit Lender pursuant toSection 2.03(c) and Swing Line Advances by a Revolving Credit Lenderpursuant to Section 2.02(b)) and of each Issuing Bank to issue Letters ofCredit shall automatically be terminated and (2) the Notes of theBorrowers, all such interest and all such amounts shall automatically becomeand be due and payable, without presentment, demand, protest or any notice ofany kind, all of which are hereby expressly waived by the Borrowers.

 

For the avoidance of doubt, the Administrative Agentand the Lenders agree that a BCI Default or BCI Event of Default shall notunder any circumstances give rise to any right to accelerate any of theObligations of BRW or any of its Subsidiaries or to seek any recourse under theGuarantees or Collateral provided by BRW or its Subsidiaries to support theObligations of BCSI prior to the earlier of (a) the final maturity date of theFacilities and (b) the acceleration of the Notes of BRW resulting from anindependent Event of Default.

 

SECTION 7.02.  Actionsin 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 7.01or otherwise, make demand upon the Borrowers to, and forthwith upon such demandthe Borrowers will, pay to the Administrative Agent on behalf of the LenderParties in same day funds at the Administrative Agent’s office designated insuch demand, for deposit in the L/C Cash Collateral Account, an amount equal tothe aggregate Available Amount of all Letters of Credit then outstanding.  If at any time the Administrative Agentdetermines that any funds held in the L/C Cash Collateral Account are subjectto any right or claim of any Person other than the Agents and the LenderParties or that the total amount of such funds is less than the aggregateAvailable Amount of all Letters of Credit, the Borrowers will, forthwith upondemand by the Administrative Agent, pay to the Administrative Agent, asadditional 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 CashCollateral Account that the Administrative Agent determines to be free andclear of any such right and claim.  Uponthe drawing of any Letter of Credit for which funds are on deposit in the L/CCash Collateral Account, such funds shall be applied to reimburse the relevantIssuing Bank or Revolving Credit Lenders, as applicable, to the extentpermitted by applicable law.

 

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

 

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(a)                                  anydefault 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 orany of its Subsidiaries; or

 

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

 

then, and in any suchevent, the Administrative Agent (i) shall at the request, or may with theconsent, of the Required Lenders, by notice to the Borrowers, declare the Notesof BCSI, all interest thereon and all other amounts payable by BCSI under thisAgreement and the other Loan Documents to be forthwith due and payable,whereupon the Notes of BCSI, all such interest thereon and all such amountsshall become and be forthwith due and payable, without presentment, demand,protest or further notice of any kind, all of which are hereby expressly waivedby the Borrowers and (ii) by notice to each applicable Issuing Bank, directsuch Issuing Bank to deliver a Default Termination Notice to the beneficiary ofeach Letter of Credit issued by it for the account of BCSI or any of itsSubsidiaries and each such Issuing Bank shall deliver such Default TerminationNotices; *provided,however,**that*, in theevent of an actual or deemed entry of an order for relief with respect to BCIor any of its Subsidiaries under the Federal Bankruptcy Code, the Notes ofBCSI, all such interest and all such amounts due by BCSI shall automaticallybecome and be due and payable, without presentment, demand, protest or anynotice of any kind, all of which are hereby expressly waived by BCSI, it beingunderstood and agreed that any such entry of an order for relief with respectto BCI or any of its Subsidiaries will not at any time after the Part IIEffective Date, constitute an Event of Default or cause an automaticacceleration of the Notes of BRW or the termination of the Commitments of eachLender Party or the obligation of each Lender Party to make Advances or of eachIssuing Bank to issue Letters of Credit to BRW.

 

For the avoidance of doubt, the Administrative Agentand the Lenders agree that a BCI Default or BCI Event of Default shall notunder any circumstances give rise to any right to accelerate any of theObligations of BRW or any of its Subsidiaries or to seek any recourse under theGuarantees or Collateral provided by BRW or its Subsidiaries to support theObligations of BCSI prior to the earlier of (a) the final maturity date of theFacilities and (b) the acceleration of the Notes of BRW resulting from anindependent Event of Default.

 

# **ARTICLE VIII**

# ** **

**THE AGENTS**

** **

SECTION 8.01.  Authorizationand Action.  (a)  Each LenderParty (in its capacities as a Lender, a Swing Line Bank (if applicable), anIssuing Bank (if applicable) and on behalf of itself and its Affiliates aspotential Hedge Banks) hereby appoints and authorizes each Agent to take suchaction as agent on its behalf and to exercise such powers and discretion underthis Agreement and the other Loan Documents as are delegated to such Agent bythe terms hereof and thereof, together with such powers and discretion as arereasonably incidental thereto.  As toany 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 berequired to exercise any discretion or take any action, but shall be requiredto act or to refrain from acting (and shall be fully protected in so acting orrefraining from acting) upon the instructions of the Required Lenders, and suchinstructions shall be binding upon all Lender Parties and all holders of Notes;*provided,however,* that no Agent shall be required to take any action thatexposes such Agent to personal liability or that is contrary to this Agreementor applicable law.  Each Agent agrees togive to each Lender Party prompt notice of each notice given to it by theBorrowers pursuant to the terms of this Agreement.

 

(b)                                 TheAdministrative Agent shall also act as the “*collateral agent*” under the LoanDocuments, and each Lender Party (in its capacity as a Lender and a SecuredParty) hereby appoints and authorizes the Administrative Agent to act as theagent of such Lender Party for purposes of acquiring, holding and enforcing anyand all Liens on Collateral granted by any of the Loan Parties to secure any ofthe Secured Obligations, together with such powers and discretion as arereasonably incidental thereto.  TheAdministrative Agent may from time to time in its discretion appoint any of theother Lender Party or any of the Affiliates of a Lender Party to act as itsco-agent or sub-agent for purposes of holding or enforcing any Lien on theCollateral (or any portion thereof) granted under the Collateral Documents or ofexercising any rights and remedies thereunder at the direction of theAdministrative Agent.  In thisconnection, the Administrative Agent, as “collateral agent”, and such co-agentsand sub-agents shall be entitled to the benefits of all provisions of thisArticle VIII (including, without limitation, Section 8.05, as though suchco-agents or sub-agents were the “collateral agent” under the Loan Documents)as if set forth in full herein with respect thereto.

 

(c)                                  Eachof the Co-Arrangers shall have no powers or discretion under this Agreement orany of the other Loan Documents other than those bestowed upon it as a co-agentor sub-agent from time to time by the Administrative Agent pursuant tosubsection (b) of this Section 8.01, and each Lender Party hereby acknowledgesthat none of the Co-Arrangers have any liability under this Agreement or any ofthe other Loan Documents.

 

SECTION 8.02.  Agents’ Reliance, Etc.  Neitherany Agent nor any of their respective directors, officers, agents or employeesshall be liable for any action taken or omitted to be taken by it or them underor in connection with the Loan Documents, except for its or their own grossnegligence or willful misconduct. Without limitation of the generality of the foregoing, each Agent:  (a) may treat the payee of any Note asthe holder thereof until, in the case of the Administrative Agent, theAdministrative Agent receives and accepts an Assignment and Acceptance enteredinto by the Lender that is the payee of such Note, as assignor, and an EligibleAssignee, as assignee, or, in the case of any other Agent, such Agent hasreceived notice from the Administrative Agent that it has received and acceptedsuch 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 notbe liable for any action taken or omitted to be taken in good faith by it inaccordance with the advice of such counsel, accountants or experts;(c) makes no warranty or representation to any Lender Party and shall notbe responsible to any Lender Party for any statements, warranties orrepresentations (whether written or oral) made in or in connection with theLoan Documents; (d) shall not have any duty to ascertain or to inquire asto the performance

 

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

 

SECTION 8.03.  The AdministrativeAgent, the Syndication Agent, the Co-Arrangers and Affiliates.  With respect to its Commitments, theAdvances made by it and the Notes issued to it, CUSA, Bank of America, SSBI andBAS shall have the same rights and powers under the Loan Documents as any otherLender Party and may exercise the same as though it were not an Agent; and theterm “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 andtheir respective affiliates (whether or not parties hereto) may accept depositsfrom, lend money to, act as trustee under indentures of, accept investmentbanking engagements from and generally engage in any kind of business with, anyLoan Party, any of its Subsidiaries and any Person that may do business with orown securities of any Loan Party or any such Subsidiary, all as if CUSA, Bankof America, SSBI and BAS were not Agents and without any duty to account therefor to the Lender Parties.

 

SECTION 8.04.  Lender PartyCredit Decision.  Each Lender Partyacknowledges that it has, independently and without reliance upon any Agent orany other Lender Party and based on the financial statements referred to inSection 4.01 and such other documents and information as it has deemedappropriate, made its own credit analysis and decision to enter into thisAgreement.  Each Lender Party alsoacknowledges that it will, independently and without reliance upon any Agent orany other Lender Party and based on such documents and information as it shalldeem appropriate at the time, continue to make its own credit decisions intaking or not taking action under this Agreement.

 

SECTION 8.05.  Indemnification.  (a) Each Lender Party severally agrees to indemnify each Agent (to theextent not promptly reimbursed by the Borrowers) from and against such LenderParty’s ratable share (determined as provided below) of any and allliabilities, obligations, losses, damages, penalties, actions, judgments,suits, costs, expenses or disbursements of any kind or nature whatsoever thatmay be imposed on, incurred by, or asserted against such Agent in any wayrelating to or arising out of the Loan Documents or any action taken or omittedby such Agent under the Loan Documents (collectively, the “***Lender Indemnified Costs***”); *provided,however,* that no Lender Party shall be liable for any portion ofsuch liabilities, obligations, losses, damages, penalties, actions, judgments,suits, costs, expenses or disbursements resulting from such Agent’s grossnegligence or willful misconduct as found in a final, non-appealable judgmentby a court of competent jurisdiction. In the case of any claim, investigation, litigation or proceeding givingrise to any Lender Indemnified Costs, the indemnification provided by theLender Parties under this Section 8.05 shall apply whether or

 

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

 

(b)                                 EachLender Party severally agrees to indemnify each Issuing Bank (to the extent notpromptly reimbursed by the Borrowers) from and against such Lender Party’sratable 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 imposedon, incurred by, or asserted against such Issuing Bank in any way relating toor arising out of the Loan Documents or any action taken or omitted by suchIssuing Bank under the Loan Documents; *provided, however,* that no Lender Partyshall be liable for any portion of such liabilities, obligations, losses,damages, penalties, actions, judgments, suits, costs, expenses or disbursementsresulting from such Issuing Bank’s gross negligence or willful misconduct asfound in a final, non-appealable judgment by a court of competentjurisdiction.  Without limitation of theforegoing, each Lender Party agrees to reimburse such Issuing Bank promptlyupon demand for its ratable share of any costs and expenses (including, withoutlimitation, fees and expenses of counsel) payable by such Borrower underSection 9.04, to the extent that such Issuing Bank is not promptly reimbursedfor such costs and expenses by such Borrower.

 

(c)                                  Forpurposes of this Section 8.05, the Lender Parties’ respective ratableshares of any amount shall be determined, at any time, according to the sum of(i) the aggregate principal amount of the Advances outstanding at suchtime and owing to the respective Lender Parties, (ii) their respective ProRata Shares of the aggregate Available Amount of all Letters of Creditoutstanding at such time, (iii) the aggregate unused portions of theirrespective Term Commitments at such time and (iv) their respective UnusedRevolving Credit Commitments at such time; *provided* that the aggregate principalamount of Swing Line Advances owing to any Swing Line Bank and of Letter ofCredit Advances owing to any Issuing Bank shall be considered to be owed to theRevolving Credit Lenders ratably in accordance with their respective RevolvingCredit Commitments.  The failure of anyLender 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 bythe Lender Parties to such Agent or such Issuing Bank, as the case may be, asprovided herein shall not relieve any other Lender Party of its obligationhereunder to reimburse such Agent or such Issuing Bank, as the case may be, forits ratable share of such amount, but no Lender Party shall be responsible forthe failure of any other Lender Party to reimburse such Agent or such IssuingBank, as the case may be, for such other Lender Party’s ratable share of suchamount.  Without prejudice to thesurvival of any other agreement of any Lender Party hereunder, the agreementand obligations of each Lender Party contained in this Section 8.05 shallsurvive the payment in full of principal, interest and all other amountspayable 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 theFacilities at any time by giving written notice thereof to the Lender Partiesand the Borrowers and may be removed as to all of the Facilities at any timewith or without cause by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall havethe right to appoint a successor Agent as to such of the Facilities as to whichsuch Agent has resigned or been removed. If no successor Agent shall have been so appointed by the RequiredLenders, and shall have accepted such appointment, within 30 days after theretiring Agent’s giving of notice of resignation or the Required Lenders’removal of the retiring Agent, then the retiring Agent may, on behalf of theLender Parties, appoint a successor Agent, which shall be a commercial bankorganized under the laws of the United States or of any State thereof andhaving a combined capital and surplus of at least $250,000,000.  Upon the acceptance of any appointment asAdministrative Agent hereunder by a successor Administrative Agent as to all ofthe Facilities and upon the execution and filing or recording of such financingstatements, or amendments thereto, and such amendments or supplements to themortgages, if any, and such other instruments or notices, as may be necessaryor desirable, or as the Required Lenders may request, in order to continue theperfection of the Liens granted or purported to be granted by the CollateralDocuments, such successor Administrative Agent shall succeed to and becomevested with all the rights, powers, discretion, privileges and duties of theretiring Administrative Agent, and the retiring Administrative Agent shall bedischarged from its duties and obligations under the Loan Documents.  Upon the acceptance of any appointment asAdministrative Agent hereunder by a successor Administrative Agent as to lessthan all of the Facilities and upon the execution and filing or recording ofsuch financing statements, or amendments thereto, and such amendments orsupplements to the mortgages, if any, and such other instruments or notices, asmay be necessary or desirable, or as the Required Lenders may request, in orderto continue the perfection of the Liens granted or purported to be granted bythe Collateral Documents, such successor Administrative Agent shall succeed toand become vested with all the rights, powers, discretion, privileges andduties of the retiring Administrative Agent as to such Facilities, other thanwith respect to funds transfers and other similar aspects of the administrationof Borrowings under such Facilities, issuances of Letters of Credit(notwithstanding any resignation as Administrative Agent with respect to theLetter of Credit Facility) and payments by the Borrowers in respect of suchFacilities, and the retiring Administrative Agent shall be discharged from itsduties and obligations under this Agreement as to such Facilities, other thanas aforesaid.  If within 45 days afterwritten notice is given of the retiring Agent’s resignation or removal underthis Section 8.06 no successor Agent shall have been appointed and shall haveaccepted such appointment, then on such 45th day (a) the retiring Agent’sresignation or removal shall become effective, (b) the retiring Agentshall thereupon be discharged from its duties and obligations under the LoanDocuments and (c) the Required Lenders shall thereafter perform all dutiesof the retiring Agent under the Loan Documents until such time, if any, as theRequired Lenders appoint a successor Agent as provided above.  After any retiring Agent’s resignation orremoval hereunder as Agent as to any of the Facilities shall have becomeeffective, the provisions of this Article VIII shall inure to its benefitas to any actions taken or omitted to be taken by it while it was Agent as tosuch Facilities under this Agreement.

** **

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# **ARTICLE IX**

# ** **

**MISCELLANEOUS**

 

SECTION 9.01.  Amendments, Etc.  Noamendment or waiver of any provision of this Agreement, the Notes or any of theother Loan Documents, nor consent to any departure by any of the Loan Partiestherefrom, shall in any event be effective unless the same shall be in writingand signed by each of the Loan Parties party to such Loan Document and directlyaffected by such amendment, waiver or consent and signed (or in the case of theCollateral Documents, consented to) by the Required Lenders, and then such waiveror consent shall be effective only in the specific instance and for thespecific purpose for which given; *provided, however,* that:

 

(a)                                  noamendment, waiver or consent shall, unless in writing and signed by theBorrowers and all of the Lenders (other than any of the Lenders that is, atsuch time, a Defaulting Lender), do any of the following at any time:

 

(i)                                     waiveany of the conditions specified in Section 3.01 or, in the case of theinitial Borrowing under any Facility, Section 3.02;

 

(ii)                                  changethe number of Lenders or the percentage of the Commitments or the aggregateoutstanding principal amount of Advances or the aggregate Available Amount ofoutstanding Letters of Credit that, in each case, shall be required for theLender Parties or any of them to take any action hereunder;

 

(iii)                               release (x) theguarantee of BRW under Article VI herein or (y) all or substantially all of thevalue of the guarantees of the Subsidiaries under the Subsidiary Guaranties(other than in connection with a disposition or sale of assets permitted bythis Agreement);

 

(iv)                              releaseall or substantially all of the Collateral in any transaction or series ofrelated transactions (other than in connection with a disposition or sale ofassets permitted by this Agreement);

 

(v)                                 changeany purchase obligation of any Lender under Section 2.13; or

 

(vi)                              amendthis Section 9.01;

 

(b)                                 noamendment, waiver or consent shall, unless in writing and signed by theBorrowers and the Required Lenders and each of the Lenders (other than any ofthe Lenders that is, at such time, a Defaulting Lender) that has a Commitmentor 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, ifsuch Lender is directly affected by such amendment, waiver or consent:

 

(i)                                     increasethe Commitments of such Lender;

 

(ii)                                  reducethe principal of, or stated rate of interest on, the Advances held by suchLender or any fees or other amounts payable hereunder to such

 

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Lenderor reduce or relieve any repayment obligation of the Revolving Credit Lendersunder Section 2.03(c); or

 

(iii)                               postpone any datescheduled for any payment of principal of, or interest on, the Advances held bysuch Lender pursuant to Section 2.04 or 2.07, or postpone scheduled reductionsof the Revolving Credit Facility pursuant to Section 2.05 or any date fixed forany payment of fees or the Guaranteed Obligations payable hereunder to suchLender; and

 

(c)                                  noamendment, waiver or consent shall, unless in writing and signed by theBorrowers and the Required Lenders and, if the Lenders under any such Facilityare directly affected by such amendment, waiver or consent, Lenders holdingmore than 50% of the aggregate Commitments or, if no Commitments are thenoutstanding under such Facility, the Advances then outstanding, under the TermA Facility, the Term B Facility, the Term C Facility or the Revolving CreditFacility, as the case may be, change the order of application of any reductionin the Commitments in any manner that materially affects any Lender Party undersuch Facility at any time when all or a portion of the Term A Facility, theTerm B Facility or the Term C Facility remains in effect or permanently reducethe Revolving Credit Facility;

 

and *provided further* that no amendment, waiveror consent shall, unless in writing and signed by each Swing Line Bank or eachIssuing Bank, as the case may be, in addition to the Lenders required above totake such action, affect the rights or duties of such Swing Line Bank or suchIssuing Bank under this Agreement or any of the other Loan Documents; and *providedfurther* that no amendment, waiver or consent shall, unless inwriting and signed by the Administrative Agent in addition to the LenderParties required above to take such action, affect the rights or duties of theAdministrative Agent under this Agreement or any of the other LoanDocuments.  Notwithstanding any of theforegoing provisions of this Section 9.01, none of the defined terms set forthin Section 1.01 shall be amended, supplemented or otherwise modifiedhereafter in any manner that would change the meaning, purpose or effect ofthis Section 9.01 or any section referred to herein unless such amendment,supplement or modification is agreed to in writing by the number and percentageof Lenders (and each Swing Line Bank, each Issuing Bank and the AdministrativeAgent, in each case, if applicable) otherwise required to amend such sectionunder the terms of this Section 9.01.

 

SECTION 9.02.  Notices, Etc.  Allnotices 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, atits address at 201 East Fourth Street, 102-760, P.O. Box 2301, Cincinnati, Ohio45201-2301, Attention:  Treasurer,Telecopier No.: 513-397-4177; if to any Initial Lender Party, at its DomesticLending Office specified opposite its name on Schedule I hereto; if to anyother Lender Party, at its Domestic Lending Office specified in the Assignmentand Acceptance pursuant to which it became a Lender Party; if to theSyndication 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, NY10013, Attention:  John Judge; Telecopier No.: 212-816-8084; or, asto the Borrowers or the Administrative Agent, at such other address as shall bedesignated by such party in a written notice to the other parties and, as toeach other party, at such other address as shall be designated by such party ina written notice to the Borrowers and the Administrative Agent.  All such notices and other communicationsshall, when mailed, telegraphed, telecopied or telexed, be effective whendeposited in the mails, delivered to the telegraph company, transmitted bytelecopier or confirmed by telex answerback, respectively, except that noticesand communications to any Agent pursuant to Article II, III or VIII shallnot be effective until received by such Agent. Delivery by telecopier of an executed counterpart of any amendment orwaiver of any provision of this Agreement or the Notes or of any Exhibit heretoto be executed and delivered hereunder shall be effective as delivery of anoriginal executed counterpart thereof.

 

SECTION9.03.  No Waiver;Remedies.  No failure on the part ofany Lender Party or any Agent to exercise, and no delay in exercising, anyright hereunder or under any Note shall operate as a waiver thereof; nor shallany single or partial exercise of any such right preclude any other or furtherexercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive ofany remedies provided by law.

 

SECTION 9.04.  Costs andExpenses.  (a) Each of the Borrowershereby agrees to pay on demand (i) all costs and expenses of each Agent inconnection with the preparation, execution, delivery, administration, modificationand amendment of the Loan Documents (including, without limitation,(A) all due diligence, collateral review, syndication, transportation,computer, duplication, appraisal, audit, insurance, consultant, search, filingand recording fees and expenses and (B) the reasonable fees and expensesof counsel for the Agents with respect thereto, with respect to advising theAgents as to their rights and responsibilities, or the perfection, protectionor preservation of rights or interests, under the Loan Documents, with respectto negotiations with any Loan Party or with other creditors of any Loan Partyor any of its Subsidiaries arising out of any Default or any events orcircumstances that may give rise to a Default and with respect to presentingclaims in or otherwise participating in or monitoring any bankruptcy,insolvency or other similar proceeding involving creditors’ rights generallyand any proceeding ancillary thereto) and (ii) all costs and expenses ofeach Agent and each Lender Party in connection with the enforcement of the LoanDocuments, 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 forthe Administrative Agent and each Lender Party with respect thereto).

 

(b)                                 Eachof the Borrowers hereby jointly and severally agrees to indemnify, defend andsave and hold harmless each Agent, each Lender Party and each of theirAffiliates and their respective officers, directors, employees, agents andadvisors (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 andexpenses of counsel) that may be incurred by or asserted or awarded against anyIndemnified Party, in each case arising out of or in connection with or byreason 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, theactual 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 itsSubsidiaries (including BCI and its Subsidiaries) or Affiliates of all or anyportion of the Equity Interests in or Debt securities or substantially all ofthe property or assets of any other Person or (iii) the actual or allegedpresence of Hazardous Materials on any property of any Loan Party or any of itsSubsidiaries or any Environmental Action relating in any way to any Loan Partyor 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 ofcompetent jurisdiction to have resulted from such Indemnified Party’s grossnegligence or willful misconduct.  Inthe case of an investigation, litigation or other proceeding to which theindemnity in this Section 9.04(b) applies, such indemnity shall be effectivewhether or not such investigation, litigation or proceeding is brought by anyLoan Party, its directors, shareholders or creditors or an Indemnified Party,whether or not any Indemnified Party is otherwise a party thereto and whetheror not the Transaction is consummated. Each Borrower also agrees not to assert any claim against any Agent, anyLender Party or any of their Affiliates, or any of their respective officers,directors, employees, agents and advisors, on any theory of liability, forspecial, indirect, consequential or punitive damages arising out of orotherwise relating to the Facilities, the actual or proposed use of theproceeds of the Advances or the Letters of Credit, the Transaction Documents orany of the transactions contemplated by the Transaction Documents.

 

It isunderstood and agreed that, unless (i) a conflict of interest between suchIndemnified Party and any Loan Party or any of their respective Affiliates mayexist in respect of such Indemnifiable Matter in the reasonable opinion ofcounsel for such Indemnified Party or (ii) there may be one or more legaldefenses available to such Indemnified Party that are different from or inaddition to, but in any such case are adverse to, any other Loan Parties or anyof their respective Affiliates, each Indemnified Party shall reasonablyendeavor to work cooperatively with each of the Borrowers with a view towardminimizing the legal and other expenses associated with any defense and anypotential settlement or judgment; provided that no Indemnified Party shall berequired to disclose information of a type that lenders do not generallydisclose to borrowers or that such Indemnified Party would be prohibited fromdisclosing based on any Federal, state or foreign authority or examiner regulatingsuch Indemnified Party.  To the extentreasonably practicable and not disadvantageous to any Indemnified Party, it isanticipated that a single counsel selected by the Borrowers and reasonablysatisfactory to such Indemnified Party may be used and such Borrowers shall beresponsible for all fees and expenses of each such counsel.  Notwithstanding the foregoing, suchIndemnified Party shall have the right (but not any obligation) to retainseparate co-counsel and shall have the right, but not the obligation, toassert 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 ofsuch Indemnified Party (except that such Borrower or Borrowers shall beresponsible for the fees and expenses of the separate co-counsel (x) tothe extent such Indemnified Party reasonably concludes that any of the counselchosen by such Borrower or Borrowers to participate in the defense of any suchIndemnifiable Matter has a conflict of interest, (y) if such Borrower orBorrowers do not employ counsel reasonably satisfactory to such IndemnifiedParty or (z) if such Borrower or Borrowers or its counsel does not at all timesdefend such 

 

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IndemnifiableMatter vigorously and in good faith. Settlement of any claim or litigation involving any material indemnifiedamount will require the approval of the Borrowers (not to be unreasonablywithheld).

 

(c)                                  Ifany payment of principal of, or Conversion of, any Eurodollar Rate Advance ismade by any Borrower to or for the account of a Lender Party other than on thelast day of the Interest Period for such Advance, as a result of a payment orConversion pursuant to Section 2.06, 2.09(b)(i) or 2.10(d), accelerationof the maturity of the Notes pursuant to Section 7.01 or for any otherreason, or by an Eligible Assignee to a Lender Party other than on the last dayof the Interest Period for such Advance upon an assignment of rights andobligations under this Agreement pursuant to Section 9.07 as a result of ademand by such Borrower pursuant to Section 9.07(a), or if such Borrowerfails to make any payment or prepayment of an Advance for which a notice ofprepayment has been given or that is otherwise required to be made, whetherpursuant 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 theAdministrative Agent), pay to the Administrative Agent for the account of suchLender Party any amounts required to compensate such Lender Party for anyadditional losses, costs or expenses that it may reasonably incur as a resultof such payment or Conversion or such failure to pay or prepay, as the case maybe, including, without limitation, any loss (including loss of anticipatedprofits), cost or expense incurred by reason of the liquidation or reemploymentof deposits or other funds acquired by any Lender Party to fund or maintainsuch Advance.

 

(d)                                 Ifany Loan Party fails to pay when due any costs, expenses or other amountspayable by it under any Loan Document, including, without limitation, fees andexpenses of counsel and indemnities, such amount may be paid on behalf of suchLoan Party by the Administrative Agent or any Lender Party, in its solediscretion.

 

(e)                                  Withoutprejudice to the survival of any other agreement of any Loan Party hereunder orunder any other Loan Document, the agreements and obligations of each Borrowercontained in Sections 2.10 and 2.12 and this Section 9.04 shall survivethe payment in full of principal, interest and all other amounts payablehereunder and under any of the other Loan Documents.

 

SECTION 9.05.  Right of Set-off.  Upon (a) the occurrence and during thecontinuance of any Event of Default and (b) the making of the request orthe granting of the consent specified by Section 7.01 to authorize theAdministrative Agent to declare the Notes due and payable pursuant to theprovisions of Section 7.01, each Agent and each Lender Party and each oftheir respective Affiliates is hereby authorized at any time and from time totime, to the fullest extent permitted by law, to set off and otherwise applyany 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, suchLender Party or such Affiliate to or for the credit or the account of eachBorrower against any and all of the Obligations of the Borrowers now orhereafter existing under the Loan Documents, irrespective of whether such Agentor such Lender Party shall have made any demand under this Agreement or suchNote or Notes and although such Obligations may be unmatured.  Each Agent and each Lender Party agreespromptly 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 LenderParty and their respective Affiliates under this Section are in addition toother 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 contemplatedby this Agreement shall become effective as set forth in Section 3.01 andthereafter shall be binding upon and inure to the benefit of each Borrower,each Agent and each Lender Party and their respective successors and assigns, exceptthat no Borrower shall have the right to assign its rights hereunder or anyinterest herein without the prior written consent of the Lender Parties.

 

SECTION 9.07.  Assignments andParticipations.  (a)  EachLender may and, so long as no Default shall have occurred and be continuing, ifdemanded by BRW (following a demand by such Lender pursuant toSection 2.10 or 2.12) upon at least five Business Days’ notice to suchLender and the Administrative Agent, will assign to one or more Eligible Assigneesall or a portion of its rights and obligations under this Agreement (including,without limitation, all or a portion of its Commitment or Commitments, theAdvances 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 moreFacilities, (ii) except in the case of an assignment to a Person that,immediately prior to such assignment, was a Lender, an Affiliate of any Lenderor an Approved Fund of any Lender or an assignment of all of a Lender’s rightsand obligations under this Agreement, the aggregate amount of the Commitmentsbeing assigned to such Eligible Assignee pursuant to such assignment(determined as of the date of the Assignment and Acceptance with respect tosuch assignment) shall in no event be less than $1,000,000 or an integralmultiple of $1,000,000 in excess thereof (or such lesser amount as shall beapproved by the Administrative Agent and, so long as no Default shall haveoccurred and be continuing at the time of effectiveness of such assignment, theBorrowers) under each Facility for which a Commitment is being assigned;provided, that in the event of concurrent assignments to two or more RelatedFunds, all such concurrent assignments shall be aggregated in determiningcompliance with this requirement, (iii) each such assignment shall be toan Eligible Assignee, (iv) each such assignment made as a result of ademand by the Borrowers pursuant to this Section 9.07(a) shall be arrangedby the Borrowers after consultation with the Administrative Agent and shall beeither an assignment of all of the rights and obligations of the assigningLender under this Agreement or an assignment of a portion of such rights andobligations made concurrently with another such assignment or other suchassignments that together cover all of the rights and obligations of theassigning Lender under this Agreement, (v) no Lender shall be obligated tomake any such assignment as a result of a demand by the Borrowers pursuant tothis Section 9.07(a) unless and until such Lender shall have received oneor more payments from either the Borrowers or one or more Eligible Assignees inan aggregate amount at least equal to the aggregate outstanding principalamount of the Advances owing to such Lender, together with accrued interestthereon to the date of payment of such principal amount and all other amountspayable to such Lender under this Agreement, (vi) [intentionally omitted] and(vii) the parties to each such assignment shall execute and deliver to theAdministrative Agent, for its acceptance and recording in the Register, anAssignment and Acceptance, together with any Note or Notes subject to suchassignment and a processing and recordation fee of $3,500; *provided, however,* that foreach such assignment 

 

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made as a result of a demand by any Borrower pursuant to thisSection 9.07(a), such Borrower shall pay to the Administrative Agent theapplicable processing and recordation fee*;provided further,* that no such fee shall be payable in the case ofany assignment to a Related Fund; and *providedstill further* that, in the case of contemporaneous assignments by aLender to more than one fund managed by the same investment advisor (whichfunds are not then Lenders hereunder), only a single such fee shall be payablefor such contemporaneous assignments.

 

(b)                                 Uponsuch execution, delivery, acceptance and recording, from and after theeffective date specified in such Assignment and Acceptance, (i) theassignee thereunder shall be a party hereto and, to the extent that rights andobligations hereunder have been assigned to it pursuant to such Assignment andAcceptance, have the rights and obligations of a Lender or Issuing Bank, as thecase may be, hereunder and (ii) the Lender or Issuing Bank assignorthereunder shall, to the extent that rights and obligations hereunder have beenassigned by it pursuant to such Assignment and Acceptance, relinquish itsrights (other than its rights under Sections 2.10, 2.12 and 9.04 to theextent any claim thereunder relates to an event arising prior to suchassignment) and be released from its obligations under this Agreement (and, inthe case of an Assignment and Acceptance covering all of the remaining portionof an assigning Lender’s or Issuing Bank’s rights and obligations under thisAgreement, such Lender or Issuing Bank shall cease to be a party hereto).

 

(c)                                  Byexecuting and delivering an Assignment and Acceptance, each Lender Partyassignor thereunder and each assignee thereunder confirm to and agree with eachother and the other parties thereto and hereto as follows:  (i) other than as provided in suchAssignment and Acceptance, such assigning Lender Party makes no representationor warranty and assumes no responsibility with respect to any statements,warranties or representations made in or in connection with any Loan Documentor the execution, legality, validity, enforceability, genuineness, sufficiencyor value of, or the perfection or priority of any lien or security interestcreated or purported to be created under or in connection with, any LoanDocument or any other instrument or document furnished pursuant thereto;(ii) such assigning Lender Party makes no representation or warranty andassumes no responsibility with respect to the financial condition of any LoanParty or the performance or observance by any Loan Party of any of itsobligations under any Loan Document or any other instrument or documentfurnished pursuant thereto; (iii) such assignee confirms that it hasreceived a copy of this Agreement, together with copies of the financialstatements referred to in Section 4.01 and such other documents andinformation as it has deemed appropriate to make its own credit analysis anddecision to enter into such Assignment and Acceptance; (iv) such assigneewill, independently and without reliance upon any Agent, such assigning LenderParty or any other Lender Party and based on such documents and information asit shall deem appropriate at the time, continue to make its own creditdecisions in taking or not taking action under this Agreement; (v) suchassignee confirms that it is an Eligible Assignee; (vi) such assigneeappoints and authorizes each Agent to take such action as agent on its behalfand to exercise such powers and discretion under the Loan Documents as aredelegated to such Agent by the terms hereof and thereof, together with suchpowers and discretion as are reasonably incidental thereto; and (vii) suchassignee agrees that it will perform in accordance with their terms all of theobligations that by the terms of this Agreement are required to be performed byit as a Lender or Issuing Bank, as the case may be.

 

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(d)                                 TheAdministrative Agent, acting for this purpose (but only for this purpose) asthe agent of each of the Borrowers, shall maintain at its address referred toin Section 9.02 a copy of each Assignment and Acceptance delivered to andaccepted by it and a register for the recordation of the names and addresses ofthe Lender Parties and the Commitment under each Facility of, and principalamount of the Advances owing under each Facility to, each Lender Party from timeto time (the “***Register***”).  The entries in the Register shall beconclusive and binding for all purposes, absent manifest error, and eachBorrower, the Agents and the Lender Parties may treat each Person whose name isrecorded in the Register as a Lender Party hereunder for all purposes of thisAgreement.  The Register shall beavailable for inspection by any Borrower or any Agent or any Lender Party atany reasonable time and from time to time upon reasonable prior notice.

 

(e)                                  Uponits receipt of an Assignment and Acceptance executed by an assigning LenderParty and an assignee, together with any Note or Notes subject to suchassignment, the Administrative Agent shall, if such Assignment and Acceptancehas been completed and is in substantially the form of Exhibit C hereto,(i) accept such Assignment and Acceptance, (ii) record theinformation contained therein in the Register and (iii) give prompt noticethereof to the Borrowers and each other Agent. In the case of any assignment by a Lender, within five Business Daysafter its receipt of such notice, each Borrower, at its own expense, shallexecute and deliver to the Administrative Agent in exchange for the surrenderedNote or Notes a new Note to the order of such Eligible Assignee in an amountequal to the Commitment assumed by it under each Facility pursuant to suchAssignment and Acceptance and, if any assigning Lender has retained aCommitment hereunder under such Facility, a new Note to the order of suchassigning Lender in an amount equal to the Commitment retained by ithereunder.  Such new Note or Notes shallbe in an aggregate principal amount equal to the aggregate principal amount ofsuch surrendered Note or Notes, shall be dated the effective date of such Assignmentand Acceptance and shall otherwise be in substantially the form ofExhibit A-1 or A-2 hereto, as the case may be.

 

(f)                                    EachIssuing Bank may assign to one or more Eligible Assignees all or a portion ofits rights and obligations under the undrawn portion of its Letter of CreditCommitment at any time; *provided, however,* that (i) except in thecase of an assignment to a Person that immediately prior to such assignment wasan Issuing Bank or an assignment of all of an Issuing Bank’s rights andobligations under this Agreement, the amount of the Letter of Credit Commitmentof the assigning Issuing Bank being assigned pursuant to each such assignment(determined as of the date of the Assignment and Acceptance with respect tosuch assignment) shall in no event be less than $5,000,000 and shall be in anintegral multiple of $1,000,000 in excess thereof, (ii) each such assignmentshall be to an Eligible Assignee and (iii) the parties to each such assignmentshall execute and deliver to the Administrative Agent, for its acceptance andrecording in the Register, an Assignment and Acceptance, together with aprocessing and recordation fee of $3,500.

 

(g)                                 EachLender Party may sell participations to one or more Persons (other than anyLoan Party or any of its Affiliates) in or to all or a portion of its rightsand obligations under this Agreement (including, without limitation, all or aportion of its Commitments, the Advances owing to it and the Note or Notes (ifany) held by it); *provided, however,* that (i) such

 

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LenderParty’s obligations under this Agreement (including, without limitation, itsCommitments) shall remain unchanged, (ii) such Lender Party shall remainsolely responsible to the other parties hereto for the performance of suchobligations, (iii) such Lender Party shall remain the holder of any suchNote for all purposes of this Agreement, (iv) the Borrowers, the Agentsand the other Lender Parties shall continue to deal solely and directly withsuch Lender Party in connection with such Lender Party’s rights and obligationsunder this Agreement and (v) no participant under any such participationshall have any right to approve any amendment or waiver of any provision of anyLoan Document, or any consent to any departure by any Loan Party therefrom,except to the extent that such amendment, waiver or consent would reduce theprincipal of, or interest on, the Notes or any fees or other amounts payablehereunder, in each case to the extent subject to such participation, postponeany date fixed for any payment of principal of, or interest on, the Notes orany fees or other amounts payable hereunder, in each case to the extent subjectto such participation, or release all or substantially all of the Collateral.

 

(h)                                 AnyLender Party may, in connection with any assignment or participation orproposed assignment or participation pursuant to this Section 9.07,disclose to the assignee or participant or proposed assignee or participant anyinformation relating to the Borrowers furnished to such Lender Party by or onbehalf of the Borrowers; *provided, however,* that, prior to any suchdisclosure, the assignee or participant or proposed assignee or participantshall agree to preserve the confidentiality of any Confidential Informationreceived by it from such Lender Party.

 

(i)                                     Notwithstandingany other provision set forth in this Agreement, any Lender Party may at anytime create a security interest in all or any portion of its rights under thisAgreement (including, without limitation, the Advances owing to it and the Noteor Notes held by it) in favor of any Federal Reserve Bank in accordance withRegulation A of the Board of Governors of the Federal Reserve System.

 

(j)                                     Notwithstandinganything to the contrary contained herein, any Lender Party, (a “***Granting Lender”***) maygrant to a special purpose funding vehicle identified as such in writing fromtime to time by the Granting Lender to the Administrative Agent and theBorrowers (an “***SPC”***)the option to provide all or any part of any Advance that such Granting Lenderwould otherwise be obligated to make pursuant to this Agreement; providedthat (i) nothing herein shall constitute a commitment by any SPC to fundany Advance, and (ii) if an SPC elects not to exercise such option orotherwise fails to make all or any part of such Advance, the Granting Lendershall be obligated to make such Advance pursuant to the terms hereof.  The making of an Advance by an SPC hereundershall utilize the Commitment of the Granting Lender to the same extent, and asif, such Advance were made by such Granting Lender.  Each party hereto hereby agrees that (i) no SPC shall be liablefor any indemnity or similar payment obligation under this Agreement for whicha Lender Party would otherwise be liable for so long as, and to the extent, theGranting Lender provides such indemnity or makes such payment and (ii) no SPCshall be entitled to the benefits of Sections 2.10 and 2.12 (or any otherincreased costs protection provision). In furtherance of the foregoing, each party hereto hereby agrees (whichagreement shall survive the termination of this Agreement) that, prior to thedate that is one year and one day after the payment in full of all outstandingcommercial paper or other senior Debt of any SPC, it will not institute against,or join any other person in instituting 

 

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against,such SPC any bankruptcy, reorganization, arrangement, insolvency, orliquidation proceeding under the laws of the United States or any State thereof.  Notwithstanding anything to the contrarycontained in this Agreement, any SPC may (i) with notice to, but withoutprior consent of, the Borrower, the Syndication Agent and the AdministrativeAgent and without paying any processing fee therefor, assign all or any portionof its interest in any Advance to the Granting Lender and (ii) disclose ona confidential basis any non-public information relating to its funding ofAdvances to any rating agency, commercial paper dealer or provider of anysurety or guarantee or credit or liquidity enhancement to such SPC.  This subsection 9.07(j) may not be amendedwithout the prior written consent of each Granting Lender, all or any part ofwhose Advances are being funded by the SPC at the time of such amendment.  For the avoidance of doubt, with respect tothe Agents, the other Lender Parties and the Borrowers, the Granting Bank shallfor all purposes, including, without limitation, the approval of any amendmentor waiver of any provision of any Loan Document, be the Lender Party of recordhereunder.

 

(k)                                  Notwithstandingany other provision set forth in this Agreement, any Lender Party that is afund that invests in bank loans may pledge all or any portion of its rights inconnection with this Agreement to the trustee for holders of obligations owed,or securities issued, by such fund as security for such obligations orsecurities; *provided*that nothing contained herein shall affect any obligations of the Lender Partyor such pledgee to comply with the requirements of Section 9.07 in order forsuch pledgee to become a Lender Party under this Agreement.  No pledge described in the immediatelypreceding sentence shall release such Lender Party from its obligations underthis Agreement.

 

SECTION 9.08.  Execution inCounterparts.  This Agreement may beexecuted in any number of counterparts and by different parties hereto inseparate counterparts, each of which when so executed shall be deemed to be anoriginal and all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of asignature page to this Agreement by telecopier shall be effective as deliveryof an original executed counterpart of this Agreement.

 

SECTION 9.09.  No Liability ofthe Issuing Banks.  Each Borrowerassumes all risks of the acts or omissions of any beneficiary or transferee ofany Letter of Credit issued on behalf of such Borrower with respect to its useof such Letter of Credit.  Neither anyIssuing Bank nor any of its officers or directors shall be liable orresponsible for:  (a) the use thatmay be made of any Letter of Credit or any acts or omissions of any beneficiaryor transferee in connection therewith; (b) the validity, sufficiency orgenuineness of documents, or of any endorsement thereon, even if such documentsshould prove to be in any or all respects invalid, insufficient, fraudulent orforged; (c) payment by such Issuing Bank against presentation of documentsthat do not comply with the terms of a Letter of Credit, including failure of anydocuments to bear any reference or adequate reference to the Letter of Credit;or (d) any other circumstances whatsoever in making or failing to makepayment under any Letter of Credit, except that such Borrower shall have aclaim against such Issuing Bank, and such Issuing Bank shall be liable to suchBorrower, to the extent of any direct, but not consequential, damages sufferedby such Borrower that such Borrower proves were caused by (i) such IssuingBank’s willful misconduct or gross negligence as determined in a final,non-appealable judgment by a court of competent jurisdiction in determiningwhether documents presented under any Letter of

 

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Credit comply with the terms of the Letter of Credit or (ii) suchIssuing Bank’s willful failure to make lawful payment under a Letter of Creditafter the presentation to it of a draft and certificates strictly complyingwith the terms and conditions of the Letter of Credit.  In furtherance and not in limitation of theforegoing, such Issuing Bank may accept documents that appear on their face tobe in order, without responsibility for further investigation, regardless ofany 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 allPersons, 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 RevenueCode and the Treasury  Regulationspromulgated thereunder) of the Transaction and all materials of any kind(including opinions or other tax analyses) that are provided to such partyrelating to such tax treatment and tax structure, other than any informationfor which nondisclosure is reasonably necessary in order to comply withapplicable securities laws.  For thispurpose, tax treatment and tax structure shall not include the identity of anyexisting 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 anyLender Party may disclose to any Person any confidential, proprietary ornon-public information of the Borrowers furnished to the Agents or the LenderParties by the Borrowers (such information being referred to collectivelyherein as the “*Borrower Information*”), except that each of the Agents andeach of the Lender Parties may disclose Borrower Information (i) to itsand its affiliates’ employees, officers, directors, agents, accountants,attorneys and other advisors (it being understood that the Persons to whom suchdisclosure is made will be informed of the confidential nature of such BorrowerInformation and instructed to keep such Borrower Information confidential onsubstantially the same terms as provided herein), (ii) to the extentrequested by any regulatory authority or self regulatory body operatingpursuant to statutory authority having or claiming authority to regulate or overseeany 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 anysubpoena or similar legal process, (iv) to any other party to thisAgreement who have agreed to hold the Borrower Information in confidence onsubstantially the same terms as provided herein, (v) in connection withthe exercise of any remedies hereunder or under any other Loan Document or anysuit, action or proceeding relating to this Agreement or any other LoanDocument or the enforcement of rights hereunder or thereunder,(vi) subject to an agreement containing provisions substantially the sameas those of this Section 9.10, to any assignee of or participant in, or anyprospective assignee of or participant in, any of its rights or obligationsunder this Agreement, (vii) to the extent such Borrower Information (A) is orbecomes generally available to the public on a non-confidential basis otherthan as a result of a breach of this Section 9.10 by such Agent or such LenderParty, or (B) is or becomes available to such Agent or such Lender Party on anonconfidential basis from a source other than the Borrowers, (viii) withthe consent of the Borrowers, or (xi) to any direct or indirect contractualcounterparty in swap agreements or such contractual counterparty’s professionaladvisor (so long as such contractual counterparty or professional advisor tosuch contractual counterparty is subject to the confidentiality obligations ofthis Agreement). Any Person required to maintain the confidentiality ofBorrower Information as provided in this Section 9.10 shall be considered to 

 

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havecomplied with its obligation to do so if such Person has exercised the samedegree of care to maintain the confidentiality of such Borrower Information assuch Person would accord to its own confidential information; provided, however,that with respect to disclosures pursuant to clauses (ii) and (iii) of thisSection 9.10 (other than disclosures pursuant to routine regulatoryexaminations), unless prohibited by law or applicable court order, each LenderParty and each Agent shall attempt to notify the Borrowers of any request byany governmental agency or representative thereof or other Person fordisclosure of Borrower Information after receipt of such request, and ifreasonable, practicable and permissible, before disclosure of such BorrowerInformation.  It is understood andagreed that the Borrowers and their respective Affiliates may rely upon thisSection 9.10 for any purpose, including without limitation to comply withRegulation FD promulgated by the Securities and Exchange Commission.

 

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

 

SECTION 9.11.  Release ofCollateral.  Upon (a) the InvestmentGrade Date or (b) the sale, lease, transfer or other disposition of anyitem of Collateral of any Loan Party (including, without limitation, as aresult of the sale, in accordance with the terms of the Loan Documents, of theLoan Party that owns such Collateral) in accordance with the terms of the LoanDocuments, the Administrative Agent will, at the Borrowers’ expense, executeand deliver to such Loan Party such documents as such Loan Party may reasonablyrequest to evidence the release of such item of Collateral from the assignmentand security interest granted under the Collateral Documents in accordance withthe terms of the Loan Documents. Without limiting the foregoing, the lenders hereby authorize and directthe Administrative Agent, at the Borrowers’ expense, in connection with anytransaction permitted under Section 5.02(e)(ix) to take any and all actionsrequired to release from the assignment and security interest granted under theCollateral Documents any and all Collateral consisting of assets of BCI and itsSubsidiaries subject to such transaction and to terminate any and all otherarrangements for the benefit of the Lenders in respect of assets of BCI and itsSubsidiaries subject to such transaction (including but not limited to thearrangements in respect of the Real Estate SPV).

 

SECTION 9.12.  Jurisdiction, Etc.  (a) Each of the parties hereto hereby irrevocably and unconditionallysubmits, for itself and its property, to the nonexclusive jurisdiction of anyNew York State court or Federal court of the United States of America sittingin New York City, and any appellate court from any thereof, in any actionor proceeding arising out of or relating to this Agreement or any of the otherLoan Documents to which it is a party, or for recognition or enforcement of anyjudgment, and each of the parties hereto hereby irrevocably and unconditionallyagrees that all claims in respect of any such action or proceeding may be heardand determined in any such New York State court or, to the fullest extentpermitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such

 

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action or proceeding shall be conclusive and may be enforced in otherjurisdictions by suit on the judgment or in any other manner provided bylaw.  Nothing in this Agreement shallaffect any right that any party may otherwise have to bring any action orproceeding relating to this Agreement or any of the other Loan Documents in thecourts of any jurisdiction.

 

(b)                                 Eachof the parties hereto irrevocably and unconditionally waives, to the fullestextent it may legally and effectively do so, any objection that it may now orhereafter have to the laying of venue of any suit, action or proceeding arisingout of or relating to this Agreement or any of the other Loan Documents towhich it is a party in any New York State or Federal court.  Each of the parties hereto herebyirrevocably waives, to the fullest extent permitted by law, the defense of aninconvenient forum to the maintenance of such action or proceeding in any suchcourt.

 

SECTION 9.13.  Integration.  This Agreement and the other Loan Documentsrepresent the entire agreement of the Borrowers, the Guarantors, theAdministrative Agent and the Lenders with respect to the subject matter hereof,and there are no promises, undertakings, representations or warranties by anyBorrower, any Guarantor, the Administrative Agent or any Lender relative to thesubject matter hereof not expressly set forth or referred to herein or in theother Loan Documents.

 

SECTION 9.14.  Governing Law.  This Agreement and the Notes shall begoverned by, and construed in accordance with, the laws of the State ofNew York.

 

SECTION 9.15.  Waiver of JuryTrial.  Each of the Borrowers, theAgents and the Lender Parties irrevocably waives all right to trial by jury inany action, proceeding or counterclaim (whether based on contract, tort orotherwise) arising out of or relating to any of the Loan Documents, theAdvances, the Letters of Credit or the actions of any Agent or any Lender Partyin the negotiation, administration, performance or enforcement thereof.

 

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

 

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IN WITNESSWHEREOF, the parties hereto have caused this Agreement to be executed by theirrespective officers thereunto duly authorized, as of the date first abovewritten

 
|   | 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                                                             |

 

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**Lenders:**

 
|   |                 |   |
|--------|----------------------|--------|
|   | Name of  Institution |   |
|   |                 |   |
|   |                 |   |
|   | By                   |   |   |
|   | Title:               |   |
|        |                      |        |  |

 

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**Schedule II to the**

**CreditAgreement**

 

List of SubsidiaryGuarantors

 

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

 

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Schedule 5.01(r)to the Credit Agreement

 

Descriptionof CentralizedBRW Cash Management System:  Cash ManagementProcedures and Intercompany Lending

 

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

 

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

 

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

 

PLEASE SEE SEPARATELYEXECUTED DOCUMENTS.

 

 

151

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**EXECUTIONCOPY**

 

$1,605,041,000

 

**SECONDAMENDMENT AND RESTATEMENT**

**OF THE**

**CREDITAGREEMENT**

** **

Dated as of March 26,2003

 

Among

 

BROADWING INC.

and

BROADWING COMMUNICATIONSSERVICES INC.

asBorrowers

 

 

and

 

BROADWING INC.

asParentGuarantor

 

THE INITIAL LENDERS, INITIAL ISSUING BANKS AND

 SWING LINE BANKS NAMED HEREIN

asInitialLenders, InitialIssuingBanksandSwingLineBanks

 

and BANK OF AMERICA, N.A.

asSyndicationAgent

and

 

CITICORP USA, INC.

asAdministrativeAgent

and

 

CREDIT SUISSE FIRST BOSTONand

 

THE BANK OF NEW YORK

asCo-DocumentationAgents

and

 

PNC BANK, N.A.

as Agent

 

and

 

SALOMON SMITH BARNEY INC.

BANC OF AMERICA SECURITIES LLC

as Joint Lead ArrangersandJointBookManagers

 

152

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Table of Contents

 

S&SDRAFT

 
| 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**.**           |

 

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| SECTION 3.02.  Conditions Precedent to Each Borrowing and  Issuance and Renewal.                  |
|--------------------------------------------------------------------------------------------------------|
|                                                                                                   |
| SECTION 3.03.  Determinations Under Section 3.01                                                  |
|                                                                                                   |
| ARTICLE IV                                                                                             |
|                                                                                                   |
| SECTION 4.01.  Representations and Warranties of the  Borrowers.                                  |
|                                                                                                   |
| ARTICLE V                                                                                              |
|                                                                                                   |
| SECTION 5.01.  Affirmative Covenants                                                              |
|                                                                                                   |
| SECTION 5.02.  Negative Covenants.                                                                |
|                                                                                                   |
| SECTION  5.03.  Reporting Requirements.                                                           |
|                                                                                                   |
| SECTION 5.04.  Financial Covenants.                                                               |
|                                                                                                   |
| ARTICLE VI                                                                                             |
|                                                                                                   |
| SECTION 6.01.  BRW Guaranty                                                                       |
|                                                                                                   |
| SECTION  6.02.  Guarantee Absolute                                                                |
|                                                                                                   |
| SECTION 6.03.  Waivers and Acknowledgments.                                                  |
|                                                                                                   |
| SECTION 6.04.  Subrogation.                                                                       |
|                                                                                                   |
| SECTION 6.05.  Continuing Guarantee; Assignments.                                                 |
|                                                                                                   |
| ARTICLE VII                                                                                            |
|                                                                                                   |
| SECTION  7.01.  Events of Default.                                                                |
|                                                                                                   |
| SECTION 7.03.  BCI Events of Default.                                                             |
|                                                                                                   |
| ARTICLE VIII                                                                                           |
|                                                                                                   |
| SECTION 8.01.  Authorization and Action.                                                          |
|                                                                                                   |
| SECTION  8.02.  Agents’ Reliance, Etc.                                                       |
|                                                                                                   |
| SECTION 8.03.  The Administrative Agent, the Syndication  Agent, the Co-Arrangers and Affiliates. |
|                                                                                                   |
| SECTION  8.04.  Lender Party Credit Decision.                                                     |
|                                                                                                   |
| SECTION 8.05.  Indemnification.                                                                   |

 

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| SECTION 8.06.  Successor Agents.                 |
|-------------------------------------------------------|
|                                                  |
| ARTICLE IX                                            |
|                                                  |
| SECTION 9.01.  Amendments, Etc.                  |
|                                                  |
| SECTION 9.02.  Notices, Etc.                     |
|                                                  |
| SECTION  9.03.  No Waiver; Remedies.             |
|                                                  |
| SECTION  9.04.  Costs and Expenses               |
|                                                  |
| SECTION  9.05.  Right of Set-off                 |
|                                                  |
| SECTION  9.06.  Binding Effect                   |
|                                                  |
| SECTION 9.07.  Assignments and Participations.   |
|                                                  |
| SECTION  9.08.  Execution in Counterparts        |
|                                                  |
| SECTION 9.09.  No Liability of the Issuing Banks |
|                                                  |
| SECTION 9.10.  Confidentiality.                  |
|                                                  |
| SECTION  9.11.  Release of Collateral.           |
|                                                  |
| SECTION 9.12.  Jurisdiction, Etc.                |
|                                                  |
| SECTION 9.13.  Integration.                      |
|                                                  |
| SECTION  9.14.  Governing Law.                   |
|                                                  |
| SECTION  9.15.  Waiver of Jury Trial.            |
|                                                  |
| SECTION 9.16.  BCSI Sale Agreement.              |

 

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| 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                         |

 

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