FIRST AMENDMENT Dated as of August 31, 2005 TO CREDIT AGREEMENT Dated as of February 16, 2005 among CINCINNATI BELL INC., as the Borrower, Certain Subsidiaries of the Borrower from time to time party thereto, as Guarantors, BANK OF AMERICA, N.A., as...
EXECUTION
COPY
FIRST
AMENDMENT
Dated
as
of August 31, 2005
TO
Dated
as
of February 16, 2005
among
CINCINNATI
XXXX INC.,
as
the
Borrower,
Certain
Subsidiaries of the Borrower
from
time
to time party thereto,
as
Guarantors,
BANK
OF
AMERICA, N.A.,
as
Administrative Agent and an L/C Issuer,
PNC
BANK,
NATIONAL ASSOCIATION
as
Swingline Lender and an L/C Issuer,
and
The
Other
Lenders party thereto
_____________________________________________________________________________
BANC
OF
AMERICA SECURITIES LLC
as
Sole
Lead Arranger and Book Manager
FIRST
AMENDMENT
TO
THIS
FIRST AMENDMENT TO CREDIT AGREEMENT (this
“Amendment”),
dated
as of August 31, 2005, is entered into by and among CINCINNATI XXXX INC., an
Ohio corporation (the “Borrower”),
the
Guarantors signatories hereto, the Lenders signatories hereto and BANK OF
AMERICA, N.A., as Administrative Agent and an L/C Issuer, and PNC BANK, NATIONAL
ASSOCIATION, as Swingline Lender and an L/C Issuer.
RECITALS
A. The
Borrower, the Guarantors, the Lenders, the Swingline Lender, the L/C Issuers
and
the Administrative Agent are party to that certain Credit Agreement dated as
of
February 16, 2005 (as amended, modified, restated or supplemented from time
to
time prior to the First Amendment Effective Date, the “Existing
Credit Agreement”).
B. The
Borrower has requested that the Existing Credit Agreement be amended to (i)
establish a
$400
million tranche B term loan facility (the
“Tranche
B Facility”),
and
(ii) effect certain other modifications to the Existing Credit
Agreement.
C. The
parties have agreed to amend the Existing Credit Agreement as set forth
herein.
D. The
Lenders are willing to provide the Tranche B Facility on the terms and
conditions set forth herein and in the Amended Credit Agreement (as defined
below).
AGREEMENT
NOW,
THEREFORE, IN CONSIDERATION
of the
premises and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
| I. |
CERTAIN
DEFINITIONS
|
1. Certain
Definitions.
The
following terms used in this Amendment, including its preamble and recitals,
have the following meanings:
“Amended
Credit Agreement”
means
the Existing Credit Agreement as amended hereby.
“First
Amendment Effective Date”
shall
have the meaning assigned to such term in introductory paragraph of Article IV
hereof.
“Requisite
Lenders”
means,
collectively, the Required Lenders and each Lender that has agreed to provide
a
Tranche B Term Loan Commitment as of the First Amendment Effective
Date.
2. Other
Definitions.
Unless
otherwise defined herein or the context otherwise requires, terms used in this
Amendment, including its preamble and recitals, have the meanings provided
in
the Amended Credit Agreement.
| II. |
AMENDMENTS
TO EXISTING CREDIT
AGREEMENT
|
Effective
on and subject to the occurrence of the First Amendment Effective Date, (i)
the
Existing Credit Agreement is hereby amended in its entirety to read in the
form
attached as Annex I
to this
Amendment, (ii) Schedule 2.01
of the
Existing Credit Agreement is hereby amended by adding the table set forth in
the
Supplement
to Schedule 2.01
attached
as Annex II
to this
Amendment, (iii) Exhibit A
of the
Existing Credit Agreement is hereby amended in its entirety to read in the
form
of such Exhibit A
attached
as Annex III
to this
Amendment, (iv) the Existing Credit Agreement is hereby amended by adding
Exhibit C-2
in the
form attached as Annex IV
to this
Amendment, (v) Exhibit F
of the
Existing Credit Agreement is hereby amended in its entirety to read in the
form
of such Exhibit F
attached
as Annex V
to this
Amendment, and (vi) Schedule
1.01(b),
Schedule
6.13(a)
and
Schedule
6.13(b)
of the
Existing Credit Agreement are hereby amended in their entireties to read in
the
form of such Schedule
1.01(b),
Schedule
6.13(a)
and
Schedule
6.13(b)
attached
as Annex VI
to this
Amendment.
| III. |
TRANCHE
B TERM LOAN
|
Effective
as of the First Amendment Effective Date, by execution of this Amendment, each
Lender party hereto hereby confirms its Tranche B Term Loan Commitment in the
aggregate principal amount set forth opposite such Lender’s name on Schedule 2.01
to the
Amended Credit Agreement and agrees to make its portion of the Tranche B Term
Loan to the Borrower on the First Amendment Effective Date in accordance with
Section 2.01(c)
of the
Amended Credit Agreement. If such Lender is also a Revolving Lender, such Lender
acknowledges and agrees that its Tranche B Term Loan Commitment is in addition
to any other Commitment of such Lender under the Amended Credit Agreement.
If
such Lender is not already party to the Existing Credit Agreement, such Lender
(i) acknowledges, agrees and confirms that, by its execution of this Amendment,
such Lender will, as of the First Amendment Effective Date, be deemed to be
a
party to the Amended Credit Agreement and be bound by the provisions of the
Amended Credit Agreement and, to the extent of its Tranche B Term Loan
Commitment and Tranche B Term Loans, have the rights and obligations of a Lender
thereunder and (ii) hereby ratifies, as of the date hereof, and agrees to be
bound by, all of the terms, provisions and conditions applicable to the Lenders
contained in the Amended Credit Agreement.
| IV. |
CONDITIONS
PRECEDENT TO EFFECTIVENESS
|
This
Amendment shall become effective as of the date hereof when each of the
following conditions precedent has been satisfied (the “First
Amendment Effective Date”):
1. Execution
of Counterparts of Amendment.
The
Administrative Agent shall have received counterparts of this Amendment which
collectively shall have been duly executed on behalf of each of the Borrower,
each of the Guarantors and the Requisite Lenders.
2. Organization
Documents.
The
Administrative Agent shall have received the
following:
(i) Resolutions.
Copies
of resolutions of each Loan Party approving and adopting this Amendment, the
incurrence of the Indebtedness evidenced by the Tranche B Term Loans and the
other transactions contemplated hereby and authorizing execution and delivery
of
this Amendment, certified by a secretary or assistant secretary of such Loan
Party to be true and correct and in force and effect as of the First Amendment
Effective Date.
(ii) Secretary’s
Certificate.
A
certificate of the secretary or assistant secretary of each Loan Party dated
as
of the First Amendment Effective Date certifying that such Loan Party has not
modified its articles of incorporation or bylaws since such documents were
last
delivered to the Administrative Agent or, if such documents have not previously
been delivered or have been so modified, attaching copies of such
documents.
(iii) Good
Standing.
Copies
of certificates of good standing, existence or its equivalent with respect
to each Loan Party certified as of a recent date by the appropriate Governmental
Authorities of the state or other jurisdiction of its incorporation or
organization.
(iv) Incumbency.
An
incumbency certificate of each officer of a Loan Party executing this Amendment
or any of the documents referred to in this Section IV certified by a secretary
or assistant secretary to be true and correct as of the First Amendment
Effective Date.
3. Tranche
B Term Notes.
The
Administrative Agent shall have received a Tranche B Term Note in favor of
each
Lender requesting a Tranche B Term Note, which shall have been duly executed
on
behalf of the Borrower and dated the First Amendment Effective
Date.
4. Opinion
of Counsel.
The
Administrative Agent shall have received, in each case dated as of the First
Amendment Effective Date and in form and substance reasonably satisfactory
to
the Administrative Agent: (i)
a legal
opinion of Cravath, Swaine & Xxxxx LLP, special counsel for the Loan
Parties, and (ii)
a legal
opinion of The Law Offices of Xxxxxx X. Xxxxx, PLLC, Esq., special Ohio counsel
for each Loan Party organized in the State of Ohio.
5. Officer’s
Certificates.
The
Administrative Agent shall have received a certificate or certificates executed
by a Responsible Officer of the Borrower as of the First Amendment Effective
Date, in form and substance satisfactory to the Administrative Agent, stating
that (i) the conditions specified in Section 5.02(a)
and
(b)
of the
Amended Credit Agreement have been satisfied; provided
that for
the purposes of such certificate the reference to the date of the
Audited
Financial
Statements in Section
6.05(e)
of the
Amended Credit Agreement shall be deemed to be replaced by a reference to
December 31, 2004, (ii) all governmental, shareholder and third party consents
and approvals, if any, with respect to the Amendment and/or the Amended Credit
Agreement and the transactions contemplated thereby have been obtained, and
(iii) no action, suit, investigation or proceeding is pending or threatened
in
any court or before any arbitrator or governmental instrumentality that purports
to affect any Loan Party or any transaction contemplated by the Amendment and/or
Amended Credit Agreement, if such action, suit, investigation or proceeding
could reasonably be expected to have a Material Adverse Effect.
6. 2003
16% Junior Notes.
The
Administrative Agent shall have received evidence, in form and substance
satisfactory to it, that the proceeds of the Tranche B Term Loan, Revolving
Loans made on the First Amendment Effective Date and, if necessary, other funds
available to the Borrower, shall have been applied to the payment in full of
the
2003 16% Junior Notes.
7. No
Default.
No
Default or Event of Default shall exist, or would result from, the proposed
Credit Extensions on the First Amendment Effective Date or from the application
of the proceeds thereof.
8. Accuracy
of Representations and Warranties.
The
representations and warranties of the Borrower and each other Loan Party
contained in Article VI
or any
other Loan Document, or which are contained in any document furnished at any
time under or in connection herewith or therewith, shall be true and correct
in
all material respects on and as of the First Amendment Effective Date;
provided
that the
reference to the date of the Audited Financial Statements in Section
6.05(e)
of the
Amended Credit Agreement shall be deemed to be replaced by a reference to
December 31, 2004.
9. Other
Fees and Out of Pocket Costs.
The
Borrower shall have paid any and all reasonable out-of-pocket costs (to the
extent invoiced) incurred by the Administrative Agent or Banc of America
Securities LLC (including the reasonable fees and expenses of the Administrative
Agent’s legal counsel), and all other fees and other amounts payable to the
Administrative Agent or Banc of America Securities LLC, in each case in
connection with the arrangement, negotiation, preparation, execution and
delivery of this Amendment and/or the Amended Credit Agreement.
VI. MISCELLANEOUS
1. Representations
and Warranties.
Each
of
the Loan Parties represents and warrants to the Lenders and the Administrative
Agent as follows:
(i) It
has
taken all necessary action to authorize the execution, delivery and performance
of this Amendment.
(ii) This
Amendment has been duly executed and delivered by such Loan Party and
constitutes such Loan Party’s legal, valid and binding obligation, enforceable
in accordance with its terms, except as such enforceability may be limited
(x)
by general principles of equity and conflicts of laws (whether enforcement
is
sought by proceedings in equity or at law) or (y) by Debtor Relief
Laws.
(iii) No
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is
required in connection with the execution, delivery or performance by such
Loan
Party of this Amendment (except for those which have been obtained on or prior
to the First Amendment Effective Date).
(iv) The
execution and delivery of this Amendment does not diminish or reduce its
obligations under the Loan Documents (including, without limitation, in the
case
of each Guarantor, such Guarantor’s guaranty pursuant to Article IV
of the
Existing Credit Agreement) in any manner.
(v) The
representations and warranties of the Loan Parties set forth in Article VI
of the
Existing Credit Agreement are true and correct in all material respects as
of
the First Amendment Effective Date; provided
that the
reference to the date of the Audited Financial Statements in Section
6.05(e)
of the
Amended Credit Agreement shall be deemed to be replaced by a reference to
December 31, 2004. All of the provisions of the Loan Documents, except as
amended hereby, are in full force and effect
(vi) Subsequent
to the execution and delivery of this Amendment and after giving effect hereto,
no unwaived event has occurred and is continuing on the date hereof which
constitutes a Default or an Event of Default.
2. Liens.
Each
Loan Party affirms the liens and security interests created and granted by
it in
the Loan Documents (including, but not limited to, the Shared Collateral
Security Agreement and the Non-Shared Collateral Security Agreement) and agrees
that this Amendment shall in no manner adversely affect or impair such liens
and
security interests.
3. Effect
of Amendment.
Except
as expressly modified and amended in this Amendment, all of the terms,
provisions and conditions of the Loan Documents shall remain unchanged and
in
full force and effect. On and after the First Amendment Effective, any reference
in the Loan Documents or any and all other documents thereafter executed and
delivered pursuant to the terms of the Loan Documents to the “Credit Agreement”
shall be deemed to refer to the Amended Credit Agreement.
4. Construction.
This
Amendment is a Loan Document executed pursuant to the Existing Credit Agreement
and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with the terms and provisions of the
Amended Credit Agreement.
5. Reaffirmation
of Loan Party Obligations.
Each
Loan Party hereby ratifies the Amended Credit Agreement and acknowledges and
reaffirms (i) that it is bound by all terms of the Amended Credit Agreement
and
(ii) that it is responsible for the observance and full performance of the
Obligations. Without limiting the generality of the proceeding sentence,
(i) each of the Guarantors confirms
that it jointly and severally guarantees the
prompt payment when due of all Obligations (including, without limitation,
those
Obligations relating to the Tranche
B
Term
Loan), in accordance with, and pursuant to the terms of, Article IV
of the
Amended Credit
Agreement and (ii) each of the Loan Parties agrees
that all references in the Collateral Documents to the term “Secured
Obligations” shall be deemed to include all of the obligations of the Loan
Parties to the Lenders and the Administrative Agent, whenever arising, under
the
Amended Credit Agreement, the Tranche B Term Notes, the Collateral Documents
or
any of the other Loan Documents (including, but not limited to, any interest,
expenses and cost and charges that accrue after the commencement by or against
any Loan Party or any Affiliate thereof or any proceedings under any Debtor
Relief Laws naming such Person as the debtor in such proceeding) relating to
the
Tranche B Term Loan.
6. Counterparts.
This
Amendment may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
7. GOVERNING
LAW.
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
8. Binding
Effect.
This
Amendment, the Amended Credit Agreement and the other Loan Documents embody
the
entire agreement between the parties and supersede all prior agreements and
understandings, if any, relating to the subject matter hereof. These Loan
Documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
of the parties. Except as expressly modified and amended in this Amendment,
all
the terms, provisions and conditions of the Loan Documents shall remain
unchanged and shall continue in full force and effect.
9. Severability.
If any
provision of this Amendment is held to be illegal, invalid or unenforceable,
(a)
the legality, validity and enforceability of the remaining provisions of this
Amendment shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall
not
invalidate or render unenforceable such provision in any other
jurisdiction.
[Remainder
of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.
| BORROWER: |
CINCINNATI
XXXX INC.,
an Ohio corporation
|
||
| By: | /s/ Xxxx X. Xxxxxxxx | ||
|
|
|||
| Name:
Xxxx X. Xxxxxxxx Title: VP and Treasurer |
| GUARANTORS: |
CINCINNATI
XXXX PUBLIC COMMUNICATIONS INC.,
an Ohio corporation
|
||
|
CINCINNATI
XXXX TELECOMMUNICATION
SERVICES
LLC, an Ohio limited liability company
|
|||
| CINCINNATI XXXX ENTERTAINMENT INC. (formerly known as Xxxxxxxx.xxx Inc.), an Ohio corporation | |||
| CINCINNATI
XXXX COMPLETE PROTECTION INC.,
an Ohio corporation
|
|||
|
CINCINNATI XXXX WIRELESS
COMPANY,
an Ohio corporation
|
|||
|
CINCINNATI XXXX WIRELESS HOLDINGS
LLC,
an Ohio limited liability
company
|
|||
|
CINCINNATI XXXX TECHNOLOGY SOLUTIONS
INC.,
an Ohio corporation
|
|||
|
BRCOM INC., a
Delaware corporation
|
|||
| BCSI INC., a Delaware corporation | |||
| BRFS LLC, a Delaware limited liability company | |||
| BRHI INC., a Delaware corporation | |||
| BRWSVCS LLC, a Delaware limited liability company | |||
|
IXC BUSINESS SERVICES LLC,
a Delaware limited liability
company
|
|||
| CINCINNATI XXXX ANY DISTANCE INC., a Delaware corporation | |||
| IXC INTERNET SERVICES, INC., a Delaware corporation | |||
| BRWL, LLC, a Delaware limited liability company | |||
| BCSIVA, INC., a Virginia corporation | |||
| By: | /s/ Xxxx X. Xxxxxxxx | ||
|
|
|||
| Name:
Xxxx X. Xxxxxxxx Title: VP and Treasurer |
| ADMINISTRTIVE AGENT: |
BANK
OF AMERICA, N.A.,
as Administrative Agent
|
||
| By: | /s/ Xxxx Xxxxxxx | ||
|
|
|||
| Name:
Xxxx Xxxxxxx Title: Senior Vice President |
Annex
I to First Amendment to Credit Agreement
CREDIT
AGREEMENT
See
Attached
Annex
II to First Amendment to Credit Agreement
Tranche
B Term Loan Commitments
and Applicable Percentages
|
Lender
|
Tranche
B Term Loan
Commitment
as of the First
Amendment
Effective Date
|
Applicable
Percentage
|
|
Bank
of America, N.A.
|
$400,000,000
|
100.0%
|
|
TOTAL
|
$400,000,000.00
|
100.0%
|
Annex III
to First Amendment to Credit Agreement
Exhibit A
FORM
OF LOAN NOTICE
Date:
___________, 20___
To: Bank
of
America, N.A., as Administrative Agent
Ladies
and Gentlemen:
Reference
is made to that certain Credit Agreement, dated as of February 16, 2005 (as
amended, modified, restated or supplemented from time to time, the “Agreement;”
the
terms defined therein being used herein as therein defined), by and among
CINCINNATI XXXX INC., an Ohio corporation (together with any permitted
successors and assigns, the “Borrower”),
the
Guarantors from time to time party thereto, the Lenders from time to time party
thereto, BANK OF AMERICA, N.A., as Administrative Agent and an L/C Issuer,
and
PNC BANK, NATIONAL
ASSOCIATION,
as
Swingline Lender and an L/C Issuer.
The
undersigned hereby requests (select one):
|
o
|
A
Borrowing of [Revolving][Tranche B Term] Loans.
|
|
|
o
|
A
conversion or continuation of
Loans:
|
|
1.
|
On
____________
(a
Business Day).
|
|
|
2.
|
In
the amount of $____________.
|
|
|
3.
|
Comprised
of____________.
[Type
of Committed Loan requested]
|
|
|
4.
|
For
Eurodollar Rate Loans: with an Interest Period of ____
months.
|
The
Borrowing requested herein complies with Section 2.01
of the
Agreement.
|
CINCINNATI
XXXX INC.,
an
Ohio corporation
|
|
|
By: _____________________________________
Name:
___________________________________
Title:____________________________________
|
Annex
IV to First Amendment to Credit Agreement
Exhibit
X-0
XXXX
XX XXXXXXX X TERM NOTE
____________,
20__
FOR
VALUE
RECEIVED, the undersigned (the “Borrower”),
hereby promises to pay to _____________________ or registered assigns (the
“Lender”),
in
accordance with the provisions of the Agreement (as hereinafter defined), the
principal amount of each Tranche B Term Loan from time to time made by the
Lender to the Borrower under that certain Credit Agreement, dated as of February
16, 2005 (as amended, modified, restated or supplemented from time to time,
the
“Agreement;”
the
terms defined therein being used herein as therein defined), by and among the
Borrower, the Guarantors from time to time party thereto, the Lenders from
time
to time party thereto, BANK
OF
AMERICA, N.A.,
as
Administrative Agent and an L/C Issuer, and PNC
BANK,
NATIONAL ASSOCIATION,
as
Swingline Lender and an L/C Issuer.
The
Borrower promises to pay interest on the unpaid principal amount of each Tranche
B Term Loan from the date of such Tranche B Term Loan until such principal
amount is paid in full, at such interest rates and at such times as provided
in
the Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars in immediately
available funds at the Administrative Agent’s
Office.
If any amount is not paid in full when due hereunder, such unpaid amount shall
bear interest, to be paid upon demand, from the due date thereof until the
date
of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.
This
Tranche B Term Note is one of the Tranche B Term Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole
or in
part subject to the terms and conditions provided therein. This Tranche B Term
Note is also entitled to the benefits of the Guaranty and is secured by the
Collateral. Upon the occurrence and continuation of one or more of the Events
of
Default specified in the Agreement, all amounts then remaining unpaid on this
Tranche B Term Note shall become, or may be declared to be, immediately due
and
payable all as provided in the Agreement. Tranche B Term Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained
by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of
its
Tranche B Term Loans and payments with respect thereto.
The
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Tranche B Term Note.
THIS
NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
NEW YORK.
|
CINCINNATI
XXXX INC.,
an
Ohio corporation
|
|
|
By: _____________________________________
Name:
___________________________________
Title:____________________________________
|
Annex V
to First Amendment to Credit Agreement
Exhibit F
FORM
OF ASSIGNMENT AND ASSUMPTION
This
Assignment and Assumption (the “Assignment
and Assumption”)
is
dated as of the Effective Date set forth below and is entered into by and
between [Insert
name of Assignor]
(the
“Assignor”)
and
[Insert
name of Assignee]
(the
“Assignee”).
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Credit Agreement identified below (the “Credit
Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1
attached
hereto are hereby agreed to and incorporated herein by reference and made a
part
of this Assignment and Assumption as if set forth herein in full.
For
an
agreed consideration, the Assignor hereby irrevocably sells and assigns to
the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor’s rights and
obligations as a Lender under the Credit Agreement and any other documents
or
instruments delivered pursuant thereto to the extent related to the amount
and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, Letters of Credit, Guarantees and Swingline
Loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any
other
right of the Assignor (in its capacity as a Lender) against any Person, whether
known or unknown, arising under or in connection with the Credit Agreement,
any
other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause
(i)
above (the rights and obligations sold and assigned pursuant to clauses (i)
and
(ii) above being referred to herein collectively as, the “Assigned
Interest”).
Such
sale and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by the Assignor.
|
1.
|
Assignor:
|
______________________________
|
|
2.
|
Assignee:
|
______________________________
[and
is an Affiliate/Approved Fund of [identify
Lender]]
|
|
3.
|
Borrower:
|
______________________________
|
|
4.
|
Administrative
Agent:
|
Bank
of America, N.A., as the administrative agent under the Credit
Agreement
|
|
5.
|
Credit
Agreement:
|
That
certain
Credit Agreement, dated as of February 16, 2005 (as amended, modified,
restated or supplemented from time to time, the “Credit
Agreement;”),
by and among CINCINNATI XXXX INC., an Ohio corporation (together
with any
permitted successors and assigns, the “Borrower”),
the Guarantors from time to time party thereto, the Lenders from
time to
time party thereto, BANK OF AMERICA, N.A., as Administrative Agent
and an
L/C Issuer, and PNC BANK, NATIONAL ASSOCIATION, as Swingline Lender
and an
L/C Issuer.
|
|
6.
|
Assigned
Interest:
|
|
Facility
Assigned
|
Aggregate
Amount
of
Commitment/Loans
for
all Lenders
|
Amount
of
Commitment/Loans
Assigned
|
Percentage
Assigned
of
Commitment/Loans
|
CUSIP
Number
|
|
Revolving
Commitment
|
$250,000,000
|
$________________
|
______________%
|
|
|
Tranche
B Term Loan
|
$400,000,000
|
$________________
|
______________%
|
|
[7.
|
Trade
Date:
|
______________]
|
Effective
Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The
terms
set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME
OF
ASSIGNOR]
By:______________________________
Name:
Title:
ASSIGNEE
[NAME
OF
ASSIGNEE]
By:______________________________
Name:
Title:
CINCINNATI
XXXX INC.,
an
Ohio
corporation
By:________________________________
Name:
Title:
[Consented
to and] Accepted:
BANK
OF
AMERICA, N.A.,
as
Administrative Agent
By:
_________________________________
Name:
Title:
[Consented
to:]
[BANK
OF
AMERICA, N.A.,
as
L/C
Issuer]
By:
________________________________
Name:
Title:
PNC
BANK,
NATIONAL ASSOCIATION,
as
[Swingline Lender][L/C Issuer]
By:
________________________________
Name:
Title:
CINCINNATI
XXXX INC.
By:
________________________________
Name:
Title:
ANNEX
1
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1.
Representations
and Warranties.
1.1.
Assignor.
The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear
of
any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or
any
collateral thereunder, (iii) the financial condition of the Borrower, any of
its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2.
Assignee.
The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment
and
Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it meets all requirements of an
Eligible Assignee under the Credit Agreement (subject to receipt of such
consents as may be required under the Credit Agreement), (iii) from and after
the Effective Date, it shall be bound by the provisions of the Credit Agreement
as a Lender thereunder and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.01
thereof,
as applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis
of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a not a United
States person under Section 7701(a)(30) of the Code, attached to the
Assignment and Assumption is any documentation required to be delivered by
it
pursuant to the terms of the Credit Agreement, duly completed and executed
by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
2.
Payments.
From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.
3.
General
Provisions.
This
Assignment and Assumption shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment and Assumption by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and construed
in accordance with, the law of the State of New York.
Annex VI
to First Amendment to Credit Agreement
Schedule
1.01(b)
Guarantors
Cincinnati
Xxxx Public Communications Inc.
Cincinnati
Xxxx Entertainment Inc.
Cincinnati
Xxxx Complete Protection Inc.
BRFS
LLC
Cincinnati
Xxxx Wireless Company
Cincinnati
Xxxx Wireless Holdings LLC
BRHI
Inc.
Cincinnati
Xxxx Telecommunication Services LLC
Cincinnati
Xxxx Technology Solutions Inc.
BRCOM
Inc.
BCSI
Inc.
BCSIVA
Inc.
BRWSVCS
LLC
IXC
Business Services, LLC
Cincinnati
Xxxx Any Distance Inc.
IXC
Internet Services, Inc.
BRWL,
LLC
Schedule
6.13(a)
Corporate
Structure
See
Attached
Schedule
6.13(b)
Subsidiaries
|
A.
|
Cincinnati
Xxxx Inc.
|
|
1.
|
BRHI
Inc.
|
Jurisdiction
of
Incorporation
Delaware
Number
of
Shares of Equity Interests Authorized:
Common
Stock: 3,000
Preferred
Stock: None
Number
of
Shares of Equity Interests outstanding: 1,000
Percentage
of Each Class of Equity Interest Owned by Cincinnati Xxxx:
Common
Stock: 100%
Preferred
Stock: N/A
Number
of
Shares of Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion
or
Purchase and Similar Rights:
Common
Stock: None
Preferred
Stock: N/A
|
2.
|
Cincinnati
Xxxx Complete Protection Inc.
|
Jurisdiction
of
Incorporation
Ohio
Number
of
Shares of Equity Interests Authorized:
Common Stock: 1000
Preferred
Stock: None
Number
of
Shares of Equity Interests outstanding:
Common
Stock
100
Preferred
Stock
N/A
Percentage
of Each Class of Equity Interest Owned by Cincinnati Xxxx:
Common
Stock:
100%
Preferred
Stock:
N/A
Number
of
Shares of Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or
Purchase
and Similar Rights:
Common
Stock:
None
Preferred
Stock:
N/A
|
3.
|
BRFS
LLC
|
Jurisdiction
of
Formation
Delaware
Number
of
Equity Interests Authorized:
Member
Interests:
1000
Preferred
Interests:
None
Number
of
Equity Interests
outstanding: 1000
Percentage
of Each Class of Equity Interest Owned by Cincinnati Xxxx:
Member
Interests:
100%
Preferred
Interests:
N/A
Number
of
Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or Purchase
and
Similar Rights:
Member
Interests:
None
Preferred
Interests: N/A
|
4.
|
Cincinnati
Xxxx Wireless Holdings LLC
|
Jurisdiction
of
Formation
Delaware
Number
of
Equity Interests Authorized:
Member
Interests:
1000
Preferred
Interests:
None
Number
of
Equity Interests
outstanding:
1000
Percentage
of Each Class of Equity Interest Owned by Cincinnati Xxxx:
Member
Interests1:
100%
Preferred
Interests:
N/A
Number
of
Equity Interests Covered by Outstanding Options,
Warrants,
Rights of Conversion or Purchase and
Similar
Rights:
Member
Interests:
None
Preferred
Interests:
N/A
|
5.
|
Cincinnati
Xxxx Public Communications
Inc.
|
Jurisdiction
of
Incorporation
Ohio
Number
of
Shares of Equity Interests Authorized:
Common
Stock: 850
Preferred
Stock: None
Number
of
Shares of Equity Interests
outstanding: 100
Percentage
of Each Class of Equity Interest Owned by Cincinnati Xxxx:
Common
Stock:
100%
Preferred
Stock:
N/A
Number
of
Shares of Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or Purchase
and
Similar Rights:
Common
Stock:
None
Preferred
Stock:
N/A
|
6.
|
Cincinnati
Xxxx Telecommunication Services
LLC
|
Jurisdiction
of
Formation
Ohio
Number
of
Equity Interests Authorized:
Member
Interests
850
Preferred
Interests:
N/A
________________________________
1 Cincinnati
Xxxx Telecommunications Services LLC is held directly by Cincinnati Xxxx
Telephone Company LLC, a wholly owned subsidiary of Cincinnati Xxxx
Inc.
Number
of
Equity Interests
outstanding: 100
Percentage
of Each Class of Equity Interest Owned by Cincinnati Xxxx:
Member
Interests:
100%2
Preferred
Interests:
N/A
Number
of
Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or Purchase
and
Similar Rights:
Common
Stock:
None
Preferred
Stock:
N/A
|
7.
|
Cincinnati
Xxxx Telephone Company LLC
|
Jurisdiction
of
Formation
Ohio
Number
of
Equity Interests Authorized:
Member
Interests:
500
Preferred
Interests: None
Number
of
Equity Interests
outstanding:
100
Percentage
of Each Class of Equity Interest Owned by Cincinnati Xxxx:
Member
Interests:
100%
Preferred
Interests: N/A
Number
of
Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or Purchase
and
Similar Rights:
Member
Interests:
None
Preferred
Interests:
N/A
|
8.
|
Cincinnati
Xxxx Wireless Company
|
Jurisdiction
of
Incorporation
Ohio
Number
of
Shares of Equity Interests Authorized:
Common
Stock:
850
Preferred
Stock:
None
Number
of
Shares of Equity Interests
outstanding:
100
Percentage
of Each Class of Equity Interest Owned by Cincinnati Xxxx:
Common
Stock:
100%
Preferred
Stock:
N/A
Number
of
Shares of Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or Purchase
and Similar Rights:
Common
Stock:
None
Preferred
Stock:
N/A
|
9.
|
Cincinnati
Xxxx Wireless LLC
|
Jurisdiction
of
Formation
Ohio
Number
of
Equity Interests Authorized:
Member
Interests:
Variable
________________________________
2 Cincinnati
Xxxx Telecommunications Services LLC is held directly by Cincinnati Xxxx
Telephone Company LLC, a wholly owned subsidiary of Cincinnati Xxxx
Inc.
Preferred
Interests: None
Number
of Shares of Equity Interests
outstanding:
N/APercentage
of Each Class of Equity Interest Owned by Cincinnati Xxxx:
Member
Interests:
80%2
Preferred
Interests:
N/A
Number
of
Shares of Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or Purchase
and
Similar Rights:
Member
Interests:
None
Preferred
Interests:
N/A
|
10.
|
Cincinnati
Xxxx Entertainment Inc.
|
Jurisdiction
of
Incorporation
Ohio
Number
of
Shares of Equity Interests Authorized:
Common
Stock:
850
Preferred
Stock:
None
Number
of
Shares of Equity Interests
outstanding:
100
Percentage
of Each Class of Equity Interest Owned by Cincinnati Xxxx:
Common
Stock:
100%
Preferred
Stock:
N/A
Number
of
Shares of Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or Purchase
and
Similar Rights:
Common
Stock:
None
Preferred
Stock:
N/A
|
11.
|
BRCOM
Inc.
|
Jurisdiction
of
Incorporation
Delaware
Number
of
Equity Interests Authorized:
Common
Stock:
1,000
Preferred
Stock:
None
Number
of
Equity Interests outstanding:
Common
Stock:
100
Preferred
Stock: N/A
Percentage
of Each Class of Equity Interest Owned by Cincinnati Xxxx:
Common
Stock:
100%
Preferred
Stock:
N/A
Number
of
Equity Interests Covered by Outstanding Options, Warrants, Rights
of
Conversion or Purchase and Similar Rights:
Common
Stock:
None
Preferred
Stock:
N/A
________________________________
2 Cincinnati
Xxxx Wireless LLC is held directly by Cincinnati Xxxx Wireless
Holdings LLC, a wholly owned second tier subsidiary of Cincinnati Xxxx
Inc.
|
12.
|
Cincinnati
Xxxx Extended Territories
LLC
|
Jurisdiction
of
Formation
Ohio
Number
of
Equity Interests Authorized:
Member
Interests:
500
Preferred
Interests:
None
Number
of
Equity Interests
outstanding:
100
Percentage
of Each Class of Equity Interest Owned by Cincinnati Xxxx Inc:
Member
Interests:
100%3
Preferred
Interests: N/A
Number
of
Equity Interests Covered by Outstanding
Options,
Warrants,
Rights of Conversion or Purchase and Similar Rights:
Member
Interests:
None
Preferred
Interests:
N/A
B.
BCSI
Inc.4
|
1.
|
BRWSVCS
LLC
|
Jurisdiction
of
Formation
Delaware
Number
of
Equity Interests Authorized:
Member
Interests:
1,000
Preferred
Interests:
None
Number
of
Equity Interests
outstanding:
1,000
Percentage
of Each Class of Equity Interest Owned by BCSI Inc:
Member
Interests:
100%
Preferred
Interests: N/A
Number
of
Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or Purchase
and
Similar Rights:
Member
Interests:
None
Preferred
Interests:
N/A
|
2.
|
BCSIVA
Inc.
|
Jurisdiction
of
Incorporation
Virginia
Number
of
Shares of Equity Interests Authorized:
Common
Stock:
5,000
Preferred
Stock:
None
Number
of
Shares of Equity Interests
outstanding:
1,000
Percentage
of Each Class of Equity Interest Owned by BCSI Inc.:
________________________________
3 Cincinnati
Xxxx Extended Territories LLC is held directly by Cincinnati
Xxxx Telephone Company LLC, a wholly owned subsidiary of Cincinnati
Xxxx Inc.
4 The
following entities are directly or indirectly held by BCSI Inc.,
a wholly owned
second tier subsidiary of Cincinnati Xxxx Inc.
Common
Stock:
100%
Preferred
Stock:
N/A
Number
of
Shares of Equity Interests Covered by Outstanding
Options, Warrants, Rights of Conversion or Purchase and Similar
Rights:
Common
Stock: None
Preferred
Stock:
N/A
|
3.
|
Cincinnati
Xxxx Technology Solutions
Inc.
|
Jurisdiction
of
Formation
Ohio
Number
of
Shares of Equity Interests Authorized:
Common
Stock:
850
Preferred
Stock:
None
Number
of
Shares of Equity Interests
outstanding:
100
Percentage
of Each Class of Equity Interest Owned by BCSI Inc.:
Common
Stock:
100%
Preferred
Stock:
N/A
Number
of
Shares of Equity Interests Covered by Outstanding Options,
Warrants, Rights of Conversion or Purchase and Similar Rights:
Common
Stock:
None
Preferred
Stock:
N/A
|
4.
|
BRWL,
LLC
|
Jurisdiction
of
Formation
Delaware
Number
of
Equity Interests Authorized:
Member
Interests:
1,000
Preferred
Interests:
None
Number
of
Equity Interests
outstanding:
1,000
Percentage
of Each Class of Equity Interest Owned by BCSI Inc. :
Member
Interests:
100%
Preferred
Interests:
N/A
Number
of
Equity Interests Covered by Outstanding Options, Warrants,
Rights of Conversion or Purchase and Similar Rights:
Member
Interests:
None
Preferred
Interests:
N/A
|
5.
|
Cincinnati
Xxxx Any Distance Inc.
|
Jurisdiction
of
Incorporation Delaware
Number
of
Shares of Equity Interests Authorized:
Common
Stock:
100
Preferred
Stock:
100,000
Number
of
Shares of Equity Interests outstanding:
Common
Stock: 100
Preferred
Stock:
54,082
Percentage
of Each Class of Equity Interest Owned by BCSI Inc.:
Common
Stock:
100%
Preferred
Stock:
100%5
Number
of
Equity Interests Covered by Outstanding Options,
Warrants, Rights of Conversion or Purchase and Similar Rights:
Common
Stock:
None
Preferred
Stock:
None
6.
IXC
Business Services, LLC
Jurisdiction
of
Formation
Delaware
Number
of
Equity Interests Authorized:
Member
Interests:
100
Preferred
Interests:
N/A
Number
of
Equity Interests
outstanding: 100
Percentage
of Each Class of Equity Interest
Owned
by
BCSI Inc.:
Member
Interests:
100%
Preferred
Interests:
N/A
Number
of
Equity Interests Covered by Outstanding Options,
Warrants, Rights of Conversion or Purchase
and Similar Rights:
Member
Interests:
None
Preferred
Interests:
N/A
7.
IXC
Internet Services, Inc.
Jurisdiction
of
Incorporation
Delaware
Number
of
Equity Interests Authorized:
Common
Stock: 10,000
Preferred
Stock:
None
Number
of
Equity Interests
outstanding:
10,000
Percentage
of Each Class of Equity Interest
Owned
by
BCSI Inc.
Common
Stock:
100%
________________________________
5 Held
directly by IXC Internet Services Inc., a wholly owned subsidiary of BCSI
Inc.
Preferred
Stock:
N/A
Number
of
Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion
Or
Purchase and Similar Rights:
Common
Stock:
None
Preferred
Stock:
N/A
|
8.
|
MSM
Associates, Limited Partnership
|
Jurisdiction
of
Formation
Delaware
Number
of
Equity Interests Authorized:
Common
Stock:
N/A
Preferred
Stock:
N/A
Number
of
Shares of Equity Interests
outstanding:
N/A
Percentage
of Each Class of Equity Interest
Owned
by
BCSI
Inc.:
85%6
Number
of
Shares of Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or
Purchase
and similar rights:
Common
Stock:
N/A
Preferred
Stock N/A
9.
Mutual
Signal Corp.
Jurisdiction
of
Incorporation
New
York
Number
of
Shares of Equity Interests Authorized:
Common
Stock:
200
Preferred
Stock:
None
Number
of
Shares of Equity Interests
outstanding:
Unknown
Percentage
of Each Class of Equity Interest
Owned
by
BCSI Inc.:
Common
Stock:
85%7
Preferred
Stock:
N/A
Number
of
Shares of Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or
Purchase
and Similar Rights:
Common
Stock:
Unknown
Preferred
Stock: None
________________________________
6 MSM
Associates, Limited Partnership is a third tier subsidiary of Mutual Signal
Holding Corporation, a first tier subsidiary of BCSI Inc.
7
Mutual
Signal Corporation is a first
tier subsidiary of Mutual Signal Holding Corporation, a first tier subsidiary
of
BCSI Inc.
|
|
10.
|
Mutual
Signal Corporation of
Michigan
|
Jurisdiction
of
Incorporation
New
York
Number
of
Shares of Equity Interests Authorized:
Common
Stock:
100
Preferred
Stock:
N/A
Number
of
Shares of Equity Interests
outstanding:
Unknown
Percentage
of Each Class of Equity Interest
Owned
by
BCSI Inc.:
Common
Stock:
85%8
Preferred
Stock:
N/A
Number
of
Shares of Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or
Purchase
and Similar Rights:
Common
Stock:
Unknown
Preferred
Stock: Unknown
|
11.
|
Mutual
Signal Holding Corporation
|
Jurisdiction
of
Incorporation
Delaware
Number
of
Shares of Equity Interests Authorized:
Common
Stock:
10,000
Preferred
Stock:
10,000
Number
of
Shares of Equity Interests outstanding:
Common
Stock:
100
Preferred
Stock:
1,723
Percentage
of Each Class of Equity Interest
Owned
by
BCSI Inc.:
Common
Stock:
85%
Preferred
Stock:
100%
Number
of
Shares of Equity Interests Covered by
Outstanding
Options, Warrants, Rights of Conversion or
Purchase
and Similar Rights:
Common
Stock:
None
Preferred
Stock:
None
C.
BRCOM
Inc.
1.
BCSI
Inc.
Jurisdiction
of
Incorporation
Delaware
Number
of
Shares of Equity Interests Authorized:
Common
Stock:
10,000
Preferred
Stock:
None
Number
of
Shares of Equity Interests outstanding:
Common
Stock:
1,000
________________________________
8 Mutual
Signal Corporation of Michigan is a second tier subsidiary of Mutual Signal
Holding Corporation, a first tier subsidiary of BCSI Inc.
Preferred
Stock:
N/A
Percentage
of Each Class of Equity Interest
Owned
by
BRCOM Inc.:
Common
Stock: 100%
Preferred
Stock:
N/A
Number
of
Shares of Equity Interests Covered by Outstanding Options,
Warrants, Rights of Conversion or Purchase and Similar Rights:
Common
Stock:
None
Preferred
Stock:
None
