CREDIT AGREEMENT

Exhibit 10.2

ANNEX II TO FOURTH AMENDMENT TO CREDIT AGREEMENT

 

PUBLISHED CUSIP NUMBER: 17187MAA8

CREDIT AGREEMENT

Dated as of February 16, 2005

as Amended and Restated as of August 31, 2005,

as Amended as of May 25, 2007,

as Amended as of August 12, 2008 and

as Amended and Restated as of June 25, 2009

among

CINCINNATI BELL INC. ,

as the Borrower,

Certain Subsidiaries of the Borrower

from time to time party hereto,

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 hereto

BANC OF AMERICA SECURITIES LLC

and

RBS SECURITIES INC.

as

Joint Lead Arrangers and Joint Book Managers

THE ROYAL BANK OF SCOTLAND plc

as

Syndication Agent

PNC BANK, NATIONAL ASSOCIATION

BARCLAYS BANK PLC and

DEUTSCHE BANK TRUST COMPANY, AMERICAS ,

as Co-Documentation Agents

 

TABLE OF CONTENTS

 

 

i

 

ii

 

iii

SCHEDULES

 

 

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CREDIT AGREEMENT

This CREDIT AGREEMENT (as amended, modified, restated or supplemented from time to time, the “ Agreement ”) is entered into as of February 16, 2005, and amended and restated in the form hereof as of June 25, 2009 by and among CINCINNATI BELL INC., an Ohio corporation (together with any permitted successors and assigns, the “ Borrower ”), the Guarantors (as defined herein), the Lenders (as defined herein), 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.

In consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto covenant and agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

1.01 Defined Terms .

As used in this Agreement, the following terms shall have the meanings set forth below:

“ 1993 Senior Note Documents ” means the 1993 Senior Notes, the 1993 Senior Note Indenture, and any other agreements, indentures and instruments pursuant to which the 1993 Senior Notes issued.

“ 1993 Senior Note Indenture ” means the Indenture, dated as of July 1, 1993, between the Borrower, as issuer, and The Bank of New York, as Trustee.

“ 1993 Senior Notes ” means the Borrower’s 7  ¹ / 4 % Senior Notes due 2023 issued pursuant to the 1993 Senior Note Indenture.

“ 2003 8  ³ / 8 % Junior Note Documents ” means the 2003 8  ³ / 8 % Junior Notes, the 2003 8  ³ / 8 % Junior Note Indenture, and any other agreements, indentures and instruments pursuant to which the 2003 8  ³ / 8 % Junior Notes are issued.

“ 2003 8  ³ / 8 % Junior Note Indenture ” means the Indenture, dated as of November 19, 2003, by and among the Borrower, as issuer, the guarantors party thereto and The Bank of New York, as trustee.

“ 2003 8  ³ / 8 % Junior Notes ” means the Borrower’s 8  ³ / 8 % Senior Subordinated Notes due 2014 issued pursuant to the 2003 8  ³ / 8 % Junior Note Indenture.

“ 2003 16% Junior Notes ” means the Borrower’s 16% Senior Subordinated Discount Notes due 2009.

 

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“ 2003 Senior Note Documents ” means the 2003 Senior Notes, the 2003 Senior Note Indenture, and any other agreements, indentures and instruments pursuant to which the 2003 Senior Notes issued.

“ 2003 Senior Note Indenture ” means the Indenture, dated as of July 11, 2003, by and among the Borrower, as issuer, the guarantors party thereto and The Bank of New York, as Trustee.

“ 2003 Senior Notes ” means the Borrower’s 7  ¹ / 4 % Senior Notes due 2013 issued by the Borrower pursuant to the 2003 Senior Note Indenture.

“ 2005 Junior Note Documents ” means the 2005 Junior Notes, the 2003 8  ³ / 8 % Junior Note Indenture, and any other agreements, indentures and instruments pursuant to which the 2005 Junior Notes are issued.

“ 2005 Junior Notes ” means the Borrower’s 8  ³ / 8 % Senior Subordinated Notes due 2014 issued on the Closing Date pursuant to the 2003 8  ³ / 8 % Junior Note Indenture.

“ 2005 Senior Note Documents ” means the 2005 Senior Notes, the 2005 Senior Note Indenture, and any other agreements, indentures and instruments pursuant to which the 2005 Senior Notes issued.

“ 2005 Senior Note Indenture ” means the Indenture, dated as of the Closing Date, by and among the Borrower, as issuer, and The Bank of New York, as trustee.

“ 2005 Senior Notes ” means the Borrower’s 7% Senior Notes due 2015 issued by the Borrower pursuant to the 2005 Senior Note Indenture.

“ Acquisition ” means, with respect to any Person, the acquisition by such Person, in a single transaction or in a series of related transactions, of substantially all of the Capital Stock or all or substantially all of the Property, or a business unit or product line, of another Person, whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise.

“ Administrative Agent ” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02 , or such other domestic address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

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“ Affiliate ” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“ Aggregate Revolving Commitments ” means the Revolving Commitments of all the Lenders. The amount of the Aggregate Revolving Commitments in effect on the Fourth Amendment Effective Date (after giving effect to all payments of Revolving Loans and amendments to this Agreement effected as of such date) is TWO HUNDRED TEN MILLION DOLLARS ($210,000,000).

“ Agreement ” has the meaning assigned to such term in the heading hereof.

“ Applicable Percentage ” means as to each Lender, (a) with respect to such Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time; provided that if the commitment of each Lender to make Revolving Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments, and (b) with respect to such Lender’s outstanding Tranche B Term Loans at any time, the percentage (carried out to the ninth decimal place), of the total aggregate principal amount of the Tranche B Term Loan represented by the Tranche B Term Loans held by such Lender at such time. The Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“ Applicable Rate ” means, for the purposes of calculating (a) the Letter of Credit Fees for the purposes of Section 2.03(i) , (b) the interest rate applicable to Eurodollar Rate Loans for the purposes of Section 2.08(a) , (c) the interest rate applicable to Base Rate Loans for the purposes of Section 2.08(a) , and (d) the Commitment Fee for the purposes of Section 2.09(a) , the following percentages per annum, based upon the Consolidated Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 7.02(b) for the four-quarter period ending as of the last day of the fiscal quarter to which such Compliance Certificate relates:

 

 

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Any increase or decrease in the Applicable Rate for Revolving Loans resulting from a change in the Consolidated Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(b) ; provided , however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 3 shall apply during the period commencing on the first Business Day after the date on which such Compliance Certificate was required to have been delivered and ending on the date on which delivered. Notwithstanding the foregoing, the Applicable Rate in effect from the Fourth Amendment Effective Date through the date on which the Borrower is required to deliver the required financial statements and Compliance Certificate for the fiscal quarter ending on or about June 30, 2009 shall be no lower than the Applicable Rate determined based upon Pricing Level 3. Notwithstanding anything to the contrary in this definition, the determination of the Applicable Rate shall be subject to the provisions of Section 2.10(b).

“ Application Period ” means, in respect of the Net Cash Proceeds of any Disposition and/or the Excess Proceeds of any Involuntary Disposition, the period of 360 days (or such earlier date as provided for reinvestment of the proceeds thereof under any of the Senior Note Indentures and/or the documents evidencing or governing any Subordinated Indebtedness) following receipt of such Net Cash Proceeds or Excess Proceeds by any Consolidated Party.

“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“ Arranger s” means Banc of America Securities LLC and RBS Securities Inc., acting in their capacities as joint lead arranger and joint book manager, and “ Arranger ” means either of them.

“ Assignee Group ” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit F or any other form approved by the Administrative Agent.

“ Attributable Indebtedness ” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease.

“ Attributed Principal Amount ” means, on any day, with respect to any Permitted Receivables Financing, the aggregate principal, stated or invested amount of notes, bonds or other

 

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debt instruments, beneficial interests in a trust, undivided ownership interests in receivables or other securities issued for cash consideration by the relevant Receivables Financing SPC to Receivables Financiers the proceeds of which are used to finance, in whole or in part, the purchase by such Receivables Financing SPC of Transferred Assets in such Permitted Receivables Financing.

“ Audited Financial Statements ” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2003, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.

“ Availability Period ” means, with respect to the Revolving Commitments, the period from the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.06 and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02 .

“ Bank of America ” means Bank of America, N.A. and its successors.

“ Bankruptcy Code ” means the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.

“ Base Rate ” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the applicable Eurodollar Rate for a Eurodollar Loan with an Interest Period of one month plus 1%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

“ Base Rate Committed Loan ” means a Committed Loan that is a Base Rate Loan.

“ Base Rate Loan ” means a Loan that bears interest based on the Base Rate.

“ Base Rate Revolving Loan ” means a Revolving Loan that is a Base Rate Loan.

“ Borrower ” has the meaning specified in the heading hereof.

“ Borrower Materials ” has the meaning specified in the final paragraph of Section 7.02 .

“ Borrowing ” means a Committed Borrowing or a Swingline Borrowing, as the context may require.

 

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“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

“ Businesses ” means, at any time, a collective reference to the businesses operated by the Consolidated Parties at such time.

“ Calculation Date ” means the date of the applicable Specified Transaction which gives rise to the requirement to calculate the financial covenants set forth in Section 8.11(a) - (d) on a Pro Forma Basis.

“ Calculation Period ” means, in respect of any Calculation Date, the period of four fiscal quarters of the Borrower ended as of the last day of the most recent fiscal quarter of the Borrower preceding such Calculation Date for which the Administrative Agent shall have received the Required Financial Information.

“ Capital Lease ” means, as applied to any Person, any lease of any Property (whether real, personal or mixed) by that Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance sheet of that Person.

“ Capital Stock ” means (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests and (e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

“ Cash Collateral ” has the meaning specified in Section 2.03(g) .

“ Cash Collateralize ” has the meaning specified in Section 2.03(g) .

“ Cash Equivalents ” means, as at any date, (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than two years from the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or a commercial bank organized under the laws of any other country that is a member of the OECD having total assets in excess of $500,000,000 (or its foreign currency equivalent at the time) or (iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then an equivalent rating from such other nationally recognized rating service acceptable to the Administrative Agent) or the equivalent thereof (any such bank being an “Approved Bank”), in each case with maturities of not more than one year from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-2

 

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(or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then an equivalent rating from such other nationally recognized rating service acceptable to the Administrative Agent) and maturing within one year of the date of acquisition, (d) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (a) above entered into with (x) any bank meeting the qualifications specified in clause (b) above or (y) any primary government securities dealer reporting to the Market Reports Division of the Federal Reserve Bank of New York, (e) direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing, or subject to tender at the option of the holder thereof, within 90 days after the date of acquisition thereof, provided that, at the time of acquisition, the long-term debt of such state, political subdivision or public instrumentality has a rating of A (or higher) from S&P or A-2 (or higher) from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then an equivalent rating from such other nationally recognized rating service acceptable to the Administrative Agent), (f) overnight bank deposits and bankers’ acceptances at any commercial bank organized in the United States having capital and surplus in excess of $500,000,000 or a commercial bank organized under the laws of any other country that is a member of the OECD having total assets in excess of $500,000,000 (or its foreign currency equivalent at the time), (g) deposits available for withdrawal on demand with a commercial bank organized in the United States having capital and surplus in excess of $500,000,000 or a commercial bank organized under the laws of any other country that is a member of the OECD having total assets in excess of $500 million) or its foreign currency equivalent at the time) and (h) Investments, classified in accordance with GAAP as current assets, in money market funds which comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, as amended, the portfolios of which are limited to Investments of the character described in the foregoing clauses (a) through (g).

“ CBET ” means Cincinnati Bell Extended Territories LLC, an Ohio limited liability company and a Wholly Owned Subsidiary of CBT.

“ CBT ” means Cincinnati Bell Telephone Company LLC, an Ohio limited liability company and a Wholly Owned Subsidiary of the Borrower.

“ CBT 1993 Indenture ” means the Indenture, dated as of October 27, 1993, among CBT, as issuer, the Borrower, as guarantor, and the Bank of New York, as trustee.

“ CBT 1998 Indenture ” means the Indenture, dated as of November 30, 1998, among CBT, as issuer, the Borrower, as guarantor, and the Bank of New York, as trustee.

“ CBT Indentures ” means a collective reference to the CBT 1993 Indenture and the CBT 1998 Indenture, and “ CBT Indenture ” means either of them.

“ CBT Note Documents ” means a collective reference to the CBT Notes, the CBT Indentures, and any other agreements, indentures and instruments pursuant to which any CBT Notes are issued.

 

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“ CBT Notes ” means a collective reference to (a) the medium term notes issued by CBT pursuant to the CBT 1993 Indenture and (b) CBT’s 6.30% Debentures issued pursuant to the CBT 1998 Indenture.

“ CBT Subsidiaries ” means a collective reference to Cincinnati Bell Telecommunication Services LLC, CBET and each other direct or indirect Subsidiary of CBT, and “ CBT Subsidiary ” means any of them.

“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

“ Change of Control ” means an event or series of events by which:

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “ option right ”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 35% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or

(b) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or

 

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(c) there shall occur a “Change of Control” (or any comparable term) under, and as defined in, any Senior Note Indenture, either CBT Indenture, the 2003 8 3/8 Junior Note Indenture and/or the documents evidencing or governing any other Subordinated Indebtedness.

“ Channel Financing Facility ” means an equipment and inventory financing credit facility, pursuant to which the applicable lender thereunder will make available a revolving credit facility the proceeds of which will be used to fund the purchase from certain designated vendors of Property in the form of (a) equipment (and related services) and (b) inventory, including for resale to customers and which credit facility will be secured by a Lien in favor of the applicable lender solely on the Property acquired with such credit facility and the proceeds thereof.

“ Closing Date ” means the first date all the conditions precedent in Section 5.01 are satisfied or waived in accordance with Section 11.01 .

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Collateral ” means a collective reference to all Property with respect to which Liens in favor of the Collateral Agent (for the ratable benefit of the Lenders) are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents.

“ Collateral Agent ” means Bank of America, in its capacity as collateral agent under the Collateral Documents, together with any successors or assigns.

“ Collateral Documents ” means a collective reference to the Security Agreements and such other security documents as may be executed and delivered by the Loan Parties pursuant to the terms of Sections 7.12 and 7.13 .

“ Commitment ” means, as to each Lender, the Revolving Commitment of such Lender and/or the Tranche B Term Loan Commitment of such Lender.

“ Committed Borrowing ” means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01 .

“ Committed Loan ” means each Revolving Loan and the Tranche B Term Loan.

“ Committed Loan Notice ” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a) , which, if in writing, shall be substantially in the form of Exhibit A .

“ Compliance Certificate ” means a certificate substantially in the form of Exhibit D .

“ Consolidated Capital Expenditures ” means, for any period, for the Consolidated Parties on a consolidated basis, all capital expenditures made during such period, as determined in accordance with GAAP; provided , however , that Consolidated Capital Expenditures shall not

 

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include (a) Eligible Reinvestments made with proceeds of any (i) Involuntary Disposition, (ii) Disposition of like-kind Property or (iii) Disposition by a Consolidated Party consisting of the sale, lease, license, transfer or other disposition of machinery and equipment no longer used or useful in the conduct of such Consolidated Party’s business, or (b) Acquisitions.

“ Consolidated Cash Taxes ” means, for any period, for the Consolidated Parties on a consolidated basis, the aggregate of all income taxes, as determined in accordance with GAAP, to the extent the same are paid in cash during such period.

“ Consolidated EBITDA ” means, for any period, for the Consolidated Parties on a consolidated basis, an amount equal to Consolidated Net Income for such period plus , without duplication (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by the Borrower and its Subsidiaries, (iii) depreciation and amortization expense, and (iv) other non-cash items, minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits, (ii) all non-cash items increasing Consolidated Net Income and (iii) all cash expenditures (other than cash expenditures relating to the Disposition of the Borrower’s broadband business in an aggregate amount not exceeding $35,000,000 in the aggregate) made during such period in respect of any non-cash item that was added back to Consolidated Net Income in the calculation of Consolidated EBITDA for any prior period. Notwithstanding anything to the contrary herein, it is hereby acknowledged and agreed by the Borrower and the Lenders that, from and after the Fourth Amendment Effective Date, for all purposes of this Agreement Consolidated EBITDA (including in respect of periods any portion of which occurs before the Fourth Amendment Effective Date) will be calculated by deducting regular pension and post-retirement benefits expense in accordance with GAAP and cash contributions to pension and post-retirement benefit plans will not be deducted from Consolidated EBITDA.

“ Consolidated Fixed Charge Coverage Ratio ” means, as of the last day of any fiscal quarter of the Consolidated Parties, the ratio for the four fiscal quarter period ending on such date, of (a) the sum of (i) Consolidated EBITDA minus (ii) Consolidated Capital Expenditures minus (iii) Consolidated Cash Taxes to (b) the sum of (i) Consolidated Interest Charges plus (ii) Consolidated Scheduled Funded Debt Payments.

“ Consolidated Funded Indebtedness ” means, as of any date of determination, for the Consolidated Parties on a consolidated basis, without duplication, the sum of (a) the principal portion of all obligations for borrowed money, (b) the principal portion of all obligations evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) the principal portion of all obligations under conditional sale or other title retention agreements relating to Property purchased by the Consolidated Parties (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) the principal portion of all obligations issued or assumed as the deferred purchase price of Property or services purchased by the Consolidated Parties (other than trade debt incurred in the ordinary course of business and due within six months of the incurrence thereof) which would appear as liabilities on a balance sheet of the Consolidated Parties, (e) the Attributable Indebtedness with respect to Capital Leases and Synthetic Lease Obligations, (f) all direct and contingent

 

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reimbursement obligations in respect of financial letters of credit, including, without duplication, all unreimbursed drafts drawn thereunder (less the amount of any cash collateral securing any such letters of credit), (g) the principal component or liquidation preference of all preferred Capital Stock issued by such Person and which by the terms thereof could at any time prior to the Maturity Date (other than pursuant to a change of control provision that is defined no more broadly that the definition of “Change of Control” set forth in Section 1.01 ) be (at the request of the holders thereof or otherwise) subject to mandatory sinking fund payments, mandatory redemption or other acceleration , (h) the outstanding Attributed Principal Amount under any Permitted Receivables Financing (all such Indebtedness of the types described in the forgoing clauses (a) through (h), as to any Person, “ Funded Indebtedness ”), (i) all Funded Indebtedness of others secured by (or for which the holder of such Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, Property owned or acquired by the Consolidated Parties, whether or not the obligations secured thereby have been assumed, (j) all Guarantees with respect to Funded Indebtedness of another Person and (k) the Funded Indebtedness of any partnership or unincorporated joint venture in which a Consolidated Party a general partner or a joint venturer to the extent such Indebtedness is recourse to a Consolidated Party.

“ Consolidated Interest Charges ” means, for any period, for the Consolidated Parties on a consolidated basis, the sum of (a) all interest expenses of the Consolidated Parties in connection with borrowed money (excluding all Indebtedness and payment obligations referred to in clause (f) of the definition of Indebtedness herein, and including capitalized interest, the interest component under Capital Leases and the implied interest component of Permitted Receivables Financings and Synthetic Lease Obligations) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, (b) the portion of rent expense with respect to such period under capital leases that is treated as interest in accordance with GAAP, and (c) cash dividends paid in respect of Permitted Preferred Stock and Other Permitted Equity, but excluding in each case for purposes of clauses (a), (b) and (c) above, (i) any amortization of original issue discount, (ii) the interest portion of any deferred payment obligation, (iii) any other interest not payable in cash, (iv) any financing fees or other charges or expenses, or the amortization thereof, incurred in connection with the issuance of any Indebtedness or preferred Capital Stock or the obtaining of any amendment, waiver or other modification in respect of any Indebtedness or preferred Capital Stock, (v) to the extent included in “interest expense” in accordance with GAAP, any penalties paid or payable in connection with the prepayment of any Indebtedness and (vi) all non-cash interest expense due to the initial recording of any expense item in respect of an obligation classified as a debt obligation under FASB Interpretation No. 45 and all subsequent non-cash adjustments to such amount. For purposes of the foregoing, interest shall be determined after giving effect to any net payments made or received by the Borrower and its Subsidiaries with respect to Swap Contracts on a consolidated basis for any period.

“ Consolidated Interest Coverage Ratio ” means, as of the last day of any fiscal quarter of the Consolidated Parties, the ratio, for the four fiscal quarter period ending on such date, of (a) Consolidated EBITDA to (b) Consolidated Interest Charges.

 

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“ Consolidated Net Income ” means, for any period, for the Consolidated Parties on a consolidated basis, net income (excluding extraordinary items) after interest expense, income taxes and depreciation and amortization, all as determined in accordance with GAAP.

“ Consolidated Parties ” means a collective reference to the Borrower and the Subsidiaries of the Borrower, and “ Consolidated Party ” means any one of them.

“ Consolidated Scheduled Funded Debt Payments ” means, for any period, for the Consolidated Parties on a consolidated basis, the sum of all scheduled payments of principal on Consolidated Funded Indebtedness, as determined in accordance with GAAP. For purposes of this definition, “scheduled payments of principal” (a) shall be determined without giving effect to any reduction of such scheduled payments resulting from the application of any voluntary or mandatory prepayments made during the applicable period, (b) shall be deemed to include, to the extent amortizing during such period, the Attributable Indebtedness in respect of Capital Leases and Synthetic Lease Obligations and (c) shall not include (i) any voluntary prepayments or mandatory prepayments required pursuant to Section 2.05 , (ii) the amortization payments in respect of the Tranche B Term Loan required to be paid pursuant to Section 2.07(c) on each of December 31, 2011, March 31, 2012, June 30, 2012 or (iii) the unpaid balance of the Tranche B Term Loan due on the Maturity Date.

“ Consolidated Senior Indebtedness ” means, as of any date of determination, for the Consolidated Parties on a consolidated basis, without duplication, the sum of the following: (a) the principal portion of the Obligations under the Loan Documents, (b) the principal portion of Consolidated Funded Indebtedness that is not expressly subordinated to the Obligations under the Loan Documents and Secured Hedge Agreements and is secured by any collateral (including, without limitation, the Attributed Principal Amount under any Permitted Receivables Financing), (c) the principal portion of Consolidated Funded Indebtedness which is recourse to any Excluded Subsidiary or to any Property of any Excluded Subsidiary, but excluding any Indebtedness owed to any Consolidated Party and (d) to the extent then due and payable, the Swap Termination Value under Secured Hedge Agreements to which the Borrower or any Subsidiary is a party.

“ Consolidated Senior Leverage Ratio ” means, as of the last day of any fiscal quarter of the Consolidated Parties, the ratio of (a) Consolidated Senior Indebtedness as of such date to (b) Consolidated EBITDA for the four fiscal quarter period ending on such date.

“ Consolidated Senior Secured Indebtedness ” means, as of any date of determination, for the Consolidated Parties on a consolidated basis, without duplication, the sum of the following: (a) the principal portion of the Obligations under the Loan Documents, (b) the principal portion of Consolidated Funded Indebtedness that is not expressly subordinated to the Obligations under the Loan Documents and Secured Hedge Agreements and is secured by any collateral (including, without limitation, the Attributed Principal Amount under any Permitted Receivables Financing), and (c) to the extent then due and payable, the Swap Termination Value under Secured Hedge Agreements to which the Borrower or any Subsidiary is a party.

“ Consolidated Senior Secured Leverage Ratio ” means, as of the last day of any fiscal quarter of the Consolidated Parties, the ratio of (a) Consolidated Senior Secured Indebtedness as of such date to (b) Consolidated EBITDA for the four fiscal quarter period ending on such date.

 

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“ Consolidated Total Assets ” means, as of the last day of any fiscal year of the Consolidated Parties for the Consolidated Parties on a consolidated basis, total assets as determined in accordance with GAAP.

“ Consolidated Total Leverage Ratio ” means, as of the last day of any fiscal quarter of the Consolidated Parties, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the four fiscal quarter period ending on such date.

“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other consensual undertaking to which such Person is a party or by which it or any of its Property is bound.

“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

“ Credit Extension ” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

“ Data Center Sale and Leaseback Transaction ” means the Disposition, in the form of and pursuant to one or more Sale and Leaseback Transactions by one or more of the Consolidated Parties, of the real Property and related improvements housing all or part of the operations of the data center business of the Consolidated Parties; provided that (a) the aggregate amount of consideration paid to the applicable Consolidated Parties in connection therewith shall be in an amount not less than the fair market value of the applicable Property disposed of, (b) the aggregate outstanding Remaining Present Value of (i) all leases entered into in connection with such transaction or transactions plus (ii) all leases entered into in connection with all Wireless Tower Sale and Leaseback Transactions shall not at any time exceed $175,000,000 in the aggregate for all such leases, (c) the Loan Parties shall apply (or cause to be applied) the Net Cash Proceeds of such transaction or transactions to (i) make Eligible Reinvestments, (ii) fund pension plan obligations of the Borrower or its Subsidiaries and/or (iii) prepay the Tranche B Term Loan (such payment to be applied as provided in Section 2.05(b)(iv)), in each case within 360 days of receipt and (d) any Liens securing Indebtedness incurred in connection with such transaction or transactions do not at any time encumber Property other than the Property sold, transferred or conveyed (or purported to be sold, transferred or conveyed) to the applicable lessor(s) in connection with such transaction or transactions; provided further that (i) the aggregate outstanding Remaining Present Value of (A) all leases entered into in connection with all Data Center Sale and Leaseback Transactions, plus (B) all leases entered into in connection with all Wireless Tower Sale and Leaseback Transactions, plus (ii) all Indebtedness arising under Capital Leases and Synthetic Leases entered into in reliance on Section 8.03(n)(i) shall not at any time exceed $250,000,000 in the aggregate.

“ Debt Issuance ” means the issuance by any Consolidated Party of any Indebtedness of the type referred to in clause (a) or (b) of the definition thereof set forth in this Section 1.01 .

 

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“ Debt Issuance Prepayment Event ” means the receipt by any Consolidated Party of proceeds from any Debt Issuance other than an Excluded Debt Issuance.

“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of a stated grace period, or both, would be an Event of Default. It is understood and agreed that the institution of any proceeding under any Debtor Relief Law relating to any Consolidated Party (other than an Immaterial Subsidiary) or to all or any material part of its Property without the consent of such Person shall constitute an immediate Default that with the passage of the 60-calendar day period referred to in Section 9.01(g) would be an Event of Default.

“ Default Rate ” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided , however , that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.

“ Defaulting Lender ” means any Revolving Lender that has (a) failed to fund any portion of the Loans or participations in L/C Obligations or participations in Swingline Loans required to be funded by it hereunder within three Business Days of the date required to be funded by it hereunder unless such requirement to fund is the subject of a good faith dispute, (b) notified the Borrower, the Administrative Agent or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement, unless such noncompliance is the subject of a good faith dispute, or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or generally under agreements in which it commits to extend credit, (c) otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless such requirement to pay is the subject of a good faith dispute or (d) has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any ownership interest in such Lender or a parent company thereof or the exercise of control over a Lender or Person controlling such Lender by a Governmental Authority or an instrumentality thereof.

 

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“ Discretionary L/C Issuer ” has the meaning specified in Section 2.03(b)(v) .

“ Disposition ” or “ Dispose ” means any disposition (including pursuant to a Sale and Leaseback Transaction) of any or all of the Property (including without limitation the Capital Stock of a Subsidiary) of any Consolidated Party whether by sale, lease, licensing, transfer or otherwise; provided , however , that the term “Disposition” shall be deemed to exclude any Equity Issuance.

“ Disposition Prepayment Event ” means, with respect to any Disposition other than an Excluded Disposition, the failure of the Loan Parties to apply (or cause to be applied) the Net Cash Proceeds of such Disposition to Eligible Reinvestments during the Application Period for such Disposition; provided that no Disposition Prepayment Event shall be deemed to have occurred during any fiscal year until the aggregate Net Cash Proceeds with respect to all Dispositions consummated during such fiscal year exceeds $25 million.

“ Dollar ” and “ $ ” mean lawful money of the United States.

“ Domestic Subsidiary ” means any Subsidiary that is organized under the laws of any political subdivision of the United States.

“ Eligible Assignee ” means (a) a Lender; (b) an Affiliate of a Lender; (c) any Approved Fund and (d) any other bank or financial institution approved by (i) the Administrative Agent and the L/C Issuers, and (ii) unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower, any of the Borrower’s Affiliates or Subsidiaries or any natural person.

“ Eligible Reinvestment ” means (a) any acquisition (whether or not constituting a capital expenditure, but not constituting an Acquisition) of assets or any business (or any substantial part thereof) used or useful in the same or a similar line of business as the Borrower and its Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions thereof) and (b) any Permitted Acquisition.

“ Environmental Laws ” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, agreements or other legally-binding governmental restrictions relating to pollution and the protection of the environment or the release of any hazardous materials, substances or wastes into the environment, including those related to hazardous materials, substances or wastes, air emissions and discharges of hazardous materials, substances or wastes to waste or public systems.

“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

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“ Equity Issuance ” means any issuance by any Consolidated Party to any Person of (a) shares of its Capital Stock, (b) any shares of its Capital Stock pursuant to the exercise of options or warrants, (c) any shares of its Capital Stock pursuant to the conversion of any debt securities to equity or the conversion of any class equity securities to any other class of equity securities or (d) any options or warrants relating to its Capital Stock. The term “Equity Issuance” shall not be deemed to include any Disposition.

“ ERISA ” means the Employee Retirement Income Security Act of 1974.

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ ERISA Event ” means any of the following events that the Borrower knows or could reasonably be expected to know occurred: (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

“ Eurodollar Rate ” means

(a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to (i) the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, or (ii) if such published rate is not available at such time for any reason, the rate determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.

 

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(b) for any interest calculation with respect to a Base Rate Loan, the rate per annum equal to (i) BBA LIBOR at approximately 11:00 a.m., London time on the date of determination (provided that if such date is not a Business Day, the next preceding Business Day) for Dollar deposits being delivered in the London interbank market for a term of one month commencing on that day, or (ii) if such published rate is not available at such time for any reason, the rate determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Loan being made, continued or converted by Bank of America and with a term equal to one month would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at the date and time of determination.

“ Eurodollar Rate Loan ” means a Loan that bears interest at a rate based on the Eurodollar Rate.

“ Event of Default ” has the meaning specified in Section 9.01 .

“ Excess Proceeds ” shall have the meaning assigned to such term in Section 7.07(b) .

“ Excluded Debt Issuance ” means any Debt Issuance permitted by Section 8.03 .

“ Excluded Disposition ” means, with respect to any Consolidated Party, any Disposition consisting of (a) the sale, lease, license, transfer or other disposition of Property in the ordinary course of such Consolidated Party’s business, (b) the sale, lease, license, transfer or other disposition of machinery and equipment no longer used or useful in the conduct of such Consolidated Party’s business, (c) any sale, lease, license, transfer or other disposition of Property by such Consolidated Party to any Loan Party, (d) if such Consolidated Party is an Excluded Subsidiary (other than CBT or any CBT Subsidiary), any sale, lease, license, transfer or other disposition of Property by such Consolidated Party to any other Excluded Subsidiary, (e) any sale, lease, license, transfer or other disposition of Property by CBT to a CBT Subsidiary, by a CBT Subsidiary to CBT, or among CBT Subsidiaries, (f) the sale, lease, transfer or other disposition of equipment that, in the aggregate for all such equipment during any fiscal year, has a fair market value or book value, which ever is greater, of not more that $1,000,000, (g) any Involuntary Disposition by such Consolidated Party, (h) any Disposition by such Consolidated Party constituting a Permitted Investment, (i) any Disposition of Transferred Assets by such Consolidated Party in connection with a Permitted Receivables Financing, (j) the sale or discount without recourse of delinquent accounts receivable or notes receivable for collection purposes, or the conversion or exchange of delinquent accounts receivable into or for notes receivable in connection with the compromise or collection thereof, each in the ordinary course of business and not intended to constitute a financing arrangement, (k) the disposition of cash or investment securities in the ordinary course of management of the investment portfolio of the applicable Consolidated Party, (l) any sale or granting of any interest in conduits, fibers, dark fiber or an indefeasible right to use dark fiber or fiber capacity, (m) subleases of real Property and licenses

 

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of Intellectual Property, in each case entered into in the ordinary course of business and not intended to constitute a financing arrangement, (n) any Wireless Disposition, (o) any exchange of assets to the extent qualifying for like kind treatment under Section 1031 of the Code, (p) any Data Center Sale and Leaseback Transaction and (o) any Wireless Tower Sale and Leaseback Transaction.

“ Excluded Subsidiaries ” means, subject to Section 7.12 , (a) CBT and CBET, (b) the Mutual Subsidiaries, (c) each Receivables Financings SPC, (d) each Foreign Subsidiary, (e) each Subsidiary created or acquired after the Closing Date as a Joint Venture, or that becomes a Joint Venture as a result of a permitted Disposition, and (f) each Subsidiary created or acquired after the Closing Date in respect of which (i) the Borrower shall have advised the Administrative Agent that it would be a violation of applicable law for such Subsidiary to become a Loan Party or (ii) the Administrative Agent shall have determined that the contractual, operational, expense, tax or regulatory consequences or difficulty of causing such Subsidiary to become a Guarantor would not, in light of the benefits to accrue to the Lenders, justify such Subsidiary becoming a Loan Party, and “ Excluded Subsidiary ” means any one of them.

“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 11.13 ), any withholding Tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e) , except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding Tax pursuant to Section 3.01(a) .

“ Existing Credit Agreement ” means that certain Third Amendment and Restatement of Credit Agreement dated as of November 17, 2003, as amended, among the Borrower and BCSI, Inc., a Delaware corporation, as the borrowers thereunder, a syndicate of lenders, Bank of America, N.A., as syndication agent for the lenders, CitiCorp USA, Inc., as administrative agent for the lenders, Credit Suisse First Boston and The Bank of New York, as co-documentation agents for the lenders, PNC Bank, N.A., Citigroup Global Markets, Inc. and Banc of America Securities LLC, as joint lead arrangers and joint book managers, the various other agents and arrangers party thereto.

“ Existing Letters of Credit ” means the letters of credit described on Schedule 1.01A .

 

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“ FCC ” means the Federal Communications Commission or any successor commission or agency of the United States of America having jurisdiction over the federal telecommunications licensing of any Consolidated Party.

“ Federal Funds Rate ” means, for any day, the rate per annum (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

“ Fee Letters ” means a collective reference to (a) the fee letter agreement, dated January 12, 2005, among the Borrower, the Administrative Agent and Banc of America Securities LLC, (b) the fee letter agreement, dated January 12, 2005, between the Borrower and Credit Suisse First Boston and (c) the fee letter agreement, dated as of May 18, 2009, among the Borrower, the Administrative Agent and Banc of America Securities LLC.

“ First Amendment ” means the First Amendment to Credit Agreement dated as of August 31, 2005 among the Borrower, the Subsidiary Guarantors, the Lenders party thereto and the Administrative Agent.

“ First Amendment Effective Date ” means August 31, 2005.

“ Foreign Lender ” means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“ Foreign Subsidiary ” means any Subsidiary of a Consolidated Party that is not a Domestic Subsidiary.

“ Fourth Amendment ” means the Fourth Amendment to Credit Agreement dated as of June 25, 2009 among the Borrower, the Subsidiary Guarantors, the Lenders party thereto and the Administrative Agent.

“ Fourth Amendment Effective Date ” means June 25, 2009.

“ FRB ” means the Board of Governors of the Federal Reserve System of the United States.

 

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“ Fully Satisfied ” means, with respect to the Obligations as of any date, that, as of such date, (a) all principal of and interest accrued to such date which constitute Obligations shall have been paid in full in cash, (b) all fees, expenses and other amounts then due and payable which constitute Obligations shall have been paid in cash, (c) all outstanding Letters of Credit shall have been (i) terminated, (ii) fully Cash Collateralized, (iii) secured by one or more letters of credit on terms and conditions, and with one or more financial institutions, reasonably satisfactory to the applicable L/C Issuer(s) or (iv) continued under a credit facility that in part or in whole replaces or refinances this Agreement or otherwise treated in a manner satisfactory to the applicable L/C Issuer(s), in either case, pursuant to an arrangement resulting in the simultaneous termination (in a manner satisfactory to the Administrative Agent, in its sole discretion) of the participations of the Lenders under this Agreement in such Letters of Credit, and (d) the Commitments shall have expired or been terminated in full.

“ Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

“ Funded Indebtedness ” has the meaning assigned to such term in the definition of Consolidated Funded Indebtedness in Section 1.01 .

“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, as in effect from time to time.

“ Governmental Approval ” means, with respect to any Person, any license, permit, or certificate of public convenience and necessity issued to such Person by the FCC, any State PUC or any other Governmental Authority in connection with the operation of the Businesses.

“ Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“ Guarantee ” means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease Property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the primary purpose of assuring in any other manner the

 

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obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion or limited amount thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

“ Guarantors ” means a collective reference to the Subsidiaries of the Borrower identified as “Guarantors” on the signature pages hereto, and each other Person that subsequently becomes a Guarantor by executing a Joinder Agreement as contemplated by Section 7.12 , and “ Guarantor ” means any one of them. A list of the Guarantors as of the Closing Date is set forth on Schedule 1.01B .

“ Guaranty ” means the Guarantee made by the Guarantors in favor of the Administrative Agent and the Lenders pursuant to Article IV .

“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“ Honor Date ” has the meaning specified in Section 2.03(c)(i) .

“ Immaterial Subsidiary ” means any Subsidiary in respect of which (a) the portion of Consolidated Total Assets (determined as of the last day of the most recent fiscal year of the Borrower with respect to which the Administrative Agent has received the Required Financial Information) attributable thereto (on an unconsolidated basis) is less than 5% of Consolidated Total Assets as of such date or (b) the portion of Consolidated EBITDA (determined as of the last day of the most recent fiscal year of the Borrower with respect to which the Administrative Agent has received the Required Financial Information for the fiscal year ending on such date) attributable thereto (on an unconsolidated basis) is less than 5% of Consolidated EBITDA for such fiscal year; provided , however , the occurrence of any event or condition of the types referred in any of subsections (g), (h), (i) or (k) of Section 9.01 with respect to more than three Immaterial Subsidiaries concurrently shall (subject to any applicable grace period) constitute an Event of Default notwithstanding any other provision to the contrary set forth in this Agreement if the portion of Consolidated Total Assets (determined as provided above) attributable to all of such Immaterial Subsidiaries taken together would constitute more than 15% of Consolidated Total Assets as of the applicable date or if the portion of Consolidated EBITDA (determined as provided above) attributable to all of such Immaterial Subsidiaries taken together would constitute more than 15% of Consolidated EBITDA for the applicable fiscal year.

 

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“ Incremental Facilities ” and “ Incremental Facility ” shall each have the meaning specified in Section 11.01(b) .

“ Indebtedness ” means, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to Property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) all obligations of such Person issued or assumed as the deferred purchase price of Property or services purchased by such Person (other than trade debt incurred in the ordinary course of business and due within six months of the incurrence thereof) which would appear as liabilities on a balance sheet of such Person, (e) the Attributable Indebtedness of such Person with respect to Capital Leases and Synthetic Lease Obligations, (f) all net obligations of such Person under Swap Contracts, (g) all direct and contingent reimbursement obligations in respect of financial letters of credit, including, without duplication, all unreimbursed drafts drawn thereunder (less the amount of any cash collateral securing any such letters of credit), (h) the principal component or liquidation preference of all preferred Capital Stock issued by such Person and which by the terms thereof could at any time prior to the Maturity Date (other than pursuant to a change of control provision that is defined no more broadly that the definition of “Change of Control” set forth in Section 1.01 ) be (at the request of the holders thereof or otherwise) subject to mandatory sinking fund payments, mandatory redemption or other acceleration, (i) the outstanding Attributed Principal Amount under any Permitted Receivables Financing, (j) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, Property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (k) all Guarantees of such Person with respect to Indebtedness of another Person and (l) the Indebtedness of any partnership or unincorporated joint venture in which such Person is a general partner or a joint venturer to the extent such Indebtedness is recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.

“ Indemnified Taxes ” means Taxes, other than Excluded Taxes, arising from any payment or obligation hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

“ Indemnitee ” has the meaning specified in Section 11.04(b) .

“ Information ” has the meaning specified in Section 11.07 .

“ Intellectual Property ” has the meaning specified in Section 6.17 .

“ Interest Payment Date ” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided , however , that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swingline Loan), the last Business Day of each March, June, September and December and the Maturity Date.

 

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“ Interest Period ” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Committed Loan Notice, or such other period that is 12 months or less requested by the Borrower and consented to by all the Lenders; provided that:

(i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(iii) no Interest Period shall extend beyond the Maturity Date.

“ Investment ” in any Person means (a) any Acquisition of such Person or its Property, (b) any other acquisition of Capital Stock, bonds, notes, debentures, partnership, joint ventures or other ownership interests or other securities of such other Person, (c) any deposit with, or advance, loan or other extension of credit to, such Person (other than deposits made in connection with the purchase of equipment inventory and supplies in the ordinary course of business) or (d) any other capital contribution to or investment in such Person, including, without limitation, any Guarantee incurred for the benefit of such Person, but excluding any Restricted Payment to such Person. Investments which are capital contributions or purchases of Capital Stock which have a right to participate in the profits of the issuer thereof or are purchases of other Property shall be valued at the amount (or, in the case of any Investment made with Property other than cash, the fair market value of such Property) actually contributed or paid (including cash and non-cash consideration and any assumption of Indebtedness) to purchase such Capital Stock or other Property as of the date of such contribution or payment less the amount of all returns of capital in respect of such Investment (including, without limitation, pursuant to the Disposition or liquidation of all or part of such Investment) through and including the date of determination. Investments which are loans, advances, extensions of credit or Guarantees shall be valued at the principal amount of such loan, advance or extension of credit outstanding as of the date of determination or, as applicable, the principal amount of the loan or advance outstanding as of the date of determination actually guaranteed by such Guarantees. An exchange of assets will be deemed not to constitute an “Investment” to the extent qualifying for like kind treatment under Section 1031 of the Code.

“ Involuntary Disposition ” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any Property of any Consolidated Party.

 

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“ Involuntary Disposition Prepayment Event ” means, with respect to any Involuntary Disposition, the failure of the Loan Parties to apply (or cause to be applied) an amount equal to the Excess Proceeds of such Involuntary Disposition, if any, to make Eligible Reinvestments (including but not limited to the repair or replacement of the Property affected by such Involuntary Disposition) during the Application Period for such Involuntary Disposition, subject to the terms and conditions of Section 7.07(b) .

“ IRS ” means the United States Internal Revenue Service.

“ ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).

“ Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable L/C Issuer and the Borrower (or any Subsidiary) or in favor the applicable L/C Issuer and relating to any such Letter of Credit.

“ Joinder Agreement ” means a Joinder Agreement substantially in the form of Exhibit E hereto, executed and delivered by a new Guarantor in accordance with the provisions of Section 7.12 .

“ Joint Venture ” means any corporation, limited liability company, trust, joint venture, company or partnership which is not a Subsidiary as of the Closing Date and in respect which (a) any of the Consolidated Parties makes (or is deemed to make pursuant to the last paragraph of Section 8.02 ) an Investment after the Closing Date that results in one or more Consolidated Parties holding no more than 90% and no less than 10% of the Capital Stock of such Person.

“ Junior Note Documents ” means a collective reference to the 2003 8  ³ / 8 % Junior Note Documents and the 2005 Junior Note Documents.

“ Junior Notes ” means a collective reference to the 2003 8  ³ / 8 % Junior Notes and the 2005 Junior Notes.

“ Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“ L/C Advance ” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.

 

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“ L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when such drawing is made or refinanced as a Borrowing of Revolving Loans.

“ L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

“ L/C Issuer ” means each of Bank of America and PNC, each in its capacity as an issuer of Letters of Credit hereunder, any Discretionary L/C Issuer, or any successor to Bank of America, PNC or any Discretionary L/C Issuer that becomes an issuer of Letters of Credit hereunder.

“ L/C Obligations ” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For the purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“ Lenders ” means a collective reference to the Persons identified as “Lenders” on the signature pages hereto, together with any Person that subsequently becomes a Lender by way of assignment in accordance with the terms of Section 11.06 or pursuant to an amendment in accordance with the terms of Section 11.01(b) , together with their respective successors, other than any Person that ceases to be a Lender as a result of an assignment in accordance with the terms of Section 11.06 or Section 11.13 or an amendment of this agreement in accordance with the terms of Section 11.01 , and “ Lender ” means any one of them, and, as the context requires, includes the Swingline Lender.

“ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

“ Letter of Credit ” means any standby letter of credit issued hereunder and shall include the Existing Letters of Credit.

“ Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.

“ Letter of Credit Fee ” has the meaning specified in Section 2.03(i) .

“ Letter of Credit Expiration Date ” means the day that is 7 days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

 

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“ Letter of Credit Sublimit ” means an amount equal to $40,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

“ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

“ Loan ” means any extension of credit by a Lender to the Borrower under Article II in the form of a Revolving Loan, a Swingline Loan and/or a Tranche B Term Loan, as the context may require. The term “ Loan ” also shall mean, as appropriate, (i) any portion of the Revolving Loans bearing interest at the same rate of interest and having an Interest Period which begins and ends on the same date, and (ii) any portion of the Tranche B Term Loan bearing interest at the same rate of interest and having an Interest Period which begins and ends on the same date.

“ Loan Documents ” means this Agreement, each Note, each Letter of Credit, each Issuer Document, each Joinder Agreement, the Collateral Documents, the Fee Letters and each other document pursuant to which cash collateral is provided in respect of any obligation under any Loan Document.

“ Loan Parties ” means, collectively, the Borrower and each Guarantor, and “ Loan Party ” means any one of them.

“ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole; (b) a material adverse impairment of the ability of the Loan Parties, taken as a whole, to perform their material obligations under the Loan Documents; or (c) a material adverse effect upon the rights or remedies, taken as a whole, of the Administrative Agent or the Lenders under the Loan Documents.

“ Material Contract ” means, with respect to any Person, each contract or other arrangement to which such Person is a party for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.

“ Maturity Date ” means (a) as to the Revolving Loans and Letters of Credit (and the related L/C Obligations), August 31, 2012 and (b) as to the Tranche B Term Loan, August 31, 2012.

“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

“ Multiemployer Plan ” means any employee benefit plan of the type described in Sections 3(37) and 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

 

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“ Mutual Subsidiaries ” means, collectively, (i) Mutual Signal Holding Corporation, a Delaware corporation, (ii) Mutual Signal Corporation, a New York corporation, (iii) Mutual Signal Corporation of Michigan, a New York corporation, and (iv) MSM Associates Limited Partnership, a Delaware limited partnership.

“ Net Cash Proceeds ” means the aggregate cash or Cash Equivalents proceeds received by any Consolidated Party in respect of any Disposition, Debt Issuance or Involuntary Disposition, net of (a) direct costs incurred in connection therewith (including, without limitation, legal, accounting and investment banking fees, and sales commissions), (b) Taxes paid or payable as a result thereof and (c) in the case of any Disposition, the amount necessary to retire any Indebtedness secured by a Permitted Lien on the related Property; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by any such Consolidated Party in any Disposition, Debt Issuance or Involuntary Disposition.

“ Non-Pledged Subsidiaries ” means, subject to Section 7.12 , (a) the Mutual Subsidiaries, (b) the CBT Subsidiaries, (c) each Subsidiary of an Excluded Subsidiary created or acquired by such Excluded Subsidiary after the Closing Date, (d) each Receivables Financing SPC, (e) each Subsidiary created or acquired after the Closing Date as a Joint Venture, or that becomes a Joint Venture as a result of a permitted Disposition, and (f) each other Subsidiary created or acquired after the Closing Date in respect of which (i) the Borrower shall have advised the Administrative Agent that it would be a violation of applicable law for the Capital Stock of such Subsidiary to be pledged or (ii) the Administrative Agent shall have determined that the contractual, operational, expense, tax or regulatory consequences or difficulty of the Capital Stock of such Subsidiary being pledged would not, in light of the benefits to accrue to the Lenders, justify such pledge, and “ Non-Pledged Subsidiary ” means any one of them.

“ Non-Shared Collateral Security Agreement ” means the Non-Shared Collateral Security and Pledge Agreement, dated as of the Closing Date, among the Loan Parties signatories thereto and the Collateral Agent.

“ Note ” or “ Notes ” means the Revolving Notes, the Swingline Note and/or the Tranche B Term Notes, individually or collectively, as appropriate.

“ Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under (a) any Loan Document with respect to any Loan or Letter of Credit, (b) any Secured Hedge Agreement, and (c) all obligations under any Treasury Management Agreement between any Loan Party and any Lender or Affiliate of a Lender, in each case whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses, costs and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

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“ OECD ” shall mean the Organisation for Economic Co-operation and Development and its successors.

“ Operating Lease ” means, as applied to any Person, any lease (including, without limitation, leases which may be terminated by the lessee at any time) of any Property (whether real, personal or mixed) which is not a Capital Lease other than any such lease in which that Person is the lessor.

“ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

“ Other Permitted Equity ” means any Capital Stock of the Borrower other than common stock that (a) is a security that is not guaranteed or secured and ranks junior in right of payment to the Obligations, the Senior Notes, the Junior Notes and any Subordinated Indebtedness in all respects, (b) has a term extending to at least February 28, 2013 and is not mandatorily redeemable or putable prior to such date (other than pursuant to a “change of control” that is defined no more broadly than the definition of “Change of Control” set forth in Section 1.01 ), and (c) if convertible or exchangeable, is convertible or exchangeable into the common stock of the Borrower or other Capital Stock of the Borrower satisfying the conditions of clauses (a) and (b) of this definition.

“ Other Taxes ” means all present or future stamp or documentary Taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

“ Outstanding Amount ” means (a) with respect to Revolving Loans and Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Loans or Swingline Loans as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.

“ Participant ” has the meaning specified in Section 11.06(d) .

“ PBGC ” means the United States Pension Benefit Guaranty Corporation.

 

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“ Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

“ Permitted Acquisition ” means an Acquisition by the Borrower or any Subsidiary of the Borrower permitted pursuant to the terms of Section 8.02(h) .

“ Permitted Investments ” means, at any time, Investments by the Consolidated Parties permitted to exist at such time pursuant to the terms of Section 8.02 .

“ Permitted Liens ” means, at any time, Liens in respect of Property of the Consolidated Parties permitted to exist at such time pursuant to the terms of Section 8.01 .

“ Permitted Preferred Stock ” means the 6  ³ / 4 % Cumulative Convertible Preferred Stock of the Borrower.

“ Permitted Receivables Financing ” means any transaction or series of transactions that may be entered into by the Borrower or any Subsidiary pursuant to which it may sell, convey, contribute to capital or otherwise transfer (which sale, conveyance, contribution to capital or transfer may include or be supported by the grant of a security interest) Transferred Assets (a) to any Receivables Financier, which transfer is funded in whole or in part, directly or indirectly, by the incurrence or issuance by the transferee or any successor transferee of Indebtedness, fractional undivided interests or other securities that are to receive payments from, or that represent interests in, the cash flow derived from such Transferred Assets or interests in such Transferred Assets, or (b) directly to one or more investors or other purchasers (other than the Borrower or any Subsidiary), it being understood that a Permitted Receivables Financing may involve (i) one or more sequential transfers or pledges of the same Transferred Assets, or interests therein, e.g. , a sale, conveyance or other transfer to a Receivables Financing SPC followed by a pledge of the Transferred Assets to secure Indebtedness incurred by the Receivables Financing SPC, and all such transfers, pledges and Indebtedness incurrences shall be part of and constitute a single Permitted Receivables Financing, and (ii) periodic transfers or pledges of Transferred Assets and/or revolving transactions in which new Transferred Assets, or interests therein, are transferred or pledged upon collection of previously transferred or pledged Transferred Assets, or interests therein, provided that any such transactions shall provide for recourse to such Subsidiary (other than any Receivables Financing SPC) or the Borrower (as applicable) only in respect of the cash flows in respect of such Transferred Assets and to the extent of other customary securitization undertakings in the United States, and provided further that the aggregate Attributed Principal Amount for all Permitted Receivables Financings at any time outstanding shall not exceed $150,000,000.

“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

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“ Platform ” has the meaning specified in Section 7.02 .

“ PNC ” means PNC Bank, National Association and its successors.

“ Principal Amortization Payment ” means a principal payment on the Tranche B Term Loan as set forth in Section 2.07(c) .

“ Pro Forma Basis ” means, in connection with the calculation as of the applicable Calculation Date (utilizing the principles set forth in Section 1.03(c) ) of the financial covenants set forth in Section 8.11(a) - (d) and/or of the Consolidated Senior Secured Leverage Ratio for the purposes of Section 8.06(d) and/or Section 8.12(b) in respect of a proposed transaction (a “ Specified Transaction ”) as of the date on which such Specified Transaction is to be effected, the making of such calculation after giving effect on a pro forma basis to:

(a) the consummation of such Specified Transaction as of the first day of the applicable Calculation Period;

(b) the assumption, incurrence or issuance of any Indebtedness by any of the Consolidated Parties (including any Person which became a Subsidiary pursuant to or in connection with such Specified Transaction) in connection with such Specified Transaction, as if such Indebtedness had been assumed, incurred or issued (and the proceeds thereof applied) on the first day of such Calculation Period (with any such Indebtedness bearing interest at a floating rate being deemed to have an implied rate of interest for the applicable period equal to the rate which is or would be in effect with respect to such Indebtedness as of the applicable Calculation Date);

(c) the permanent repayment, retirement or redemption of any Indebtedness (other than revolving Indebtedness, except to the extent accompanied by a permanent commitment reduction) by any of the Consolidated Parties (including any Person which became a Subsidiary pursuant to or in connection with such Specified Transaction) in connection with such Specified Transaction, as if such Indebtedness had been repaid, retired or redeemed on the first day of such Calculation Period;

(d) other than in connection with such Specified Transaction, any assumption, incurrence or issuance of any Indebtedness (other than Indebtedness in an aggregate amount not to exceed $10,000,000 which may be disregarded for purposes of this paragraph (d)) by any of the Consolidated Parties after the first day of the applicable Calculation Period, as if such Indebtedness had been assumed, incurred or issued (and the proceeds thereof applied) on the first day of such Calculation Period (with any such Indebtedness bearing interest at a floating rate being deemed to have an implied rate of interest for the applicable period equal to the weighted average of the interest rates actually in effect with respect to such Indebtedness during the portion of such period that such Indebtedness was outstanding); and

(e) other than in connection with such Specified Transaction, the permanent repayment, retirement or redemption of any Indebtedness (other than revolving

 

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Indebtedness, except to the extent accompanied by a permanent commitment reduction and other than other Indebtedness in an aggregate amount not to exceed $10,000,000 which may be disregarded for purposes of this paragraph (e)) by any of the Consolidated Parties after the first day of the applicable Calculation Period, as if such Indebtedness had been repaid, retired or redeemed on the first day of such Calculation Period.

“ Pro Forma Compliance Certificate ” means a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent in connection with Specified Transaction, such certificate to contain reasonably detailed calculations satisfactory to the Administrative Agent, upon giving effect to the applicable Specified Transaction on a Pro Forma Basis, of the financial covenants set forth in Section 8.11(a) - (d) for the applicable Calculation Period.

“ Property ” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

“ Public Lenders ” has the meaning specified in Section 7.02 .

“ Real Properties ” means, at any time, a collective reference to each of the facilities and real Properties owned, leased or operated by the Consolidated Parties at such time.

“ Receivables Financier ” means any Person that is not the Borrower or any Subsidiary or Affiliate of the Borrower (other than a Receivables Financing SPC).

“ Receivables Financing SPC ” shall mean, in respect of any Permitted Receivables Financing, any Subsidiary or Affiliate of the Borrower to which any Consolidated Party sells, contributes or otherwise conveys any Transferred Assets in connection with such Permitted Receivables Financing.

“ Register ” has the meaning specified in Section 11.06(c) .

“ Registered Public Accounting Firm ” has the meaning specified in the Securities Laws and shall be independent of the Borrower as prescribed by the Securities Laws.

“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.

“ Remaining Present Value ” means, as of any date with respect to any lease, the present value as of such date of the scheduled future lease payments with respect to such lease, determined with a discount rate equal to a market rate of interest for such lease, as reasonably determined by the Borrower at the time such lease is entered into.

“ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.

 

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“ Request for Credit Extension ” means (a) with respect to a Committed Borrowing, conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swingline Loan, a Swingline Loan Notice.

“ Required Financial Information ” means, with respect to each fiscal period or quarter of the Borrower, (a) the financial statements required to be delivered pursuant to subsection (a) or (b) of Section 7.01 for such fiscal period or quarter, and (b) the certificate of a Responsible Officer of the Borrower required by Section 7.02(b) to be delivered with the financial statements described in clause (a) above.

“ Required Lenders ” means, at any time, Lenders holding in the aggregate more than 50% of (a) the unfunded Commitments (and participations therein) and the outstanding Loans, L/C Obligations and participations therein or (b) if the Commitments have been terminated, the outstanding Loans, L/C Obligations and participations therein (subject in each case to Section 11.01(c) hereof).

“ Responsible Officer ” means the chief executive officer, president, chief financial officer, principal accounting officer, treasurer or assistant treasurer of a Loan Party (or the equivalent of any of the foregoing). Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

“ Restricted Payment ” means, with respect to any Person, (a) any dividend or other payment or distribution, direct or indirect, on account of any shares of any class of Capital Stock of such Person, now or hereafter outstanding (including without limitation any payment in connection with any dissolution, merger, consolidation or disposition involving any Consolidated Party), or to the holders, in their capacity as such, of any shares of any class of Capital Stock of such Person, now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of such Person, now or hereafter outstanding, and (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of such Person, now or hereafter outstanding; provided that no such dividend, distribution, redemption, retirement, acquisition or other payment shall constitute a “Restricted Payment” to the extent made solely with the Capital Stock of such Person.

“ Revolving Commitment ” means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01 , (b) purchase participations in L/C Obligations and (c) purchase participations in Swingline Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Part I of Schedule 2.01 (as in effect after giving effect to all amendments to this Agreement and its Schedules effected as of the Fourth Amendment Effective Date) or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

 

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“ Revolving Lender ” means a Lender with a Revolving Commitment or that holds a Revolving Loan, Swingline Loan or L/C Obligation or has any participation pursuant to Section 2.03 or 2.04 in any L/C Obligation or Swingline Loan.

“ Revolving Loan ” has the meaning specified in Section 2.01 .

“ Revolving Note ” has the meaning specified in Section 2.11(a) .

“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.

“ Sale and Leaseback Transaction ” means any arrangement pursuant to which any Consolidated Party, directly or indirectly, becomes liable as lessee, guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any Property (a) which such Consolidated Party has sold or transferred (or is to sell or transfer) to a Person which is not a Consolidated Party and (b) which such Consolidated Party intends to use for substantially the same purpose as any other Property which has been substantially contemporaneously sold or transferred (or is to be sold or transferred) by such Consolidated Party to another Person which is not a Consolidated Party.

“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“ Secured Hedge Agreement ” means any Swap Contract of a Loan Party that (a) is in effect on the Closing Date with a counterparty that is a Lender or an Affiliate of a Lender as of the Closing Date or (b) is entered into after the Closing Date with a counterparty that is a Lender or an Affiliate of a Lender at the time such Swap Contract is entered into.

“ Securities Laws ” means the Securities Act of 1933, the Securities Exchange Act of 1934, the Sarbanes-Oxley Act of 2002 and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of the foregoing may be amended and in effect on any applicable date hereunder.

“ Security Agreements ” means a collective reference to the Non-Shared Collateral Security Agreement and the Shared Collateral Security Agreement.

“ Senior Note Documents ” means a collective reference to the 1993 Senior Note Documents, the 2003 Senior Note Documents and the 2005 Senior Note Documents.

“ Senior Note Indentures ” means a collective reference to the 1993 Senior Note Indenture, the 2003 Senior Note Indenture and the 2005 Senior Note Indenture, and “ Senior Note Indenture ” means any one of them.

“ Senior Notes ” means a collective reference to the 1993 Senior Notes, the 2003 Senior Notes and the 2005 Senior Notes.

 

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“ Shared Collateral Security Agreement ” means the Shared Collateral Security and Pledge Agreement, dated as of the Closing Date, among the Borrower and the Collateral Agent.

“ Solvent ” or “ Solvency ” means, with respect to any Person as of a particular date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the ordinary course of business, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (c) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s Property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (d) the fair value of the Property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person and (e) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“ Specified Transaction ” shall have the meaning assigned to such term in the definition of “Pro Forma Basis” set forth in this Section 1.01 .

“ Spectrum Assets ” means any spectrum license granted by the FCC.

“ State PUC ” means any state Governmental Authority having utility or communications regulatory authority over any Consolidated Party, or any applicable successor agency.

“ Subordinated Indebtedness ” means, collectively, (a) Indebtedness arising under the 2003 8  ³ / 8 Junior Note Indenture and the Junior Notes, and (b) any other Indebtedness of any of the Consolidated Parties which by its terms is subordinated in right of payment to the Obligations on terms, taken as a whole, no less favorable to the Lenders in any material respect than those set forth in the 2003 8  ³ / 8 % Junior Note Indenture, as in effect on the Closing Date.

“ Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Capital Stock having ordinary voting power for the election of directors or other governing body (other than Capital Stock having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower. For the avoidance of doubt, “Subsidiary” shall not include any employee benefit plan or any trust related to such plan.

 

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“ Swap Contract ” means any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement.

“ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

“ Swingline ” means the revolving credit facility made available by the Swingline Lender pursuant to Section 2.04 .

“ Swingline Borrowing ” means a borrowing of a Swingline Loan pursuant to Section 2.04 .

“ Swingline Lender ” means PNC, in its capacity as provider of Swingline Loans, or any successor Swingline lender hereunder.

“ Swingline Loan ” has the meaning specified in Section 2.04(a) .

“ Swingline Loan Notice ” means a notice of a Swingline Borrowing pursuant to Section 2.04(b) , which, if in writing, shall be substantially in the form of Exhibit B .

“ Swingline Note ” has the meaning specified in Section 2.04(g) .

“ Swingline Sublimit ” means an amount equal to the lesser of (a) $25,000,000 and (b) the Aggregate Revolving Commitments. The Swingline Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

“ Synthetic Lease Obligation ” means the monetary obligation of a Person under a so-called synthetic, off-balance sheet or tax retention lease, including, without limitation, any financing lease or other agreement for the use or possession of Property creating obligations that do not appear on the balance sheet of such Person but which are characterized as the indebtedness of such Person for U.S. tax purposes (without regard to accounting treatment).

“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

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“ Threshold Amount ” means $35,000,000.

“ Total Revolving Outstandings ” means the aggregate Outstanding Amount of all Revolving Loans, all Swingline Loans and all L/C Obligations.

“ Tranche B Term Loan ” has the meaning specified in Section 2.01(b) .

“ Tranche B Term Loan Commitment ” means, as to each Lender, its obligation to make its portion of the Tranche B Term Loan to the Borrower on the First Amendment Effective Date pursuant to Section 2.01(b) in the principal amount set forth opposite such Lender’s name on the Supplement to Schedule 2.01 attached as Annex II to the First Amendment, as such amount may be adjusted from time to time in accordance with this Agreement.

“ Tranche B Term Note ” has the meaning specified in Section 2.11(a) .

“ Transferred Assets ” means any accounts receivable, notes receivable, rights to future lease payments or residuals (collectively, the “ Receivables ”) owed to or owned by the Borrower or any Subsidiary (whether now existing or arising or acquired in the future), all collateral securing such Receivables, all contracts and contract rights, purchase orders, security interests, financing statements or other documentation in respect of such Receivables and all guarantees or other obligations in respect of such Receivables, all proceeds of such Receivables and other assets which are of the type customarily granted or transferred in connection with securitization transactions involving receivables similar to such Receivables.

“ Treasury Management Agreement ” means any agreement governing the provision of treasury or cash management services, including deposit accounts, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services.

“ Type ” means, with respect to any Revolving Loan or Tranche B Term Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.

“ United States ” and “ U.S. ” mean the United States of America.

“ Unreimbursed Amount ” has the meaning specified in Section 2.03(c)(i) .

“ Wholly Owned Subsidiary ” means, with respect to any Person, any other Person 100% of whose Capital Stock (other than directors; qualifying shares or nominee or other similar shares required pursuant to applicable Laws) is at the time owned by such Person directly or indirectly through other Persons 100% of whose Capital Stock (other than directors; qualifying shares or nominee or other similar shares required pursuant to applicable Laws) is at the time owned, directly or indirectly, by such Person.

“ Wireless Disposition ” means the (a) any Disposition of all or any portion of the Capital Stock of Wireless LLC held by the Consolidated Parties and/or all or any portion of the Property of Wireless LLC or (b) the contribution by the Consolidated Parties of all or part of the Capital Stock of Wireless LLC and/or all or any portion of the Property of Wireless LLC to a new wireless Joint Venture.

 

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

“ Wireless Tower Sale and Leaseback Transaction ” means the Disposition, in the form of and pursuant to one or more Sale and Leaseback Transactions by one or more of the Consolidated Parties, of the tower and transmitter sites used to provide wireless telephone services (including, as applicable, real property, related improvements and equipment and related lease, sub-lease, license, contract and other rights); provided that (a) the aggregate amount of consideration paid to the applicable Consolidated Parties in connection therewith shall be in an amount not less than the fair market value of the applicable Property disposed of, (b) the aggregate outstanding Remaining Present Value of (i) all leases entered into in connection with such transaction or transactions plus (ii) all leases entered into in connection with all Data Center Sale and Leaseback Transactions does not at any time exceed $175,000,000 in the aggregate for all such leases, (c) the Loan Parties shall apply (or cause to be applied) the Net Cash Proceeds of such transaction or transactions to (i) make Eligible Reinvestments, (ii) fund pension plan obligations of the Borrower or its Subsidiaries and/or (iii) prepay the Tranche B Term Loan (such prepayment to be applied as provided in Section 2.05(b)(iv)), in each case within 360 days of receipt and (d) any Liens securing Indebtedness incurred in connection with such transaction or transactions do not at any time encumber Property other than the Property sold, transferred or conveyed (or purported to be sold, transferred or conveyed) to the applicable lessor(s) in connection with such transaction or transactions; provided further that (i) the aggregate outstanding Remaining Present Value of (A) all leases entered into in connection with all Wireless Tower Sale and Leaseback Transactions, plus (B) all leases entered into in connection with all Data Center Sale and Leaseback Transactions, plus (ii) all Indebtedness arising under Capital Leases and Synthetic Leases entered into in reliance on Section 8.03(n)(i) does not at any time exceed $250,000,000 in the aggregate.

1.02 Other Interpretive Provisions .

With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “ include ,” “ includes ” and “ including ” shall be deemed to be followed by the phrase “without limitation.” The word “ will ” shall be construed to have the same meaning and effect as the word “ shall .” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “ herein ,” “ hereof ” and “ hereunder ,” and words of similar import when used in any Loan Document, shall be construed to refer to

 

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such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, and (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time.

(b) In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ;” the words “ to ” and “ until ” each mean “ to but excluding ;” and the word “ through ” means “ to and including .”

(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

1.03 Accounting Terms .

(a) Generally . Except as otherwise specifically prescribed herein, all accounting terms not specifically defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements (with such changes as may be approved by the Borrower’s accountants, subject to subsection (b) of this Section 1.03 ); provided , however , that calculations of Attributable Indebtedness under any Synthetic Lease Obligations or the implied interest component of any Synthetic Lease Obligations shall be made by the Borrower in accordance with accepted financial practice and consistent with the terms of such Synthetic Lease Obligations.

(b) Changes in GAAP . If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, the application of any representation or warranty or any other provision hereof and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that , if any party shall so request, then until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

(c) Effect of Dispositions and Acquisitions . Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made under the financial covenants set forth in Section 8.11 (including without limitation for purposes of the definitions

 

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of “Applicable Rate” and “Pro Forma Basis” set forth in Section 1.01 ), (i) after consummation of any Disposition of any Subsidiary or business or line of business (other than Dispositions for consideration in an aggregate amount for all such Disposition not to exceed $50,000,000) (A) income statement items (whether positive or negative) and capital expenditures attributable to the Property disposed of shall be excluded and (B) Indebtedness which is retired shall be excluded and deemed to have been retired as of the first day of the applicable period and (ii) after consummation of any Acquisition of any Subsidiary or business or line of business (other than Acquisitions for consideration in an aggregate amount for all such Acquisitions not to exceed $50,000,000) (A) income statement items (whether positive or negative) and capital expenditur es attributable to the Person or Property acquired shall, to the extent not otherwise included in such income statement items for the Consolidated Parties in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01, be included to the extent relating to any period applicable in such calculations, (B) to the extent not retired in connection with such Acquisition, Indebtedness of the Person or Property acquired shall be deemed to have been incurred as of the first day of the applicable period and (C) pro forma adjustments may be included to the extent that such adjustments would give effect to items that are (1) directly attributable to such transaction, (2) expected to have a continuing impact on the Consolidated Parties and (3) factually supportable.

1.04 Rounding .

Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number within the number of places by which such ratio is expressed herein (with a rounding-up if there is no nearest number).

1.05 Times of Day .

Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

1.06 Letter of Credit Amounts .

Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

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ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

2.01 Committed Loans .

(a) Revolving Loans . Subject to the terms and conditions set forth herein, each Lender having a Revolving Commitment severally agrees to make loans (each such loan, a “ Revolving Loan ”) to the Borrower (or to distribute as directed by the Borrower the proceeds of such Revolving Loan to the Borrower) from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided , however , that after giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swingline Loans shall not exceed such Lender’s Revolving Commitment. Within the limits of each Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01 , prepay under Section 2.05(a) , and reborrow under this Section 2.01 . Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

(b) Tranche B Term Loan . Subject to the terms and conditions set forth herein, each Lender having a Tranche B Term Loan Commitment as of the First Amendment Effective Date agrees to make its portion of a term loan (the “ Tranche B Term Loan ”) to the Borrower on the First Amendment Effective Date in an amount equal to such Lender’s Tranche B Term Loan Commitment. Amounts repaid on the Tranche B Term Loan may not be reborrowed. The Tranche B Term Loan may consist of Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

2.02 Borrowings, Conversions and Continuations of Committed Loans .

(a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the irrevocable notice from the Borrower to the Administrative Agent, which may be given by telephone (provided that such telephonic notice complies with the information requirements of the form of Committed Loan Notice attached hereto). Each such notice must be received by the Administrative Agent not later than 12:00 noon (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Committed Loans; provided that if the Borrower wishes to request Eurodollar Rate Loans having an Interest Period other than one, two, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon (x) the Administrative Agent shall give prompt notice to the Lenders of such request and determine whether the requested Interest Period is acceptable to all of them, and (y) not later than 11:00 a.m., three Business Days before the requested date of such Borrowing, conversion or

 

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continuation, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c) and Section 2.04(c) , each Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Notwithstanding the foregoing, all Borrowings of the Tranche B Term Loan made on the First Amendment Effective Date shall be made as Base Rate Loans.

(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection. In the case of a Committed Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 2:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02 (and, if such Borrowing is the initial Credit Extension, Section 5.01 ), the Administrative Agent shall make all funds so received available to the Borrower (or will distribute as directed by the Borrower the proceeds of such Revolving Loan to the Borrower), in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided , however , that if, on the date a Committed Loan Notice with respect to a Borrowing consisting of Revolving Loans is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing first shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the Borrower as provided above.

 

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(c) Subject to Section 3.05 , a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans having Interest Periods greater than one month without the consent of the Required Lenders. During the existence of an Event of Default, no Loans may be converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders.

(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

(e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations of Committed Loans as the same Type, there shall not be more than twelve Interest Periods in effect with respect to Revolving Loans.

2.03 Letters of Credit .

(a) The Letter of Credit Commitment .

(i) Subject to the terms and conditions set forth herein, (A) each applicable L/C Issuer agrees, in reliance upon the agreements of the Lenders having Revolving Commitments set forth in this Section 2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders having Revolving Commitments severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swingline Loans shall not exceed such Lender’s Revolving Commitment and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. On the Closing Date, each L/C Issuer that has issued an Existing Letters of Credit

 

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shall be deemed, without further action by any party hereto, to have granted to each Lender and each Lender shall be deemed to have purchased from such L/C Issuer a participation in such Letter of Credit in accordance with paragraph (b)(ii) below. On and after the Closing Date, each Existing Letter of Credit shall constitute a Letter of Credit for the purposes hereof.

(ii) No L/C Issuer shall issue any Letter of Credit if:

(A) subject to Section 2.03(b)(iii) , the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or

(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date;

(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:

(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the applicable L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;

(B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to all applicants for Letters of Credit from such L/C Issuer;

(C) except as otherwise agreed by the Administrative Agent and the applicable L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;

(D) such Letter of Credit is to be denominated in a currency other than Dollars;

(E) such Letter of Credit contains any provision for automatic reinstatement of the stated amount after any drawing thereunder; or

(F) a default of any Revolving Lender’s obligations to fund under Section 2.03(c) exists or any Revolving Lender is at such time a Defaulting Lender hereunder, unless (i) the L/C Issuer has entered into satisfactory

 

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arrangements with the Borrower or such Revolving Lender to eliminate the L/C Issuer’s risk with respect to such Revolving Lender or (ii) in the event no such satisfactory arrangements are made, the Borrower shall have provided cash collateral in an amount not less than the amount of such Revolving Lender’s participation in such Letter of Credit on terms satisfactory to the L/C Issuer (in which case any such cash collateral held by such L/C Issuer will be applied as a payment of any unreimbursed drawing on such Letter of Credit immediately prior to any exercise by such L/C Issuer of its rights to require the funding of participations in such Letter of Credit pursuant to Section 2.03(c)) (it being understood for the avoidance of doubt that if the Borrower provides cash collateral in respect of any Letter of Credit in the amount of any such Revolving Lender’s participation pursuant to this clause (ii), then the Lenders other than such Defaulting Lender will be required to fund participations in the balance of such Letter of Credit under Section 2.03(c) in accordance with their Applicable Percentages determined without taking into account the Commitment of such Defaulting Lender).

(iv) No L/C Issuer shall increase or extend any Letter of Credit issued by it if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its increased or extended form under the terms hereof.

(v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit .

(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the applicable L/C Issuer not later than 11:00 a.m. at least two Business Days (or such later date and time as such L/C Issuer may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be, and notice of the proposed issuance or amendment of such Letter of Credit shall be delivered to the Administrative Agent contemporaneously therewith. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) such other matters as the applicable L/C Issuer may require and (G) the purpose and nature of the requested Letter of Credit. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable L/C Issuer (1) the Letter of Credit to be amended;

 

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(2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the applicable L/C Issuer may require. Additionally, the Borrower shall furnish to the applicable L/C Issuer such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the applicable L/C Issuer may require.

(ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the applicable L/C Issuer has received written notice from the Administrative Agent at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit that one or more of the applicable conditions contained in Article V shall not then be satisfied, the applicable L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit or amendment thereof, each Lender having a Revolving Commitment shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.

(iii) If the Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the applicable L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to the applicable L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided , however , that the applicable L/C Issuer shall not permit any such extension if (A) the applicable L/C Issuer has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent that one or more of the applicable conditions specified in Section 5.02 is not then satisfied, and in each case directing the applicable L/C Issuer not to permit such extension.

(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

 

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(v) Any Lender with a Revolving Commitment (in such capacity, a “ Discretionary L/C Issuer ”) may from time to time, at the written request of the Borrower (with a copy to the Administrative Agent), and in such Lender’s sole discretion, agree to issue one or more Letters of Credit for the account of the Borrower on the same terms and conditions in all respects as are applicable to the Letters of Credit issued by the then existing L/C Issuer(s) hereunder by executing and delivering to the Administrative Agent a written agreement to such effect, among (and in form and substance satisfactory to) the Borrower, the Administrative Agent and such Discretionary L/C Issuer. With respect to each of the Letters of Credit issued (or to be issued) thereby, each of the Discretionary L/C Issuers shall have all of the same rights and obligations under and in respect of this Agreement and the other Loan Documents, and shall be entitled to all of the same benefits (including, without limitation, the rights, obligations and benefits set forth in Sections 2.04 , 9.03 and 11.01 ), as are afforded to the then existing L/C Issuers hereunder and thereunder. The Administrative Agent shall promptly notify each of the Lenders with a Revolving Commitment of the appointment of any Discretionary L/C Issuer. Each Discretionary L/C Issuer shall provide to the Administrative Agent, on a monthly basis, a report that details the activity with respect to each Letter of Credit issued by such Discretionary L/C Issuer (including an indication of the maximum amount then in effect with respect to each such Letter of Credit).

(c) Drawings and Reimbursements; Funding of Participations .

(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof and of the date that the L/C Issuer is to make payment under the applicable Letter of Credit (such payment date, the “ Honor Date ”). Not later than 1:00 p.m. on the Honor Date (if the Borrower has received notice of such drawing prior to 11:00 a.m. on the Honor Date), the Borrower shall reimburse the applicable L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing; provided , however , if such notice has not been received by the Borrower prior to 11:00 a.m. on the Honor Date, the Borrower shall so reimburse the applicable L/C Issuer through the Administrative Agent not later than 12:00 noon on the Business Day immediately following the day that the Borrower receives such notice. If the Borrower fails to so reimburse the applicable L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender having a Revolving Commitment of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to have requested a Borrowing of Base Rate Revolving Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Committed Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 5.02 (other than the delivery of a Committed Loan Notice). Any notice given by the applicable L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

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(ii) Each Lender having a Revolving Commitment shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the applicable L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) , each Lender that so makes funds available shall be deemed to have made a Base Rate Revolving Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer.

(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Base Rate Revolving Loans because the conditions set forth in Section 5.02 (other than delivery of a Committed Loan Notice) cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03 .

(iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the applicable L/C Issuer.

(v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the applicable L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender’s obligation to make Revolving Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 5.02 (other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by the applicable L/C Issuer under any Letter of Credit, together with interest as provided herein.

(vi) If any Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii) , the applicable L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the

 

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applicable L/C Issuer at a rate per annum equal to the Federal Funds Rate from time to time in effect. A certificate of the applicable L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

(d) Repayment of Participations .

(i) At any time after the applicable L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c) , if the Administrative Agent receives for the account of the applicable L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.

(ii) If any payment received by the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the applicable L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the applicable L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.

(e) Obligations Absolute . The obligation of the Borrower to reimburse the applicable L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;

(ii) the existence of any claim, counterclaim, set-off, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the applicable L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

 

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(iv) any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the applicable L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

(v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any Subsidiary.

The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.

(f) Role of L/C Issuer . Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the applicable L/C Issuer, any Related Party of such L/C Issuer, nor any of the respective correspondents, participants or assignees of the applicable L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith in the absence of gross negligence or willful misconduct; or (ii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties, nor any of the respective correspondents, participants or assignees of the applicable L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e) ; provided , however , that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the applicable L/C Issuer, and the applicable L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the applicable L/C Issuer’s willful misconduct or gross negligence or the applicable L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the

 

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terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the applicable L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the applicable L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

(g) Cash Collateral . Upon the request of the Administrative Agent, if, as of the Letter of Credit Expiration Date, any Letter of Credit for any reason remains outstanding and partially or wholly undrawn, and the Administrative Agent or the Required Lenders so request, the Borrower shall immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations (in an amount equal to such Outstanding Amount determined as of the date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case may be). Section 2.05 and Section 9.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of this Section 2.03 , Section 2.05 and Section 9.02(c) , “ Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the applicable L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance satisfactory to the Administrative Agent and the applicable L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings. “ Cash Collateral ” means cash or deposit account balances used to Cash Collateralize an obligation, and all proceeds thereof. The Borrower hereby grants to the Administrative Agent, for the benefit of the applicable L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America.

(h) Applicability of ISP . Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.

(i) Letter of Credit Fees . The Borrower shall pay to the Administrative Agent for the account of each Lender having a Revolving Commitment in accordance with its Applicable Percentage a Letter of Credit fee (the “ Letter of Credit Fee ”) for each Letter of Credit accruing at the Applicable Rate in effect from time to time multiplied by the daily amount available to be drawn under such Letter of Credit. For the purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears, and (ii) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand; provided that no Letter of Credit Fees shall accrue in favor of a Defaulting Lender (except if such Defaulting Lender is a Defaulting Lender solely pursuant to clause (d) of the definition thereof) so long as such Lender shall be a Defaulting Lender. Notwithstanding anything to the contrary contained herein, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.

 

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(j) Fronting Fee and Processing Charges Payable to L/C Issuer . The Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting fee for each Letter of Credit in such amount as may be agreed to by the Borrower and the applicable L/C Issuer. Such fronting fee shall be (i) computed on a quarterly basis in arrears, and (ii) due and payable on the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For the purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . In addition, the Borrower shall pay directly to the applicable L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the applicable L/C Issuer relating to letters of credit as from time to time in effec