Exhibit 10.1
FOURTH AMENDMENT
Dated as of June 25,
2009
TO
CREDIT AGREEMENT
Dated as of February 16,
2005
among
CINCINNATI BELL INC.,
as the Borrower,
Certain Subsidiaries of the
Borrower
from time to time party thereto,
as Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent and an L/C
Issuer,
PNC BANK, NATIONAL
ASSOCIATION
as Swingline Lender and an L/C
Issuer,
and
The Other Lenders party
thereto
BANC OF AMERICA SECURITIES
LLC
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
FOURTH AMENDMENT
TO CREDIT
AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT
AGREEMENT (this “
Amendment ”), dated as of June 25, 2009, is
entered into by and among CINCINNATI BELL INC., an Ohio corporation
(the “ Borrower ”), the Guarantors, the Lenders
signatories hereto, BANK OF AMERICA, N.A., as Administrative Agent
and an L/C Issuer, and PNC BANK, NATIONAL ASSOCIATION, as Swingline
Lender and an L/C Issuer.
RECITALS
A. The Borrower, the Guarantors, the
Existing Revolving Lenders (defined below), the Term Lenders
(defined below), the Swingline Lender, the L/C Issuers and the
Administrative Agent are party to that certain Credit Agreement
dated as of February 16, 2005 (as amended, modified, restated
or supplemented from time to time prior to the Fourth Amendment
Effective Date, the “ Existing Credit Agreement
”).
B. The Borrower (a) intends,
subject to the occurrence of the Fourth Amendment Effective Date,
to reduce the Aggregate Revolving Commitments to $210,000,000 and
(b) has requested that, after giving effect to such reduction,
the Existing Credit Agreement be amended to, among other things,
extend the Maturity Date of the Revolving Commitments of each of
the Continuing Revolving Lenders and the New Revolving Lenders
(each as defined below).
C. In connection with the foregoing,
the Borrower has requested that, immediately prior to giving effect
to such amendments to the Existing Credit Agreement, (i) the
Exiting Revolving Lenders (as defined below) and certain of the
Continuing Revolving Lenders assign to the New Revolving Lenders
and certain of the Continuing Revolving Lenders, and that the New
Revolving Lenders and such Continuing Revolving Lenders, as
assignees, assume from the Exiting Revolving Lenders and such
assignor Continuing Revolving Lenders, all or a portion, as the
case may be, of the interests (including with respect to
participations in outstanding Letters of Credit and Swingline
Loans) then held by the Exiting Revolving Lenders and such assignor
Continuing Revolving Lenders, respectively, in the Revolving
Commitments, and (ii) the Required Lenders (determined after
giving effect to the transactions referred to in the foregoing
clause (i)) agree to amend the Existing Credit Agreement as
provided herein.
D. The parties hereto agree to amend
the Existing Credit Agreement as set forth herein, and each Person
that executes and delivers a signature page to this Amendment will
be deemed to have agreed, effective as of the Fourth Amendment
Effective Date, to all terms of this Amendment and the transactions
contemplated hereby.
NOW, THEREFORE, IN
CONSIDERATION of the
premises and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION I. CERTAIN
DEFINITIONS
1. Certain Definitions . The
following terms used in this Amendment, including its preamble and
recitals, have the following meanings:
“ Amended Credit
Agreement ” means the Existing Credit Agreement as
amended hereby in the form of Annex II attached hereto.
“ Continuing Revolving
Lenders ” means each of the Persons identified as a
“Continuing Revolving Lender” in Part I of
Annex I attached hereto. Each Continuing Revolving Lender is
a Lender that has a Revolving Commitment under the Existing Credit
Agreement immediately prior to the Fourth Amendment Effective Date
and that will approve the extension of the Maturity Date of the
Revolving Commitments pursuant to Section IV hereof. From
and after the Fourth Amendment Effective Date (after giving effect
to this Amendment and all transactions effected hereunder in
connection with the Amendment) each Continuing Revolving Lender
will have a Revolving Commitment under the Amended Credit Agreement
in the amount set forth opposite the name of such Person on Part
I of Schedule 2.01 attached as Annex III
hereto.
“ Existing Revolving
Lenders ” means each Lender that holds a Revolving
Commitment under the Existing Credit Agreement immediately prior to
giving effect to this Amendment.
“ Exiting Revolving
Lender ” means each of the Persons identified as an
“Exiting Revolving Lender” in Part II of
Annex I attached hereto. From and after the Fourth Amendment
Effective Date (after giving effect to this Amendment and all
transactions effected hereunder in connection with the Amendment),
no Exiting Revolving Lender will be a Revolving Lender or have a
Revolving Commitment under the Amended Credit Agreement.
“ Fourth Amendment
Effective Date ” shall have the meaning assigned to such
term in introductory paragraph of Section V
hereof.
“ New Revolving Lenders
” means each of the Persons identified as a New Revolving
Lender in Part III of Annex I attached hereto. Each
New Revolving Lender will become a Revolving Lender pursuant to
Section III hereof, and will approve the extension of the
Maturity Date of the Revolving Commitments pursuant to Section IV
hereof. From and after the Fourth Amendment Effective Date (after
giving effect to this Amendment and all transactions effected
hereunder in connection with the Amendment) each New Revolving
Lender shall have a Revolving Commitment under the Amended Credit
Agreement in the amount set forth opposite the name of such Person
on Part I of Schedule 2.01 attached as Annex
III hereto.
“ Term Lenders ”
means, collectively, the Lenders holding Tranche B Term Loans under
the Existing Credit Agreement.
2. Other Definitions . Unless
otherwise defined herein or the context otherwise requires, terms
used in this Amendment, including its preamble and recitals, have
the meanings provided in the Amended Credit Agreement.
2
SECTION II. REDUCTION OF AGGREGATE REVOLVING
COMMITMENTS
Effective upon the occurrence of the
Fourth Amendment Effective Date, the Borrower hereby permanently
reduces the Aggregate Revolving Commitments to an aggregate
principal amount of $210,000,000, such reduction to be applied to
the Revolving Commitment of each Existing Revolving Lender in
accordance with its Applicable Percentage immediately prior to such
date. Notwithstanding the provisions of Section 2.06 of the
Existing Credit Agreement, the Required Lenders (determined prior
to giving effect to the transactions referred to in Section
III hereof) hereby waive the requirement under
Section 2.06(a) of the Existing Credit Agreement that the
Borrower provide the Administrative Agent with three Business
Days’ prior notice of such reduction of the Aggregate
Revolving Commitments.
SECTION III. ASSIGNMENTS AND
ASSUMPTIONS
(a) On and as of the Fourth
Amendment Effective Date, immediately after giving effect to the
reduction of the Aggregate Revolving Commitments pursuant to
Section II above, all (in the case of each Exiting Revolving
Lender) or a portion (in the case of certain Continuing Revolving
Lenders) of the interests (including all outstanding Revolving
Loans of the assignor Lenders at par and without discount and
including all interests with respect to participations in
outstanding Letters of Credit and Swingline Loans) then held in the
Revolving Commitments (after giving effect to the reduction of such
Revolving Commitments pursuant to Section I hereof) by the
Exiting Revolving Lenders and such assignor Continuing Revolving
Lenders shall, in each case, automatically and without any further
action being required, be assigned and transferred to, and assumed
by, the New Revolving Lenders and certain other Continuing
Revolving Lenders, with the amount of such interests so assigned to
and assumed by each New Revolving Lender or each assignee
Continuing Revolving Lender, as applicable, to be such amount as is
then necessary in order that, immediately after giving effect to
all such assignments and assumptions, the Revolving Commitments
held by the New Revolving Lenders and the Continuing Revolving
Lenders will be as set forth on Part I of Schedule 2.01
attached as Annex III hereto. From and after giving effect
to the assignments and assumptions pursuant to this Section
III as of the Fourth Amendment Effective Date (i) each of
the New Revolving Lenders shall be a party to and be bound by the
provisions of the Existing Credit Agreement and, to the extent of
the interests assigned to it hereby, have the rights and
obligations of a Revolving Lender thereunder and under the other
Loan Documents and (ii) each Exiting Revolving Lender shall,
to the extent of the interests assigned hereby, relinquish its
rights and be released from its obligations under the Existing
Credit Agreement relating to such assigned interests and cease to
be a party to the Existing Credit Agreement as a Revolving Lender;
provided , however , that each Exiting Revolving
Lender shall continue to be entitled to any benefits it was
entitled to, and subject to any corresponding obligations it was
subject to, prior to such release pursuant to be Sections 3.01,
3.04, 3.05 and 11.04 of the Existing Credit Agreement with respect
to facts and circumstances occurring prior to the Fourth Amendment
Effective Date. In addition, any Exiting Revolving Lender that is
also a Term Lender acknowledges and agrees that the assignments
effected pursuant to this Section III do not include such
Tranche B Term Loans or otherwise affect its rights and obligations
under the Existing Credit Agreement with respect to such Tranche B
Term Loans.
(b) Each Exiting Revolving Lender
and New Revolving Lender, and each Continuing Revolving Lender
involved in the assignments and assumptions effected pursuant to
this Section III , acknowledges and agrees that such
assignment and assumption is subject to the Standard Terms and
Conditions for Assignment and Assumption set forth in form of
Assignment and Assumption attached as Exhibit F to the
Existing Credit Agreement, which Standard Terms and Conditions are
hereby incorporated by reference into this Section III.
Furthermore, each of the parties hereto consents to the assignments
and assumptions provided for in this Section III and,
notwithstanding anything to the contrary in Section 11.06 of
the Existing Credit Agreement or otherwise, to the manner which
such assignments are effected pursuant to this Amendment, and
waives in all respects the provisions of Section
3
11.06 of the Amended Credit Agreement to the
extent that such provisions would otherwise be applicable to any
assignment or assumption of Revolving Commitments contemplated by
this Amendment. For the avoidance of doubt, each of the parties
hereto agrees that on and as of the Fourth Amendment Effective
Date, immediately after giving effect to the provisions of
Section III(a) above, any executed copy of this Amendment
shall be deemed, for all purposes of Section 11.06 of the
Amended Credit Agreement, to be (i) an “Assignment and
Assumption” with respect to each of the assignments provided
for in Section III(a) above and (ii) to have been
accepted and recorded, together with other information and
documentation required in connection therewith, in the Register by
the Administrative Agent in full compliance with all relevant
requirements of Section 11.06. No Exiting Lender, New
Revolving Lender or Continuing Revolving Lender shall be required
to pay any assignment or similar fees pursuant to
Section 11.06(b)(iv) of the Existing Credit Agreement in
connection with the assignments and assumptions effected pursuant
to this Section III .
IV. AMENDMENTS TO EXISTING CREDIT
AGREEMENT
Effective on the Fourth Amendment
Effective Date, after giving effect to the provisions of
Sections II and III above and the transactions
contemplated therein, (i) the Existing Credit Agreement is
hereby amended in its entirety to read in the form attached as
Annex II to this Amendment, (ii) Schedule 2.01 of the
Existing Credit Agreement is hereby amended in its entirety in the
form attached as Annex III to this Amendment,
(iii) each of Schedule 1.01(B) , Schedule 6.13
(a) and Schedule 6.13(b) of the Existing Credit
Agreement is hereby amended in its entirety to read in the form of,
respectively, Schedule 1.01(B) , Schedule 6.13(a) and
Schedule 6.13(b) attached as Annex IV to this
Amendment, (iv) each of Schedule 1(a) , Schedule
1(b) , Schedule 2(c) and Schedule 3(h) of
the Shared Collateral Security Agreement is hereby amended in its
entirety to read in the form of, respectively, Schedule 1(a)
, Schedule 1(b) , Schedule 2(c) and Schedule
3(h) attached as Annex V to this Amendment and
(v) each of Schedule 1(a) , Schedule 1(b) ,
Schedule 2(c) , Schedule 3(h) of the Non-Shared
Collateral Security Agreement is hereby amended in its entirety to
read in the form of, respectively, Schedule l(a) ,
Schedule 1(b) , Schedule 2(c) and Schedule
3(h) attached as Annex VI to this Amendment.
V. CONDITIONS PRECEDENT TO
EFFECTIVENESS
This Amendment shall become
effective as of the date hereof when each of the following
conditions precedent has been satisfied (the “ Fourth
Amendment Effective Date ”):
1. Execution of Counterparts of
Amendment . The Administrative Agent shall have received
counterparts of this Amendment which collectively shall have been
duly executed on behalf of the Borrower, each of the Guarantors,
the Required Lenders (after giving effect to the assignments and
assumptions pursuant to Section III hereof), each Continuing
Revolving Lender, each New Revolving Lender and each Exiting
Revolving Lender.
2. Organization Documents .
The Administrative Agent shall have received the
following:
(i) Resolutions . Copies of
resolutions of the board of directors (or other applicable
governing body) of each Loan Party approving and adopting this
Amendment and the other transactions contemplated hereby and
authorizing execution and delivery of this Amendment, certified by
a secretary or assistant secretary of such Loan Party to be true
and correct and in full force and effect as of the Fourth Amendment
Effective Date.
(ii) Secretary’s
Certificate . A certificate of the secretary or assistant
secretary of each Loan Party dated as of the Fourth Amendment
Effective Date certifying that such Loan Party has not modified its
articles of incorporation or certificate of formation, as
applicable, or bylaws or operating
4
agreement, as applicable, since such
documents were last delivered to the Administrative Agent or, if
such documents have not previously been delivered or have been so
modified, attaching copies of such documents.
(iii) Good Standing . Copies
of certificates of good standing, existence or its equivalent with
respect to each Loan Party certified as of a recent date by the
appropriate Governmental Authorities of the state or other
jurisdiction of its incorporation or organization, as
applicable.
(iv) Incumbency . An
incumbency certificate of each officer of a Loan Party executing
this Amendment or any of the documents referred to in this
Section V certified by a secretary or assistant secretary to
be true and correct as of the Fourth Amendment Effective
Date.
3. Revolving Notes . The
Administrative Agent shall have received a Revolving Note in favor
of each New Revolving Lender requesting a Revolving Note, which
shall have been duly executed on behalf of the Borrower and dated
the Fourth Amendment Effective Date.
4. Opinion of Counsel . The
Administrative Agent shall have received (i) a legal opinion
of Cravath, Swaine & Moore LLP, special counsel for the
Loan Parties and (ii) one or more legal opinions of special
Ohio counsel for each Loan Party organized or formed in the State
of Ohio, in each case dated as of the Fourth Amendment Effective
Date and in form and substance reasonably satisfactory to the
Administrative Agent.
5. Officer’s
Certificates . The Administrative Agent shall have received a
certificate or certificates executed by a Responsible Officer of
the Borrower as of the Fourth Amendment Effective Date, in form and
substance satisfactory to the Administrative Agent, stating that
(i) the conditions specified in Section 5.02(a) ,
(b) and (d) of the Amended Credit
Agreement have been satisfied; provided that for the
purposes of such certificate the reference to the date of the
Audited Financial Statements in Section 6.05(e) of the
Amended Credit Agreement shall be deemed to be replaced by a
reference to December 31, 2008, (ii) all governmental,
shareholder and third party consents and approvals, if any, with
respect to the Amendment and/or the Amended Credit Agreement and
the transactions contemplated thereby have been obtained, and
(iii) no action, suit, investigation or proceeding is pending
or threatened in any court or before any arbitrator or governmental
instrumentality that purports to affect any Loan Party or any
transaction contemplated by the Amendment and/or Amended Credit
Agreement, if such action, suit, investigation or proceeding could
reasonably be expected to have a Material Adverse
Effect.
6. No Default . No Default or
Event of Default shall exist, or would result from, the proposed
Credit Extensions on the Fourth Amendment Effective Date or from
the application of the proceeds thereof.
7. Accuracy of Representations
and Warranties . The representations and warranties of the
Borrower and each other Loan Party contained in Article VI
of the Amended Credit Agreement or any other Loan Document, or
which are contained in any document furnished at any time under or
in connection herewith or therewith, shall be true and correct in
all material respects on and as of the Fourth Amendment Effective
Date; provided that the reference to the date of the Audited
Financial Statements in Section 6.05(e) of the Amended Credit
Agreement shall be deemed to be replaced by a reference to
December 31, 2008.
8. Upfront Fee . The
Administrative Agent shall have received, for the account of each
New Revolving Lender and each Continuing Revolving Lender, an
upfront fee an amount mutually acceptable to such Person, the
Administrative Agent and the Borrower.
5
9. Other Fees and Out of Pocket
Costs . The Borrower shall have paid any and all reasonable
out-of-pocket costs (to the extent invoiced) incurred by the
Administrative Agent or Banc of America Securities LLC (including
the reasonable fees and expenses of the Administrative
Agent’s legal counsel), and all other fees and other amounts
payable to the Administrative Agent or Banc of America Securities
LLC, in each case in connection with the arrangement, negotiation,
preparation, execution and delivery of this Amendment and/or the
Amended Credit Agreement.
VI. RECONCILIATION PAYMENTS AMONG
NEW AND CONTINUING REVOLVING LENDERS ON FOURTH AMENDMENT EFFECTIVE
DATE; SATISFACTION OF OBLIGATIONS OWING TO EXITING REVOLVING
LENDERS.
Immediately after giving effect to
the transactions described in Sections II , III , and
IV hereof, and concurrently with the closing and
effectiveness of this Amendment pursuant to Section V
above:
(a) (i) The Borrower shall pay to
the Administrative Agent, for the account of the Existing Revolving
Lenders (including each Exiting Revolving Lender), (A) all
interest that has accrued on the outstanding Revolving Loans to but
excluding the Fourth Amendment Effective Date and (B) all
commitment fees and Letter of Credit Fees that have accrued to but
excluding the Fourth Amendment Effective Date with respect to the
Revolving Commitments of the Existing Lenders as in effect
immediately prior to giving effect to the transactions effected
pursuant to Sections II and III of this Amendment,
and (ii) the Administrative Agent shall distribute such
interest and fees to the Existing Revolving Lenders in accordance
with their Applicable Percentages as in effect immediately prior to
giving effect to the transactions effected pursuant to Sections
II and III of this Amendment.
(b) Each of (i) (A) the
New Revolving Lenders and (B) the Continuing Revolving Lenders
whose Applicable Percentage of the Aggregate Revolving Commitments
is increasing as a result of the transactions
effected pursuant to Sections II and III of this
Amendment, shall make available to the Administrative
Agent and (ii) the Continuing Revolving Lenders whose
Applicable Percentage of the Aggregate Revolving Commitments is
decreasing as a result of the transactions effected
pursuant to Sections II and III of this Amendment
shall receive from the Administrative Agent, in each
case such amounts as shall be necessary to cause each of the
Continuing Revolving Lenders and New Revolving Lenders to be
holding its pro rata share of outstanding Revolving Loans as of the
Fourth Amendment Effective Date based on the respective the
Applicable Percentage of each such Continuing Revolving Lenders and
New Revolving Lenders, as applicable, set forth on Schedule 2.01 to
the Amended Credit Agreement after giving effect to (A) the
reduction of the Aggregate Revolving Commitments effected pursuant
to Section II hereof and (B) the assignments and
assumptions effected pursuant to Section III hereof;
and
(c) Each of the Exiting Revolving
Lenders shall receive from the Administrative Agent payment of all
Revolving Loans and related obligations owing to such Exiting
Revolving Lender under the Existing Credit Agreement (including
interest and commitment fees and Letter of Credit Fees that have
accrued for the benefit of such Exiting Revolving Lender to but
excluding the Fourth Amendment Effective Date, which amounts shall
be paid to such Exiting Revolving Lender pursuant to subsection
(a) above) in respect of the Revolving Loans and Revolving
Commitments of such Exiting Revolving Lender. For the avoidance of
doubt, after giving effect to this Amendment and all transactions
contemplated hereunder, no Exiting Revolving Lender shall be a
Revolving Lender under the Amended Credit Agreement or have any
Revolving Commitment thereunder.
6
VII. MISCELLANEOUS
1. Representations and
Warranties . Each of the Loan Parties represents and warrants
to the Lenders and the Administrative Agent as follows:
(a) It has taken all necessary
action t
