UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



FORM 8-K
 

 
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934

Date of Report: October 2, 2017



CINCINNATI BELL INC.
(Exact Name of Registrant as Specified in its Charter)


 
Ohio
001-8519
31-1056105
(State or other jurisdiction of
incorporation)
(Commission File Number)
(IRS Employer
Identification No.)

221 East Fourth Street
Cincinnati, OH 45202
(Address of Principal Executive Office)

(513) 397-9900
(Registrant’s telephone number, including area code)
 

 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
☒ 
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
☐ 
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
☐ 
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
☐ 
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Securities Act.  


 

 
ITEM 1.01–ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

Credit Agreement

On October 2, 2017 (the “Closing Date”), Cincinnati Bell Inc. (the “Company”) entered into a new Credit Agreement (the “Credit Agreement”), by and among the Company, the guarantors party thereto, the lenders party thereto, PNC Bank, National Association, as a swingline lender, and Morgan Stanley Senior Funding, Inc., as administrative agent (the “Administrative Agent”), collateral agent, a swingline lender and a letter of credit issuer.  The Credit Agreement provides for (i) a five-year $200 million senior secured revolving credit facility (including both a letter of credit subfacility of up to $30 million and a swingline loan subfacility of up to $25 million) (the “Revolving Credit Facility”) and (ii) a seven-year $600 million senior secured term loan facility (the “Term Loan Facility” and, together with the Revolving Credit Facility, the “Credit Facilities”).

                       The proceeds of loans under the Term Loan Facility will be used, together with cash on hand of the Company, to (i) refinance the Company’s existing credit facilities, (ii) fund the purchase price for the acquisition of OnX Holdings LLC, a Delaware limited liability company (“OnX”), and pay costs and expenses incurred in connection therewith, (iii) fund in part the cash portion of the consideration for the previously announced merger with Hawaiian Telcom Holdco, Inc., a Delaware corporation (“Hawaiian Telcom”) and pay costs and expenses incurred in connection therewith and (iv) fund working capital and other general corporate purposes.  The Revolving Credit Facility is undrawn as of the Closing Date.

Borrowings under the Credit Facilities will bear interest, at the Company’s option, at a rate per annum determined by reference to either the London Interbank Offered Rate (“LIBOR”) or an adjusted base rate, in each case plus an applicable margin.  In the case of the Term Loan Facility, the adjusted base rate and LIBOR will not, in any event, be less than 2.00% and 1.00%, respectively.  The applicable margin for the Credit Facilities with respect to LIBOR borrowings will be 3.75% and, with respect to adjusted base rate borrowings, will be 2.75%.  In addition, the Company will be required to pay a commitment fee on any unused portion of the Revolving Credit Facility at a rate of 0.50% per annum, or, if the consolidated total leverage ratio of the Company and its restricted subsidiaries is equal to or less than 3.25 to 1.00, 0.375% per annum.  The Company will also pay customary letter of credit fees, including a fronting fee equal to 0.125% per annum of the dollar equivalent of the maximum amount available to be drawn under all outstanding letters of credit, as well as customary issuance and administration fees.

The obligations under the Credit Facilities are obligations of the Company and are (i) guaranteed by each existing and future direct or indirect material restricted subsidiary of the Company, subject to certain exceptions and (ii) secured by substantially all of the assets of the Company and the subsidiary guarantors, subject to certain exceptions.

Under the Credit Facilities, the Company may incur incremental term loan indebtedness or incremental equivalent indebtedness in an amount up to $350 million (the “HCOM Incremental Amount”) in connection with the Company’s consummation of the merger with Hawaiian Telcom.  The Company may use the HCOM Incremental Amount to (i) refinance the existing indebtedness of Hawaiian Telcom, (ii) fund in part the cash portion of the merger consideration for the previously announced merger with Hawaiian Telcom and (iii) pay fees and expenses incurred in connection with the foregoing.

The Revolving Credit Facility will require maintenance of a maximum consolidated secured leverage ratio of 3.50 to 1.00 and a minimum consolidated interest coverage ratio of 1.50 to 1.00.  The Company may voluntarily repay and reborrow outstanding loans under the Revolving Credit Facility at any time without a premium or a penalty, other than customary “breakage” costs with respect to LIBOR revolving loans.

The Term Loan Facility is subject to a 1.00% prepayment premium for any amounts repaid in connection with a “repricing transaction” until the date that is 180 days after the earliest of (i) the closing of the Hawaiian Telcom merger, (ii) the deposit of the HCOM Incremental Amount into escrow in accordance with the terms and conditions of the Credit Agreement or (iii) the termination of the merger with Hawaiian Telcom.  Borrowings under the Term Loan Facility will amortize in equal quarterly installments at a rate of 1.00% per annum, with the balance due upon maturity of the Term Loan Facility.
 


In addition to and separate from the HCOM Incremental Amount, the Company may, subject to the terms and conditions of the Credit Agreement, incur incremental term loans under the Term Loan Facility and/or increase the commitments under the Revolving Credit Facility in an aggregate amount of up to (i) $200 million plus (ii) an unlimited amount, so long as, on a pro forma basis, after giving effect to any such incremental term loans or increases in commitments, its consolidated secured leverage ratio would not exceed 1.80 to 1.00, pursuant to an uncommitted incremental facility.  This uncommitted incremental facility may be increased by an additional $150 million to finance certain acquisitions and investments permitted under the Credit Agreement.

The Credit Agreement contains customary representations and warranties and affirmative covenants.  The Credit Agreement contains negative covenants that, subject to certain exceptions, qualifications and baskets, limit the ability of the Company and its restricted subsidiaries to, among other things, incur indebtedness; incur liens; make asset sales; merge, consolidate or undertake certain other fundamental changes; make restricted payments in respect of equity interests and make investments; undertake transactions with affiliates; enter into restrictions on liens and other restrictive agreements; and make changes in fiscal year.  The Credit Agreement also contains customary events of default, including non-payment of principal, interest, fees or other amounts, failure to observe or perform any covenant, material inaccuracy of any representation or warranty, default in respect of other material debt of the Company and its restricted subsidiaries, bankruptcy or insolvency, the entry against the Company or any of its restricted subsidiaries of one or more material judgments, the occurrence of certain events related to pension plans, impairment of the loan documentation and the occurrence of a change of control.

The foregoing description of the Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Credit Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Supplemental Indenture

On October 2, 2017, the Company’s wholly-owned direct and indirect subsidiaries, Cincinnati Bell Shared Services LLC (“CBSS”), Data Centers South Holdings LLC (“DCSH”) and Twin Acquisition Corp. (“Twin”), and Regions Bank, as trustee, entered into a Third Supplemental Indenture (the “Third Supplemental Indenture”).  The Third Supplemental Indenture supplements that certain indenture dated September 22, 2016 among the Company, the guarantors party thereto and Regions Bank, as trustee (as supplemented, the “7.00% Indenture”) governing the issuance of the Company’s 7.00% Senior Notes due 2024 (the “7.00% Notes”), by adding CBSS, DCSH and Twin as parties to the 7.00% Indenture and as guarantors of the 7.00% Notes.  As CBSS, DCSH and Twin are guarantors party to the Company’s Credit Agreement, in accordance with the Third Supplemental Indenture, CBSS, DCSH and Twin will jointly and severally guarantee, with the existing guarantors party to the 7.00% Indenture, the obligations of the Company with respect to the 7.00% Notes, in accordance with the terms and conditions of the 7.00% Indenture.
 
The foregoing description of the Third Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the full text of the Third Supplemental Indenture, a copy of which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.

ITEM 1.02–TERMINATION OF A MATERIAL DEFINITIVE AGREEMENT

                        In connection with entering into the Credit Agreement, the Company elected to terminate, effective October 2, 2017, its existing Credit Agreement, dated as of November 20, 2012, by and among the Company, the guarantors party thereto, the lenders party thereto, Morgan Stanley Senior Funding, Inc. as administrative agent and a letter of credit issuer and PNC Bank, National Association, as swingline lender and a letter of credit issuer and repaid all outstanding borrowings thereunder in full.

ITEM 2.01–COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS

On October 2, 2017, the Company completed its previously announced acquisition of OnX, pursuant to the Agreement and Plan of Merger (the “Merger Agreement”) by and among the Company, Yankee Acquisition LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company (“OnX Merger Sub”), OnX and MLN Holder Rep LLC, a Delaware limited liability company and solely in its capacity as representative of the Unitholders (the “Representative”).  Pursuant to the Merger Agreement, OnX Merger Sub merged with and into OnX (the “Merger”), with OnX continuing as the surviving company and a wholly-owned subsidiary of the Company.
 


As a result of the Merger, the Company paid the holders of OnX’s limited liability company interests (the “Unitholders”) aggregate merger consideration of $201 million in cash, on a cash-free, debt-free basis, subject to customary post-closing adjustments.

The foregoing description of the Merger Agreement and the Merger does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 2.2 to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission (the “SEC”) on July 10, 2017 and is incorporated herein by reference.

ITEM 2.03CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT

The disclosure set forth under Item 1.01 above is incorporated herein by reference.

ITEM 8.01–OTHER EVENTS

On October 2, 2017, the Company issued a press release announcing the completion of the Merger and the entry into the Credit Agreement.  A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

ITEM 9.01–FINANCIAL STATEMENTS AND EXHIBITS
 
(d)

Exhibit No.
Description
4.1
Third Supplemental Indenture dated as of October 2, 2017 by and among Cincinnati Bell Inc., Cincinnati Bell Shared Services LLC, Data Centers South Holdings LLC, Twin Acquisition Corp. and Regions Bank, as Trustee.
10.1
Credit Agreement, dated as of October 2, 2017, by and among Cincinnati Bell Inc., the Guarantors party thereto, the Lenders party thereto, PNC Bank, National Association, as a Swingline Lender, and Morgan Stanley Senior Funding, Inc., as Administrative Agent, Collateral Agent, a Swingline Lender and an L/C Issuer.
99.1
Press Release, dated October 2, 2017.

NO OFFER OR SOLICITATION

This communication is neither an offer to sell, nor a solicitation of an offer to buy any securities, the solicitation of any vote or approval in any jurisdiction pursuant to or in connection with the proposed transaction or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, and otherwise in accordance with applicable law.

ADDITIONAL INFORMATION AND WHERE TO FIND IT

The proposed transaction involving the Company and Hawaiian Telcom will be submitted to Hawaiian Telcom’s stockholders for their consideration.  In connection with the proposed transaction, the Company has filed with the SEC a registration statement on Form S-4 on August 17, 2017, as amended on August 30, 2017 (the “Registration Statement”) (which Registration Statement has not yet been declared effective), which includes a prospectus with respect to the Company’s common shares to be issued in the proposed transaction and a proxy statement for Hawaiian Telcom’s stockholders (the “Proxy Statement”), and Hawaiian Telcom will mail the Proxy Statement to its stockholders on or before October 10, 2017 and file other documents regarding the proposed transaction with the SEC. SECURITY HOLDERS ARE URGED AND ADVISED TO READ ALL RELEVANT MATERIALS FILED WITH THE SEC, INCLUDING THE REGISTRATION STATEMENT AND THE PROXY STATEMENT, CAREFULLY WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND RELATED MATTERS. The Registration Statement, the Proxy Statement and other relevant materials (when they become available) and any other documents filed or furnished by the Company or Hawaiian Telcom with the SEC may be obtained free of charge at the SEC’s web site at www.sec.gov. In addition, security holders are able to obtain free copies of the Registration Statement and the Proxy Statement from the Company by going to its investor relations page on its corporate web site at www.cincinnatibell.com and from Hawaiian Telcom by going to its investor relations page on its corporate web site at www.hawaiiantel.com.
 

 


PARTICIPANTS IN THE SOLICITATION

The Company, Hawaiian Telcom, their respective directors and certain of their respective executive officers and employees may be deemed to be participants in the solicitation of proxies in connection with the proposed transaction involving the Company and Hawaiian Telcom. Information about the Company’s directors and executive officers is set forth in its definitive proxy statement for its 2017 Annual Meeting of Shareholders, which was filed with the SEC on March 24, 2017, and information about Hawaiian Telcom’s directors and executive officers is set forth in its definitive proxy statement for its 2017 Annual Meeting of Stockholders, which was filed with the SEC on March 14, 2017, and in the Registration Statement (which Registration Statement has not yet been declared effective), which was filed with the SEC on August 17, 2017.  These documents are available free of charge from the sources indicated above, and from the Company by going to its investor relations page on its corporate web site at www.cincinnatibell.com and from Hawaiian Telcom by going to its investor relations page on its corporate web site at www.hawaiiantel.com.  Additional information regarding the interests of participants in the solicitation of proxies in connection with the proposed transaction involving the Company and Hawaiian Telcom will be included in the Registration Statement, the Proxy Statement and other relevant materials the Company and Hawaiian Telcom intend to file with the SEC.

CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS

This communication and the documents incorporated by reference herein may contain “forward-looking” statements, as defined in federal securities laws including the Private Securities Litigation Reform Act of 1995, which are based on our current expectations, estimates, forecasts and projections. Statements that are not historical facts, including statements about the beliefs, expectations and future plans and strategies of the Company, are forward-looking statements. Actual results may differ materially from those expressed in any forward-looking statements. The following important factors, among other things, could cause or contribute to actual results being materially and adversely different from those described or implied by such forward-looking statements including, but not limited to: those discussed in this communication; we operate in highly competitive industries, and customers may not continue to purchase products or services, which would result in reduced revenue and loss of market share; we may be unable to grow our revenues and cash flows despite the initiatives we have implemented; failure to anticipate the need for and introduce new products and services or to compete with new technologies may compromise our success in the telecommunications industry; our access lines, which generate a significant portion of our cash flows and profits, are decreasing in number and if we continue to experience access line losses similar to the past several years, our revenues, earnings and cash flows from operations may be adversely impacted; our failure to meet performance standards under our agreements could result in customers terminating their relationships with us or customers being entitled to receive financial compensation, which would lead to reduced revenues and/or increased costs; we generate a substantial portion of our revenue by serving a limited geographic area; a large customer accounts for a significant portion of our revenues and accounts receivable and the loss or significant reduction in business from this customer would cause operating revenues to decline and could negatively impact profitability and cash flows; maintaining our telecommunications networks requires significant capital expenditures, and our inability or failure to maintain our telecommunications networks could have a material impact on our market share and ability to generate revenue; increases in broadband usage may cause network capacity limitations, resulting in service disruptions or reduced capacity for customers; we may be liable for material that content providers distribute on our networks; cyber attacks or other breaches of network or other information technology security could have an adverse effect on our business; natural disasters, terrorists acts or acts of war could cause damage to our infrastructure and result in significant disruptions to our operations; the regulation of our businesses
 


by federal and state authorities may, among other things, place us at a competitive disadvantage, restrict our ability to price our products and services and threaten our operating licenses; we depend on a number of third party providers, and the loss of, or problems with, one or more of these providers may impede our growth or cause us to lose customers; a failure of back-office information technology systems could adversely affect our results of operations and financial condition; if we fail to extend or renegotiate our collective bargaining agreements with our labor union when they expire or if our unionized employees were to engage in a strike or other work stoppage, our business and operating results could be materially harmed; the loss of any of the senior management team or attrition among key sales associates could adversely affect our business, financial condition, results of operations and cash flows; our debt could limit our ability to fund operations, raise additional capital, and fulfill our obligations, which, in turn, would have a material adverse effect on our businesses and prospects generally; our indebtedness imposes significant restrictions on us; we depend on our loans and credit facilities to provide for our short-term financing requirements in excess of amounts generated by operations, and the availability of those funds may be reduced or limited; the servicing of our indebtedness is dependent on our ability to generate cash, which could be impacted by many factors beyond our control; we depend on the receipt of dividends or other intercompany transfers from our subsidiaries and investments; the trading price of our common shares may be volatile, and the value of an investment in our common shares may decline; the uncertain economic environment, including uncertainty in the U.S. and world securities markets, could impact our business and financial condition; our future cash flows could be adversely affected if it is unable to fully realize our deferred tax assets; adverse changes in the value of assets or obligations associated with our employee benefit plans could negatively impact shareowners’ deficit and liquidity; third parties may claim that we are infringing upon their intellectual property, and we could suffer significant litigation or licensing expenses or be prevented from selling products; third parties may infringe upon our intellectual property, and we may expend significant resources enforcing our rights or suffer competitive injury; we could be subject to a significant amount of litigation, which could require us to pay significant damages or settlements; we could incur significant costs resulting from complying with, or potential violations of, environmental, health and human safety laws; the timing and likelihood of completion of our proposed acquisition of Hawaiian Telcom, including the timing, receipt and terms and conditions of any required governmental and regulatory approvals for the proposed transaction that could reduce anticipated benefits or cause the parties to abandon the transaction; the possibility that Hawaiian Telcom’s stockholders may not approve the proposed merger; the possibility that competing offers or acquisition proposals for Hawaiian Telcom will be made; the occurrence of any event, change or other circumstance that could give rise to the termination of the proposed transaction; the possibility that the expected synergies and value creation from the proposed transaction involving Hawaiian Telcom and the completed transaction involving OnX will not be realized or will not be realized within the expected time period; the risk that the businesses of the Company and Hawaiian Telcom and OnX will not be integrated successfully; disruption from the proposed transaction involving Hawaiian Telcom and the completed transaction involving OnX making it more difficult to maintain business and operational relationships; the risk that unexpected costs will be incurred; and the possibility that the proposed transaction involving Hawaiian Telcom does not close, including due to the failure to satisfy the closing conditions and the other risks and uncertainties detailed in our filings, including our Form 10-K, with the SEC as well as Hawaiian Telcom’s filings, including its Form 10-K, with the SEC.

These forward-looking statements are based on information, plans and estimates as of the date hereof and there may be other factors that may cause our actual results to differ materially from these forward-looking statements. We assume no obligation to update the information contained in this communication except as required by applicable law.
 

 
EXHIBIT INDEX

 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 

 
CINCINNATI BELL INC.
   
     
Date: October 2, 2017
By:
/s/ Christopher J. Wilson
   
Christopher J. Wilson
   
Vice President and General Counsel

 
Exhibit 4.1
 
THIRD SUPPLEMENTAL INDENTURE

Supplemental Indenture (this “Third Supplemental Indenture”), dated as of the date of the last signature below, among Cincinnati Bell Inc., an Ohio corporation (or its permitted successor) (the “Issuer”), Cincinnati Bell Shared Services LLC (“CBSS”), an Ohio limited liability company and a subsidiary of the Issuer, Data Centers South Holdings LLC (“DCSH”), a Delaware limited liability company and a subsidiary of the Issuer, Twin Acquisition Corp. (“Twin”), a Delaware corporation and a subsidiary of the Issuer (CBSS, DCSH and Twin, each, a “Guaranteeing Subsidiary”), and Regions Bank (or its permitted successor), as trustee under the Indenture referred to below (the “Trustee”).  Capitalized terms used herein without definition shall have the meanings ascribed to them in the Indenture.

W I T N E S S E T H

WHEREAS, the Issuer and the other Guarantors party thereto have heretofore executed and delivered to the Trustee an Indenture, dated as of September 22, 2016 (as supplemented by the First Supplemental Indenture, dated as of April 3, 2017, among the Issuer, SunTel Services LLC and the Trustee, and the Second Supplemental Indenture, dated as of May 31, 2017, among the Issuer, Cincinnati Bell Telephone Company LLC, Cincinnati Bell Extended Territories LLC and the Trustee, the “Indenture”), providing for the issuance by the Issuer of its 7.000% Senior Notes due 2024 (the “Notes”);

WHEREAS, the Indenture provides that under certain circumstances each Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which each Guaranteeing Subsidiary shall, subject to Article 10 of the Indenture, unconditionally guarantee the Notes on the terms and conditions set forth therein (each, a “Note Guarantee”); and

WHEREAS, pursuant to Section 9.01(7) of the Indenture, the Trustee is authorized to execute and deliver this Third Supplemental Indenture.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Issuer, each Guaranteeing Subsidiary and the Trustee mutually covenant and agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders as follows:

ARTICLE 1
DEFINITIONS

Section 1.1    Defined Terms.  As used in this Third Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals hereto are used herein as therein defined.  The words “herein,” “hereof” and “hereby” and other words of similar import used in this Third Supplemental Indenture refer to this Third Supplemental Indenture as a whole and not to any particular section hereof.
 

 



ARTICLE 2
AGREEMENT TO GUARANTEE

Section 2.1   Agreement to be Bound.  Each Guaranteeing Subsidiary hereby becomes a party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture.

Section 2.2   Guarantee.  Each Guaranteeing Subsidiary agrees, on a joint and several basis with all the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Note Guarantees pursuant to Article 10 of the Indenture on a senior basis.

ARTICLE 3
MISCELLANEOUS

Section 3.1   Execution and Delivery.  Each Guaranteeing Subsidiary agrees that its Note Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.

Section 3.2   Benefits Acknowledged.  Each Guaranteeing Subsidiary’s Note Guarantee is subject to the terms and conditions set forth in the Indenture.  Each Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Third Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee and this Third Supplemental Indenture are knowingly made in contemplation of such benefits.

Section 3.3   Ratification of Indenture; Supplemental Indentures Part of Indenture.  Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.  This Third Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

Section 3.4   Severability.  In case any provision in this Third Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.

Section 3.5   Guaranteeing Subsidiary May Consolidate, Etc., on Certain Terms.  Each Guaranteeing Subsidiary may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into, any Person other than as set forth in Section 10.04 of the Indenture.

Section 3.6   Release of Guarantors.  Each Guaranteeing Subsidiary’s Note Guarantee shall be released as set forth in Section 10.05 of the Indenture.

Section 3.7   No Recourse Against Others.  Pursuant to Section 12.06 of the Indenture, no director, officer, employee, incorporator, stockholder, member, manager or partner of each Guaranteeing Subsidiary shall have any liability for any obligations of such Guaranteeing Subsidiary under the Notes, the Indenture, this Third Supplemental Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation.  This waiver and release are part of the consideration for the Note Guarantees.


2


 
Section 3.8   Governing Law.  THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.

Section 3.9   Waiver of Jury Trial.  THE GUARANTEEING SUBSIDIARY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS THIRD SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 3.10  Counterparts.  The parties may sign any number of copies of this Third Supplemental Indenture (including by electronic transmission).  Each signed copy shall be an original, but all of them together represent the same agreement.  The exchange of copies of this Third Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Third Supplemental Indenture as to the parties hereto and may be used in lieu of the original Third Supplemental Indenture for all purposes.  Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

Section 3.11   Effect of Headings.  The Section headings herein are for convenience only and shall not affect the construction hereof.

Section 3.12  Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Third Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by each Guaranteeing Subsidiary and the Issuer.

[SIGNATURE PAGE FOLLOWS]

3



IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed and attested, all as of the last date below.
 
  CINCINNATI BELL SHARED SERVICES LLC  
       
 
By:
/s/ Christopher C. Elma  
    Name:   Christopher C. Elma  
    Title:     Vice President, Treasury & Tax  
       
  Dated: October 2, 2017    
 
 
 
DATA CENTERS SOUTH HOLDINGS LLC
 
       
 
By:
/s/ Christopher C. Elma  
    Name:   Christopher C. Elma  
    Title:     Vice President, Treasury & Tax  
       
  Dated: October 2, 2017    
 
 
 
TWIN ACQUISITION CORP.
 
       
 
By:
/s/ Christopher C. Elma  
    Name:   Christopher C. Elma  
    Title:     Vice President, Treasury & Tax  
       
  Dated: October 2, 2017    
 
 
 
CINCINNATI BELL INC.
 
       
 
By:
/s/ Christopher C. Elma  
    Name:   Christopher C. Elma  
    Title:     Vice President, Treasury & Tax  
       
  Dated: October 2, 2017    
 
 


 



[Signature Page to Third Supplemental Indenture]



 
 
REGIONS BANK, as Trustee
 
       
 
By:
/s/ Alejandro Hoyos  
    Name:   Alejandro Hoyos  
    Title:     Vice President  
       
  Dated: October 2, 2017    
 

 








[Signature Page to Third Supplemental Indenture]
 

 
Exhibit 10.1
 

Published CUSIP Number:  17187MAK6
Revolving Commitment CUSIP Number:  17187MAL4
Tranche B Term Loan CUSIP Number:  17187MAM2



CREDIT AGREEMENT

Dated as of October 2, 2017
among

CINCINNATI BELL INC.,
as the Borrower,

Certain Subsidiaries of the Borrower
from time to time party hereto,
as Guarantors,

MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent, Collateral Agent, a Swingline Lender and an L/C Issuer,

PNC BANK, NATIONAL ASSOCIATION,
as a Swingline Lender,

and

The other Lenders party hereto
__________________________________
 
 
MORGAN STANLEY SENIOR FUNDING, INC.,
PNC CAPITAL MARKETS, LLC,
REGIONS BANK,
BARCLAYS BANK PLC,
CITIGROUP GLOBAL MARKETS INC. and
CITIZENS BANK, N.A.,
as Arrangers
 

 
 


 
TABLE OF CONTENTS

Section
Page 
 
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1
 
1.01
Defined Terms
1
 
1.02
Other Interpretive Provisions
45
 
1.03
Accounting Terms
46
 
1.04
Rounding
47
 
1.05
Times of Day; Rates
47
 
1.06
Letter of Credit Amounts
47
 
1.07
Additional Alternative Currencies
48
 
1.08
Exchange Rates; Currency Equivalents
48
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
48
 
2.01
The Loans
48
 
2.02
Borrowings, Conversions and Continuations of Committed Loans
49
 
2.03
Letters of Credit
50
 
2.04
Swingline Loans
59
 
2.05
Prepayments
62
 
2.06
Termination or Reduction of Commitments
66
 
2.07
Repayment of Loans
67
 
2.08
Interest
67
 
2.09
Fees
68
 
2.10
Computation of Interest and Fees
68
 
2.11
Evidence of Debt
69
 
2.12
Payments Generally; Administrative Agent’s Clawback
69
 
2.13
Sharing of Payments by Lenders
71
 
2.14
Cash Collateral
72
 
2.15
Defaulting Lenders
73
 
2.16
Increase in Revolving Commitments
75
 
2.17
Incremental Term Facilities
76
 
2.18
Extension of Maturity Date
80
 
2.19
Refinancing Facilities
81
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
83
 
3.01
Taxes
83
 
3.02
Illegality
87
 
3.03
Inability to Determine Rates
87
 
3.04
Increased Costs
88
 
3.05
Compensation for Losses; Breakage Payments
90
 
3.06
Mitigation Obligations; Replacement of Lenders
90
 
3.07
Survival
91
ARTICLE IV GUARANTY
91
 
4.01
The Guaranty
91
 
4.02
Obligations Unconditional
91
 
4.03
Reinstatement
92
 
4.04
Certain Additional Waivers
93
 
4.05
Remedies
93
 
4.06
Rights of Contribution
93
 
4.07
Guarantee of Payment; Continuing Guarantee
93
 
4.08
Keepwell
93
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
94
 
5.01
Conditions of Closing Date and Initial Credit Extension
94
 
5.02
Conditions to All Credit Extensions
96
ARTICLE VI REPRESENTATIONS AND WARRANTIES
97
 
6.01
Existence, Qualification and Power
97
 
6.02
Authorization; No Contravention
98
 
i

 
 
6.03
Governmental Authorization; Other Consents
98
 
6.04
Binding Effect
98
 
6.05
Financial Statements; No Material Adverse Effect
98
 
6.06
Litigation
99
 
6.07
No Default
99
 
6.08
Ownership of Property; Liens
99
 
6.09
Environmental Compliance
99
 
6.10
Insurance
100
 
6.11
Taxes
100
 
6.12
ERISA Compliance
100
 
6.13
Subsidiaries
100
 
6.14
Margin Regulations; Investment Company Act
101
 
6.15
Disclosure
101
 
6.16
Compliance with Laws
101
 
6.17
Intellectual Property
101
 
6.18
Solvency
102
 
6.19
Telecommunications Regulatory Matters
102
 
6.20
Perfection, Etc.
102
 
6.21
Sanctions; Patriot Act; FCPA
102
ARTICLE VII AFFIRMATIVE COVENANTS
103
 
7.01
Financial Statements
103
 
7.02
Certificates; Other Information
103
 
7.03
Notices and Information
105
 
7.04
Payment of Taxes
105
 
7.05
Preservation of Existence, Etc.
105
 
7.06
Maintenance of Properties
106
 
7.07
Maintenance of Insurance
106
 
7.08
Compliance with Laws and Contractual Obligations
106
 
7.09
Books and Records
106
 
7.10
Inspection Rights
107
 
7.11
Use of Proceeds
107
 
7.12
Additional Guarantors
107
 
7.13
Further Assurances
108
 
7.14
Lender Call
109
 
7.15
Designation of Restricted and Unrestricted Subsidiaries
109
 
7.16
Sanctions; Patriot Act; FCPA
109
ARTICLE VIII NEGATIVE COVENANTS
109
 
8.01
Liens
109
 
8.02
Investments
112
 
8.03
Indebtedness
116
 
8.04
Fundamental Changes
119
 
8.05
Dispositions
119
 
8.06
Restricted Payments
120
 
8.07
[Reserved]
121
 
8.08
Transactions with Affiliates
121
 
8.09
Burdensome Agreements
122
 
8.10
[Reserved]
122
 
8.11
Financial Covenants
122
 
8.12
Organization Documents; Fiscal Year
123
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
123
 
9.01
Events of Default
123
 
9.02
Remedies upon Event of Default
125
 
9.03
Application of Funds
126
ARTICLE X ADMINISTRATIVE AGENT
127
 
10.01
Appointment and Authority
127
 
10.02
Rights as a Lender
127
 
ii

 
 
10.03
Exculpatory Provisions
127
 
10.04
Reliance by Administrative Agent
128
 
10.05
Delegation of Duties
128
 
10.06
Resignation of Administrative Agent
129
 
10.07
Non‑Reliance on Administrative Agent and Other Lenders
130
 
10.08
No Other Duties, Etc.
130
 
10.09
Administrative Agent May File Proofs of Claim
130
 
10.10
Collateral and Guaranty Matters
131
ARTICLE XI MISCELLANEOUS
132
 
11.01
Amendments, Etc.
132
 
11.02
Notices; Effectiveness of Electronic Communications
136
 
11.03
No Waiver; Cumulative Remedies
138
 
11.04
Expenses; Indemnity; Damage Waiver
138
 
11.05
Payments Set Aside
140
 
11.06
Successors and Assigns
140
 
11.07
Treatment of Certain Information; Confidentiality
147
 
11.08
Set‑off
148
 
11.09
Interest Rate Limitation
148
 
11.10
Counterparts; Integration; Effectiveness
148
 
11.11
Survival of Representations and Warranties
148
 
11.12
Severability
149
 
11.13
Replacement of Lenders
149
 
11.14
Governing Law; Jurisdiction; Etc.
150
 
11.15
Waiver of Jury Trial
151
 
11.16
Term of Agreement
151
 
11.17
USA PATRIOT Act Notice
151
 
11.18
Subordination of Intercompany Debt
152
 
11.19
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
152
 
11.20
Permitted Receivables Financings
152
 
11.21
No Advisory or Fiduciary Responsibilities
153
 
11.22
Electronic Execution of Assignments and Certain Other Documents
154
 
11.23
Permitted Intercreditor Agreements
154
 
iii

 
SCHEDULES
 
 
1.01
Existing Letters of Credit
 
2.01
Commitments and Applicable Percentages
 
6.03
Required Consents, Authorizations, Notices and Filings
 
6.13
Subsidiaries
 
8.01
Existing Liens
 
8.02
Existing Investments
 
8.03
Existing Indebtedness
 
8.05
Dispositions
 
11.02
Administrative Agent’s Office, Certain Addresses for Notices
 
EXHIBITS
 
 
A
Form of Committed Loan Notice
 
B
Form of Swingline Loan Notice
 
C-1
Form of Revolving Note
 
C-2
Form of Swingline Note
 
C-3
Form of Tranche B Term Note
 
D
Form of Compliance Certificate
 
E
Form of Joinder Agreement
 
F
Form of Assignment and Assumption
 
G-1
Form of U.S. Tax Compliance Certificate for Foreign Lenders That Are Not Partnerships for U.S. Federal Income Tax Purposes
 
G-2
Form of U.S. Tax Compliance Certificate for Foreign Participants That Are Not Partnerships for U.S. Federal Income Tax Purposes
 
G-3
Form of U.S. Tax Compliance Certificate for Foreign Participants That Are Partnerships for U.S. Federal Income Tax Purposes
 
G-4
Form of U.S. Tax Compliance Certificate for Foreign Lenders That Are Partnerships for U.S. Federal Income Tax Purposes
 
H
Form of Solvency Certificate
 
iv

 
CREDIT AGREEMENT

This CREDIT AGREEMENT (as amended, modified, restated or supplemented from time to time, this “Agreement”) is entered into as of October 2, 2017, 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), PNC BANK, NATIONAL ASSOCIATION, as a Swingline Lender, and MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent, Collateral Agent, a 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 Notes” means the Borrower’s 7¼% Senior Notes due 2023.

2016 Senior Notes” means the Borrower’s 7% Senior Notes due 2024.

Acquisition” means, with respect to any Person, the acquisition by such Person, in a single transaction or in a series of related transactions, of all or substantially all of the Capital Stock or all or substantially all of the Property, or a business unit, division, product line or line of business, 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.

Acquisition Agreement Representations” means such of the representations and warranties made by or with respect to the Person or business being acquired in the applicable acquisition agreement, merger agreement or stock purchase agreement as are material to the interests of the Lenders, but only to the extent that the Borrower (or an Affiliate of the Borrower) has the right to terminate its (or its Affiliates’) obligations under the applicable agreement or decline to consummate such acquisition as a result of a breach of such representations and warranties in such applicable agreement.

Additional Revolving Lender” means any Revolving Lender or Eligible Assignee who agrees to provide Revolving Commitments in accordance with the provisions of Section 2.16 in connection with a request for a Revolving Commitment Increase.

Administrative Agent” means Morgan Stanley Senior Funding, Inc. 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.



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.

Agent Parties” has the meaning specified in Section 11.02(c).

Agents” means, collectively, the Administrative Agent, the Collateral Agent and any other sub-agent appointed in accordance with this Agreement.

Aggregate Revolving Commitments” means, as of any date, the Revolving Commitments of all the Lenders on such date.  The amount of the Aggregate Revolving Commitments in effect on the Closing Date is $200,000,000.

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

Alternative Currency” means, in the case of Letters of Credit, Canadian Dollars, Euros, Sterling and each other currency that is approved in accordance with Section 1.07.

Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

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 subject to adjustment as provided in Section 2.15; 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 aggregate principal amount of the Tranche B Term Loans 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 Prepayment Date” means, in connection with any Disposition Prepayment Event or Involuntary Disposition Prepayment Event, the fifth Business Day following the date on which such Disposition Prepayment Event or Involuntary Disposition Prepayment Event occurs.

Applicable Rate” means, for the purposes of calculating:

(a)            the interest rate applicable to (i) the Tranche B Term Loans, (x) 2.75% per annum for Base Rate Loans and (y) 3.75% per annum for Eurodollar Rate Loans and (ii) any Incremental Term Loans, the rate(s) set forth in the applicable Incremental Facility Agreement;

(b)            the interest rate applicable to the Revolving Loans, (i) 2.75% per annum for Base Rate Loans and (ii) 3.75% per annum for Eurodollar Rate Loans;

2


(c)            the Letter of Credit Fees, 3.75% per annum; and

(d)            the Commitment Fee, 0.50% per annum; provided that the Applicable Rate for the Commitment Fee shall be 0.375% per annum if the Consolidated Total Leverage Ratio is equal to or less than 3.25 to 1.00 as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 7.02(a) for the four‑quarter period ending as of the last day of the fiscal quarter to which such Compliance Certificate relates.  Any increase or decrease in the Applicable Rate for the Commitment Fee 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(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with Section 7.02(a), then the first proviso to this clause (d) shall not 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 anything to the contrary in this definition, the determination of the Applicable Rate for the Commitment Fee 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 any Involuntary Disposition, the period of 18 months (or 24 months, in the case of Net Cash Proceeds which have been committed to be reinvested by the Borrower or any Restricted Subsidiary pursuant to binding agreements entered into prior to the end of such initial 18-month period) following receipt of such Net Cash Proceeds by the Borrower or any Restricted Subsidiary.

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.

Arrangers” means Morgan Stanley Senior Funding, Inc., PNC Capital Markets, LLC, Regions Bank, Barclays Bank PLC, Citigroup Global Markets Inc. and Citizens Bank, N.A., acting in their capacities as joint lead arrangers and joint book managers, and “Arranger” means any 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 (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.

Attributable Indebtedness” means, on any date, 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.

Attributed Principal Amount” means, on any day, with respect to any Permitted Receivables Financing, the aggregate principal, stated or invested amount of (a) outstanding loans made by Receivables Financiers to the relevant Receivables Financing SPC under such Permitted Receivables Financing or (b) notes, bonds or other 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, in each case 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.

3


Auction” has the meaning specified in Section 11.06(i).

Auction Manager” means (a) the Administrative Agent or (b) any other financial institution reasonably agreed to by the Borrower and the Administrative Agent (whether or not an Affiliate of the Administrative Agent) to act as an auction manager in connection with any Auction.

Audited Financial Statements” means the audited consolidated balance sheet of the Borrower and its subsidiaries for the fiscal year ended December 31, 2016, 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.

Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).

Availability Period” means, with respect to the Revolving Commitments, the period from the Closing Date to the earliest of (a) the Maturity Date for the Aggregate Revolving Commitments, (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.

Available Amount Basket” means, at any time, an amount equal to, without duplication, the sum of:

(a)            $150,000,000; plus

(b)            an amount (but not less than zero) equal to (i) 100% of Consolidated EBITDA on a cumulative basis during the period (taken as one accounting period) from July 1, 2017 to the last day of the most recent fiscal quarter of the Borrower for which the Administrative Agent shall have received the Required Financial Information less (ii) 1.5 times Consolidated Interest Charges for the same period; plus

(c)            100% of the aggregate net cash proceeds and the Fair Market Value of marketable securities or other property received by the Borrower after June 30, 2017 as a contribution to its common equity capital or from any Equity Issuance of the Borrower (other than an issuance of Disqualified Stock) or from the incurrence of Indebtedness of the Borrower or any Restricted Subsidiary that has been converted into or exchanged for Capital Stock (other than Disqualified Stock) of the Borrower; plus

(d)            with respect to Investments made by the Borrower and the Restricted Subsidiaries after June 30, 2017 utilizing the Available Amount Basket pursuant to Section 8.02(s), (i) the aggregate amount of cash and the Fair Market Value of marketable securities or other property equal to the return from such Investments in any Person resulting from repayments of loans or advances, or other transfers of assets, in each case to the Borrower or any Restricted Subsidiary or from the net proceeds received in cash and the Fair Market Value of marketable securities or other property from the sale of any such Investment (except, in each case, to the extent any such payments or proceeds are included in the calculation of Consolidated EBITDA) or (ii) in the case of redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries or the merger or consolidation of an Unrestricted Subsidiary into the Borrower or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Borrower or a Restricted Subsidiary after June 30, 2017, the Fair Market Value of the Investments therein (or the assets transferred) at the time of such redesignation of such

4


Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger, consolidation or transfer of assets; plus

(e)            100% of the aggregate amount received in cash and the Fair Market Value of marketable securities or other property received by means of the sale (other than to the Borrower or a Restricted Subsidiary) after June 30, 2017 of the Capital Stock of an Unrestricted Subsidiary; plus

(f)             the amount received in cash and the Fair Market Value of marketable securities or other property received by the Borrower or any Restricted Subsidiary as dividends or distributions from Unrestricted Subsidiaries after June 30, 2017; plus

(g)            any amounts declined by the Lenders pursuant to Section 2.05(b)(iii)(D); minus

(h)            the portion of the Available Amount Basket utilized after the Closing Date and on or prior to such time pursuant to Section 8.02(s) or Section 8.06(e).

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code.

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 the Administrative Agent as its “prime rate” and (c) the Eurodollar Rate for an Interest Period of one month plus 1%. The “prime rate” is a rate set by the Administrative Agent based upon various factors including the Administrative Agent’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 prime rate announced by the Administrative Agent 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.

Board of Directors” means (a) with respect to a corporation, the board of directors of the corporation or a duly authorized committee thereof, (b) with respect to a partnership, the Board of Directors of the general partner of the partnership, and (c) with respect to any other Person, the board or committee of such Person serving a similar function.

Borrower” has the meaning specified in the preamble hereto.

5


Borrower Cash Collateral” means Cash Collateral provided by the Borrower or another Loan Party to secure the L/C Obligations and Obligations in respect of Swingline Loans, including Cash Collateral so provided in respect of Fronting Exposure attributable to a Defaulting Lender.

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.

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 of New York or the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a London Banking Day.

Businesses” means, at any time, a collective reference to the businesses operated by the Borrower and its Subsidiaries 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 Sections 8.11(a) and (b) or the Consolidated Secured Leverage Ratio, the Consolidated Total Leverage Ratio or Consolidated Total Assets 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.

Canadian Dollar” and “C$” mean the lawful currency of Canada.

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, subject to Section 1.03(a).

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) and (d) in the case of a limited liability company, membership interests.

Cash Collateralize” means to pledge and deposit with, or deliver to, the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers or the Swingline Lenders (as applicable) as collateral for L/C Obligations, Obligations in respect of Swingline Loans, or, solely in the case of pledges or deposits made by Lenders, obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the applicable L/C Issuer or Swingline Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b) the applicable L/C Issuer or Swingline Lender.  “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

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

6


from the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of (i) any Lender, (ii) any domestic commercial bank 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 the equivalent thereof (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 (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 (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 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 one year 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 and money market deposit accounts 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 $500,000,000 (or its foreign currency equivalent at the time), (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, the portfolios of which are limited to investments of the character described in the foregoing clauses (a) through (g), and (i) with respect to any Foreign Subsidiary, other short-term investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such Foreign Subsidiary for cash management purposes.

CBI Shared Collateral Security and Pledge Agreement” means the CBI Shared Collateral Security and Pledge Agreement, dated as of the Closing Date, by and between the Borrower and the Collateral Agent.

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

CBT 1998 Notes” means CBT’s 6.30% Senior Notes due 2028.

CBT Shared Collateral Security and Pledge Agreement” means the CBT Shared Collateral Security and Pledge Agreement, dated as of the Closing Date, by and between CBT and the Collateral Agent.

7


CFC” means each Person that is a “controlled foreign corporation” within the meaning of Section 957(a) of the Code.

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, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated or issued.

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)            there shall occur a “Change of Control” (or any comparable term) under the 1993 Senior Notes, the 2016 Senior Notes, the CBT 1998 Notes and/or the documents evidencing or governing any 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/or (b) inventory, including for resale to customers and which credit facility may be secured by a Lien in favor of the applicable lender solely on the Property acquired with such credit facility and the proceeds thereof.

Class”, when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Tranche B Term Loans, Incremental Term Loans (of the same Class), Extended Term Loans (of the same Extension tranche), revolving loans outstanding under any Extended Revolving Commitment (of the same Extension tranche and any related swingline loans thereunder) and, when used in reference to any Commitment, shall refer to whether such Commitment is a Revolving Commitment, a Tranche B Term Loan Commitment, an Incremental Term Commitment (of the same Class) or an Extended Revolving Commitment (of the same Extension tranche).

Closing Date” means October 2, 2017.

8


Closing Date Transactions” means (a) the entering into by the Loan Parties of the Loan Documents on the Closing Date, (b) the creation of Liens pursuant to the Collateral Documents on the Closing Date and the initial Credit Extension hereunder to occur on the Closing Date, (c) the Company Indebtedness Refinancing, (d) the consummation of the OnX Acquisition and the payment of the OnX Consideration and (e) the payment of fees and expenses in connection with the consummation of the foregoing.

Code” means the Internal Revenue Code of 1986.

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 Morgan Stanley, in its capacity as collateral agent under the Collateral Documents, together with any successors or assigns thereto.

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.

Commitment Fee” has the meaning specified in Section 2.09(a).

Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of the same Class and 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 Loans.

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, in each case, shall be substantially in the form of Exhibit A.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

Communications System” means a system or business (a) providing (or capable of providing) voice, data, Internet access or video transport, connection, monitoring services or other communications, information or entertainment services (including cable television), through any means or medium, to business and residential customers, (b) providing (or capable of providing) facilities, marketing, management, technical and financial (including call rating) or other services to companies providing such transport, connection, monitoring service or other communications and/or information services or (c) that is (or that is capable of) constructing, creating, developing or marketing communications-related network equipment, software and other devices for use in any system or business described above.

Company Indebtedness Refinancing” means the repayment in full of all Indebtedness outstanding under, and the termination of all commitments, obligations, guarantees and security interests in respect of, the Existing Credit Agreement on the Closing Date (other than contingent obligations not then due and payable that expressly survive repayment in full of the Indebtedness under the Existing Credit Agreement).

9


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

Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Consolidated EBITDA” means, for any period, for the Borrower and the Restricted Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus, without duplication,

(a) the following, in each case (other than clause (ix) below and lost profits covered by business interruption insurance as provided under clause (x) below) 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 paid or accrued by the Borrower and the Restricted Subsidiaries during such period;

(iii)       depreciation and amortization expense for such period;

(iv)       the amount of any call premium, tender premium or other similar expense and other fees and expenses paid or to be paid by the Borrower or any Restricted Subsidiary in connection with the refinancing, repayment, repurchase or extinguishment of any Indebtedness during such period;

(v)        the amount of loss or discount on the sale of Transferred Assets to any Receivables Financing SPC in connection with a Permitted Receivables Financing;

(vi)       extraordinary, unusual or non-recurring losses, charges or expenses for such period, including (A) restructuring charges, accruals and reserves, severance costs (including severance or stay bonuses paid to employees, including related employee benefits attributable to such payments), relocation costs, retention and completion bonuses and integration costs, including any restructuring charges and integration costs related to any acquisition (including the OnX Acquisition and the HCOM Acquisition), project start-up costs, transition costs, costs related to the opening, closure and/or consolidation of offices and facilities (including the termination or discontinuance of activities constituting a business), contract termination costs and recruiting, signing and completion bonuses and expenses, in each case for such period and (B) except to the extent reimbursed from the proceeds of insurance that increased Consolidated Net Income for such period, contract cancellation costs, network reconfiguration costs or costs with respect to acts of god or force majeure, in each case for such period;

(vii)      other non-cash charges, write-downs, expenses, losses or items for such period, including charges arising from, or the impact of, purchase accounting;

(viii)     cash fees, costs, expenses or charges for such period (A) associated with the Transactions, including such fees, costs, expenses or charges (including rating agency fees and related expenses) related to this Agreement and the Loan Documents and (B) related to any equity offering or repurchase, acquisition (including the OnX Acquisition and the HCOM Acquisition), Investment, disposition, recapitalization or restructuring, or the incurrence, repayment, prepayment or repurchase of Indebtedness (including a refinancing thereof) or any

10


amendments, waivers or other modifications of Indebtedness (in each case, whether or not permitted hereunder and whether or not successful);

(ix)      the full amount of pro forma “run rate” cost savings, operating expense reductions, operational improvements and synergies (net of actual amounts realized) that are reasonably identifiable and factually supportable related to the Transactions or any acquisition (including the OnX Acquisition and the HCOM Acquisition), Investment, disposition, operating improvement, restructuring, cost savings initiative or any similar initiative or transaction, in each case to the extent reasonably expected to be achieved within 24 months of the consummation thereof (in each case, in the good faith determination of a Responsible Officer of the Borrower);

(x)        charges, expenses, losses and lost profits for such period to the extent indemnified or insured by a third party, including expenses covered by indemnification provisions in connection with any acquisition (including the OnX Acquisition), Investment or disposition permitted by this Agreement and lost profits covered by business interruption insurance, in each case, to extent that coverage has not been denied and only so long as such amounts are actually reimbursed to the Borrower or any Restricted Subsidiary during such period or the Borrower reasonably expects that such amounts will be reimbursed within one year after such amount is first added to Consolidated EBITDA (and if not so reimbursed within one year, such amount shall be deducted from Consolidated EBITDA during the next measurement period); it being understood that such amount may subsequently be included in Consolidated EBITDA in a measurement period to the extent of amounts actually reimbursed;

(xi)        charges related to the settlement of any Joint Pole Disputes; provided that the aggregate amount added to Consolidated EBITDA pursuant to this clause (xi) during the term of this Agreement shall not exceed the Maximum Joint Pole Dispute Amount;

(xii)      any losses for such period attributable to early extinguishment of Indebtedness or obligations under any Swap Contract and any unrealized losses for such period attributable to the application of “mark-to-market” accounting in respect of Swap Contracts; and

(xiii)      the cumulative effect for such period of a change in accounting principles;

minus (b) the following, without duplication, in each case to the extent included in calculating such Consolidated Net Income:

(i)         Federal, state, local and foreign income tax credits for such period;

(ii)         all non-cash items increasing Consolidated Net Income during such period;

(iii)       all cash expenditures made during such period in respect of any non-cash item that was added back pursuant to clause (a)(vii) above to Consolidated Net Income in the calculation of Consolidated EBITDA for any prior period;

(iv)       all extraordinary, unusual or non-recurring gains, credits or income for such period;

(v)        any gains for such period attributable to the early extinguishment of Indebtedness or obligations under any Swap Contract;

(vi)       any unrealized gains for such period attributable to the application of “mark-to-market” accounting in respect of Swap Contracts; and

11


(vii)     the cumulative effect for such period of a change in accounting principles.

Consolidated Funded Indebtedness” means, as of any date of determination, for the Borrower and the Restricted Subsidiaries 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 Borrower and the Restricted Subsidiaries (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 Borrower and the Restricted Subsidiaries (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 Borrower and the Restricted Subsidiaries, (e) the Attributable Indebtedness with respect to Capital Leases, (f) all unreimbursed drawings under financial letters of credit (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”) be (at the request of the holders thereof or otherwise) subject to mandatory sinking fund payments, mandatory redemption or other acceleration, provided that, for the avoidance of doubt, the Permitted Preferred Stock shall not constitute Consolidated Funded Indebtedness, (h) the outstanding Attributed Principal Amount under any Permitted Receivables Financing (regardless of whether incurred by a Restricted Subsidiary or an Unrestricted Subsidiary of the Borrower) (all such Indebtedness of the types described in the foregoing 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 Borrower and the Restricted Subsidiaries, whether or not the obligations secured thereby have been assumed and (j) all Guarantees with respect to Funded Indebtedness of another Person.  Notwithstanding anything to the contrary herein, Consolidated Funded Indebtedness will exclude any Indebtedness (“Refinanced Indebtedness”) outstanding on the last day of a fiscal quarter (or any other determination date) which is to be refinanced pursuant to a refinancing permitted under this Agreement with the proceeds (the “Refinancing Proceeds”) of previously incurred refinancing Indebtedness that is included in Consolidated Funded Indebtedness on such date (and such Refinancing Proceeds shall not be included in Unrestricted Cash for the purpose of such calculation); provided that (i) an irrevocable notice of redemption of, or an offer to purchase, such Refinanced Indebtedness has been given or made (and, in the case of an offer to purchase, not withdrawn) on or prior to such date and (ii) Consolidated Funded Indebtedness will be increased by the amount of other Indebtedness temporarily repaid, as of such date, with such Refinancing Proceeds pending their use to fund such redemption or purchase of the Refinanced Indebtedness.

Consolidated Interest Charges” means, for any period, for the Borrower and the Restricted Subsidiaries on a consolidated basis, the sum, without duplication, of (a) all interest expense of the Borrower and the Restricted Subsidiaries 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) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP and (b) the portion of rent expense with respect to such period under Capital Leases that is treated as interest in accordance with GAAP, but excluding in each case for purposes of clauses (a) and (b) 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

12


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 the Restricted 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 Borrower, the ratio, for the four fiscal quarter period ending on such date, of (a) Consolidated EBITDA for such period to (b) Consolidated Interest Charges for such period.

Consolidated Net Income” means, for any period, for the Borrower and the Restricted Subsidiaries 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.  For the avoidance of doubt, the net income of any Unrestricted Subsidiary and any other Person (including any Person accounted for by the equity method of accounting) that is not a Restricted Subsidiary shall be included in Consolidated Net Income for any period to the extent of the amount of cash dividends or similar cash distributions actually paid by such Unrestricted Subsidiary or other Person to the Borrower or any Restricted Subsidiary during such period.

Consolidated Secured Indebtedness” means, as of any date of determination, for the Borrower and the Restricted Subsidiaries on a consolidated basis, without duplication, the sum of the following:  (a) the principal portion of the Obligations under the Loan Documents and (b) the principal portion of Consolidated Funded Indebtedness that is secured by a lien on any assets of the Borrower or its Restricted Subsidiaries (including the Attributed Principal Amount under any Permitted Receivables Financing, but not including any Wireless Leases).

Consolidated Secured Leverage Ratio” means, as of the last day of any fiscal quarter of the Borrower, the ratio of (a) Consolidated Secured Indebtedness as of such date, minus the lesser of (i) Unrestricted Cash of the Borrower and the Restricted Subsidiaries as of such date and (ii) $50,000,000, to (b) Consolidated EBITDA for the four fiscal quarter period ending on such date.

Consolidated Total Assets” means, as of the last day of any fiscal quarter of the Borrower, for the Borrower and the Restricted Subsidiaries 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 Borrower, the ratio of (a) Consolidated Funded Indebtedness as of such date, minus the lesser of (i) Unrestricted Cash of the Borrower and the Restricted Subsidiaries as of such date and (ii) $50,000,000, 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.

13


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

Debtor Relief Laws” means the Bankruptcy Code 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.

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, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or (ii) pay to the Administrative Agent, any L/C Issuer, any Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any L/C Issuer or any Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower) or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the

14



Administrative Agent to the Borrower, each L/C Issuer, each Swingline Lender and each other Lender promptly following such determination.

Designated HCOM Subsidiary” means any Subsidiary of the Borrower (a) that is designated by the Borrower as a “Designated HCOM Subsidiary” in a written notice given to the Administrative Agent on or at any time after the Closing Date, (b) was created solely for the purpose of issuing Permitted Escrow Debt and activities reasonably related or incidental thereto, (c) has no assets other than Permitted Escrow Debt Proceeds, (d) has no Indebtedness or liabilities other than Permitted Escrow Debt and liabilities reasonably related or incidental thereto and (e) does not engage in any activities other than issuing Permitted Escrow Debt, holding Permitted Escrow Debt Proceeds, performing its obligations under the HCOM Merger Agreement and activities reasonably related or incidental to the foregoing  (including the assignment of Permitted Escrow Debt and Permitted Escrow Debt Proceeds to the Borrower or any Guarantor, or the merger of such Designated HCOM Subsidiary with and into the Borrower, with the Borrower surviving, in each case, as permitted under Section 2.17 or the return of such Permitted Escrow Debt Proceeds plus the payment of accrued interest, fees and premiums, if any, to the holders of such Permitted Escrow Debt).

Designated Non-Cash Consideration” means the Fair Market Value of non-cash consideration received by the Borrower or any Restricted Subsidiary in connection with a Disposition pursuant to Section 8.05(b), less the amount of cash or Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with a subsequent Disposition of any such Designated Non-Cash Consideration.

Designated Wireless Subsidiary” means any Subsidiary of the Borrower (including, as applicable, Wireless LLC) that is designated by the Borrower in a written notice given to the Administrative Agent, substantially all the Property of which consists of (or will upon prompt completion of transfers and contributions contemplated at the time of such designation consist of) Transitional Wireless Assets and/or cash and Cash Equivalents.

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 the Capital Stock of a Subsidiary) of the Borrower or any Restricted Subsidiary 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, if any, for such Disposition; provided that with respect to any Disposition, no Disposition Prepayment Event shall be deemed to have occurred hereunder during any fiscal year until the aggregate Net Cash Proceeds received with respect to all such Dispositions (other than Excluded Dispositions) consummated during such fiscal year exceeds $50,000,000 in the aggregate, and then only to the extent of such excess.

Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures (excluding any maturity as a result of an optional redemption by the issuer thereof or any maturity which results only in the issuance of Capital Stock which is not itself Disqualified Stock) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the Latest Maturity Date; provided, however, that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so

15


redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock. Notwithstanding the preceding sentence, (i) any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Borrower to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock and (ii) any Capital Stock issued pursuant to any plan for the benefit of employees of the Borrower or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

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

Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.

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

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) of this definition or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.

EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Effective Yield” means, as to any Loans of any Class, the effective yield on such Loans as determined by the Borrower and the Administrative Agent, taking into account the applicable interest rate margins, any interest rate floors or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (x) the remaining Weighted Average Life to Maturity of such Loans and (y) the four years following the date of incurrence thereof) payable generally to Lenders making such Loans, but excluding any arrangement fees, structuring fees, commitment fees or any other fees not paid or payable generally to all Lenders ratably.

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).

Eligible Reinvestment” means (a) any capital expenditures, (b) any 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 the Restricted Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions thereof) and (c) any Permitted Acquisition.

16


EMU Legislation” means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states.

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 Restricted 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.

Equity Issuance” means any issuance by the Borrower or any Restricted Subsidiary 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 of 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 of the Borrower or any ERISA Affiliate from a Pension Plan or Multiemployer Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations by the Borrower or any ERISA Affiliate 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; (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; (e) institution by the PBGC of proceedings to terminate a Pension Plan or Multiemployer Plan; (f) any 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; (g) the determination that any Pension Plan or Multiemployer Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA or (h) 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.

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

17


Euro” or “” means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the EMU Legislation.

Eurodollar Rate” means:

(a)            for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which rate is approved by the Administrative Agent and the Borrower, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be 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 in the London interbank market (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and

(b)            for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR at approximately 11:00 a.m., London time, two Business Days prior to such date for Dollar deposits with a term of one month commencing on that day;

provided that (i) to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied to the applicable Interest Period in a manner consistent with market practice; provided, further, that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied to the applicable Interest Period as otherwise reasonably determined by the Administrative Agent, (ii) with respect to Revolving Loans only, if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement and (iii) with respect to the Tranche B Term Loans only, if the Eurodollar Rate shall be less than 1%, such rate shall be deemed 1% for purposes of this Agreement.

Eurodollar Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of Eurodollar Rate.

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

Excluded Disposition” means, with respect to the Borrower or any Restricted Subsidiary, any Disposition consisting of (a) the sale, lease, license, transfer or other disposition of Property in the ordinary course of such Person’s business, (b) the sale, lease, license, transfer or other disposition of Property no longer used or useful in the conduct of such Person’s business, (c) any sale, lease, license, transfer or other disposition of Property by such Person to any Loan Party, (d) if such Person is an Excluded Subsidiary, any sale, lease, license, transfer or other disposition of Property by such Person to any other Excluded Subsidiary, (e) 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, whichever is greater, of not more than $5,000,000, (f) any Involuntary Disposition by such Person, (g) any Disposition by such Person constituting a Permitted Investment, a Permitted Lien or a Restricted Payment made in compliance with Section 8.06, (h) any Disposition of Transferred Assets by such Person in connection with a Permitted Receivables Financing, (i) the sale or discount without recourse of accounts receivable or notes receivable for collection purposes, or the conversion or exchange of 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, (j) the disposition of cash, Cash Equivalents or investment securities in the ordinary course of management of the investment portfolio of the applicable Person, (k) any sale or granting of any interest in conduits, fibers, dark fiber or an indefeasible right to use dark fiber or fiber capacity, (l) subleases of real Property and

18


licenses of Intellectual Property, in each case entered into in the ordinary course of business and not intended to constitute a financing arrangement, (m) Property to the extent that (i) such Property is exchanged for credit against the purchase price of similar or replacement Property and (ii) an amount equal to the net proceeds of such Disposition is applied to the purchase price of similar or replacement Property, (n) any exchange of assets to the extent qualifying for like kind treatment under Section 1031 of the Code, (o) any Disposition attributable to any settlement of any Joint Pole Dispute and (p) any Disposition of the Capital Stock of any Unrestricted Subsidiary.

Excluded Information” means information regarding the Loans or the Borrower or its Affiliates, or the respective securities of any of the foregoing, that is not known to a Term Lender participating in an assignment to the Borrower or a Restricted Subsidiary pursuant to Section 11.06(i) that may be material to a decision by such Term Lender to participate in such assignment.

Excluded Subsidiaries” means, subject to Section 7.12, (a) Cincinnati Bell Funding LLC, each Receivables Financing SPC and any other similar special purpose entity created in connection with a Permitted Receivables Financing, (b) each Foreign Subsidiary, (c) any Subsidiary that is a CFC, (d) each Subsidiary that is a Pass-Through Foreign Holdco, (e) any Subsidiary of a Foreign Subsidiary, a CFC or a Pass-Through Foreign Holdco, (f) each Subsidiary that is, or is created or acquired after the Closing Date as, a Joint Venture, or that becomes a Joint Venture as a result of a permitted Disposition, (g) any Designated Wireless Subsidiary, (h) any Unrestricted Subsidiary, (i) any Immaterial Subsidiary and (j) each Subsidiary existing as of the Closing Date or created or acquired after the Closing Date in respect of which (i) the Borrower shall have advised the Administrative Agent that it could or would be a violation of applicable Law for such Subsidiary to become or remain a Loan Party (including under any applicable Law relating to utility or telecommunications businesses that prohibits, restricts or requires the consent or approval of any Governmental Authority for (A) the granting of any Lien or security interest in any Property of such Subsidiary or (B) the incurrence of Indebtedness by such Subsidiary), (ii) the Borrower shall have advised the Administrative Agent that it has not been able obtain any required consent or approval of any Governmental Authority required for such Subsidiary to become or remain a Loan Party or confirmation that such Subsidiary may become or remain a Loan Party (including under any applicable Law relating to utility or telecommunications businesses that prohibits, restricts or requires the consent or approval of any Governmental Authority for (A) the granting of any Lien or security interest in any Property of such Subsidiary or (B) the incurrence of Indebtedness by such Subsidiary) or (iii) the Borrower shall have determined, in consultation with the Administrative Agent, that the contractual, operational, expense, tax or regulatory consequences or difficulty of causing such Subsidiary to become or remain a Guarantor would not, in light of the benefits to accrue to the Lenders, justify such Subsidiary becoming or remaining a Loan Party, and “Excluded Subsidiary” means any one of them.

Excluded Swap Obligations” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of or the grant under a Loan Document by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 4.08 and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one Swap Contract, such exclusion shall apply to only the portion of such Swap Obligations that is attributable to Swap Contracts for which such Guaranty or security interest becomes illegal.

19


Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii), (a)(iii) or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.

Existing Credit Agreement” means that certain Credit Agreement dated as of November 20, 2012 (as amended and/or amended and restated prior to the Closing Date), among the Borrower, as the borrower thereunder, the guarantors from time to time party thereto, the lenders from time to time party thereto, Morgan Stanley, as administrative agent for the lenders, and the various other agents and arrangers party thereto.

Existing HCOM Credit Agreement” means that certain Credit Agreement dated as of February 24, 2017 (as amended and/or amended and restated prior to the HCOM Closing Date), among HCOM, the guarantors from time to time party thereto, the lenders from time to time party thereto and CoBank, ACB, as administrative agent for the secured parties, a joint lead arranger, bookrunner, an issuing lender and swing line lender, Fifth Third Bank, as joint lead arranger and co-syndicated agent, and MUFG Union Bank, N.A., as a joint lead arranger and co-syndication agent.

Existing Letters of Credit” means, collectively, (x) the letters of credit described on Schedule 1.01 and (y) from and after the HCOM Closing Date, any letters of credit outstanding pursuant to the Existing HCOM Credit Agreement on the HCOM Closing Date and designated as an “Existing Letter of Credit” by the Borrower to the Administrative Agent, subject to the consent of the applicable L/C Issuer.

Existing Revolving Borrowings” has the meaning specified in Section 2.16(c).

Extended Revolving Commitment” has the meaning specified in Section 2.18(a).

Extended Term Loans” has the meaning specified in Section 2.18(a).

Extending Revolving Credit Lender” has the meaning specified in Section 2.18(a).

Extending Term Lender” has the meaning specified in Section 2.18(a).

Extension” has the meaning specified in Section 2.18(a).

Extension Offer” has the meaning specified in Section 2.18(a).

Fair Market Value” means the price that could be negotiated in an arm’s-length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined in good faith by a Responsible Officer of the Borrower.

20


FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b) of the Code.

Facility” means the Term Loans of any Class, the Aggregate Revolving Commitments, the Swingline Sublimit or the Letter of Credit Sublimit, as the context may require.

FCC” means the Federal Communications Commission or any successor commission or agency of the United States having jurisdiction over the federal telecommunications licensing of the Borrower or any of its Subsidiaries.

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 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 the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

Fee Letter” means the amended and restated arranger fee letter, dated July 24, 2017, among the Borrower and the Arrangers.

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 the Borrower that is not a Domestic Subsidiary.

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

Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to an L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations related to such L/C Issuer other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to a Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans made by such Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

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)

21


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 this Section 1.01.

Funded Participations” has the meaning assigned to such term in Section 2.16(c).

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 on the Closing Date; provided, however, that the Borrower shall be entitled to adopt and apply, at its sole election, changes in GAAP occurring after the Closing Date (provided that any adoption and application of such changes after the Closing Date shall be irrevocable).

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, any Local Authority 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, (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 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.

22


Guarantors” means a collective reference to (a) each of the Subsidiaries of the Borrower identified as “Guarantors” on the signature pages hereto, (b) each other Person that subsequently becomes a Guarantor by executing a Joinder Agreement as contemplated by Section 7.12 or otherwise, (c) with respect to (i) Obligations under any Secured Hedge Agreement, (ii) Obligations under any Treasury Management Agreement between any Loan Party and any Lender or Affiliate of a Lender and (iii) any Swap Obligation of a Specified Loan Party (determined before giving effect to Sections 4.01 and 4.08) under the Guaranty, the Borrower and (d) the successors and permitted assigns of the foregoing, and “Guarantor” means any one of the foregoing, in each case that has not become an Excluded Subsidiary.

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.

HCOM” means Hawaiian Telcom Holdco, Inc., a Delaware corporation.

HCOM Acquisition” means the Borrower’s Acquisition, directly or indirectly, of HCOM pursuant to the HCOM Merger Agreement.

HCOM Closing Date” means the date on which the HCOM Acquisition is consummated.

HCOM End Date” means the earliest of (a) the HCOM Facility Closing Date, (b) the HCOM Closing Date, (c) the termination of the HCOM Merger Agreement in accordance with the terms thereof without the closing of the HCOM Acquisition and (d) January 9, 2019.

HCOM Equity Consideration” means the Capital Stock of the Borrower to be provided as consideration for the HCOM Acquisition pursuant to the HCOM Merger Agreement.

HCOM Facility Closing Date” means, if any HCOM Incremental Term Facility is funded pursuant to Section 2.17(f), the date on which the proceeds thereof are released from escrow or otherwise available to be applied by the Borrower to consummate the HCOM Acquisition.

HCOM L/C Issuer” means Cobank, ACB, as an issuer of Existing Letters of Credit.

HCOM Incremental Amount” means $350,000,000.

HCOM Incremental Equivalent Indebtedness” has the meaning specified in Section 2.17(g).

HCOM Incremental Term Facility” has the meaning specified in Section 2.17(f).

HCOM Indebtedness Refinancing” means the repayment in full of all Indebtedness outstanding under, and the termination of all commitments, obligations, guarantees and security interests in respect of, the Existing HCOM Credit Agreement (other than contingent obligations not then due and payable that expressly survive repayment in full of the Indebtedness under the Existing HCOM Credit Agreement).

HCOM Merger Agreement” means that certain Agreement and Plan of Merger (together with the schedules and exhibits thereto) dated as of July 9, 2017, among the Borrower, Twin Acquisition Corp. and HCOM.

23


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

Immaterial Subsidiarymeans any Subsidiary in respect of which (a) the portion of Consolidated Total Assets (determined on a Pro Forma Basis as of the last day of the most recent fiscal quarter 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 on a Pro Forma Basis as of the last day of the most recent fiscal quarter of the Borrower with respect to which the Administrative Agent has received the Required Financial Information for the fiscal quarter ending on such date) attributable thereto (on an unconsolidated basis) for the four fiscal quarter period then ended is less than 5% of Consolidated EBITDA for such four fiscal quarter period; provided that if at the end of or for any fiscal quarter during the term of this Agreement, either (x) the portion of Consolidated Total Assets (determined on a Pro Forma Basis as of the last day of the most recent fiscal quarter of the Borrower with respect to which the Administrative Agent has received the Required Financial Information) attributable to all Immaterial Subsidiaries, taken as a whole (on an unconsolidated basis), shall have exceeded 10% of Consolidated Total Assets as of such date or (y) the portion of Consolidated EBITDA (determined on a Pro Forma Basis as of the last day of the most recent fiscal quarter of the Borrower with respect to which the Administrative Agent has received the Required Financial Information for the fiscal quarter ending on such date) attributable to all Immaterial Subsidiaries, taken as a whole (on an unconsolidated basis), for the four fiscal quarter period then ended shall have exceeded 10% of Consolidated EBITDA for such four fiscal quarter period, then the Borrower shall designate one or more Immaterial Subsidiaries in writing to the Administrative Agent to cease being Immaterial Subsidiaries until such excess has been eliminated (it being understood that no Subsidiary that is not a Wholly Owned Subsidiary or is otherwise an Excluded Subsidiary shall cease to be an Immaterial Subsidiary pursuant to this proviso).

Impacted Loans” has the meaning specified in Section 3.03.

Increase Effective Date” has the meaning specified in Section 2.16(b).

Incremental Acquisition Term Facility” means an Incremental Term Facility designated as an “Incremental Acquisition Term Facility” by the Borrower and the applicable Incremental Term Loan Lenders in the applicable Incremental Facility Agreement, the incurrence of loans under which is conditioned upon the consummation of, and the proceeds of which will be used to finance, one or more Permitted Acquisitions or Permitted Investments (including the refinancing of Indebtedness in connection therewith and the payment of related fees and expenses).

Incremental Effective Date” means has the meaning specified in Section 2.17(c).

Incremental Equivalent Indebtedness” has the meaning specified in Section 2.17(g).

Incremental Facility” means any Incremental Term Facility or any Revolving Commitment Increase.

Incremental Facility Agreement” means an Incremental Facility Agreement, in form and substance reasonably satisfactory to the Borrower and the Administrative Agent, among the Borrower, the Administrative Agent and one or more Lenders (or Persons that will become Lenders), establishing Incremental Term Commitments or Revolving Commitment Increases and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.16 or Section 2.17.

24


Incremental Limit” means, as of any date of determination, for the purpose of determining the availability to incur an Incremental Facility pursuant to Section 2.16 or Section 2.17 or Incremental Equivalent Indebtedness pursuant to Section 8.03(l)(i), an amount equal to the sum of (a) (i) $200,000,000, minus the sum of (A) the aggregate amount of Revolving Commitment Increases, (B) the aggregate amount of Incremental Term Commitments and (C) the aggregate amount of Incremental Equivalent Indebtedness, in each case established or incurred prior to such date in reliance on this clause (a)(i), plus (ii) in the case of any Incremental Facility or Incremental Equivalent Indebtedness incurred to finance a Permitted Acquisition or Permitted Investment, $150,000,000, minus the sum of (A) the aggregate amount of Revolving Commitment Increases, (B) the aggregate amount of Incremental Term Commitments and (C) the aggregate amount of Incremental Equivalent Indebtedness, in each case established or incurred prior to such date in reliance on this clause (a)(ii), plus (iii) in the case of any HCOM Incremental Term Facility or HCOM Incremental Equivalent Indebtedness, the HCOM Incremental Amount, minus the sum of (A) the aggregate amount of any HCOM Incremental Term Facility and (B) the aggregate amount of HCOM Incremental Equivalent Indebtedness, in each case established or incurred prior to such date in reliance on this clause (a)(iii); (b) such additional amounts as would not cause the Consolidated Secured Leverage Ratio to exceed 1.80 to 1.00 (or, if any HCOM Incremental Term Facility is established pursuant to Section 2.17(f) and the net cash proceeds thereof are or will be used to fund a portion of the HCOM Acquisition, 2.60 to 1.00),  calculated on a Pro Forma Basis after giving effect to any such incurrence (determined without giving effect to the cash proceeds from any such incurrence or any amount incurred simultaneously under clause (a) and assuming for purposes of such calculation that any Revolving Commitment Increase is fully drawn) and the application of proceeds therefrom (and after giving effect to any related Acquisition, Disposition, incurrence or retirement of Indebtedness or other appropriate pro forma event); provided, that it is understood and agreed that amounts under clause (b) may be used prior to using any amounts available under clause (a); and (c) all voluntary prepayments of the Tranche B Term Loans and any Incremental Term Facility originally incurred under clause (a) (in each case, to the extent not financed with long term Indebtedness) and all voluntary permanent commitment reductions of the Aggregate Revolving Commitments prior to the date of any such incurrence (it being understood that (A) the Borrower shall be deemed to have used amounts under clause (b), if available at the time of determination, prior to utilization of amounts under clause (a) or (c) and (B) Loans and Incremental Equivalent Indebtedness, as applicable, may be incurred under clause (b) and one or both of clauses (a) and (c), and proceeds from any such incurrence under such multiple clauses may be utilized in a single transaction by first calculating the incurrence under clause (b) and then calculating the incurrence under clause (a) and/or (c), as applicable, and, for the avoidance of doubt, any such incurrence under clause (a) or (c) shall not be given effect on a Pro Forma Basis for purposes of determining the Consolidated Secured Leverage Ratio for purposes of effectuating the incurrence under clause (b) in such single transaction).

Incremental Term Commitment” means, as to each Incremental Term Loan Lender in respect of an Incremental Term Facility, its obligation to make Incremental Term Loans to the Borrower pursuant to the applicable Incremental Facility Agreement and Section 2.01(c) or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be increased pursuant to Section 2.17 hereof or as such amount may be otherwise adjusted from time to time in accordance with this Agreement.

Incremental Term Facility” has the meaning specified in Section 2.17(a).

Incremental Term Facility Closing Date” means, in respect of any Incremental Term Facility, the date on which all of the conditions to funding of the Incremental Term Loans under such Incremental Term Facility are satisfied and the applicable Lenders advance the applicable Incremental Term Loans.

25


Incremental Term Loan” means an advance made by any Incremental Term Loan Lender under an Incremental Term Facility.

Incremental Term Loan Lender” means each Lender having an Incremental Term Loan or an Incremental Term Commitment.

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, (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”) 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 and (k) all Guarantees of such Person with respect to Indebtedness of another 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 (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

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.

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 (or, to the extent available to all the applicable Lenders, 12 months) thereafter (in each case, subject to the provisions of Section 3.03), as selected by the Borrower

26


in its Committed Loan Notice, or such other period that is less than 12 months requested by the Borrower and consented to by all the applicable 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, in the case of a Eurodollar Rate Loan with an Interest Period of one month or longer, 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 pertaining to a Eurodollar Rate Loan with an Interest Period of one month or longer 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 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 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 the Borrower or any Restricted Subsidiary.

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 Net Cash 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; provided that no Involuntary Disposition Prepayment Event shall be deemed to have occurred hereunder during any fiscal year until the aggregate Net Cash Proceeds received with respect to all Involuntary Dispositions occurring during such fiscal year exceeds $50,000,000 in the aggregate, and then only to the extent of such excess.

IRS” means the United States Internal Revenue Service.

27


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 Pole Dispute” means any dispute between the Borrower or any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary) and any Joint Pole Owner regarding reimbursement of such Joint Pole Owner for a portion of the costs incurred by such Joint Pole Owner to remove, install and/or replace any Joint Poles since January 1, 2012.

Joint Pole Owner” means any Person that jointly owns any Joint Poles with the Borrower or any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary), including any telephone, cable, electric or other utility company or any local municipality, county, state or other Governmental Authority.

Joint Poles” means utility poles that are jointly owned by the Borrower or any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary) and any Joint Pole Owner.

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 of which the Borrower or any Restricted Subsidiary 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 of the Borrower or any Restricted Subsidiary holding no more than 90% and no less than 10% of the Capital Stock of such Person.

Latest Maturity Date” means the latest of the Maturity Date for the Aggregate Revolving Commitments, the Maturity Date for the Tranche B Term Loans and the Maturity Date for any Incremental Term Facility applicable to existing Incremental Term Loans, as of any date of determination.

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.

L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed 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.

28


L/C Issuer” means Morgan Stanley in its capacity as an issuer of Letters of Credit hereunder, each Discretionary L/C Issuer, and any successor to Morgan Stanley or any Discretionary L/C Issuer that becomes an issuer of Letters of Credit hereunder, and after the HCOM Closing Date, the HCOM L/C Issuer with respect to any Existing Letters of Credit issued by it.

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.

LCT Election” has the meaning specified in Section 1.02(d).

LCT Test Date” means the date specified in the applicable LCT Election; provided that (a) with respect to any redemption, repurchase, defeasance, satisfaction and discharge or prepayment of Indebtedness, such date shall be the date of the irrevocable notice of such redemption, repurchase, defeasance, satisfaction and discharge or prepayment and (b) with respect to any other Limited Condition Transaction, such date shall be the date of the definitive agreements for such Limited Condition Transaction.

Lender Cash Collateral” means Cash Collateral provided by a Defaulting Lender to secure such Lender’s obligations to fund its participation in respect of L/C Obligations or Obligations in respect of Swingline Loans.

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 Incremental Facility Agreement pursuant to Section 2.16 or Section 2.17, 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 each 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(h).

Letter of Credit Expiration Date” means the day that is five Business Days prior to the Latest Maturity Date with respect to the Aggregate Revolving Commitments then in effect (or, if such day is not a Business Day, the next preceding Business Day).

29


Letter of Credit Sublimit” means an amount equal to $30,000,000.  The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

LIBOR” has the meaning specified in the definition of Eurodollar Rate.

License” means any cable television franchise or any wireline telephone, cellular telephone, microwave, personal communications, commercial mobile radio service, broadband, undersea cable or other telecommunications or similar license, authorization, registration, certificate, waiver, certificate of compliance, franchise (including cable television and telecommunications franchise), approval, right of way, material filing, exemption, order, or permit, whether for the acquisition, construction or operation of any Communications System, including the lease of any spectrum (and attendant rights and obligations), or to otherwise provide the services related to any Communications System, granted or issued by the FCC or any applicable State PUC or Local Authority or other Governmental Authority.

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).

Limited Condition Transaction” means any (a) Investment or Acquisition (whether by merger, amalgamation, consolidation or other business combination or the Acquisition of Capital Stock or otherwise) that the Borrower or any Restricted Subsidiary is contractually committed to consummate (it being understood such commitment may be subject to conditions precedent, which conditions precedent may be amended, satisfied or waived in accordance with the terms of the applicable agreement) and the consummation of which is not conditioned on the availability of, or on obtaining, third party financing or (b) redemption, repurchase, defeasance, satisfaction and discharge or prepayment of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or prepayment.

Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan, a Revolving Loan or a Swingline Loan, as the context may require.

Loan Documents” means this Agreement, each Note, each Letter of Credit, each Joinder Agreement, each Incremental Facility Agreement, the Collateral Documents, the Fee Letter and any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14 of this Agreement.

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

Local Authority” means any local Governmental Authority having utility or communications regulatory authority over the Borrower or any of its Subsidiaries, or any applicable successor agency.

London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

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 the Restricted Subsidiaries, taken as a whole, (b) a material adverse

30


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, Swingline Loans and Letters of Credit (and related L/C Obligations), the day that is the fifth anniversary of the Closing Date, (b) as to the Tranche B Term Loans, the day that is the seventh anniversary of the Closing Date; provided that, if more than $50,000,000 in aggregate principal amount of the 2016 Senior Notes (or any permitted refinancing thereof that does not extend the maturity thereof past the seventh anniversary of the Closing Date) remains outstanding on April 15, 2024, the Maturity Date of the Tranche B Term Loans shall be April 15, 2024, and (c) with respect to any Incremental Term Facility, the final maturity specified in the applicable Incremental Facility Agreement; provided that, if the maturity of all or a portion of a Facility is extended pursuant to Section 2.18, the Maturity Date with respect thereto shall be such extended maturity date as determined pursuant to such Section.

Maximum Joint Pole Dispute Amount” means an amount equal to (a) $7,000,000 multiplied by (b) the number of years in controversy, pro rated for partial years.

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

Morgan Stanley” means Morgan Stanley Senior Funding, Inc. and its successors.

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.

Multiple Employer Plan” means a Pension Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

Net Cash Proceeds” means (a) with respect to any Disposition or Involuntary Disposition, the aggregate cash proceeds or Cash Equivalents received by the Borrower or any Restricted Subsidiary in respect of such Disposition or Involuntary Disposition, net of (i) direct costs incurred in connection therewith (including legal, accounting and investment banking fees, and sales commissions), (ii) Taxes paid or reasonably estimated to be payable as a result thereof and (iii) 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 any cash or Cash Equivalents actually received upon the sale or other disposition of any non-cash consideration received by any such Borrower or Restricted Subsidiary in any Disposition or Involuntary Disposition) and (b) with respect to the incurrence or issuance of any Indebtedness by the Borrower or any Restricted Subsidiary, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such transaction over (ii) the underwriting discounts and commissions, taxes and fees (including investment banking fees, attorneys’ fees and accountants’ fees) and other reasonable and customary out-of-pocket expenses, incurred by the Borrower or such Restricted Subsidiary in connection therewith.

Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).

31


Non-Pledged Subsidiaries” means, subject to Section 7.12, (a) each Unrestricted Subsidiary, (b) each Subsidiary of an Excluded Subsidiary, (c) Cincinnati Bell Funding LLC, each Receivables Financing SPC and any other similar special purpose entity created in connection with a Permitted Receivables Financing, (d) each Subsidiary that is, or is 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 (e) each other Subsidiary existing as of the Closing Date or created or acquired after the Closing Date in respect of which (i) the Borrower shall have advised the Administrative Agent that it could or would be a violation of applicable Law for the Capital Stock of such Subsidiary to be or to remain pledged (including under any applicable Law relating to utility or telecommunications businesses that prohibits, restricts or requires the consent or approval of any Governmental Authority for the pledging of such Capital Stock), (ii) the Borrower shall have advised the Administrative Agent that it has not been able obtain any required consent or approval of any Governmental Authority required for the Capital Stock of such Subsidiary to be or to remain pledged or confirmation that such Capital Stock may be or remain pledged (including under any applicable Law relating to utility or telecommunications businesses that prohibits, restricts or requires the consent or approval of any Governmental Authority for the pledging of such Capital Stock) or (iii) the Borrower shall have determined, in consultation with the Administrative Agent, that the contractual, operational, expense, tax or regulatory consequences or difficulty of the Capital Stock of such Subsidiary being or remaining pledged would not, in light of the benefits to accrue to the Lenders, justify such Capital Stock being or remaining pledged, and “Non‑Pledged Subsidiary” means any one of them.

Non-Shared Collateral Security and Pledge 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 a collective reference to all advances to, and debts, liabilities, obligations, covenants and duties of, the Loan Parties (or any Loan Party, as the context may require) 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; provided, however, that the “Obligations” of a Loan Party shall exclude any Excluded Swap Obligation with respect to such Loan Party.

OECD” means the Organisation for Economic Co-operation and Development and its successors.

Officer’s Certificate” means a certificate signed on behalf of the Borrower by a Responsible Officer of the Borrower.

OnX” means OnX Holdings LLC, a Delaware limited liability company.

OnX Acquisition” means the Borrower’s Acquisition, directly or indirectly, of OnX pursuant to the OnX Merger Agreement.

OnX Consideration” means the cash consideration to be paid pursuant to the OnX Merger Agreement.

32


OnX Merger Agreement” means that certain Agreement and Plan of Merger (together with the schedules and exhibits thereto) dated as of July 9, 2017, among the Borrower, Yankee Acquisition LLC, MLN Holder Rep LLC, solely in its capacity as representative, and OnX.

OnX Specified Representations” means such of the representations and warranties made by OnX with respect to OnX in the OnX Merger Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower (or an Affiliate of the Borrower) has the right to terminate its (or its Affiliates’) obligations under the OnX Merger Agreement or decline to consummate the OnX Acquisition as a result of a breach of such representations and warranties in the OnX Merger Agreement.

Open Market Purchase” has the meaning specified in Section 11.06(i).

Operating Lease” means, as applied to any Person, any lease (including 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.

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 Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

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 and the Senior Notes in all respects, (b) has a term extending to at least 91 days after Latest Maturity Date in effect on the date of the issuance thereof (or, if such Capital Stock was issued on or prior to the Closing Date, in effect on the Closing Date) and is not mandatorily redeemable or putable prior to such date (other than pursuant to a “change of control”) 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, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).

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

33


such date; and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent 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).

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

Pass-Through Foreign Holdco” means any Domestic Subsidiary that has no material assets other than Capital Stock in one or more CFCs or Pass-Through Foreign Holdcos.

Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub.  L. 107-56, signed into law October 26, 2001.

PBGC” means the United States Pension Benefit Guaranty Corporation.

Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

Permitted Acquisition” means (a) any Acquisition by the Borrower or any Restricted Subsidiary permitted pursuant to the terms of Section 8.02(h) and (b) the HCOM Acquisition.

Permitted Escrow Debt” means HCOM Incremental Equivalent Indebtedness or an HCOM Incremental Term Facility that is issued or borrowed, by a Designated HCOM Subsidiary and (a) as to which neither the Borrower nor any Restricted Subsidiary is directly or indirectly liable as a guarantor or otherwise, or constitutes the lender, and (b) the proceeds of which shall be escrowed to finance the  HCOM Indebtedness Refinancing, the consummation of the HCOM Acquisition and the payment of the fees and expenses and premium, if any, incurred in connection with the foregoing.

Permitted Escrow Debt Proceeds” means the proceeds of any Permitted Escrow Debt, plus an amount sufficient to pay fees, accrued interest, related expenses and premium, if any, in respect of such Permitted Escrow Debt from the issuance thereof to the termination date of such escrow and the applicable escrow account, plus any other amounts required to be deposited in the applicable escrow account pursuant to the terms of the applicable escrow agreement.

Permitted Intercreditor Agreement” means, with respect to any Indebtedness secured on a pari passu basis with, or a junior basis to, the Obligations, an intercreditor agreement, in form and substance reasonably satisfactory to the Borrower and the Administrative Agent, that contains customary terms and conditions (as determined jointly by the Borrower and the Administrative Agent, in their reasonable discretion) for similar intercreditor agreements between holders of senior secured credit facilities and holders of the same type of Indebtedness as such Indebtedness.

Permitted Investments” means, at any time, Investments by the Borrower or any Restricted Subsidiary 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 Borrower or any Restricted Subsidiary permitted to exist at such time pursuant to the terms of Section 8.01.

34


Permitted Preferred Stock” means the 6¾% 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 Restricted Subsidiary or Unrestricted 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.

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

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 Loans as set forth in Section 2.07(c).

Pro Forma Basis” means, in connection with the calculation as of the applicable Calculation Date of the financial covenants set forth in Sections 8.11(a) and (b) or any calculation of the Consolidated Secured Leverage Ratio, the Consolidated Total Leverage Ratio or Consolidated Total Assets for any other purpose under this Agreement (including for purposes of the definition of “Applicable Rate” in this Section 1.01) 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 the Borrower or any Restricted Subsidiary (including any Person which became a Restricted 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

35


the applicable Calculation Date (taking into account any Swap Contract applicable to such Indebtedness if such Swap Contract has a remaining term in excess of 12 months)); and

(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 the Borrower or any Restricted Subsidiary (including any Person which became a Restricted 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.

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.

Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Real Properties” means, at any time, a collective reference to each of the facilities and real Properties owned, leased or operated by the Borrower or any Restricted Subsidiary 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) that acts as the investor or lender with respect to a Permitted Receivables Financing.

Receivables Financing SPC” means, in respect of any Permitted Receivables Financing, any Subsidiary or Affiliate of the Borrower to which the Borrower or any Restricted Subsidiary sells, contributes or otherwise conveys any Transferred Assets in connection with such Permitted Receivables Financing.

Recipient” means 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 any Loan Party hereunder.

Refinancing Commitments” means the Refinancing Revolving Commitments and/or Refinancing Term Loan Commitments, as the context may require.

Refinancing Facility Agreement” means a Refinancing Facility Agreement, in form and substance reasonably satisfactory to the Borrower and the Administrative Agent, among the Borrower, the Administrative Agent and one or more Refinancing Revolving Lenders or Refinancing Term Lenders, establishing Refinancing Revolving Commitments or Refinancing Term Loan Commitments and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.19.

Refinancing Indebtedness” means, in respect of any Indebtedness (the “Original Indebtedness”), any Indebtedness that extends, renews, refinances or replaces such Original Indebtedness; provided that (a) the aggregate principal amount of such Refinancing Indebtedness shall not exceed the principal amount of such Original Indebtedness except by an amount not greater than accrued and unpaid interest on such Original Indebtedness, any original issue discount applicable to such Refinancing Indebtedness and any fees, premiums and expenses relating to such extension, renewal or refinancing; (b) the stated

36


final maturity of such Refinancing Indebtedness shall not be earlier than that of such Original Indebtedness; (c) the Weighted Average Life to Maturity of such Refinancing Indebtedness shall not be shorter than the remaining Weighted Average Life to Maturity of such Original Indebtedness; (d) such Refinancing Indebtedness shall not constitute an obligation (including any Guarantee) of any Subsidiary that shall not have been (or, in the case of after-acquired Subsidiaries, shall not have been required to become) an obligor in respect of such Original Indebtedness; (e) if such Original Indebtedness shall have been subordinated to the Obligations, such Refinancing Indebtedness shall also be subordinated to the Obligations on terms not less favorable in any material respect to the Lenders; (f) if such Original Indebtedness was unsecured, such Refinancing Indebtedness shall be unsecured; (g) if such Original Indebtedness was secured, such Refinancing Indebtedness shall not be secured by any Lien on any asset other than the assets that secured such Original Indebtedness or, to the extent such assets would have been required to secure such Original Indebtedness pursuant to the terms thereof, that are proceeds and products of, or after-acquired property that is affixed or incorporated into, the assets that secured such Original Indebtedness; and (h) if such Original Indebtedness was secured by the Collateral (i) on a pari passu basis with the Obligations, such Refinancing Indebtedness, if secured by the Collateral, shall be secured on a pari passu basis with or on a junior basis to the Obligations or (ii) on a junior basis to the Obligations, such Refinancing Indebtedness, if secured by the Collateral, shall be secured on a junior basis to the Obligations, and, in each case, the secured parties thereunder, or a trustee or collateral agent on their behalf, shall have become a party to a Permitted Intercreditor Agreement with the Administrative Agent and/or the Collateral Agent (and the Administrative Agent and the Collateral Agent hereby agree to execute and deliver, on behalf of the Lenders and the other holders of the Obligations, such Permitted Intercreditor Agreement).

Refinancing Lender” means a Refinancing Revolving Lender and/or a Refinancing Term Lender, as the context may require.

Refinancing Loans” means Refinancing Revolving Loans and/or a Refinancing Term Loans, as the context may require.

Refinancing Revolving Commitments” has the meaning specified in Section 2.19(a).

Refinancing Revolving Lender” has the meaning specified in Section 2.19(a).

Refinancing Revolving Loans” has the meaning specified in Section 2.19(a).

Refinancing Term Lender” has the meaning specified in Section 2.19(a).

Refinancing Term Loan Commitments” has the meaning specified in Section 2.19(a).

Refinancing Term Loans” has the meaning specified in Section 2.19(a).

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

Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives 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.

37


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.

Repricing Transaction” means (a) any prepayment, repayment or refinancing of the Tranche B Term Loans with the proceeds of any long-term bank debt financing or any other financing similar to such Indebtedness (including by way of conversion by a Lender of its Tranche B Term Loans into new term loans) incurred, for the primary purpose of reducing interest costs, by the Borrower or any Restricted Subsidiary from a substantially concurrent issuance or incurrence of such Indebtedness for which the Effective Yield for the respective Type of such Indebtedness payable thereon on the date of such voluntary prepayment is lower than the Effective Yield on such date for the Tranche B Term Loans of the respective equivalent Type, (b) any amendment or other modification to this Agreement that reduces the Effective Yield in respect of the Tranche B Term Loans or (c) any prepayment made to a Lender as the result of a mandatory assignment of all or a portion of its Tranche B Term Loans pursuant to Section 11.13 following such Lender’s failure to consent to an amendment to this Agreement described in clause (b) of this definition.  Notwithstanding the foregoing, it is understood and agreed that any such transaction (i) in connection with a Change of Control or (ii) in connection with the refinancing or replacement of any Tranche B Term Loans in connection with the financing of a Permitted Acquisition with an aggregate purchase price to be paid by the Borrower or any Restricted Subsidiary in excess of $100,000,000 shall not be a “Repricing Transaction”.

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 Compliance Certificate of a Responsible Officer of the Borrower required by Section 7.02(a) 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)); provided that whenever there are one or more Defaulting Lenders, the unfunded Commitments (and participations therein) and the outstanding Loans, L/C Obligations and participations therein of each such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modifications pursuant to Section 11.01 (subject in each case to Section 11.01(c))).

Required Revolving Lenders” means, at any time, Lenders holding in the aggregate more than 50% of (a) the unfunded Revolving Commitments (and participations therein) and the outstanding Revolving Loans, L/C Obligations and participations therein or (b) if the Revolving Commitments have been terminated, the outstanding Revolving Loans, L/C Obligations and participations therein (subject in each case to Section 11.01(c)); provided that whenever there are one or more Defaulting Lenders, the unfunded Revolving Commitments (and participations therein) and the outstanding Revolving Loans, L/C Obligations and participations therein of each such Defaulting Lender shall not be included in determining whether the Required Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modifications pursuant to Section 11.01 (subject in each case to Section 11.01(c))).

38


Required Tranche B Term Lenders” means, at any time, Lenders holding in the aggregate more than 50% of the outstanding Tranche B Term Loans (subject in each case to Section 11.01(c)); provided that whenever there are one or more Defaulting Lenders, the Tranche B Term Loans of each such Defaulting Lender shall not be included in determining whether the Required Tranche B Term Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modifications pursuant to Section 11.01 (subject in each case to Section 11.01(c))).

Responsible Officer” means the chief executive officer, president, chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller 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 any payment in connection with any dissolution, merger, consolidation or disposition involving the Borrower or any Restricted Subsidiary), 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 (other than Disqualified Stock).  Notwithstanding anything to the contrary herein, payment of the HCOM Equity Consideration shall not constitute a “Restricted Payment”.

Restricted Subsidiary” means any Subsidiary of the Borrower other than an Unrestricted Subsidiary.

Resulting Revolving Borrowings” has the meaning specified in Section 2.16(c).

Revaluation Date” means, with respect to any Letter of Credit, each of the following:  (i) each date of issuance of a Letter of Credit, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by an L/C Issuer under any Letter of Credit denominated in an Alternative Currency and (iv) such additional dates as the Administrative Agent or any L/C Issuer shall determine or the Required Revolving Lenders shall require.

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 Schedule 2.01 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, including as a result of a Revolving Commitment Increase pursuant to Section 2.16(a).

Revolving Commitment Increase” means has the meaning specified in Section 2.16(a).

39


Revolving Lender” means a Lender (including any Additional Revolving 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(a).

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

S&P” means Standard & Poor’s Financial Services LLC and any successor thereto.

Sale and Leaseback Transaction” means any arrangement pursuant to which the Borrower or any Restricted Subsidiary, directly or indirectly, becomes liable as lessee, guarantor or other surety with respect to any lease, whether an Operating Lease, a Capital Lease or a lease otherwise accounted for as Indebtedness, of any Property (a) which such Borrower or Restricted Subsidiary, as applicable, has sold or transferred (or is to sell or transfer) to a Person which is not the Borrower or a Restricted Subsidiary and (b) which the Borrower or such Restricted Subsidiary, as applicable, 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 the Borrower or such Restricted Subsidiary to another Person which is not the Borrower or a Restricted Subsidiary.

Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).

Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) any Person organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clause (a) or (b).

Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State.

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 the Borrower or any Restricted Subsidiary 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.

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

Senior Notes” means a collective reference to the 1993 Senior Notes and the 2016 Senior Notes.

Shared Collateral Security and Pledge Agreements” means, collectively, the CBI Shared Collateral Security and Pledge Agreement and the CBT Shared Collateral Security and Pledge Agreement.

40


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 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.

Solvency Certificate” has the meaning specified in Section 5.01(e).

Specified Loan Party” has the meaning specified in Section 4.08.

Specified Notes” means the CBT 1998 Notes and the 1993 Senior Notes in each case outstanding on the Closing Date.

Specified Representations” means the representations and warranties made in Sections 6.01(a) and 6.01(b), Sections 6.02(a) and 6.02(b)(i), Section 6.04, Section 6.14, Section 6.18, Section 6.20 and Section 6.21.

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

Spot Rate” for a currency means the rate determined by the Administrative Agent or an L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or an L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or such L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that any L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.

State PUC” means any state Governmental Authority having utility or communications regulatory authority over the Borrower or any of its Subsidiaries, or any applicable successor agency.

Sterling” and “£” mean the lawful currency of the United Kingdom.

Subordinated Indebtedness” means any Indebtedness of any of the Loan Parties having an aggregate principal amount in excess of the Threshold Amount that by its terms is subordinated in right of payment to the Obligations.

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

41


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 (but shall not include any Designated Wireless Subsidiary).  Notwithstanding anything to the contrary set forth herein, (i) “Subsidiary” shall not include any employee benefit plan or any trust related to such plan, (ii) no Unrestricted Subsidiary or Designated Wireless Subsidiary shall constitute a “Subsidiary” of the Borrower for any purpose under this Agreement or shall be subject to any of representations and warranties, affirmative or negative covenants or Event of Default provisions of this Agreement and (iii) the assets, results of operations and Indebtedness of each Unrestricted Subsidiary and each Designated Wireless Subsidiary will not be taken into account for the purposes of determining compliance with the financial covenants set forth in Section 8.11 (it being understood that the designation and capitalization of an Unrestricted Subsidiary or a Designated Wireless Subsidiary will be treated as a Specified Transaction as contemplated by the definition of “Pro Forma Basis” set forth in this Section 1.01).

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 Obligations” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

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 Lenders pursuant to Section 2.04.

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

Swingline Lender” means each of Morgan Stanley and PNC, each in its capacity as a provider of Swingline Loans, and 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.

42


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.

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

“Term Commitment” means any Tranche B Term Loan Commitment or Incremental Term Commitment, as applicable.

Term Lender” means, at any time, any Lender that has a Term Commitment or Term Loan, as applicable, at such time.

Term Loan” means any Tranche B Term Loan, any Incremental Term Loan and/or any Extended Term Loans, as applicable.

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 Amortization Start Date” means the end of the first full fiscal quarter of the Borrower following the first to occur of (a) the HCOM Closing Date and (b) the latest of (i) the date on which the Borrower’s ability to draw any HCOM Incremental Term Facility shall have been reduced to zero and (ii) if any HCOM Incremental Term Facility is established, the HCOM Facility Closing Date.

Tranche B Term Lender” means (a) at any time on or prior to the Closing Date, any Lender that has a Tranche B Term Loan Commitment at such time and (b) at any time after the Closing Date, any Lender that holds Tranche B Term Loans at such time.

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 Loans to the Borrower on the Closing Date pursuant to Section 2.01(b) in the principal amount set forth opposite such Lender’s name on Schedule 2.01, as such amount may be adjusted from time to time in accordance with this Agreement.  The aggregate principal amount of the Tranche B Term Loan Commitments of all of the Lenders as in effect on the Closing Date is $600,000,000.

Tranche B Term Notehas the meaning specified in Section 2.11(a).

Transactions” means (a) the Closing Date Transactions, (b) the HCOM Indebtedness Refinancing, (c) the consummation of the HCOM Acquisition and (d) the payment of fees and expenses in connection with the consummation of the foregoing.

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

43


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.

Transitional Wireless Assets” means, in connection with any Wireless Disposition (before or after the Closing Date) that involves sales or transfers to a purchaser to be effected in more than one step, wireless towers, tower leases, customer relationships and other Property of Wireless LLC or any other Designated Wireless Subsidiary that remain directly owned (including by Wireless LLC or such other Designated Wireless Subsidiary) by the Borrower for a period of time after the consummation of such Wireless Disposition.

Treasury Management Agreement” means any agreement of the Borrower or any Restricted Subsidiary 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, purchasing cards, account reconciliation and reporting and trade finance services.

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

UCC” means the Uniform Commercial Code as in effect from time to time.  Unless otherwise specified, the UCC shall refer to the UCC as in effect in the State of New York.

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

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

Unrestricted Cash” means as of any date of determination, the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and the Restricted Subsidiaries on a consolidated basis as of such date; provided that the aggregate amount of such cash and Cash Equivalents of Foreign Subsidiaries shall be determined by the Borrower in good faith after giving effect to any taxes payable in connection with distributing such cash or Cash Equivalents to the Borrower or any other Loan Party (whether by dividend or repayment of loans or accounts receivable or otherwise).

Unrestricted Subsidiary” means (i) on the Closing Date, Cincinnati Bell Funding LLC and each of its Subsidiaries, (ii) any Subsidiary of the Borrower designated as an Unrestricted Subsidiary pursuant to Section 7.15 subsequent to the date hereof, (iii) any Subsidiary of an Unrestricted Subsidiary and (iv) any Designated HCOM Subsidiary.

U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).

Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that shall elapse between such date and the making of such payment, by (b) the then outstanding principal amount of such Indebtedness.

44


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 any Disposition (whether before or after the Closing Date) of all or any portion of the Capital Stock of Wireless LLC or any other Designated Wireless Subsidiary held by the Borrower or any Restricted Subsidiary and/or all or any portion of the Property of Wireless LLC or any other Designated Wireless Subsidiary.

Wireless Leases” means the existing leases by Cincinnati Bell Wireless, LLC or any other Designated Wireless Subsidiary with respect to 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).

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

Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

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 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, (v) any reference to any law shall include all statutory and regulatory rules, regulations, orders and 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 and (vi) any references to “the date hereof”, “the date of this Agreement” and references of similar import shall be deemed to refer to the Closing Date.

(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.”

45


(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.

(d)                Notwithstanding anything in this Agreement or any Loan Document to the contrary, when determining (i) compliance on a Pro Forma Basis with the financial covenants set forth in Section 8.11, the Consolidated Secured Leverage Ratio, the Consolidated Total Leverage Ratio, the Consolidated Interest Coverage Ratio or a percentage of Consolidated Total Assets, (ii) the amount or availability of the Available Amount Basket or any other basket based on any financial ratio or metric, (iii) whether a Default or Event of Default has occurred and is continuing or (iv) the accuracy of any representation or warranty, in each case in connection with a Limited Condition Transaction, the date of determination shall, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), be the LCT Test Date, after giving effect on a Pro Forma Basis to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including the incurrence of Indebtedness or Liens and the use of proceeds thereof) as if they had occurred at the beginning of the most recently ended period of four fiscal quarters of the Borrower ending prior to the LCT Test Date for which the Administrative Agent shall have received the Required Financial Information (or, with respect to any determination of any financial ratio or metric for any Person and its Subsidiaries to be acquired in such Limited Condition Transaction, the specified applicable period therefor).  For the avoidance of doubt, if the Borrower has exercised such option and any of such ratios, metrics or amounts for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, metric or amount, including due to fluctuations in Consolidated EBITDA, at or prior to the consummation of the Limited Condition Transaction, such ratio, metric or amount will be deemed not to have been exceeded as a result of such fluctuations solely for purposes of determining whether such provision has been satisfied in connection with such Limited Condition Transaction.  If the Borrower makes such LCT Election in connection with any Limited Condition Transaction, then (A) in connection with any subsequent calculation of any ratio, metric or amount (but, for the avoidance of doubt, not for purposes of determining whether the Borrower has actually complied with Section 8.11 itself) on or following the relevant LCT Test Date and prior to the earlier of (x) the date on which such Limited Condition Transaction is consummated and (y) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio, metric or amount shall be calculated on a Pro Forma Basis assuming that such Limited Condition Transaction and any other transactions in connection therewith (including any incurrence of Indebtedness or Liens and the use of proceeds thereof) have been consummated and (B) such ratio, metric or amount availability shall not be tested at the time of consummation of such Limited Condition Transaction.

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). Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any change in accounting for leases pursuant to GAAP resulting from the implementation of Financial Accounting Standards Board ASU No. 2016-02, Leases (Topic 842), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015.

46


(b)                Changes in GAAP.  The Borrower shall be entitled to adopt and apply, at its sole election, changes in GAAP occurring after the Closing Date; provided that any adoption and application of such changes after the Closing Date shall be irrevocable.

(c)                Pro Forma 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 and all calculations of the Consolidated Secured Leverage Ratio, the Consolidated Total Leverage Ratio and Consolidated Total Assets for any other purpose under this Agreement (including for purposes of the definitions of “Applicable Rate” and “Pro Forma Basis” set forth in Section 1.01), (i) after consummation of any Disposition by the Borrower or any Restricted Subsidiary of any Restricted Subsidiary or any business unit, division, product line or line of business (other than any Disposition for consideration in an aggregate amount for such Disposition not to exceed $50,000,000), income statement items (whether positive or negative) and capital expenditures attributable to the Property disposed of shall be excluded for the applicable period, (ii) after consummation of any Acquisition by the Borrower or any Restricted Subsidiary of any Restricted Subsidiary or any business unit, division, product line or line of business (other than any Acquisition for consideration in an aggregate amount for such Acquisition not to exceed $50,000,000), income statement items (whether positive or negative) and capital expenditures attributable to the Person or Property acquired shall, to the extent not otherwise included in such income statement items for the Borrower or any Restricted Subsidiary in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01, be included for the applicable period and (iii) pro forma adjustments may be included for the applicable period 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 Borrower or any Restricted Subsidiary 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; Rates.

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

(b)               The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration of, submission of quotes relating to or forming the basis of, or other determination of LIBOR (or any comparable or successor rate thereto) reflected on the applicable Reuters screen page or published by any other commercially available source, as contemplated by the definition of “Eurodollar Rate”.

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 Dollar Equivalent of 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 Dollar Equivalent of the maximum stated amount of such

47


Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

1.07            Additional Alternative Currencies.

The Borrower may from time to time request that Letters of Credit be issued by an L/C Issuer in a currency other than those specifically listed in the definition of “Alternative Currency;” provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars.  Such request shall be subject to the approval of the Administrative Agent and the applicable L/C Issuer. If the Administrative Agent and the applicable L/C Issuer consent to the issuance of Letters of Credit in such requested currency, such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of Letter of Credit issuances with respect to such L/C Issuer.

1.08             Exchange Rates; Currency Equivalents.

(a)                The Administrative Agent or an L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Alternative Currencies.  Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur.  Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or such L/C Issuer, as applicable.

(b)               Wherever in this Agreement in connection the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be.
 
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS

2.01             The Loans.

(a)                Revolving Loans.  Subject to the terms and conditions set forth herein, each Revolving Lender 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

48


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

(c)                Incremental Term Loans. Subject to the terms and conditions set forth herein, each Incremental Term Loan Lender having an Incremental Term Commitment under the relevant Incremental Term Facility severally agrees to make Incremental Term Loans pursuant to such Incremental Term Facility in an amount equal to its Incremental Term Commitment under such Incremental Term Facility to the Borrower on the applicable Incremental Term Facility Closing Date.  The applicable Borrowing shall consist of Incremental Term Loans made simultaneously by the applicable Incremental Term Loan Lenders in accordance with their respective Incremental Term Commitments under such Incremental Term Facility.  Amounts borrowed under this Section 2.01(c) and repaid or prepaid may not be reborrowed.  Incremental Term Loans may be 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 a 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.  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 $1,000,000 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 shall specify (1) 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, (2) the requested date (which shall be a Business Day) of the Borrowing, conversion or continuation, as the case may be, (3) the principal amount of Committed Loans to be borrowed, converted or continued, (4) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted and (5) 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 or anything to the contrary herein, all Borrowings made on the Closing Date shall be made as Base Rate Loans unless no later than one Business Day (or such shorter period as

49


may be acceptable to the Administrative Agent) prior to the Closing Date the Borrower shall have delivered to the Administrative Agent (A) a Committed Loan Notice requesting that the Lenders make the Tranche B Term Loans, and if applicable, Revolving Loans, as Eurodollar Rate Loans on the Closing Date and (B) a letter in form and substance reasonably acceptable to the Administrative Agent indemnifying the Lenders for losses, costs and expenses of the type identified in Section 3.05 of this Agreement as a result of such Borrowing failing to occur on the date specified in such Committed Loan Notice.

(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 5.01 and/or Section 5.02, as applicable, 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 the Administrative Agent 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.

(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.  If an Event of Default under Section 9.01(a) or 9.01(g) or, at the request of the Required Lenders (or the Required Revolving Lenders or the Required Tranche B Term Lenders, as applicable), any other Event of Default shall have occurred and be continuing, no Loans (of the applicable Class, in the case of a request by the Required Revolving Lenders or the Required Tranche B Term Lenders) may be converted to or continued as Eurodollar Rate Loans.

(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 the 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 12 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 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

50


Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower or its Restricted 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 Restricted 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 Letter of Credit under the Existing Credit Agreement 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 the HCOM Closing Date, if the HCOM L/C Issuer has issued Existing Letters of Credit under the Existing HCOM Credit Agreement, then the HCOM L/C Issuer 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 the HCOM L/C Issuer a participation in such Letter of Credit in accordance with paragraph (b)(ii) below. On and after the Closing Date or the HCOM Closing Date, as applicable, each Existing Letter of Credit under the Existing Credit Agreement and each Existing Letter of Credit under the Existing HCOM Credit Agreement, respectively, 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 12 months after the date of issuance or last extension, unless the Required Revolving 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 Revolving 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 such 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

51


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 letters of credit generally;
 
   (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)            except as otherwise agreed by the Administrative Agent and the applicable L/C Issuer, the Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
 
   (E)             the applicable L/C Issuer does not, as of the issuance date of the requested Letter of Credit, issue Letters of Credit in the requested currency;
 
   (F)             such Letter of Credit contains any provision for automatic reinstatement of the stated amount after any drawing thereunder; or
 
   (G)            any Lender is at that time a Defaulting Lender, unless (1) the Borrower has delivered Cash Collateral to the Administrative Agent in accordance with Section 2.14 or (2) the applicable L/C Issuer has entered into an alternative arrangement satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.

(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 may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the applicable L/C Issuer, by personal delivery or by any other means acceptable to the applicable L/C Issuer.  Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance

52


date or date of amendment, as the case may be.  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 and currency 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) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder, (G) the purpose and nature of the requested Letter of Credit and (H) such other matters as the applicable L/C Issuer may reasonably require.  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, (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 and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or the Administrative Agent may reasonably require.

(ii)           Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, 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, the Required Revolving Lenders or any Loan Party 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, then, subject to the terms and conditions hereof, the applicable L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Restricted 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, each Revolving Lender 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 12 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 12 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 (as extended) 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 Business Days before the Non‑Extension Notice Date (1) from the Administrative Agent that the Required Revolving Lenders have elected not to permit such extension or (2) from the Administrative Agent, the Required Revolving Lenders or the Borrower that one or more of the applicable conditions specified in Section 5.02 is not then satisfied, and in each such case directing the applicable L/C Issuer not to permit such extension.

53


(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.

(v)          Any Revolving Lender (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 become an L/C Issuer hereunder and 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 the rights, obligations and benefits set forth in Sections 2.14, 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 Revolving Lenders 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 applicable L/C Issuer is to make payment under the applicable Letter of Credit (such payment date, the “Honor Date”). In the case of a Letter of Credit denominated in an Alternative Currency, the Borrower shall reimburse the applicable L/C Issuer in such Alternative Currency, unless (A) such L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars or (B) with the consent of such L/C Issuer and in the absence of any such requirement for reimbursement in Dollars, the Borrower shall have notified such L/C Issuer promptly following receipt of the notice of drawing that the Borrower will reimburse such L/C Issuer in Dollars.  In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, the applicable L/C Issuer shall notify the Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. The Borrower shall reimburse the applicable L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency not later than 12:00 noon on the Business Day immediately following the day that the Borrower receives notice of such Honor Date. In the event that (A) a drawing denominated in an Alternative Currency is to be reimbursed in Dollars pursuant to the second sentence in this Section 2.03(c)(i) and (B) the Dollar amount paid by the Borrower, whether on or after the Honor Date, shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures a sum denominated in the Alternative Currency equal to the drawing, the Borrower agrees, as a separate and independent obligation, to indemnify the applicable L/C Issuer for the loss resulting from its inability on that date to purchase the Alternative Currency in the full amount of the drawing. If the Borrower fails to so reimburse the applicable L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) (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

54


Dollar Equivalent of 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.

(ii)           Each Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent shall apply Lender Cash Collateral provided for this purpose) for the account of the applicable L/C Issuer, in Dollars, 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 (including pursuant to the application of its Lender Cash Collateral) 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 in Dollars.

(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 cannot be satisfied or for any other reason (except to the extent attributable to the Administrative Agent’s failure to apply Lender Cash Collateral in accordance with Section 2.03(c)(ii)), 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 repaid or 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, any Subsidiary 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), then, without limiting the other provisions of this Agreement, the applicable L/C Issuer shall be entitled to recover from such

55


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 applicable L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate reasonably determined by the applicable L/C Issuer in accordance with banking industry rules on interbank compensation, plus any reasonable administrative, processing or similar fees customarily charged by the applicable L/C Issuer in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  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 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.  The obligations of the Lenders under this clause (ii) shall survive the payment in full of the Obligations and the termination of this Agreement.

(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, setoff, 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;

56


(iv)         waiver by the applicable L/C Issuer of any requirement that exists for the applicable L/C Issuer’s protection and not the protection of the Borrower or any waiver by the applicable L/C Issuer which does not in fact materially prejudice the Borrower;

(v)          honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;

(vi)         any payment made by the applicable L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC or the ISP, as applicable;

(vii)       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;

(viii)      any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant currency markets generally; or

(ix)          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 Issuers.  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 L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignees of the applicable L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders, the Required Lenders or the Required Revolving Lenders, as applicable, (ii) any action taken or omitted in the absence of gross negligence or willful misconduct or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document.  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 Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the applicable L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (ix) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim

57


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 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.  The applicable L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

(g)               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.  Notwithstanding the foregoing, the applicable L/C Issuer shall not be responsible to the Borrower for, and the applicable L/C Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the applicable L/C Issuer required or specifically contemplated and permitted under any law, order, or practice that is required or specifically contemplated and permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the applicable L/C Issuer or the beneficiary is located, the practice stated in the ISP, or in the decisions, opinions, practice statements or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade – International Financial Services Association (BAFT-IFSA) or the Institute of International Banking Law and Practice, whether or not any Letter of Credit chooses such law or practice.

(h)               Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender 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 Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit; provided, however, that (i) to the maximum extent permitted by applicable Law, no Letter of Credit Fee will be payable in respect of any Fronting Exposure on any Letter of Credit that is attributable to a Defaulting Lender and in respect of which Borrower Cash Collateral has been provided and (ii) any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Lender Cash Collateral satisfactory to the applicable L/C Issuer pursuant to this Section 2.03 shall be payable, to the maximum extent permitted by applicable Law, to the other Lenders in accordance with the upward adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.15(a)(iv), with the balance of such fee (excluding any fee relating to Fronting Exposure attributable to a Defaulting Lender that has been secured with Borrower Cash Collateral), if any, payable to the applicable L/C Issuer for its own account.  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 (A) computed on a quarterly basis in arrears and (B) 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.

(i)                 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 in a per annum amount equal to

58


0.125% of the Dollar Equivalent of the daily maximum amount available to be drawn under each Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit) issued by such 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, in Dollars, 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 effect.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

(j)                  Conflict with Issuer Documents.  In the event of any conflict between the terms hereof and the terms of any Issuer Documents, the terms hereof shall control.

(k)               Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Restricted Subsidiary, the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit.  The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Restricted Subsidiaries inures to the benefit of the Borrower and that the Borrower’s business derives substantial benefits from the businesses of such Restricted Subsidiaries.

2.04             Swingline Loans.

(a)               The Swingline.  Subject to the terms and conditions set forth herein, each Swingline Lender agrees, in reliance upon the agreements of the other Lenders having Revolving Commitments set forth in this Section 2.04, to make loans (each such loan, a “Swingline 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 the Swingline Sublimit, notwithstanding the fact that such Swingline Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Loans and L/C Obligations of the applicable Lender acting as Swingline Lender, may exceed the amount of such Lender’s Revolving Commitment; provided, however, that after giving effect to any Swingline Loan, (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 (other than the applicable Swingline 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; provided, further, that the Borrower shall not use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05 and reborrow under this Section 2.04.  Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, promptly purchase from the applicable Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swingline Loan.

(b)                Borrowing Procedures.  Each Swingline Borrowing shall be made upon the Borrower’s irrevocable notice to the applicable Swingline Lender and the Administrative Agent, which may be given by telephone.  Each such notice must be received by the applicable Swingline Lender not later than 1:00 p.m. on the requested borrowing date (or such later time as the applicable Swingline Lender shall

59


agree to in the case of any Swingline Borrowing) with a copy to the Administrative Agent, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 or a whole multiple of $10,000 in excess thereof and (ii) the requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed promptly by delivery to the applicable Swingline Lender and the Administrative Agent of a written Swingline Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower.  Promptly after receipt by the applicable Swingline Lender of any telephonic Swingline Loan Notice, the applicable Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the applicable Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the applicable Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent within one hour of the Borrower’s notice requesting a Swingline Borrowing (A) directing such Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a) or (B) that one or more of the applicable conditions specified in Article V is not then satisfied (a copy of which notice shall be delivered simultaneously to the Borrower by the Administrative Agent), then, subject to the terms and conditions hereof, such Swingline Lender will, promptly by in any event not later than 2:00 p.m. on the borrowing date specified in such Swingline Loan Notice, make the amount of its Swingline Loan available to the Borrower in immediately available funds.

(c)                Refinancing of Swingline Loans.

(i)            Each Swingline Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes each Swingline Lender to so request on its behalf), that each Revolving Lender make a Base Rate Revolving Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swingline Loans made by such Swingline Lender then outstanding.  Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans but subject to the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 5.02.  The applicable Swingline Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent.  Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Lender Cash Collateral available with respect to the applicable Swingline Loan) for the account of the applicable Swingline Lender at the Administrative Agent’s Office not later than 10:00 a.m. on the day specified in such Committed Loan Notice (which day shall be not sooner than the first Business Day following the date on which such Committed Loan Notice is delivered), whereupon, subject to Section 2.04(c)(ii), 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 Swingline Lender.

(ii)           If for any reason any Swingline Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Revolving Loans submitted by the applicable Swingline Lender as set forth herein shall be deemed to be a request by such Swingline Lender that each Revolving Lender fund its risk participation in the relevant Swingline Loan and each Lender’s payment to the Administrative Agent for the account of the applicable Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

(iii)         Subject to Sections 2.14 and 2.15, if any Lender fails to make available to the Administrative Agent for the account of the applicable Swingline Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in

60


Section 2.04(c)(i), the applicable Swingline Lender 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 applicable Swingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the applicable Swingline Lender in accordance with banking industry rules on interbank compensation.  A certificate of the applicable Swingline Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

(iv)         Each Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set‑off, counterclaim, recoupment, defense or other right which such Lender may have against the applicable Swingline Lender, 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 2.04(c) is subject to the conditions set forth in Section 5.02.  No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.

(d)                Repayment of Participations.

(i)            At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the applicable Swingline Lender receives any payment on account of such Swingline Loan, such Swingline Lender will distribute to such Lender its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by such Swingline Lender.

(ii)            If any payment received by a Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by such Swingline Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the applicable Swingline Lender in its discretion), each Revolving Lender shall pay to the applicable Swingline Lender 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, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent will make such demand upon the request of the applicable Swingline Lender.  The obligations of the Lenders under this clause (ii) shall survive payment in full of the Obligations and the termination of this Agreement.

(e)                Interest for Account of Swingline Lender.  Each Swingline Lender shall be responsible for invoicing the Borrower for interest on the Swingline Loans made by such Swingline Lender.  Until a Lender funds its Base Rate Revolving Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Percentage of any Swingline Loan, interest in respect of such Applicable Percentage shall be solely for the account of the applicable Swingline Lender.

(f)                 Payments Directly to Swingline Lender.  The Borrower shall make all payments of principal and interest in respect of the Swingline Loans made by any Swingline Lender directly to such Swingline Lender.

(g)                Swingline Note.  The Swingline Loans of any Swingline Lender may, at the request of such Swingline Lender, be evidenced by a duly executed Swingline Note.

61


2.05             Prepayments.

(a)                Voluntary Prepayments of Loans.

(i)             Committed Loans.  The Borrower may, upon notice to the Administrative Agent, at any time or from time to time (A) voluntarily prepay Base Rate Committed Loans in whole or in part without premium or penalty and (B) subject to Section 3.05, voluntarily prepay Eurodollar Rate Loans in whole or in part without premium or penalty; provided that (1) such notice must be received by the Administrative Agent not later than 11:00 a.m. (I) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (II) on the date of prepayment of Base Rate Committed Loans, (2) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding), (3) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding) and (4) any prepayment of the Tranche B Term Loans shall be applied in the manner directed by the Borrower (provided that notwithstanding anything to the contrary contained herein, until the latest of (i) the date on which the Borrower’s ability to draw any HCOM Incremental Term Facility shall have been reduced to zero and (ii) if any HCOM Incremental Term Facility is established, the HCOM Facility Closing Date, all prepayments of the Tranche B Term Loans pursuant to this Section 2.05(a)(i) shall not be applied to any Principal Amortization Payment occurring prior to the Maturity Date of the Tranche B Term Loans, but instead shall be applied entirely to the Principal Amortization Payment due on the Maturity Date of the Tranche B Term Loans); provided, further, that in connection with any Repricing Transaction that is consummated in respect of all or any portion of the Tranche B Term Loans during the period from the Closing Date to and including the date that is 180 days after the earliest to occur of (w) the HCOM Closing Date, (x) the deposit of the net cash proceeds of the HCOM Incremental Term Facility into escrow as contemplated by Section 2.17(f), (y) the issuance of senior unsecured notes of the Borrower or any subsidiary of the Borrower to fund the HCOM Acquisition (or the deposit of the net cash proceeds thereof into escrow) and (z) the termination of the HCOM Merger Agreement in accordance with the terms thereof without the closing of the HCOM Acquisition, the Borrower shall pay to the Tranche B Term Lenders a fee equal to 1% of the aggregate principal amount of the Tranche B Term Loans prepaid or repriced in connection with such Repricing Transaction.  Each such notice shall specify the date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that if a notice of prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.06(c), then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.06.  Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.  Subject to Section 2.15, each such prepayment shall be applied to the Committed Loans of the Lenders in accordance with their respective Applicable Percentages.

(ii)            Swingline Loans.  The Borrower may, upon notice to the applicable Swingline Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swingline Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the applicable Swingline Lender and the Administrative Agent not later than 11:00 a.m. (or such later time as may be acceptable to the applicable Swingline Lender) on the date of the prepayment and (B) any such prepayment shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrower, the

62


Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

(b)                Mandatory Prepayments.

(i)            Aggregate Revolving Commitments.  If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Commitments then in effect, the Borrower shall promptly prepay Revolving Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans the Total Revolving Outstandings exceed the Aggregate Revolving Commitments then in effect.

(ii)           Dispositions, Involuntary Dispositions, Indebtedness and HCOM Acquisition Prepayments.

(A)          Dispositions.  Subject to clause (ii)(E) below, in the event a Disposition Prepayment Event occurs, the Borrower shall, not later than the Applicable Prepayment Date, prepay the Tranche B Term Loans in an aggregate amount equal to 100% of the Net Cash Proceeds of the related Disposition not applied (or caused to be applied) by the Loan Parties during the related Application Period to make Eligible Reinvestments (such prepayment to be applied as set forth in clauses (iii)(A) and (iii)(C) below).  Pending such application of Net Cash Proceeds to the prepayment of the Loans, the Borrower may temporarily reduce Permitted Receivables Financings or repay Revolving Loans, in each case, pending the final application thereof to a prepayment of the Loans in accordance with the definition of “Applicable Prepayment Date”.
 
(B)           Involuntary Dispositions.  Subject to clause (ii)(E) below, in the event an Involuntary Disposition Prepayment Event occurs, the Borrower shall, not later than the Applicable Prepayment Date, prepay the Tranche B Term Loans in an aggregate amount equal to 100% of the Net Cash Proceeds of the related Involuntary Disposition not applied (or caused to be applied) by the Loan Parties during the related Application Period to make Eligible Reinvestments (such prepayment to be applied as set forth in clauses (iii)(A) and (iii)(C) below).  Pending such application of Net Cash Proceeds to the prepayment of Loans, the Borrower may temporarily reduce Permitted Receivables Financings or repay Revolving Loans, in each case, pending the final application thereof to a prepayment of Loans in accordance with the definition of “Applicable Prepayment Date”.
 
(C)           Issuance of Debt.  Not later than the second Business Day following the date of receipt by the Borrower or any Restricted Subsidiary of any Net Cash Proceeds from the incurrence of any Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 8.03, it being understood and agreed that Refinancing Term Loans and Indebtedness incurred pursuant to Section 8.03(n)(i) shall be applied to prepay the applicable Class of Term Loans being refinanced thereby), the Borrower shall prepay the Tranche B Term Loans in an aggregate amount equal to 100% of such Net Cash Proceeds (such prepayment to be applied as set forth in clauses (iii)(A) and (iii)(C) below).
 
(D)          HCOM Acquisition Prepayments.  In the event that (1) the HCOM Merger Agreement is terminated in accordance with the terms thereof without the closing

63


of the HCOM Acquisition, the Borrower shall, not later than the fifth Business Day following the date of such termination, prepay the Tranche B Term Loans in an amount such that, after giving effect to such prepayment, no more than $450,000,000 in aggregate principal amount of the Tranche B Term Loans remains outstanding or (2) the Borrower receives Net Cash Proceeds in excess of $350,000,000 from the issuance of HCOM Incremental Equivalent Indebtedness, the Borrower shall, not later than the second Business Day following the date of receipt of such Net Cash Proceeds (it being understood and agreed that, if such Net Cash Proceeds are deposited in escrow prior to the HCOM Closing Date, such Net Cash Proceeds shall not be deemed to be received by the Borrower for purposes of this clause (D) until the date on which such Net Cash Proceeds are released from such escrow), prepay the Tranche B Term Loans in an amount equal to the lesser of (x) the amount of such Net Cash Proceeds in excess of $350,000,000 and (y) an amount such that, after giving effect to such prepayment, no more than $450,000,000 in aggregate principal amount of the Tranche B Term Loans remains outstanding (in each case, such prepayment to be applied as set forth in clauses (iii)(A) and (iii)(C) below).

(E)           Prepayment of Pari Passu Secured Indebtedness.  Notwithstanding anything to the contrary herein, the Borrower may use a portion of any Net Cash Proceeds in respect of any Disposition or Involuntary Disposition that would otherwise be required pursuant to clause (ii)(A) or (ii)(B) above to be applied to prepay the Tranche B Term Loans to prepay, repurchase or redeem any Indebtedness permitted to be incurred hereunder that is secured on a pari passu basis with the Obligations, but only to the extent such pari passu secured Indebtedness pursuant to the terms thereof is required to be (or is required to be offered to the holders thereof to be) prepaid, repurchased or redeemed as a result of such Disposition or Involuntary Disposition (with the amount of the prepayment of the Tranche B Term Loans that would otherwise have been required pursuant to clause (ii)(A) or (ii)(B) above being reduced accordingly); provided, further, that (1) such portion shall not exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction of which the numerator is the aggregate outstanding principal amount of such pari passu secured Indebtedness and the denominator is the sum of the aggregate outstanding principal amount of such pari passu secured Indebtedness and all Tranche B Term Loans, in each case at the time of occurrence of such Disposition or Involuntary Disposition and (2) in the event the holders of such pari passu secured Indebtedness shall have declined such prepayment, repurchase or redemption, the declined amount shall promptly (and in any event within 10 Business Days after the date of rejection) be applied pursuant to clause (ii)(A) or (ii)(B) above to prepay the Tranche B Term Loans.

(iii)          Application of Mandatory Prepayments.

(A)          Dispositions and Involuntary Dispositions.  All amounts required to be paid pursuant to Section 2.05(b)(ii)(A), 2.05(b)(ii)(B), 2.05(b)(ii)(C) or 2.05(b)(ii)(D), if any, shall be applied to the prepayment of the Tranche B Term Loans.  To the extent the amount of relevant Net Cash Proceeds to be applied pursuant to Section 2.05(b)(ii)(A), 2.05(b)(ii)(B) or 2.05(b)(ii)(C) exceeds the amount necessary to repay all Tranche B Term Loans at such time, as the case may be, the Borrower may retain such excess amount without further obligation under this Section 2.05.
 
(B)           [Reserved].

64


(C)           Within the parameters of the applications set forth above, (1) to the extent any prepayments pursuant to this Section 2.05(b) are required to be applied to the Tranche B Term Loans, such prepayments shall be applied, first, to the next eight Principal Amortization Payments in direct order of maturity and thereafter, to the remaining Principal Amortization Payments on a pro rata basis and (2) any prepayments of Loans shall be applied first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of Interest Period maturities; provided that notwithstanding anything to the contrary contained herein, until the latest of (i) the date on which the Borrower’s ability to draw any HCOM Incremental Term Facility shall have been reduced to zero and (ii) if any HCOM Incremental Term Facility is established, the HCOM Facility Closing Date, all prepayments of the Tranche B Term Terms pursuant to this Section 2.05(b) shall not be applied to any Principal Amortization Payment occurring prior to the Maturity Date of the Tranche B Term Loans, but instead shall be applied entirely to the Principal Amortization Payment due on the Maturity Date of the Tranche B Term Loans.  All prepayments under this Section 2.05(b) shall be subject to Section 3.05 but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment.
 
(D)          Notwithstanding the foregoing, each Tranche B Term Loan Lender shall have the right to decline its pro rata share of any mandatory prepayments described in Section 2.05(b)(ii)(A) or 2.05(b)(ii)(B), in which case such declined amounts may be retained by the Borrower and shall increase the Available Amount Basket.

(iv)         Foreign Restrictions and Taxes.  Notwithstanding any other provisions of this Section 2.05(b) to the contrary, if the Borrower determines in good faith that (A) any Net Cash Proceeds in respect of any Disposition by, or any Involuntary Disposition affecting the assets of, a Restricted Subsidiary that is a Foreign Subsidiary, a CFC or a Pass-Through Foreign Holdco are prohibited, restricted or delayed by applicable foreign law (including currency controls) from being repatriated to the United States (and that, in view of the available liquidity and working capital requirements of the Borrower and the Restricted Subsidiaries that are not Foreign Subsidiaries, CFCs or Pass-Through Foreign Holdcos (as determined by the Borrower in good faith, with such determination being permitted to disregard availability under the Revolving Commitments (it being understood that the Borrower shall not be required to make a Borrowing of Revolving Loans to make any such mandatory prepayment required under Section 2.05(b)(ii)(A) or 2.05(b)(ii)(B))), such repatriation is reasonably required in order to provide the Borrower with the funds with which to make such prepayment as would otherwise be required hereunder), then the amount thereof so affected will not be required to be applied to prepay Tranche B Term Loans as otherwise required under Section 2.05(b)(ii)(A) or 2.05(b)(ii)(B), as applicable, provided that (1) the Borrower shall, and shall cause such Foreign Subsidiary, CFC or Pass-Through Foreign Holdco to, use commercially reasonable efforts to take actions reasonably required by the applicable foreign law to permit such repatriation and (2) the Borrower shall prepay Tranche B Term Loans in accordance with such applicable Section in a principal amount equal to such affected amount (or a portion thereof) at such time as (x) the repatriation of such amount (or such portion thereof) becomes permitted under applicable foreign law or (y) the Borrower determines in good faith that, in view of the available liquidity and working capital requirements of the Borrower and the Restricted Subsidiaries that are not Foreign Subsidiaries, CFCs or Pass-Through Foreign Holdcos (taking into account the foregoing considerations), funds are available in the United States to make such prepayment (or such portion thereof), provided, further, that any such prepayment shall no longer be required to be made with respect to any such amounts that, after the use of such commercially reasonable efforts, have not been repatriated prior to the date that is one year after the date the original prepayment was required to be made under Section 2.05(b)(ii)(A) or 2.05(b)(ii)(B), as applicable or (B) that repatriation of any Net Cash Proceeds in respect of any Disposition by, or any Involuntary Disposition affecting the assets of, a Restricted

65


Subsidiary that is a Foreign Subsidiary, a CFC or a Pass-Through Foreign Holdco would have a material adverse tax consequence (taking into account any withholding Tax, any Subpart F inclusion and any foreign tax credit or benefit actually realized in connection with such repatriation) to the Borrower and the Restricted Subsidiaries (and that, in view of the available liquidity and working capital requirements of the Borrower and the Restricted Subsidiaries that are not Foreign Subsidiaries, CFCs or Pass-Through Foreign Holdcos (as determined by the Borrower in good faith, with such determination being permitted to disregard availability under the Revolving Commitments (it being understood that the Borrower shall not be required to make a Borrowing of Revolving Loans to make any such mandatory prepayment required under Section 2.05(b)(ii)(A) or 2.05(b)(ii)(B))), such repatriation is reasonably required in order to provide the Borrower with the funds with which to make such prepayment as would otherwise be required hereunder), then the amount thereof so affected will not be required to be applied to prepay Tranche B Term Loans as otherwise required under Section 2.05(b)(ii)(A) or 2.05(b)(ii)(B), as applicable, provided that the Borrower shall prepay Tranche B Term Loans in accordance with such applicable Section in a principal amount equal to such affected amount (or a portion thereof) at such time as (1) the repatriation of such amount (or such portion thereof) would no longer result in a material adverse tax consequence or (2) the Borrower determines in good faith that, in view of the available liquidity and working capital requirements of the Borrower and the Restricted Subsidiaries that are not Foreign Subsidiaries, CFCs or Pass-Through Foreign Holdcos (taking into account the foregoing considerations), funds are available in the United States to make such prepayment (or such portion thereof), provided, further, that any such prepayment shall no longer be required to be made after the date that is one year after the date the original prepayment was required to be made under Section 2.05(b)(ii)(A) or 2.05(b)(ii)(B), as applicable.

2.06             Termination or Reduction of Commitments.

(a)                Voluntary Reduction of Aggregate Revolving Commitments.  The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 1:00 p.m. three Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof,  (iii) the Borrower shall not terminate or reduce the Aggregate Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments and (iv) if, after giving effect to any reduction of the Aggregate Revolving Commitments, the Letter of Credit Sublimit or Swingline Sublimit exceeds the amount of the Aggregate Revolving Commitments, such sublimit automatically shall be reduced by the amount of such excess.

(b)                [Reserved].

(c)               General.  The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Revolving Commitments.  Any voluntary reduction of the Aggregate Revolving Commitments pursuant to Section 2.06(a) shall be applied to the Revolving Commitment of each Lender according to its Applicable Percentage.  All Commitment Fees accrued until the effective date of any termination of the Aggregate Revolving Commitments shall be paid on the effective date of such termination.  A notice of termination of all the Revolving Commitments delivered by the Borrower may state that such notice is conditioned upon one or more events specified therein, in which case such notice may be revoked by such Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.

66


(d)               Tranche B Term Loan Commitment.  The Tranche B Term Loan Commitment of each Lender, if any, automatically shall terminate at such time as such Lender shall have made available to the Borrower its share of the Tranche B Term Loans.

2.07             Repayment of Loans.

(a)                Revolving Loans.  The Borrower shall repay to the Lenders on the Maturity Date applicable to the Revolving Loans the aggregate principal amount of Revolving Loans outstanding on such date.

(b)               Swingline Loans.  The Borrower shall repay each Swingline Loan on the earlier to occur of (i) the date that is 15 Business Days after such Loan is made and (ii) the Maturity Date applicable to Swingline Loans.

(c)              Tranche B Term Loans.  The Borrower shall repay the outstanding principal amount of the Tranche B Term Loans in consecutive quarterly installments as follows (as such installments may be hereafter adjusted as a result of prepayments made pursuant to Section 2.05) unless accelerated sooner pursuant to Section 9.02:
 
 
Payment Dates
Principal Amortization Payment
 
 
Each March 31, June 30, September 30 and December 31,
commencing on the Tranche B Amortization Start Date
and continuing through June 30, 2024
$1,500,000
 
 
Maturity Date applicable to the Tranche B Term Loans
Unpaid Balance
 
 
(d)               Incremental Term Loans.  The Borrower shall repay the aggregate principal amount of all Incremental Term Loans under any applicable Incremental Term Facility in installments on the dates and in the respective amounts on such dates (as such installments may be hereafter adjusted as a result of prepayments made pursuant to Section 2.05) as may be set forth in the applicable Incremental Facility Agreement; provided, however, that the final principal repayment installment of the applicable Incremental Term Loans shall be repaid on the Maturity Date for the applicable Incremental Term Facility under which such Incremental Term Loans were made and in any event shall be in an amount equal to the aggregate principal amount of all applicable Incremental Term Loans outstanding on such date.

2.08             Interest.

(a)                Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate, (ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate and (iii) each Swingline Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Revolving Loans.

(b)                (i)             If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall


67

thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(ii)           If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then, unless otherwise agreed to by the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(iii)         Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

(c)                Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

2.09            Fees.

In addition to certain fees described in subsections (h) and (i) of Section 2.03:

(a)                Commitment Fee.  The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Percentage, a commitment fee (the “Commitment Fee”) accruing at the Applicable Rate in effect from time to time multiplied by the actual daily amount by which the Aggregate Revolving Commitments exceed the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.15.  For the avoidance of doubt, the Outstanding Amount of Swingline Loans shall not be counted towards or considered usage of the Aggregate Revolving Commitments for purposes of determining the Commitment Fee.  The Commitment Fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article V is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date; provided that no Commitment Fee shall accrue hereunder with respect to the Revolving Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.

(b)             Other Fees.  The Borrower shall pay to the Administrative Agent, the Arrangers and/or the Lenders, for their respective accounts, such fees as shall have been separately agreed upon in writing between the Borrower and the Administrative Agent, any Arranger and/or any Lender, as the case may be, in the amounts and at the times so specified.  In each case such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly agreed).

2.10            Computation of Interest and Fees.

(a)                All computations of interest for Base Rate Loans (including Base Rate Loans when determined by reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a 360‑day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365‑day year).  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, subject to the payment cutoff times specified in Section 2.12; provided that any Loan that is repaid on the same day on which it is made shall, subject to

68


Section 2.12(a), bear interest for one day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

(b)                If, as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the Borrower or the Revolving Lenders determine that (i) the Consolidated Total Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Total Leverage Ratio would have resulted in a higher Commitment Fee for such period, the Borrower shall retroactively be obligated to pay to the Administrative Agent for the account of the applicable Revolving Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code, automatically and without further action by the Administrative Agent or any Revolving Lender), an amount equal to the excess of the amount of the Commitment Fee that should have been paid for such period over the amount of the Commitment Fee actually paid for such period.  This paragraph shall not limit the rights of the Administrative Agent or any Revolving Lender, as the case may be, under Section 2.08(b) or under Article IX.  The Borrower’s obligations under this paragraph shall survive the termination of the Commitments and the repayment of all other Obligations hereunder.

2.11             Evidence of Debt.

(a)               The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent demonstrable error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error in the accounts and records of the Administrative Agent.  Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note which shall evidence such Lender’s Loans in addition to such accounts or records.  Each such promissory note shall (i) in the case of Revolving Loans, be in the form of Exhibit C-1 (a “Revolving Note”), (ii) in the case of the Swingline Loans, be in the form of Exhibit C-2 (a “Swingline Note”) and (iii) in the case of the Tranche B Term Loans, be in the form of Exhibit C-3 (a “Tranche B Term Note”).  Each Lender may attach schedules to its Revolving Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

(b)               In addition to the accounts and records referred to in subsection (a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swingline Loans.  In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of demonstrable error in the accounts and records of the Administrative Agent.

2.12             Payments Generally; Administrative Agent’s Clawback.

(a)                General.  All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative

69


Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.  The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 2:00 p.m. may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, such Borrower shall make such payment in Dollars in an amount equal to the Dollar Equivalent of the Alternative Currency payment amount.

(b)               (i)             Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Committed Borrowing, the Administrative Agent may assume that such Lender will make such share available on such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Committed Borrowing.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
 
               (ii)            Payments by Borrower; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuers hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower will make such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuers, as the case may be, the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders or L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

70


A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

(c)                Failure to Satisfy Conditions Precedent.  If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(d)               Obligations of Lenders Several.  The obligations of the Lenders hereunder to make Committed Loans and to fund participations in Letters of Credit and Swingline Loans and to make payments pursuant to Section 11.04(c) are several and not joint.  The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan, purchase its participation or make its payment pursuant to Section 11.04(c).

(e)                Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

2.13             Sharing of Payments by Lenders.

Except as otherwise contemplated in this Agreement, if any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Committed Loans made by it, or the participations in L/C Obligations or in Swingline Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swingline Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Committed Loans and other amounts owing them; provided that:

(i)            if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii)           the provisions of this Section 2.13 shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Borrower Cash Collateral provided for in Section 2.14 or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations or Swingline Loans to any assignee or participant, other than an assignment to the Borrower or any Subsidiary thereof (as to which the provisions of this Section 2.13 shall apply, except in the case of any such assignment made pursuant to Section 11.06(i)).

Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may

71


exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.

2.14            Cash Collateral.

(a)                Certain Credit Support Events.  Upon the request of the Administrative Agent or an L/C Issuer, (i) if an L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.  At any time that there shall exist a Defaulting Lender, immediately upon the request of the Administrative Agent, an L/C Issuer or a Swingline Lender, the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure attributable to such Defaulting Lender (after giving effect to Section 2.15(a)(iv) and any Cash Collateral provided by the Defaulting Lender).

(b)                Grant of Security Interest.  All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, interest-bearing deposit accounts with the Administrative Agent.  The Borrower, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, each L/C Issuer and the Lenders (including the Swingline Lenders) and agrees to maintain a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.14(c).  If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.

(c)                Application.  (i) Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.15 or 9.02 in respect of Letters of Credit or Swingline Loans shall be held and applied to the satisfaction of the specific L/C Obligations, Swingline Loans, obligations to fund participations therein (including, as to Lender Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.

(ii)           Notwithstanding anything to the contrary contained in this Agreement, if any Loan Party delivers Borrower Cash Collateral pursuant to Section 2.14(a) to cover Fronting Exposure attributable to a Defaulting Lender, (A) such Borrower Cash Collateral shall secure only the Borrower’s L/C Obligations and Obligations in respect of Swingline Loans, as the case may be, and not any obligation of such Defaulting Lender and (B) in the event the Borrower fails to make timely payment of an Unreimbursed Amount in respect of a Letter of Credit or to repay a Swingline Loan when due, or the Lenders are required to fund Loans under Section 2.03(c)(ii) or Section 2.04(c)(i) in respect of any Unreimbursed Amount or Swingline Loan or to fund L/C Advances under Section 2.03(c)(iii) or participations in Swingline Loans under Section 2.04(c)(ii), then, prior to any such funding by Revolving Lenders of Loans, L/C Advances or participations, such Borrower Cash Collateral shall be applied to the reimbursement or payment of that portion of such Unreimbursed Amount or Swingline Loan giving rise to such Fronting Exposure (which will then be deemed reimbursed or paid for all purposes hereof), and the Revolving Lenders (other than such Defaulting Lender) will fund such Loans, L/C Advances or participations in Swingline Loans in the amounts reflecting their individual Applicable Percentages of the

72


original amount of such Unreimbursed Amount or Swingline Loan (after giving effect to Section 2.15(a)(iv)).

(d)                Release.  Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the Administrative Agent’s good faith determination that there exists excess Cash Collateral; provided, however, that (x) Borrower Cash Collateral shall not be released during the continuance of an Event of Default (and following application as provided in this Section 2.14 may be otherwise applied in accordance with Section 9.03) and (y) the Person providing Cash Collateral and the applicable L/C Issuer or Swingline Lender, as applicable, may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

2.15             Defaulting Lenders.

(a)               Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

(i)            Waivers and Amendments.  That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders”, the definition of “Required Revolving Lenders”, the definition of “Required Tranche B Term Lenders” and Section 11.01(c).

(ii)           Reallocation of Payments.  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 11.08, but in any event excluding any application of Borrower Cash Collateral or the proceeds thereof), shall be applied at such time or times as may be determined by the Administrative Agent as follows:  first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuers or Swingline Lenders hereunder; third, if so determined by the Administrative Agent or requested by the applicable L/C Issuer or Swingline Lender, to be held as Lender Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swingline Loan or Letter of Credit; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuers or the Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or any Swingline Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share (other than any application of Borrower Cash Collateral provided in respect of Fronting Exposure

73


attributable to such Defaulting Lender which shall be applied as set forth in Section 2.14(c)) and (y) such Loans or L/C Borrowings were made at a time when the conditions set forth in Section 5.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender.  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to provide Lender Cash Collateral pursuant to this Section 2.15(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

(iii)           Certain Fees.  That Defaulting Lender (x) shall not be entitled to receive any commitment fee pursuant to Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender) except to the extent attributable to that portion of its Revolving Commitment used to fund Committed Loans funded by it after it became the Defaulting Lender (and the Borrower shall (A) be required to pay to each Swingline Lender the amount of such fee allocable to its Fronting Exposure arising from that Defaulting Lender (excluding any such Fronting Exposure that has been secured with Borrower Cash Collateral) and (B) not be required to pay the remaining amount of such fee that otherwise would have been required to have been paid to that Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as provided in Section 2.03(h).

(iv)           Reallocation of Applicable Percentages to Reduce Fronting Exposure.  During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit or Swingline Loans pursuant to Sections 2.03 and 2.04, the “Applicable Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Commitment of that Defaulting Lender; provided that, (i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists and (ii) the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swingline Loans shall not exceed the positive difference, if any, of (1) the Revolving Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the Revolving Loans of such Lender, plus such Lender’s pro rata share of the Outstanding Amount of all other L/C Obligations (prior to giving effect to such reallocation), plus such Lender’s pro rata share of the Outstanding Amount of all other Swingline Loans (prior to giving effect to such reallocation).

(b)               Defaulting Lender Cure.  If the Borrower and the Administrative Agent agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Lender Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Committed Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.15(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

74


2.16             Increase in Revolving Commitments.

(a)               Upon notice to the Administrative Agent, the Borrower may from time to time request an increase in the Revolving Commitments on the same terms as the existing Revolving Commitments (each request for an increase in Revolving Commitments being a “Revolving Commitment Increase”); provided that (i) any such request for an increase shall be in a minimum amount of $10,000,000 (unless the Administrative Agent otherwise agrees) and (ii) the aggregate amount of Revolving Commitment Increases effected on any date after the Closing Date shall not exceed the Incremental Limit as of such date.  The Borrower may request additional Revolving Commitments from existing Lenders or new lenders that are Eligible Assignees and upon execution of an Incremental Facility Agreement, such Eligible Assignees shall become Revolving Lenders hereunder.  Schedule 2.01 shall be modified accordingly for all such new Revolving Commitments.  No Lender shall be obligated to provide any new Revolving Commitments unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Commitment Increase.

(b)               If the Revolving Commitments are increased in accordance with this Section 2.16, the Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly notify the Revolving Lenders of the final allocation of such increase and the related Increase Effective Date.  As a condition precedent to such Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Revolving Commitment Increase and (ii) in the case of the Borrower, certifying that, before and after giving effect to such Revolving Commitment Increase, (A) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.16, the representations and warranties contained in clauses (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, (B) all fees and expenses owing in respect of such Revolving Commitment Increase to the Administrative Agent have been paid and (C) no Default exists or would exist after giving effect to such Revolving Commitment Increase.

(c)                On the Increase Effective Date of any Revolving Commitment Increase, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Revolving Commitment Increase shall be deemed to be repaid, (ii) each Additional Revolving Lender that shall have had a Revolving Commitment prior to the effectiveness of such Revolving Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings and the aggregate amount of all L/C Advances and funded participations in Swingline Loans outstanding (the “Funded Participations”) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings and the Funded Participations, (iii) each Additional Revolving Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Revolving Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings and the Funded Participations, (iv) after the Administrative Agent

75


receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Revolving Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings and the Funded Participations and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings and the Funded Participations, (v) after the effectiveness of such Revolving Commitment Increase, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Committed Loan Notice delivered in accordance with Section 2.02 (and the Borrower shall deliver such Committed Loan Notice), (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing and the Funded Participations (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) and (vii) the Borrower shall pay each Revolving Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings.  The deemed payment of any Existing Revolving Borrowing made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 3.05 if the date of the effectiveness of such Revolving Commitment Increase occurs other than on the last day of the Interest Period relating thereto.  For the avoidance of doubt, upon the effectiveness of any Revolving Commitment Increase, the Applicable Percentages of all the Revolving Lenders and each Revolving Lender’s Applicable Percentage of the Outstanding Amount of all Revolving Loans, all L/C Obligations and all Swingline Loans shall automatically be adjusted to give effect thereto.

(d)               Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to give effect to the provisions of this Section.  This Section shall supersede any provisions in Section 2.13 and Section 11.01 to the contrary.

2.17             Incremental Term Facilities.

(a)               The Borrower may from time to time, subject to Section 2.17(f) below, request the addition of one or more new term loan facilities under this Agreement or increases in the existing Term Loans of any Class (each an “Incremental Term Facility”); provided that (i) any such request for an Incremental Term Facility shall be in a minimum amount of $25,000,000 (unless otherwise agreed by the Administrative Agent) and (ii) the aggregate amount of Incremental Term Facilities effected on any date after the Closing Date shall not exceed the Incremental Limit as of such date.  Except with respect to any Incremental Term Facility the terms of which are identical to terms of the Tranche B Term Loans at the time of the incurrence of such Incremental Term Facility, the Maturity Date for any Incremental Term Facility shall not be prior to the Maturity Date in respect of the Tranche B Term Loans in effect as of the applicable Incremental Effective Date.  The Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Tranche B Term Loans (determined without giving effect to any prepayments) as of the applicable Incremental Effective Date.  The Incremental Term Loans in respect of any Incremental Term Facility shall rank equal in right of payment with the Loans, shall be secured by the Collateral and shall be Guaranteed only by the Guarantors.

(b)            The Borrower may request additional Incremental Term Facilities from existing Lenders or new lenders that are Eligible Assignees.  No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the


76

opportunity to provide any Incremental Term Loans.  Each Incremental Term Facility, and the terms thereof, shall be set forth in an Incremental Facility Agreement among the Borrower and the Lenders under such Incremental Term Facility (and, upon execution of an Incremental Facility Agreement, any Eligible Assignee providing a portion of the Incremental Term Facility established thereunder shall become a Term Lender hereunder).  The Incremental Facility Agreement for any Incremental Term Facility shall set forth the Incremental Term Commitments of each Incremental Term Loan Lender thereunder.
 
(c)                If any Incremental Term Facility is effected in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Effective Date”) and the final allocation of such Incremental Term Facility.  The Administrative Agent shall promptly notify the Lenders of the final allocation of such Incremental Term Facility and the related Incremental Effective Date.  As a condition precedent to any Incremental Term Facility, (i) the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Incremental Effective Date signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Term Facility, (I) the representations and warranties contained in Article VI and the other Loan Documents (or, to the extent the proceeds of the Incremental Term Facility are being used to finance a Limited Condition Transaction that is a Permitted Acquisition or Permitted Investment, only the Specified Representations and the Acquisition Agreement Representations are true and correct in all material respects on and as of the Incremental Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.17, the representations and warranties contained in clauses (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, (II) all fees and expenses owing in respect of such Incremental Term Facility to the Administrative Agent have been paid and (III) except in the case of any HCOM Incremental Term Facility, no Event of Default (or, if agreed by the Lenders providing such Incremental Term Facility in connection with any Permitted Acquisition or Permitted Investment, no Event of Default under Section 9.01(a) or Section 9.01(g)) exists or would exist after giving effect to such Incremental Term Facility, and (ii) each Guarantor shall reaffirm its obligations under the Guaranty pursuant to a customary reaffirmation agreement in form and substance reasonably satisfactory to the Administrative Agent.

(d)                If the Effective Yield in respect of any Incremental Term Facility that is incurred after the Closing Date exceeds the Effective Yield in respect of the Tranche B Term Loans in effect on the Closing Date or on the HCOM Closing Date by more than 0.50%, then the interest rate spread applicable to the Tranche B Term Loans shall be increased or upfront fees shall be paid to the existing Tranche B Term Lenders so that the Effective Yield in respect of such Tranche B Term Loans is equal to the Effective Yield in respect of such Incremental Term Facility less 0.50%.

(e)                Each Incremental Term Facility will have terms as shall be agreed to between the Borrower and the Lenders providing such Incremental Term Facility; provided that such Incremental Term Facility (i) shall have covenants no more restrictive in any material respect than those applicable to the Tranche B Term Loans (except for covenants or other provisions that are (A) applicable only to periods after the then applicable Maturity Date of the Tranche B Term Loans as of the applicable Incremental Effective Date or (B) made applicable to the Tranche B Term Loans) (it being understood that, to the extent any more favorable covenant or provision, including any financial maintenance covenant, is added for the benefit of any such Incremental Term Facility, no consent with respect to such more favorable covenant or provision, including any such financial maintenance covenant, shall be required from the Administrative Agent or any existing Lender to the extent that such more favorable

77


covenant or provision, including any such financial maintenance covenant, is also added for the benefit of the Tranche B Term Loans) and (ii) may be provided the right to ratable or less than ratable (with the Tranche B Term Loans and any other Incremental Term Facility) prepayment in connection with any mandatory prepayments.

(f)                 Additional HCOM Term Loan Commitments.  Upon notice to the Administrative Agent prior to the HCOM End Date, the Borrower may request the addition of an Incremental Term Facility in connection with the consummation of the HCOM Acquisition (the “HCOM Incremental Term Facility”); provided that such request for an HCOM Incremental Term Facility shall not exceed the Incremental Limit for any HCOM Incremental Term Facility.  Any HCOM Incremental Term Facility will have terms and conditions precedent as shall be agreed to between the Borrower and the Lenders providing such HCOM Incremental Term Facility; provided that any HCOM Incremental Term Facility (i) shall have terms that are identical to terms of the Tranche B Term Loans at the time of the incurrence of such HCOM Incremental Term Facility (after giving effect to any amendments permitted to be made to the terms of the Tranche B Term Loans pursuant to Section 2.17(e) and the last sentence of this Section 2.17(f)) and (ii) to the extent the HCOM Facility Closing Date occurs prior to the HCOM Closing Date, may (A) require that the Incremental Term Loans under the HCOM Incremental Term Facility be borrowed as Permitted Escrow Debt by a Designated HCOM Subsidiary pursuant to an escrow agreement in form and substance reasonably satisfactory to the Borrower and the Administrative Agent and (B) immediately after the consummation of the HCOM Acquisition, (x) require that the Designated HCOM Subsidiary merge with and into the Borrower with the Borrower surviving or that the Borrower assume the Incremental Term Loans under the HCOM Incremental Term Facility and (y) if the Incremental Term Loans under the HCOM Incremental Term Facility are fungible (including for U.S. Federal tax purposes) with the Tranche B Term Loans, require that the Permitted Escrow Debt of the Designated HCOM Subsidiary be deemed to be Tranche B Term Loans of the Borrower.  To the extent that the pricing terms for (i) the HCOM Incremental Term Facility or (ii) any HCOM Incremental Equivalent Indebtedness that is secured on a pari passu basis with the Obligations are higher than the pricing terms for the Tranche B Term Loans as a result of a higher applicable interest rate, interest rate spread or greater upfront fees or original issue discount, the applicable interest rate spread for the Tranche B Term Loans will be increased upon the funding of the HCOM Incremental Term Facility or the incurrence of such HCOM Incremental Indebtedness, as applicable, and/or additional upfront fees will be paid on the HCOM Closing Date to the Tranche B Term Lenders so that the pricing terms of the Incremental Term Loans under the HCOM Incremental Term Facility or such HCOM Incremental Equivalent Indebtedness, as applicable, and the Tranche B Term Loans are identical; provided, further that in the case of fixed rate HCOM Incremental Equivalent Indebtedness, the yield of the Tranche B Term Loans shall be based on the spread to mid-swaps on the date of incurrence of such HCOM Incremental Equivalent Indebtedness for a term equal to the term of such HCOM Incremental Equivalent Indebtedness, with such spread to mid-swaps being determined by the Administrative Agent in its sole discretion by subtracting the swap rate quoted by Reuters (or other publicly available service selected by the Administrative Agent in its sole discretion) at the closing of the Business Day of the issuance of such Indebtedness for the period described above from the yield of such fixed rate HCOM Incremental Equivalent Indebtedness at the time of issuance (taking into account issue price to investors, interest rate and payment dates in accordance with standard bond market convention).

(g)               Incremental Equivalent Indebtedness.  The Borrower will be permitted to utilize the incremental credit capacity available under this Section 2.17 in the form of (in addition to Incremental Term Facilities and Revolving Commitment Increases) senior unsecured notes or unsecured loans or senior secured notes or loans that are secured by the Collateral, in the case of notes, on a pari passu basis with or on a junior basis to the Obligations or, in the case of loans, on a junior basis to the Obligations (collectively, “Incremental Equivalent Indebtedness” and any such Incremental Equivalent Indebtedness that is incurred utilizing the capacity under the HCOM Incremental Amount, “HCOM Incremental

78


Equivalent Indebtedness”); provided that (i) to the extent any HCOM Incremental Equivalent Indebtedness is incurred prior to the HCOM Closing Date, (A) such HCOM Incremental Equivalent Indebtedness may be incurred as Permitted Escrow Debt by a Designated HCOM Subsidiary pursuant to a customary escrow agreement and (B) immediately after the consummation of the HCOM Acquisition, (1) such Designated HCOM Subsidiary may merge with and into the Borrower with the Borrower surviving or (2) the Borrower may assume such HCOM Incremental Equivalent Indebtedness, (ii) if such Incremental Equivalent Indebtedness is secured, (A) such Indebtedness shall not be secured by any assets or property other than the Collateral (except, to the extent HCOM Incremental Equivalent Indebtedness is issued as Permitted Escrow Debt by a Designated HCOM Subsidiary prior to the HCOM Closing Date, a Lien on the applicable escrow account and the Permitted Escrow Debt Proceeds pursuant to the terms of the applicable escrow agreement in favor of the trustee for the HCOM Incremental Equivalent Indebtedness, for the ratable benefit of the holders of such HCOM Incremental Equivalent Indebtedness), (B) all security (other than with regard to collateral described in the foregoing parenthetical) therefor shall be granted pursuant to documentation substantially similar to the applicable Collateral Documents, and the secured parties thereunder, or a trustee or collateral agent on their behalf, shall have become a party to a Permitted Intercreditor Agreement with the Administrative Agent and/or the Collateral Agent (and the Administrative Agent and the Collateral Agent hereby agree to execute and deliver, on behalf of the Lenders and the other holders of the Obligations, such Permitted Intercreditor Agreement), (ii) such Incremental Equivalent Indebtedness shall not be Guaranteed by any Subsidiaries of the Borrower other than the Guarantors (except, in the case of HCOM Incremental Equivalent Indebtedness, the Designated HCOM Subsidiary), (iii) such Incremental Equivalent Indebtedness shall not mature prior to the then applicable Maturity Date of, or have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of, the Tranche B Term Loans (determined without giving effect to any prepayments) as of the date of incurrence of such Incremental Equivalent Indebtedness, except, in the case of the HCOM Incremental Equivalent Indebtedness, a customary mandatory redemption if the HCOM Closing Date does not occur, (iv) the other terms and conditions of such Incremental Equivalent Indebtedness (excluding pricing, subject, in the case of HCOM Incremental Equivalent Indebtedness that is secured on a pari passu basis with the Obligations, to the last sentence of clause (f) of this Section 2.17) shall be no more favorable to the investors providing such Incremental Equivalent Indebtedness in any material respect than those applicable to the Tranche B Term Loans (except for more favorable covenants or other provisions, including any financial maintenance covenant, that are (A) applicable only to periods after the then applicable Maturity Date of the Tranche B Term Loans as of the date of incurrence of such Incremental Equivalent Indebtedness, (B) made applicable to the Tranche B Term Loans (it being understood that, to the extent any more favorable covenant or provision, including any financial maintenance covenant, is added for the benefit of any such Incremental Equivalent Indebtedness, no consent with respect to such more favorable covenant or provision, including any such financial maintenance covenant, shall be required from the Administrative Agent or any existing Lender to the extent that such more favorable covenant or provision, including any such financial maintenance covenant, is also added for the benefit of the Tranche B Term Loans or (C) related to customary escrow provisions with regard to HCOM Incremental Equivalent Indebtedness)) and (v) any HCOM Incremental Equivalent Indebtedness shall be incurred solely for the purpose of financing a portion of the HCOM Acquisition, the HCOM Indebtedness Refinancing and the payment of fees and expenses incurred in connection with the foregoing.

(h)                Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to give effect to the provisions of this Section.  This Section shall supersede any provisions in Section 2.13 and Section 11.01 to the contrary.

79


2.18             Extension of Maturity Date.

(a)                Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders of a Class of Term Loans with a like Maturity Date or Revolving Commitments with a like Maturity Date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans or Revolving Commitments with the same Maturity Date, as the case may be), the Borrower may from time to time extend the Maturity Date of any Term Loans and/or Revolving Commitments and otherwise modify the terms of such Term Loans and/or Revolving Commitments pursuant to the terms of the relevant Extension Offer (including by increasing or decreasing the interest rate or fees payable in respect of such Term Loans and/or Revolving Commitments (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Term Loans) (each, an “Extension”, and each group of Term Loans or Revolving Commitments, as applicable, in each case as so extended, as well as the original Term Loans and the original Revolving Commitments (in each case not so extended), being a “tranche”; any Extended Term Loans shall constitute a separate tranche of Term Loans from the tranche of Term Loans from which they were extended, and any Extended Revolving Commitments shall constitute a separate tranche of Revolving Commitments from the tranche of Revolving Commitments from which they were extended), so long as the following terms are satisfied:  (i) except as to interest rates, fees and final maturity, the Revolving Commitment of any Revolving Lender (an “Extending Revolving Credit Lender”) extended pursuant to an Extension (an “Extended Revolving Commitment”) and the related outstandings shall be a Revolving Commitment (or related outstandings, as the case may be) with the same terms as the original Revolving Commitments (and related outstandings); provided that (x) all Swingline Loans and Letters of Credit shall be participated in on a pro rata basis by all Lenders with Revolving Commitments in accordance with their pro rata share of the Aggregate Revolving Commitments and all Borrowings under Revolving Commitments and repayments thereunder shall be made on a pro rata basis (except for (A) payments of interest and fees at different rates on Extended Revolving Commitments (and related outstandings) and (B) repayments required upon the Maturity Date of the non‑extending Revolving Commitments) and (y) at no time shall there be Revolving Commitments hereunder (including Extended Revolving Commitments and any original Revolving Commitments) which have more than three different Maturity Dates (unless the Administrative Agent otherwise agrees), (ii) except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (iii), (iv) and (v), be determined by the Borrower and set forth in the relevant Extension Offer), the Term Loans of any Term Lender (an “Extending Term Lender”) extended pursuant to any Extension (“Extended Term Loans”) shall have the same terms as the tranche of Term Loans subject to such Extension Offer, (iii) the applicable amortization schedule applicable to Term Loans pursuant to Section 2.07 for periods prior to the original Maturity Date may not be increased, (iv) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the tranche of Term Loans from which they were extended, (v) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory prepayments hereunder, in each case as specified in the respective Extension Offer, (vi) if the aggregate principal amount of applicable Term Loans (calculated on the face amount thereof) or Revolving Commitments, as the case may be, in respect of which the applicable Term Lenders or Revolving Lenders, as the case may be, shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of applicable Term Loans or Revolving Commitments, as the case may be, offered to be extended by the Borrower pursuant to such Extension Offer, then the applicable Term Loans or Revolving Loans, as the case may be, of such Term Lenders or Revolving Lenders, as the case may be, shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Term Lenders or Revolving Lenders, as the case may be, have accepted such Extension Offer and (vii) all documentation in respect of such Extension shall be consistent with the foregoing.  For the avoidance of doubt, no Lender shall be required

80


to participate in any Extension, any Lender that fails to consent to an Extension Offer shall be deemed to have declined such Extension Offer and the Loans and Commitments of any non-participating Lenders shall mature (and the Commitments terminate) on the applicable Maturity Date, subject to Section 11.13.

(b)          With respect to all Extensions consummated by the Borrower pursuant to this Section 2.18, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.05 and (ii) each Extension Offer shall be in a minimum amount of $25,000,000 aggregate principal amount of Term Loans or Revolving Commitments (as applicable) of any or all applicable tranches to be extended (unless (x) otherwise agreed to by the Administrative Agent in its sole discretion or (y) the Extension Offer is made to extend Term Loans or Revolving Commitments to the same Maturity Date as a prior Extension Offer).  The Administrative Agent and the Lenders hereby consent to the Extensions and the other transactions contemplated by this Section 2.18 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans and/or Extended Revolving Commitments on the such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including Sections 2.05 and 2.13) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.18; provided that, for the avoidance of doubt, such consent shall not be deemed to be an acceptance of any particular Extension Offer by the Administrative Agent or any Lender.

(c)               The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower (and without the consent of any other Person) as may be necessary in order to establish new tranches or sub‑tranches in respect of Revolving Commitments or Term Loans so extended and such amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub‑tranches, in each case on terms consistent with this Section 2.18.  This Section shall supersede any provisions in Section 2.13 and Section 11.01 to the contrary.

(d)               In connection with any Extension, the Borrower shall provide the Administrative Agent at least 10 Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.18.

2.19            Refinancing Facilities.

(a)               The Borrower may, on one or more occasions, with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed), request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrower (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit or (ii) one or more additional Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower (the “Refinancing Term Loans”); provided that (A) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and, if not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent and (B) each Refinancing Revolving Lender shall be approved by each L/C Issuer and each Swingline Lender (such approvals not to be unreasonably withheld).

81


(b)              The Refinancing Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Lender providing such Refinancing Commitments, the Administrative Agent and, in the case of Refinancing Revolving Commitments, each L/C Issuer and each Swingline Lender; provided that no Refinancing Commitments shall become effective unless (i) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction, (ii) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceed the aggregate amount of the Revolving Commitments so terminated (unless otherwise permitted by Section 2.16), and (iii) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing) (and any such prepayment of Term Loans of any Class shall be applied to reduce the subsequent scheduled amortization installments of Term Loans of such Class to be made pursuant to Section 2.07 ratably, in the case of a prepayment of Term Loans that are Eurodollar Rate Loans, shall be subject to Section 3.05).

(c)               The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Commitments established thereby and the Refinancing Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof:  (i) the designation of such Refinancing Commitments and Refinancing Loans as a new “Class” for all purposes hereof, (ii) the stated termination and maturity dates applicable to the Refinancing Commitments or Refinancing Loans of such Class, provided that such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Revolving Commitments and Revolving Loans (in the case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the Maturity Date applicable to the Tranche B Term Loans (in the case of Refinancing Term Loan Commitments and Refinancing Term Loans), (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Class, (v) the fees applicable to the Refinancing Commitment or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Class, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with the Tranche B Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding Tranche B Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Class and (ix) any financial covenant with which the Borrower or any Restricted Subsidiary shall be required to comply (provided that any such financial covenant for the benefit of any Class of Refinancing Term Lenders shall also be for the benefit of all other Term Lenders).  Except as contemplated by the preceding sentence, the terms and conditions of the Refinancing Revolving Commitments and Refinancing Revolving Loans and other extensions of

82


credit thereunder shall be no more favorable in any material respect to the Lenders holding such Refinancing Revolving Commitments and Refinancing Revolving Loans than those terms and conditions applicable to the Revolving Commitments and Revolving Loans and other extensions of credit thereunder, and the terms and conditions of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be no more favorable in any material respect to the Lenders holding such Refinancing Term Loan Commitments and Refinancing Term Loans than such terms and conditions of the Tranche B Term Loan Commitments and the Tranche B Term Loans.  The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement.  Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to give effect to the provisions of this Section, including any amendments necessary to treat the applicable Refinancing Commitments and Refinancing Loans as a new “Class” of loans and/or commitments hereunder.  This Section shall supersede any provisions in Section 2.13 and Section 11.01 to the contrary.

ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY

3.01            Taxes.

(a)               Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.

(i)             Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws.  If any applicable Laws (as determined in the good faith discretion of the Administrative Agent or the Borrower, as applicable) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Loan Party, then the Administrative Agent or such Loan Party shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below.

(ii)            If any Loan Party or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions and withholdings applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

(iii)           If any Loan Party or the Administrative Agent shall be required by any applicable Laws other than the Code to withhold or deduct any Taxes from any payment, then (A) such Loan Party or the Administrative Agent, as required by such Laws, shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) such Loan Party or the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions and withholdings applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

83


(b)              Payment of Other Taxes by the Borrower.  The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable Laws, or at the option of the Administrative Agent timely reimburse it for, Other Taxes.

(c)               Tax Indemnification.

(i)             The Borrower shall, and does hereby, indemnify each Recipient, and shall make payment in respect thereof within 10 Business Days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.

(ii)            Each Lender and each L/C Issuer shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 Business Days after demand therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender or such L/C Issuer (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (y) the Administrative Agent and the Borrower, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Borrower, as applicable, against any Excluded Taxes attributable to such Lender or such L/C Issuer, in each case, that are payable or paid by the Administrative Agent or the Borrower in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender and each L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or such L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii).

(d)                Evidence of Payments.  Upon request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by the Borrower or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.

(e)                Status of Lenders; Tax Documentation.

(i)             Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by

84


the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)            Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,

(A)            any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B)            any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

(I)            in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(II)          executed originals of IRS Form W-8ECI;

(III)         in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable; or

(IV)         to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable;

85


provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner;

(C)             any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

(D)             if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(iii)           Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(f)                Treatment of Certain Refunds.  Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or any L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or any L/C Issuer, as the case may be.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the

86


contrary in this paragraph (f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (f) the payment of which would place the indemnified party in a less favorable net after-Tax position than such indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This subparagraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(g)               Survival.  Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.

3.02             Illegality.

If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (a) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

3.03            Inability to Determine Rates.

If the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in the applicable offshore interbank market for such currency for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan (in each case with respect to

87


clauses (a) and (b) above, “Impacted Loans”) or (c) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.  Thereafter, (i) the obligation of the Lenders to make, maintain or continue into new interest periods Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods) and (ii) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

Notwithstanding the foregoing, if the Administrative Agent has made the determination described in clause (a) of the first sentence of this Section 3.03 and the Borrower shall so request, the Administrative Agent, the affected Lenders and the Borrower shall negotiate in good faith to amend the definition of “Eurodollar Rate” and other applicable provisions to preserve the original intent thereof in light of such change; provided that, until so amended, such Impacted Loans will be handled as otherwise provided pursuant to the terms of this Section 3.03.

3.04             Increased Costs.

(a)                Increased Costs Generally.  If any Change in Law shall:

(i)              impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e)) or any L/C Issuer;

(ii)            subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii)           impose on any Lender or any L/C Issuer or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting into or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such other Recipient hereunder (whether of principal, interest or any other amount), then the Borrower will pay to such Lender or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered, in each case upon receipt of a written request of such Lender or such other Recipient showing the computation of such amount in reasonable detail and certifying that it is the general practice of such Lender or such other Recipient to charge such amount to its borrowers.  Notwithstanding the foregoing, no Lender shall be entitled to request compensation for any increased cost relating to items described in paragraph (a)(iii) of this Section 3.04 if it shall not be the general policy and practice of such

88


Lender to seek compensation in similar circumstances under similar provisions in comparable credit facilities.

(b)                Capital Requirements.  If any Lender or any L/C Issuer determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction suffered, in each case upon receipt of a written request of such Lender or L/C Issuer showing the computation of such amount in reasonable detail and certifying that it is the general practice of such Lender or L/C Issuer to charge such amount to its borrowers.

(c)                Certificates for Reimbursement.  A certificate of a Lender or an L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section 3.04, showing the computation of such amount or amounts in reasonable detail and delivered to the Borrower shall be conclusive absent demonstrable error.  The Borrower shall pay such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof.

(d)               Delay in Requests.  Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or such L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six‑month period referred to above shall be extended to include the period of retroactive effect thereof).

(e)               Reserves on Eurodollar Rate Loans.  The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender reasonably and in good faith, which determination shall be conclusive absent demonstrable error), which shall be due and payable on each date on which interest is payable on such Loan; provided that the Borrower shall have received at least 10 Business Days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender together with a computation in reasonable detail of such additional interest.  If a Lender fails to give notice 10 Business Days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 10 Business Days from receipt of such notice.

89


3.05             Compensation for Losses; Breakage Payments.

Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense (for the avoidance of doubt, excluding lost profits) incurred by it as a result of:

(a)              any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

(b)                any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower;

(c)                any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13; or

(d)                any failure by the Borrower to make any payment of a drawing under any Letter of Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled due date for any payment thereof in a different currency;

Such loss, cost or expense to any Lender shall be deemed to equal an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Eurodollar Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would offer were it to offer, at the commencement of such period, for dollar deposits of a comparable amount and period from major banks in the London interbank eurodollar market.  A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 3.05 shall be delivered to the Borrower and shall be conclusive absent demonstrable error.  The Borrower shall also pay any customary administrative fees charged by the Administrative Agent in connection with the foregoing.  For the purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall have been deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.

3.06             Mitigation Obligations; Replacement of Lenders.

(a)                Designation of a Different Lending Office.  If any Lender requests compensation under Section 3.04, or the Borrower is required to pay any additional amount to any Lender, any L/C Issuer or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender or such L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender or such L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not

90


otherwise be disadvantageous in any significant respect to such Lender or such L/C Issuer, as the case may be.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or such L/C Issuer in connection with any such designation or assignment.

(b)              Replacement of Lenders.  If any Lender requests compensation under Section 3.04, if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 or if any Lender delivers a notice pursuant to Section 3.02, the Borrower may replace such Lender in accordance with Section 11.13.

3.07             Survival.

All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Revolving Commitments, repayment of all other Obligations hereunder and resignation of the Administrative Agent.
 
ARTICLE IV
GUARANTY

4.01            The Guaranty.

Each of the Guarantors hereby jointly and severally guarantees to each Lender, each applicable Affiliate of a Lender that is party to a Secured Hedge Agreement or a Treasury Management Agreement (and each Person (and/or each applicable Affiliate thereof) 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 that is party to a Secured Hedge Agreement), the Collateral Agent and the Administrative Agent as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof.  The Guarantors hereby further agree that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.

Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents or Secured Hedge Agreements or Treasury Management Agreements, the obligations of each Guarantor under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state law.

4.02             Obligations Unconditional.

The obligations of the Guarantors under Section 4.01 are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents, Secured Hedge Agreements or Treasury Management Agreements, or any other agreement or instrument referred to therein, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent permitted by applicable Law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 4.02 that the
 
91

 
obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances.  Each Guarantor agrees that its rights of subrogation, indemnity, reimbursement or contribution against the Borrower or any other Loan Party for amounts paid under this Article IV shall not be enforceable until, and shall be subordinate and subject in right of payment to, the Obligations, until such time as the Obligations have been Fully Satisfied.  Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder which shall remain absolute and unconditional as described above:

(a)                at any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Obligations shall be extended, or such performance or compliance shall be waived;

(b)               any of the acts mentioned in any of the provisions of any of the Loan Documents, any Secured Hedge Agreement or any Treasury Management Agreement between the Borrower or any Restricted Subsidiary and any Lender, or any Affiliate of a Lender, or any other agreement or instrument referred to in the Loan Documents or such Secured Hedge Agreements shall be done or omitted;

(c)                the maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents, any Secured Hedge Agreement or any Treasury Management Agreement between the Borrower or any Restricted Subsidiary and any Lender, or any Affiliate of a Lender, or any other agreement or instrument referred to in the Loan Documents or such Secured Hedge Agreements or such Treasury Management Agreements shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with;

(d)                any Lien granted to, or in favor of, the Administrative Agent, the Collateral Agent or any Lender or Lenders as security for any of the Obligations shall fail to attach or be perfected; or

(e)               any of the Obligations shall be determined to be void or voidable (including for the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person (including any creditor of any Guarantor).

With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent, the Collateral Agent or any Lender exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents, any Secured Hedge Agreement or any Treasury Management Agreement between any the Borrower or any Restricted Subsidiary and any Lender, or any Affiliate of a Lender, or any other agreement or instrument referred to in the Loan Documents or such Secured Hedge Agreements or such Treasury Management Agreements, or against any other Person under any other guarantee of, or security for, any of the Obligations.

4.03             Reinstatement.

The obligations of the Guarantors under this Article IV shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the Administrative Agent, the Collateral Agent and each Lender on demand for all reasonable costs and expenses (including fees and expenses of counsel) incurred by the Administrative Agent, the Collateral Agent or such Lender in connection with such rescission or restoration, including any such

92


costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.

4.04             Certain Additional Waivers.

Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02 and through the exercise of rights of contribution pursuant to Section 4.06.

4.05             Remedies.

The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on the one hand, and the Administrative Agent, the Collateral Agent and the Lenders, on the other hand, the Obligations may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in said Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section 4.01.  The Guarantors acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the Lenders may exercise their remedies thereunder in accordance with the terms thereof.

4.06           Rights of Contribution.

The Guarantors hereby agree as among themselves that, in connection with payments made hereunder, each Guarantor shall have a right of contribution from each other Guarantor in accordance with applicable Law.  Such contribution rights shall be subordinate and subject in right of payment to the Obligations until such time as the Obligations have been Fully Satisfied, and none of the Guarantors shall exercise any such contribution rights until the Obligations have been Fully Satisfied.

4.07             Guarantee of Payment; Continuing Guarantee.

The guarantee in this Article IV is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Obligations whenever arising.

4.08             Keepwell.

Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty in this Article IV by any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act (a “Specified Loan Party”) or the grant of a security interest under the Loan Documents by any such Specified Loan Party, in either case, becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Article IV voidable under applicable Debtor Relief Laws, and not for any greater amount).  The obligations and undertakings of each applicable Loan Party under this Section 4.08 shall remain in full force and effect until the Obligations have been Fully Satisfied.  Each Loan Party intends this

93


Section 4.08 to constitute, and this Section 4.08 shall be deemed to constitute, a “keepwell, support or other agreement” for the benefit of each Loan Party that would otherwise not constitute an “eligible contract participant” for any Swap Obligation for all purposes of the Commodity Exchange Act.

ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

5.01             Conditions of Closing Date and Initial Credit Extension.

The occurrence of the Closing Date, the effectiveness of this Agreement on the Closing Date and the obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to the satisfaction of the following conditions precedent:

(a)                Loan Documents, Organization Documents, Etc.  The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):

(i)         executed counterparts of this Agreement and the other Loan Documents (subject to the penultimate paragraph of this Section 5.01);

(ii)        copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the Closing Date;

(iii)       customary certificates of resolutions or other action, customary incumbency certificates and/or other customary certificates of Responsible Officers of each Loan Party, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; and

(iv)      customary documents and certifications evidencing that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in the jurisdiction of its incorporation or organization.

(b)            Opinions of Counsel.  The Administrative Agent shall have received, in each case dated as of the Closing Date:

(i)          a customary legal opinion of Cravath, Swaine & Moore LLP, special counsel for the Loan Parties; and

(ii)        a customary legal opinion of The Law Offices of Thomas W. Bosse, PLLC, Esq., special Ohio counsel for each Loan Party organized in the State of Ohio; and

(iii)      a customary legal opinion of Richards, Layton & Finger, P.A., special Delaware counsel for the Loan Parties.

(c)            Personal Property Collateral.  Subject to the penultimate paragraph of this Section 5.01, the Administrative Agent shall have received:

94


(i)         searches of UCC filings in the jurisdiction of organization of each Loan Party and the chief executive office of each Loan Party, and copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than (A) Permitted Liens and (B) Liens securing obligations under the Existing Credit Agreement;

(ii)        all certificates evidencing any certificated Capital Stock pledged to the Collateral Agent pursuant to a Security Agreement, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the pledged Capital Stock of any Foreign Subsidiary, such stock powers are deemed unnecessary by the Administrative Agent in its reasonable discretion under the law of the jurisdiction of incorporation of such Person);

(iii)      searches of ownership of, and Liens on, Intellectual Property of each Loan Party in the appropriate governmental offices, and duly executed notices of grant of security interest to be filed with the United States Patent and Trademark Office to the extent and in the form required by the Security Agreements;

(iv)     all instruments in the possession of any of the Loan Parties evidencing any Indebtedness owed by an Excluded Subsidiary to a Loan Party, together with such allonges or assignments as may be necessary to perfect the Collateral Agent’s security interest in such Indebtedness; and

(v)        certificates of insurance of the Loan Parties evidencing property and liability insurance meeting the requirements set forth in the Loan Documents.

(d)                Officer’s Certificates.  The Administrative Agent shall have received an Officer’s Certificate as of the Closing Date, stating that the conditions specified in Section 5.01(i) and Section 5.02 have been satisfied.

(e)                Solvency.  The Administrative Agent shall have received a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in the form of Exhibit H hereto (the “Solvency Certificate”), confirming the Solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Closing Date Transactions.

(f)                 Fees.  Any fees of the Arrangers, the Administrative Agent and the Lenders required to be paid on or before the Closing Date shall have been paid to the extent the Borrower has received an invoice therefor at least two Business Days prior to the Closing Date (it being understood that at the Borrower’s election, payment of such fees to the Administrative Agent on behalf of the Administrative Agent, the Arrangers and the Lenders may constitute payment under this Section 5.01(f))).

(g)              Attorney Costs.  The Borrower shall have paid all reasonable fees, charges and disbursements of counsel of the Administrative Agent required to be paid on or before the Closing Date to such counsel or to the Administrative Agent, on behalf of such counsel, to the extent invoiced at least two Business Days prior to the Closing Date.

(h)               Existing Indebtedness.  The Company Indebtedness Refinancing shall have occurred or shall occur simultaneously with the Closing Date.

(i)                 No Material Adverse Effect.  Since July 9, 2017, there shall not have been any “Company Material Adverse Effect” (as defined in the OnX Merger Agreement).

95


(j)                 Financial Statements.  The Lenders shall have received (i) (A) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and the OnX group of companies for the three most recently completed fiscal years ended at least 90 days prior to the Closing Date and (B) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and the OnX group of companies for each subsequent fiscal quarter ended at least 45 days before the Closing Date (and comparable periods for the prior fiscal year); provided that the filing of the required financial statements on Form 10-K and Form 10-Q within such time periods by the Borrower will satisfy the requirements of this clause (j) with respect to the Borrower; and (ii) pro forma consolidated income statements and balance sheets of the Borrower and its Subsidiaries as of the last day of the most recent fiscal period for which financial statements of the Borrower were delivered under the foregoing clause (i), prepared after giving effect to the HCOM Acquisition and the HCOM Indebtedness Refinancing, with supplemental data (not included in such pro forma financial statements) reflecting the consolidated EBITDA of OnX.

(k)                OnX Acquisition.  The OnX Acquisition shall have been consummated, or substantially simultaneously with the initial Credit Extension on the Closing Date shall be consummated, in accordance with applicable Law, the OnX Merger Agreement and all other related documentation (without giving effect to any amendments or waivers to or of such documents that are materially adverse to the Lenders and not consented to by the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned)).

(l)                 KYC.  The Administrative Agent shall have received, at least three Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case requested at least ten Business Days prior to the Closing Date.

Notwithstanding the foregoing, it is understood and agreed that, to the extent any security interest in any Collateral is not or cannot be provided and/or perfected on the Closing Date (other than the creation of and perfection (including by delivery of stock or other equity certificates, if any) of security interests (A) in the equity interests in the Borrower’s Domestic Subsidiaries (other than any Immaterial Subsidiaries) (to the extent constituting Collateral) and (B) in other assets located in the United States with respect to which a Lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) after the Borrower’s use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability of the initial Credit Extensions hereunder on the Closing Date, but instead shall be required to be provided or delivered after the Closing Date pursuant to arrangements and timing mutually agreed upon between the Borrower and the Administrative Agent acting reasonably.

Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

5.02             Conditions to All Credit Extensions.

The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type, or a continuation of Eurodollar Rate Loans), is subject to the following conditions precedent:

96


(a)                (i) In the case of any Credit Extension made under an HCOM Incremental Term Facility or an Incremental Acquisition Term Facility, the Specified Representations and the Acquisition Agreement Representations, (ii) in the case of the initial Credit Extension made on the Closing Date, the Specified Representations and the OnX Specified Representations and (iii) in all other cases, the representations and warranties of the Borrower and each other Loan Party contained in Article VI or any other Loan Document or which are contained in any certification or representation provided in writing to the Administrative Agent or the Collateral Agent by a Responsible Officer of a Loan Party under or in connection with this Agreement or any other Loan Document, in each case, shall be true and correct in all material respects (or in all respects, if such representation or warranty is qualified by materiality) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects, if such representation or warranty is qualified by materiality) as of such earlier date, and except that for purposes of this Section 5.02, the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01.

(b)               Except with respect to the initial Credit Extension made on the Closing Date and any Credit Extension made under an HCOM Incremental Term Facility, no Default (or, in the case of any Credit Extension made under an Incremental Acquisition Term Facility (other than, for the avoidance of doubt, an HCOM Incremental Term Facility), no Event of Default under Section 9.01(a) or 9.01(g)) shall exist, or would result from, such proposed Credit Extension.

(c)               The Administrative Agent and, if applicable, the applicable L/C Issuer or Swingline Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.

(d)               In the case of an L/C Credit Extension to be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Administrative Agent or the applicable L/C Issuer would make it impracticable for such L/C Credit Extension to be denominated in the relevant Alternative Currency.

Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the applicable conditions specified in Section 5.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.

ARTICLE VI
REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants to the Administrative Agent and the Lenders that:

6.01             Existence, Qualification and Power.

The Borrower and each Restricted Subsidiary (a) is duly organized or formed, validly existing and in good standing (to the extent applicable in its jurisdiction) under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents, if any, to which it is a party and (c) is duly qualified and is licensed and in good standing (to the extent applicable in its jurisdiction) under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of

97


its business requires such qualification or license; except in each case referred to in clauses (a) (insofar as it relates to any Restricted Subsidiary), (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

6.02            Authorization; No Contravention.

The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party (a) have been duly authorized by all necessary corporate or other organizational action and (b) do not and will not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or result in or require the creation of any Lien under, or require any payment to be made under (A) except for Liens under the Loan Documents and the lien creation requirements of the indentures governing the Specified Notes, any Material Contract to which such Person is a party or affecting such Person or the Property of such Person or any of its Restricted Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject or (iii) violate any Law (including Regulation U or Regulation X issued by the FRB); except in each case referred to in clause (b)(ii) or (b)(iii), to the extent that such conflict, breach, contravention, Lien, payment or violation could not reasonably be expected to have a Material Adverse Effect.

6.03             Governmental Authorization; Other Consents.

No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, except for (a) consents, authorizations, notices and filings described in Schedule 6.03, all of which have been obtained or made or have the status described in such Schedule 6.03, (b) filings to perfect the Liens created by the Collateral Documents, (c) approvals of the FCC or any applicable State PUC with respect to any assignment or transfer of control of any License or Communications System and (d) any approval, consent, exemption, authorization, action, notice or filing the failure to obtain or make which could not reasonably be expected to have a Material Adverse Effect.

6.04             Binding Effect.

This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.  This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms except as enforceability may be limited by applicable Debtor Relief Laws and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

6.05             Financial Statements; No Material Adverse Effect.

(a)               The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial position of the Borrower and its consolidated subsidiaries (including any Designated Wireless Subsidiary) as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.

(b)               The unaudited consolidated balance sheet of the Borrower and its consolidated subsidiaries (including any Designated Wireless Subsidiary) dated June 30, 2017 and the related

98


consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial position of the Borrower and its consolidated subsidiaries (including any Designated Wireless Subsidiary) as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to year‑end audit adjustments.

(c)                Since the date of the Audited Financial Statements, there has not occurred a material adverse change in the business, assets, properties, liabilities (actual or contingent), operations or condition (financial or otherwise) of the Borrower and the Restricted Subsidiaries, taken as a whole.

6.06             Litigation.

There are no actions, suits or proceedings pending or, to the knowledge of any Responsible Officer of the Borrower, threatened, by or before any Governmental Authority, by or against any of the Borrower or any Restricted Subsidiary or against any of its properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or (b) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
 
6.07             No Default.

No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.

6.08             Ownership of Property; Liens.

The Borrower and each Restricted Subsidiary has good title to, or valid leasehold interests in, or other applicable rights in, all real property material to the ordinary conduct of its business, except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

6.09             Environmental Compliance.

Except in each case as where the existence and/or occurrence of any of the following could not reasonably be expected to have a Material Adverse Effect:

(a)               All operations of the Borrower and each Restricted Subsidiary at the Real Properties are in compliance with all applicable Environmental Laws, neither the Borrower nor any Restricted Subsidiary has in the past two years violated any Environmental Law with respect to the Real Properties or the Businesses, and neither the Borrower nor any Restricted Subsidiary has caused, and, to the knowledge of any Responsible Officer of the Borrower, no other Person has caused, any conditions relating to the Real Properties or the Businesses that could give rise to liability under any applicable Environmental Laws.

(b)                Neither the Borrower nor any Restricted Subsidiary has received any written notice of, or inquiry from any Governmental Authority in the past two years regarding, any violation, alleged violation, non‑compliance, liability or alleged liability pursuant to Environmental Laws with regard to any of the Real Properties or the Businesses.

(c)                Hazardous Materials have not been transported or disposed of from the Real Properties, or generated, treated, stored or disposed of at, on or under any of the Real Properties or any other location, in each case by or on behalf of the Borrower or any Restricted Subsidiary, or, to the knowledge

99


of any Responsible Officer of the Borrower, by any other Person on behalf of the Borrower or any Restricted Subsidiary, in violation of, or in a manner that has given rise to remedial obligations on the part of the Borrower or any Restricted Subsidiary under, any applicable Environmental Law.

(d)            No judicial proceeding or governmental or administrative action is pending or, to the knowledge of any Responsible Officer of the Borrower, threatened, under any Environmental Law to which the Borrower or any Restricted Subsidiary is or will be named as a party, nor are any of the Borrower or any Restricted Subsidiary subject to any consent decrees, consent orders, administrative orders, or other administrative or judicial requirements outstanding under any Environmental Law.

(e)            There has been no release, or threat of release, of Hazardous Materials at or from the Real Properties arising from or related to the operations (including disposal) of the Borrower or any Restricted Subsidiary, or, to the knowledge of any Responsible Officer of the Borrower, of any other Person in connection with the Real Properties or otherwise in connection with the Businesses, in violation of or in amounts or in a manner that has given rise to remedial obligations on the part of the Borrower or any Restricted Subsidiary under Environmental Laws.

6.10            Insurance.

The properties of the Borrower and each Restricted Subsidiary are insured, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Restricted Subsidiary operates.

6.11            Taxes.

The Borrower and each Subsidiary have filed all Federal, state and other tax returns and reports required to be filed, and have paid all Federal, state and other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) those which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP or (b) to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.  There is no proposed tax assessment against the Borrower or any Restricted Subsidiary that would, if made, have a Material Adverse Effect.

6.12             ERISA Compliance.

No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to have a Material Adverse Effect.

6.13             Subsidiaries.

Set forth on Schedule 6.13 is a complete and accurate list as of the Closing Date with respect to each direct and indirect Subsidiary of the Borrower of (a) the jurisdiction of incorporation or formation of such Subsidiary and (b) the percentage of outstanding shares of each class of Capital Stock of such Subsidiary owned by the Borrower or any other Subsidiary.  The outstanding Capital Stock of all such Persons is validly issued, fully paid and, with respect to incorporated Loan Parties, non assessable.  Other than as set forth on Schedule 6.13, as of the Closing Date, none of the Subsidiaries has outstanding any securities convertible into or exchangeable for its Capital Stock nor does any such Person have outstanding any rights to subscribe for or to purchase or any options for the purchase of, or any

100


agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any character relating to its Capital Stock.

6.14             Margin Regulations; Investment Company Act.

(a)                No Loan Party is engaged, nor will any such Loan Party engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.

(b)                None of the Loan Parties is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

6.15             Disclosure.

All written information (other than projected financial information, forward-looking information and information of a general economic or industry specific nature) that has been or will be made available by or on behalf of any Loan Party to the Administrative Agent or any Lender on or prior to the Closing Date in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document, when taken as a whole, is or will be, when furnished, correct in all material respects and does not or will not, when furnished, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (giving effect to all supplements and updates provided thereto from time to time, and taken together with the information disclosed in the Borrower’s public filings with the SEC, as such information is supplemented or updated by other information so disclosed); provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions that were believed by the Borrower to be reasonable at the time made and at the time such projected financial information was made available to the Administrative Agent and the Lenders (it being understood that (a) such projected financial information is as to future events and is not to be viewed as facts, (b) such projected financial information is subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower and the Subsidiaries, (c) no assurance can be given that any particular projected financial information will be realized and (d) actual results during the period or periods covered by any such projected financial information may differ significantly from the projected results and such differences may be material).

6.16             Compliance with Laws.

The Borrower and each Restricted Subsidiary is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its Properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

6.17             Intellectual Property.

The Borrower and each Restricted Subsidiary owns, or has the legal right to use, all material trademarks, service marks, trade names, trade dress, patents, copyrights, technology, know‑how and processes (the “Intellectual Property”) reasonably necessary for each of them to conduct its business as currently conducted.  No claim has been asserted and is pending by any Person challenging or questioning the use of the Intellectual Property or the validity or effectiveness of the Intellectual Property, nor does

101


any Responsible Officer of the Borrower know of any such claim, and, to the knowledge of any Responsible Officer of the Borrower, the use of the Intellectual Property by any Loan Party or any Restricted Subsidiary or the granting of a right or a license in respect of the Intellectual Property from the Borrower or any Restricted Subsidiary does not infringe on the rights of any Person, except in each case for such claims and infringements that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

6.18            Solvency.

(a)                As of the Closing Date, after giving effect to the consummation of the Closing Date Transactions, the Borrower and its Subsidiaries, on a consolidated basis, are Solvent and (b) the Borrower and its Subsidiaries are Solvent on a consolidated basis.

6.19            Telecommunications Regulatory Matters.

(a)               The Borrower and each Restricted Subsidiary have obtained all material Governmental Approvals of any Governmental Authority having jurisdiction over such Persons, which Governmental Approvals are reasonably necessary for the operation of the Businesses.  All Governmental Approvals of such Persons are in full force and effect, are duly issued in the name of, or validly assigned to, such Persons and such Persons have the power and authority to operate thereunder, except in each case to the extent the failure thereof could not reasonably be expected to have a Material Adverse Effect.

(b)               There are no proceedings pending or, to the knowledge of any Responsible Officer of the Borrower, threatened from or before the FCC, a State PUC or any other Governmental Authority responsible for telecommunications matters naming any of the Borrower or any Restricted Subsidiary, that either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.

6.20             Perfection, Etc.

Except as otherwise contemplated hereby (including, with respect to the Closing Date, the penultimate paragraph of Section 5.01) or under any other Loan Documents, all filings and other actions necessary to perfect the Liens on the Collateral created under, and in the manner contemplated by, the Collateral Documents have been duly made or taken or otherwise provided for (to the extent required hereby or by the applicable Collateral Documents) and are in full force and effect and the Collateral Documents, upon execution and delivery thereof by all parties thereto, create in favor of the Administrative Agent for the benefit of the holders of the Secured Obligations (as defined in the Security Agreements) a valid and, together with such filings and other actions (to the extent required hereby or by the applicable Collateral Documents and to the extent perfected Liens can be obtained by the making of such filings and the taking of such other actions), perfected Lien in the Collateral securing the payment of the Obligations (subject to Permitted Liens).

6.21             Sanctions; Patriot Act; FCPA.

To the extent applicable, the Borrower and each of its Subsidiaries and, to the knowledge of any Responsible Officer of the Borrower, each director, officer, agent or employee of the Borrower or any of its Subsidiaries in connection with the business of such Person, is in compliance, in all material respects, with (a) the Patriot Act, (b) any Sanctions and (c) other applicable anti-corruption and anti-money laundering laws.  Neither the Borrower nor any of its Subsidiaries, nor, to the knowledge of any Responsible Officer of the Borrower, any director, officer, agent or employee of the Borrower or any of its Subsidiaries, is a Sanctioned Person or has engaged in or is engaging in dealings or transactions with

102


any Sanctioned Person in violation of any Sanctions.  No part of the proceeds of the Borrowings will be used, directly or indirectly, by the Borrower or any of its Subsidiaries to make any payments (i) to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977 (the “FCPA”) or (ii) for the purpose of financing the activities of any Sanctioned Person.  The Borrower has instituted and maintains policies and procedures reasonably designed to prevent violation of any Sanctions.  The Transactions will not violate any applicable Sanctions.

ARTICLE VII
AFFIRMATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall not be Fully Satisfied, or any Letter of Credit shall remain outstanding, the Borrower shall, and shall cause each Restricted Subsidiary to:

7.01             Financial Statements.

Deliver to the Administrative Agent (which shall promptly deliver to the Lenders):

(a)                after the end of each fiscal year of the Borrower, commencing with the year ending December 31, 2017, as soon as available, but in any event within 90 days after the end of each fiscal year, a consolidated balance sheet of the Borrower and its consolidated subsidiaries (which will include any Designated Wireless Subsidiary) as at the end of such fiscal year and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all prepared in accordance with GAAP, audited and accompanied by a report and opinion of a registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification (other than any such exception that is expressed solely with respect to, or resulting solely from, (i) a maturity date in respect of any Commitments or Loans that is scheduled to occur within one year from the date of delivery of such opinion or (ii) any inability or potential inability to satisfy the covenants set forth in Section 8.11 of this Agreement on a future date or in a future period); and

(b)               after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, commencing with the fiscal quarter ended September 30, 2017, as soon as available, but in any event within 45 days after the end of the applicable fiscal quarter, a consolidated balance sheet of the Borrower and its consolidated subsidiaries (which will include any Designated Wireless Subsidiary) as at the end of such fiscal quarter, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, such consolidated statements to be certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial position and results of operations of the Borrower and its consolidated subsidiaries (including any Designated Wireless Subsidiary) in accordance with GAAP, subject only to the absence of footnotes and to year‑end audit adjustments.

7.02             Certificates; Other Information.

Deliver to the Administrative Agent (which shall promptly deliver to the Lenders):

103


(a)                concurrently with the delivery of the financial statements referred to in Section 7.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal year ended December 31, 2017), a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower and, if such financial statements include the assets, liabilities and income or results of operations of any Unrestricted Subsidiaries or Designated Wireless Subsidiaries, an unaudited reconciliation showing the effect, on a pro forma basis, of not including such Unrestricted Subsidiaries and Designated Wireless Subsidiaries in such financial statements;

(b)                concurrently with the delivery of the financial statements referred to in Section 7.01(a), an annual business plan and budget of the Borrower containing, among other things, pro forma financial statements for the next fiscal year, beginning with an annual business plan and budget for fiscal year 2018;

(c)                concurrently with the delivery of the financial statements referred to in Section 7.01(a), a report signed by an Responsible Officer of the Borrower setting forth (i) a list of registration numbers for all material patents, trademarks, service marks, trade names and copyrights awarded to any Loan Party since the last day of the immediately preceding fiscal year and (ii) a list of all material patent applications, trademark applications, service mark applications, trade name applications and copyright applications submitted by any Loan Party since the last day of the immediately preceding fiscal year and the status of each such application;

(d)                promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements that the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934; and

(e)                promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Restricted Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent (on its own behalf or on the behalf of any Lender) may from time to time reasonably request.

Documents required to be delivered pursuant to Section 7.01 or Section 7.02 may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet at the website address listed on Schedule 11.02; (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent are offered access (whether a commercial, third‑party website or whether sponsored by the Administrative Agent); or (iii) on which such documents become available on the website of the SEC at http://www.sec.gov.  The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

The Loan Parties hereby acknowledge that (a) the Administrative Agent may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non‑public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.  The Loan Parties hereby agree that (i) all Borrower Materials that are

104


to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Borrower Materials “PUBLIC,” the Loan Parties shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”

7.03             Notices and Information.

Promptly notify the Administrative Agent, for further dissemination to the Lenders, of:

(a)               The occurrence of any Default known to any Responsible Officer of the Borrower and the nature thereof.

(b)               Any matter that has had or could reasonably be expected to have a Material Adverse Effect, including those resulting from (i) breach or non‑performance of, or any default under, a Contractual Obligation of the Borrower or any Restricted Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Restricted Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Restricted Subsidiary, including pursuant to any applicable Environmental Laws.

(c)                The occurrence of any ERISA Event that has had or could reasonably be expected to have a Material Adverse Effect.

Each notice pursuant to this Section 7.03(a) through (c) shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken or proposes to take with respect thereto.  Each notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

7.04             Payment of Taxes.

Except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect, pay and discharge as the same shall become due and payable, all its Tax obligations and liabilities, unless the same are being contested in good faith by appropriate proceedings and adequate reserves in accordance with GAAP are being maintained by the Borrower or a Subsidiary, as applicable.

7.05             Preservation of Existence, Etc.

(a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization, except in a transaction permitted by Section 8.04 or Section 8.05, or to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all


105

of its material registered copyrights, patents, trademarks, trade names and service marks, except in a transaction permitted by Section 8.04 or Section 8.05 or to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
 
                7.06             Maintenance of Properties.

Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted, except in each case to the extent a failure thereof could not reasonably be expected to have a Material Adverse Effect.

7.07             Maintenance of Insurance.

Maintain in full force and effect insurance in such amounts, covering such risks and liabilities and with such deductibles or self‑insurance retentions as are in accordance with normal industry practice (it being understood that, to the extent consistent with prudent business practices of a Person carrying on a similar business in a similar location as the Borrower or a Restricted Subsidiary, a program of self‑insurance may be utilized).  The Administrative Agent shall be named as an additional insured as its interests may appear on behalf of the Lenders under all policies with respect to liability insurance (other than workers’ compensation and other policies for which such endorsements are not customary) (a) within 30 days following the Closing Date with respect to such policies in effect on the Closing Date (or such later date as the Administrative Agent shall agree in its reasonable discretion) and (b) as promptly as practicable following the effectiveness of the applicable policies with respect to policies that become effective after the Closing Date.  The Collateral Agent, for the benefit of the Lenders, shall be named as a co-loss payee under all casualty policies with respect to property insurance covering any Collateral (i) within 30 days following the Closing Date with respect to such policies in effect on the Closing Date (or such later date as the Administrative Agent shall agree in its reasonable discretion) and (ii) as promptly as practicable following the effectiveness of the applicable policies with respect to policies that become effective after the Closing Date; provided in each case that (without limiting the provisions of Section 2.05) (A) so long as no Event of Default under Sections 9.01(a)(i) or (g) hereof shall have occurred and be continuing, any proceeds payable under such property insurance shall be paid directly to the Borrower or the applicable Restricted Subsidiary and not the Collateral Agent for application permitted under this Agreement and (B) the Collateral Agent shall promptly deliver such documentation as the Borrower or the applicable insurer shall reasonably request to confirm and give effect to the provisions of the foregoing clause (A).

7.08             Compliance with Laws and Contractual Obligations.

Comply with the requirements of all Laws, all Contractual Obligations and all orders, writs, injunctions and decrees applicable to it or to its business or Property, except in such instances in which (a) such requirement of Law, Contractual Obligation or order, writ, injunction or decree is being contested in good faith by appropriate proceedings or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

7.09             Books and Records.

(a)                Maintain proper books of record and account, in which entries in conformity with GAAP in all material respects shall be made of all financial transactions and matters involving the assets and business of the Borrower or any Restricted Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental

106


Authority having regulatory jurisdiction over the Borrower or any Restricted Subsidiary, as the case may be.

7.10            Inspection Rights.

(a)                Permit representatives and independent contractors of the Administrative Agent and the Lenders to visit and inspect any of its Properties, to examine its corporate, financial and operating records, and, with the prior written consent of the Borrower (not to be unreasonably withheld, conditioned or delayed) make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors and officers and use commercially reasonable efforts to make its independent public accountants available to discuss its affairs, finances and accounts, all at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower, and, at any time when an Event of Default has occurred and is continuing, at the expense of the Borrower; provided that so long as no Event of Default has occurred and is continuing, such visits and inspections shall be limited to the Administrative Agent and to not more than one visit and inspection in any fiscal year.

7.11            Use of Proceeds.

Use the proceeds of (a) the Tranche B Term Loans made on the Closing Date solely to consummate the Closing Date Transactions and, to the extent of any remaining proceeds, to consummate the other Transactions and for working capital and other general corporate purposes (including permitted acquisitions, other permitted investments and Restricted Payments), (b) the Revolving Loans for working capital and other general corporate purposes (including permitted acquisitions, other permitted investments and Restricted Payments) and, to the extent necessary, to consummate the Transactions, provided that Revolving Loans to consummate the Transactions shall not exceed $50,000,000 and (c) any Incremental Term Facility or the proceeds of any Revolving Loans made pursuant to any Revolving Commitment Increase for working capital and other general corporate purposes (including permitted acquisitions, other permitted investments and Restricted Payments).  Letters of Credit will be used to support obligations of the Borrower and its Subsidiaries incurred in the ordinary course of business.

7.12             Additional Guarantors.

(a)                General.  Notify the Administrative Agent at the time that any Person becomes a Restricted Subsidiary of a Loan Party and, within 30 days thereafter (or such later date as the Administrative Agent shall agree in its reasonable discretion), (i) unless such Person is an Excluded Subsidiary, the Borrower shall (A) cause such Person to become a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and (B) to the extent reasonably requested by the Administrative Agent, deliver to the Administrative Agent items of the types referred to for each of the initial Loan Parties pursuant to Sections 5.01(a), 5.01(b) and 5.01(c), all in form, content and scope reasonably satisfactory to the Administrative Agent and (ii) unless such Person is a Non‑Pledged Subsidiary, the Borrower shall cause the Capital Stock of such Person owned by the Loan Parties to be pledged to the Collateral Agent (for the benefit of the Lenders) as and to the extent required by Section 7.13.

(b)               Other Excluded Subsidiaries; Non-Pledged Subsidiaries.  Notwithstanding any provision to the contrary set forth herein or in any other Loan Document, but subject to applicable Laws, including all regulations relating to utility or telecommunications businesses by all Governmental Authorities that prohibit, restrict or require regulatory consent or approval for the granting of Liens or security interests in Property or the incurrence of Indebtedness:

107


(i)         in the event that (A) any Restricted Subsidiary that is an Excluded Subsidiary by virtue of clause (f) of the definition of “Excluded Subsidiaries” set forth in Section 1.01 becomes a Wholly Owned Subsidiary, (B) the circumstances causing any Restricted Subsidiary to be an Excluded Subsidiary by virtue of clause (j)(i) and (j)(ii) of the definition of “Excluded Subsidiaries” set forth in Section 1.01 cease to exist or (C) the Borrower shall have reasonably determined, in consultation with the Administrative Agent, as a result of a change in fact, Law or circumstance that any Restricted Subsidiary that is an Excluded Subsidiary by virtue of clause (j)(iii) of the definition of “Excluded Subsidiaries” set forth in Section 1.01 should become a Loan Party, then (1) such Restricted Subsidiary shall cease to be an Excluded Subsidiary and (2) the Loan Parties shall within 30 days after any of the events in clause (A), (B) or (C) occurs (or such later date as the Administrative Agent shall agree in its reasonable discretion) cause such Restricted Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and, to the extent reasonably requested by the Administrative Agent, deliver to the Administrative Agent items of the types referred to for each of the initial Loan Parties pursuant to Sections 5.01(a), 5.01(b) and 5.01(c), all in form, content and scope reasonably satisfactory to the Administrative Agent; or

(ii)         in the event that (A) any Restricted Subsidiary that is a Non‑Pledged Subsidiary by virtue of clause (d) of the definition of “Non‑Pledged Subsidiaries” set forth in Section 1.01 becomes a Wholly Owned Subsidiary, (B) the circumstances causing any Restricted Subsidiary to be a Non‑Pledged Subsidiary by virtue of clause (e)(i) or (e)(ii) of the definition of “Non‑Pledged Subsidiaries” set forth in Section 1.01 cease to exist or (C) the Borrower, in consultation with the Administrative Agent, shall have reasonably determined as a result of a change in fact, law or circumstance that the Capital Stock of any Restricted Subsidiary that is a Non‑Pledged Subsidiary by virtue of clause (e)(iii) of the definition of “Non‑Pledged Subsidiaries” set forth in Section 1.01 should be pledged to the Collateral Agent, then (1) such Restricted Subsidiary shall cease to be a Non‑Pledged Subsidiary and (2) the Loan Parties shall within 30 days after any of the events in clause (A), (B) or (C) occurs (or such later date as the Administrative Agent shall agree in its reasonable discretion) cause the Capital Stock of such Restricted Subsidiary to be pledged to the Collateral Agent (for the benefit of the Lenders) as and to the extent required by Section 7.13.

7.13            Further Assurances.  Subject to the penultimate paragraph of Section 5.01 with respect to the Closing Date, cause (a) all of the issued and outstanding Capital Stock of each Domestic Subsidiary (other than any Non-Pledged Subsidiary or Pass-Through Foreign Holdco) directly owned by any Loan Party and (b) no less than 65% of the issued and outstanding Capital Stock of each Foreign Subsidiary, CFC or Pass-Through Foreign Holdco (in each case, other than any Non-Pledged Subsidiary) directly owned by any Loan Party to be subject at all times to a valid and perfected, first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent pursuant to the terms and conditions of the Collateral Documents.  Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) no security or pledge agreements governed under the laws of any non-U.S. jurisdiction shall be required in respect of any Collateral or any Loan Party and (ii) no actions in any non-U.S. jurisdiction shall be required in order to create or perfect any security interest in any Collateral located or titled outside the United States.

108


7.14            Lender Call.  Within 90 days after the end of each fiscal year of the Borrower, at the request of Administrative Agent or of the Required Lenders and upon reasonable prior notice, hold a conference call with all Lenders who choose to attend such conference call at which conference call shall be reviewed the financial results of the previous fiscal year and the financial condition of Borrower and the Restricted Subsidiaries.

7.15            Designation of Restricted and Unrestricted Subsidiaries.

(a)            Subject to Section 7.15(b), the Borrower may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by such Subsidiary’s direct parent therein at the date of designation in an amount equal to the Fair Market Value of such Subsidiary’s direct parent’s investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.

(b)            The Borrower may designate any Restricted Subsidiary as an Unrestricted Subsidiary, or designate an Unrestricted Subsidiary as a Restricted Subsidiary, in each case, so long as:

(i)          no Default or Event of Default shall have occurred and be continuing; and

(ii)        immediately after giving effect to such designation, the Borrower and the Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Sections 8.11(a) and (b) recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered

7.16            Sanctions; Patriot Act; FCPA.  To the extent applicable, conduct its Businesses in compliance, in all material respects, with (a) the Patriot Act, (b) any Sanctions, (c) the FCPA and (d) other applicable anti-corruption and anti-money laundering laws and maintain policies and procedures reasonably designed to prevent violation of any Sanctions.

ARTICLE VIII
NEGATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall not be Fully Satisfied, or any Letter of Credit shall remain outstanding, the Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly:

8.01             Liens.

Create, incur, assume or suffer to exist any Lien upon any of its Property, whether now owned or hereafter acquired, other than the following:

(a)                 Liens pursuant to any Loan Document;

(b)               Liens existing on the date hereof and listed on Schedule 8.01 and any renewals or extensions thereof; provided that (i) such Liens shall not apply to any other Property of the Borrower or any Restricted Subsidiary other than after acquired Property and proceeds, (ii) the maximum amount secured or benefited thereby is not increased and (iii) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 8.03;

109


(c)                Liens for Taxes, assessments or governmental charges or levies that are not overdue by more than 30 days or are being contested in good faith by appropriate proceedings;

(d)               statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business; provided that such Liens secure only amounts that are not overdue by more than 60 days (or, if overdue by more than 60 days, are unfiled and no other action has been taken to enforce the same) or are being contested in good faith by appropriate proceedings;

(e)                Liens, pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;

(f)                 Liens, pledges or deposits to secure the performance of bids, tenders, trade contracts and leases (other than Indebtedness), public or statutory obligations, surety, stay or appeal bonds, indemnity or performance bonds and other obligations of a like nature, in each case incurred in the ordinary course of business; and Liens, pledges or deposits in lieu of such bonds or obligations or to secure letters of credit in lieu of or supporting the payment of such bonds or obligations;

(g)               survey exceptions, encumbrances, rights of way, easements or reservations of, or rights of others for, licenses, rights of way, servitudes, sewers, electric lines, telegraph and telephone and cable television lines, zoning, building code or other restrictions and encumbrances (including minor defects or irregularities in title and similar charges and encumbrances) affecting real property, and defects in title which in the aggregate do not materially interfere with the ordinary conduct of business of the Borrower or any Restricted Subsidiary;

(h)                Liens securing judgments for the payment of money not constituting an Event of Default under Section 9.01(i) and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings;

(i)                  Liens securing Indebtedness permitted under Section 8.03(e) or Section 8.03(m); provided that (i) in the case of Liens securing Indebtedness permitted under clause (i) of Section 8.03(e) or clause (i) of Section 8.03(m), (A) such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness, (B) the Indebtedness secured thereby does not, at the time incurred, exceed the cost or Fair Market Value, whichever is lower, of the Property being acquired, constructed or improved on the date of acquisition, construction or improvement, as applicable, and (C) such Liens attach to such Property concurrently with or within 180 days after the acquisition or completion of construction or improvement, as applicable, thereof; and (ii) in the case of Liens securing Indebtedness permitted under clause (ii) of Section 8.03(e), (A) such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness and the proceeds thereof generated by the sale of such Property to the applicable customer, (B) the Indebtedness secured thereby does not, at the time incurred, exceed the sale price to the customer of the Property being acquired and (C) such Liens attach to such Property substantially concurrently with the acquisition thereof;

(j)                  leases, sub-leases, licenses or sub-licenses of real or personal property granted to other Persons, including Intellectual Property and other general intangibles, entered into in the ordinary course of business;

(k)                any interest of title of a lessor or licensor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases

110


and licenses permitted by this Agreement, including Liens arising from precautionary UCC financing statements regarding operating leases or consignments;

(l)                  (i) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods, (ii) Liens on specific items of inventory or other goods and proceeds of the Borrower or any Restricted Subsidiary securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods and (iii) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof;

(m)               Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 8.02;

(n)                normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;

(o)                (i) Liens of a collection bank arising under Section 4-208 or 4‑210 of the UCC on items in the course of collection and (ii) Liens encumbering reasonable customary deposits and margin deposits and similar Liens attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

(p)                Liens existing or deemed to exist in connection with any Permitted Receivables Financing, but only to the extent that any such Liens relate to the applicable Transferred Assets purported to be sold, contributed, financed or otherwise conveyed or pledged pursuant to such transaction;

(q)                Liens of sellers of goods to the Borrower or any Restricted Subsidiary arising under Article 2 of the UCC or similar provisions of applicable Law in the ordinary course of business, covering only the goods sold and securing only the unpaid purchase price for such goods and related expenses, and other Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale or purchase of goods entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;

(r)                 any interest of title of a buyer in connection with, and Liens arising from UCC financing statements relating to, a sale of receivables permitted by this Agreement;

(s)                 any Lien on Property not owned by the Borrower or any Restricted Subsidiary on the Closing Date that is in existence at the time that such Property is acquired by the Borrower or any Restricted Subsidiary or at the time that the Person that owns such Property becomes a Restricted Subsidiary, including Liens on Property of HCOM and its Subsidiaries in existence on the HCOM Closing Date; provided that such Lien is not created in contemplation of, or in connection with, such acquisition or such Person becoming a Restricted Subsidiary, as the case may be;

(t)                  Liens, leases and grants of indefeasible rights of use, rights of use and similar rights in respect of capacity, dark fiber and similar assets of the Borrower or any Restricted Subsidiary in the ordinary course of business;

(u)                other Liens securing Indebtedness or other obligations in an aggregate principal amount not to exceed $50,000,000 at any time outstanding;

111


(v)                Liens consisting of margin deposits on Property securing exchange traded or other commodities Swap Contracts entered into in the ordinary course of business;

(w)               in the case of (A) any Subsidiary that is not a Wholly Owned Subsidiary and (B) the Capital Stock of any Person that is not a Subsidiary, any encumbrance or restriction, including any put and call arrangements, related to the Capital Stock of such Subsidiary or such other Person set forth in the organizational documents of such Subsidiary or such other Person or any related joint venture, shareholders’ or similar agreement;

(x)                 Liens on Property owned by any Excluded Subsidiary securing Indebtedness permitted under Section 8.03(j);

(y)                pledges of Capital Stock of an Unrestricted Subsidiary securing Indebtedness of such Unrestricted Subsidiary that is not Guaranteed (other than by such pledge) by the Borrower or any Restricted Subsidiary;

(z)                 Liens on Permitted Escrow Debt Proceeds securing Permitted Escrow Debt;

(aa)             Liens on the Collateral securing the Specified Notes;

(bb)            Liens on Property of Restricted Subsidiaries that are not Loan Parties securing Indebtedness of such Restricted Subsidiaries permitted by Section 8.03 and other obligations of such Restricted Subsidiaries not prohibited by this Agreement;

(cc)            Liens on the Collateral securing Indebtedness permitted under Section 8.03(l) or Section 8.03(n);

(dd)            (i) deposits made or other security provided in the ordinary course of business to secure liability to insurance carriers or self-insurance arrangements and (ii) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

(ee)              Liens solely on any cash earnest money deposits made by the Borrower or any Restricted Subsidiary in connection with any letter of intent or purchase agreement permitted under this Agreement; and

(ff)               ground leases in respect of real property on which facilities owned or leased by the Borrower or any Restricted Subsidiary are located.

8.02            Investments.

Make any Investments, except:

(a)                 Investments held by such Loan Party or such Restricted Subsidiary in the form of Cash Equivalents;

(b)                Investments existing as of the Closing Date and set forth in Schedule 8.02;

(c)                Investments consisting of advances or loans to directors, officers, employees, agents, customers or suppliers; provided that the amount of any such Investment made in reliance on this clause (c) shall not cause the aggregate amount of all Investments outstanding in reliance on this clause (c), measured at the time such Investment is made, to exceed the greater of $30,000,000 and 2.0%

112


of Consolidated Total Assets (on a Pro Forma Basis as of the most recent fiscal quarter end with respect to which the Administrative Agent has received the Required Financial Information);

(d)                (i) Investments in any Person that is a Loan Party prior to giving effect to such Investment or becomes a Loan Party in connection with the consummation of such Investment and (ii) Investments in any Restricted Subsidiary that is not a Loan Party by any other Restricted Subsidiary that is not a Loan Party;

(e)                (i) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit, payables due and advances to customers or suppliers, UCC Article 4 customary trade arrangements with customers and endorsements for collection or deposit, in each case arising in the ordinary course of business and (ii) Investment acquired by the Borrower or any Restricted Subsidiary (A) in exchange for any other Investment or accounts receivable held by the Borrower or any Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, settlement, reorganization or recapitalization of the issuer of such other Investment or accounts receivable, (B) in satisfaction of judgments against other Persons, (C) as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default, (D) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates, (E) in satisfaction of extensions of credit that were created in the ordinary course of business to any Person otherwise permitted under this Agreement pursuant to the reorganization, bankruptcy or liquidation of such Person, (F) in connection with a good faith settlement of debts or (G) in connection with a settlement of debts created in the ordinary course of business;

(f)                  Guarantees constituting Indebtedness permitted by Section 8.03 (other than Section 8.03(c)), to the extent such Guarantees also constitute Investments;

(g)                (i) Investments in any Designated Wireless Subsidiary; provided that (A) the amount of any such Investment made in reliance on this clause (g)(i) shall not cause the aggregate amount of all Investments outstanding in reliance on this clause (g)(i), measured at the time such Investment is made, to exceed the greater of $35,000,000 and 2.33% of Consolidated Total Assets (on a Pro Forma Basis as of the most recent fiscal quarter end with respect to which the Administrative Agent has received the Required Financial Information) and (B) as of the date of any such Investment the Borrower shall have determined that such Investment is reasonably necessary to fund the operations of such Designated Wireless Subsidiary during the applicable wind down period (including by making payments on Indebtedness, leases or sale and leasebacks with respect to any assets) for such business pending completion of the final sale and transfer of the applicable Transitional Wireless Assets and (ii) if such Designated Wireless Subsidiary is not Wireless LLC, the contribution and transfer of Transitional Wireless Assets to such Designated Wireless Subsidiary;

(h)                Investments consisting of an Acquisition by the Borrower or any Restricted Subsidiary and (without double‑counting for purposes of determining compliance with the numerical limit applicable hereunder) Investments in Wholly Owned Subsidiaries that are Restricted Subsidiaries to enable such Subsidiaries to make such Acquisitions; provided that

(i)         the Property acquired (or the Property of the Person acquired) in such Acquisition is used or useful in the same or a similar line of business as the Borrower and the Restricted Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions thereof);

113


(ii)        no Event of Default (or, if such Acquisition is a Limited Condition Transaction, no Event of Default under Section 9.01(a) or 9.01(g)) shall have occurred and be continuing both before and immediately after the time such Acquisition is consummated;

(iii)      each applicable Loan Party and any such newly created or acquired Subsidiary shall, or will within the times specified therein, have complied with the applicable requirements of Section 7.12 to the extent required thereby; and

(iv)      with respect to any such Acquisition, the amount of the Investment made by Loan Parties in such Acquisition to purchase or acquire assets that are not purchased or acquired (or do not become owned) by a Loan Party or in Capital Stock in Persons that do not become Loan Parties upon consummation of such Acquisition, together with the aggregate amount of all other Investments outstanding in reliance on this clause (iv), measured at the time such Investment is made, shall not exceed the greater of $200,000,000 and 13.33% of Consolidated Total Assets (on a Pro Forma Basis as of the most recent fiscal quarter end with respect to which the Administrative Agent has received the Required Financial Information); provided that (A) in the case of any Investment permitted under this Section 8.02(h) that consists of the Acquisition of entities with at least 75% of domestic EBITDA in the aggregate, the portion of the Investment made by Loan Parties in such Acquisition that is attributable to foreign EBITDA shall also be permitted without the use of the amounts available pursuant to this clause (iv) and (B) in the case of any Investment permitted under this Section 8.02(h) that consists of the Acquisition of entities with less than 75% of domestic EBITDA in the aggregate, only the portion of the Investment made by Loan Parties in such Acquisition that is attributable to foreign EBITDA that is in excess of 25% shall be required to use the amounts available pursuant to this clause (iv);

(i)                  Investments made with the proceeds of an Equity Issuance by the Borrower so long as the proceeds thereof are not otherwise required to be applied to the prepayment of the Loans pursuant to the terms of this Agreement;

(j)                  Investments in a Receivables Financing SPC made in connection with a Permitted Receivables Financing;

(k)                 Investments in Subsidiaries that are not Loan Parties; provided that the amount of any such Investment made in reliance on this clause (k) shall not cause the aggregate amount of all Investments outstanding in reliance on this clause (k), measured at the time such Investment is made, to exceed the greater of $100,000,000 and 6.67% of Consolidated Total Assets (on a Pro Forma Basis as of the most recent fiscal quarter end with respect to which the Administrative Agent has received the Required Financial Information);

(l)                  Investments in CBT and in any Subsidiary of CBT;

(m)              Investments in Excluded Subsidiaries consisting of Guarantees of operating leases entered into in the ordinary course of business or of other obligations not constituting Indebtedness incurred in the ordinary course of business;

(n)               loans and advances by the Borrower or any Restricted Subsidiary to Excluded Subsidiaries evidenced by promissory notes that have been pledged and delivered to the Administrative Agent in accordance with the terms of the applicable Security Agreement;

(o)               additional Investments in Joint Ventures; provided that the amount of any such Investment made in reliance on this clause (o) shall not cause the aggregate amount of all Investments outstanding in reliance on this clause (o), measured at the time such Investment is made, to exceed the

114


greater of $150,000,000 and 10% of Consolidated Total Assets (on a Pro Forma Basis as of the most recent fiscal quarter end with respect to which the Administrative Agent has received the Required Financial Information);

(p)               Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into in the ordinary course of business;

(q)                Investments in the Borrower or any Restricted Subsidiary and/or by the Borrower or any Restricted Subsidiary, in each case, made in the form of intercompany debt and for cash management purposes in connection with cash management systems of the Borrower and the Restricted Subsidiaries, in the ordinary course of business;

(r)                  to the extent constituting or resulting in an Investment, any Wireless Disposition;

(s)                 other Investments not otherwise permitted by this Section 8.02; provided that (i) the amount of any such Investment made in reliance on this clause (s) shall not exceed the amount of the Available Amount Basket at the time such Investment is made and (ii) at the time of, and after giving pro forma effect to, the making of such Investment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom and (B) the Consolidated Total Leverage Ratio (on a Pro Forma Basis as of the most recent fiscal quarter end with respect to which the Administrative Agent has received the Required Financial Information) would not exceed 4.00 to 1.00;

(t)