EXHIBIT (10)(I)(A)(1)(III)
AMENDMENT NO. 2 TO THE CREDIT AGREEMENT
AMENDMENT NO. 2 dated as of July 2, 2003 (this "AMENDMENT") to the Second
Amendment and Restatement of the Credit Agreement dated as of March 26, 2003, as
amended by the Amendment, Waiver and Consent to the Credit Agreement dated as of
June 13, 2003 (such Amendment and Restatement of the Credit Agreement, as so
amended, supplemented or otherwise modified through the date hereof, the "CREDIT
AGREEMENT") among CINCINNATI ▇▇▇▇ INC. (f/k/a Broadwing Inc.), an Ohio
corporation ("CINCINNATI ▇▇▇▇"), and BCSI INC. (f/k/a Broadwing Communications
Services Inc.), a Delaware corporation ("BCSI", and together with Cincinnati
▇▇▇▇, each a "BORROWER" and collectively the "BORROWERS"), the banks, financial
institutions and other institutional lenders parties to the Credit Agreement
(the "LENDERS"), BANK OF AMERICA, N.A., as syndication agent (the "SYNDICATION
AGENT"), CITICORP USA, INC., as administrative agent (the "ADMINISTRATIVE
AGENT"), and the other agents party to the Credit Agreement.
PRELIMINARY STATEMENTS:
(1) Each Borrower, the Lenders and the Administrative Agent have entered
into the Credit Agreement. Capitalized terms not otherwise defined in this
Amendment have the same meanings as specified in the Credit Agreement.
(2) Cincinnati ▇▇▇▇ intends from time to time to issue senior unsecured
notes which will be guaranteed on a senior unsecured basis by Subsidiaries of
Cincinnati ▇▇▇▇ that have guaranteed the obligations of Cincinnati ▇▇▇▇ under
the Loan Documents. In connection therewith, the Borrowers have requested that
the Lenders amend certain provisions of the Credit Agreement, as set forth
below.
(3) The Lenders are willing to effect such amendments on the terms and
subject to the conditions set forth in this Amendment.
SECTION 1. AMENDMENT OF CREDIT AGREEMENT. (a) Effective as of the
Amendment Effective Date (as defined below) and subject to the satisfaction of
the conditions precedent set forth in Section 2:
(i) the definition of "Senior Notes" in Section 1.01 of the Credit
Agreement is amended to read in its entirety as follows:
"SENIOR NOTES" means senior unsubordinated notes of BRW which (i) are
unsecured, (ii) if guaranteed by any Subsidiaries, are only guaranteed on an
unsecured basis by Subsidiaries that have guaranteed the Obligations of BRW and
its Subsidiaries under the Loan Documents and (iii) have customary high yield
covenants for similar issuers and such other covenants as may be reasonably
necessary, in the judgment of BRW, to comply with the provisions of
Section 5.04(d) of the Junior Notes Indenture as in effect on March 26, 2003
regarding the terms of additional Debt of BRW and its Subsidiaries."
(ii) Clause (b)(i)(B) of Section 5.02 of the Credit Agreement is amended
by replacing each of the two references therein to "Section 2.06(b)(v)" with
a reference to "Section 2.06(b)(vi)".
(iii) Clause (b)(iii)(H) of Section 5.02 of the Credit Agreement is
amended by deleting the words "with respect to the Senior Notes or"
therefrom.
(b) Effective upon satisfaction of the conditions set forth in Section 2(b)
hereof, the minimum Interest Coverage Ratios set forth in Section 5.04(c) for
the periods specified therein will be amended to levels that reflect the
incremental Consolidated Interest Expense projected to be incurred over such
periods as a result of the Senior Notes (as defined herein) issued on the
Amendment Effective Date, as contemplated by Section 2 of this Amendment;
PROVIDED that (i) such levels shall be based on BRW's forecasts of Consolidated
EBITDA most recently delivered to the Agents and the Lenders prior to the date
of this Amendment, (ii) such levels shall incorporate substantially the same
cushion levels (I.E.,
allowable percentage deviations from projected Interest Coverage Ratios over the
relevant periods) as were employed in setting the levels applicable under
Section 5.04(c) on the date of this Amendment, and (iii) such levels shall have
been approved by BRW and by each of the Agents as complying with the
requirements of clauses (i) and (ii) of this proviso (it being understood that
any such approval will require that the approving party be reasonably satisfied
with the revised forecast of Consolidated Interest Expense reflecting the
issuance of such Senior Notes and the use of proceeds thereof). Promptly upon
the pricing of such Senior Notes, Cincinnati ▇▇▇▇ and the Agents will confer to
establish such ratios as soon as possible, and in any event prior to the
Amendment Effective Date. Upon establishing such ratios, the Administrative
Agent shall post the ratios and the calculations thereof to Cincinnati Bell's
site on IntraLinks for review by the Lenders at least two Business Days prior to
the closing date of sale of the Senior Notes. If the Required Lenders shall not
have objected to the results of such calculations (solely on the grounds that
such ratios do not comply with the requirements of clauses (i) and (ii) of the
proviso to the first sentence) by giving written notice of such objection to
Cincinnati ▇▇▇▇ and the Agents by 2:00 p.m. on such second Business Day after
posting to IntraLinks, the ratios shall become final for all purposes. In the
event the Required Lenders give notice of such objection prior to such time,
Cincinnati ▇▇▇▇ and the Agents shall establish revised ratios and post them on
IntraLinks for review by the Lenders, and such revised ratios shall become final
for all purposes if the Required Lenders shall not have objected to them (solely
on the grounds that they fail to comply with the requirements of clauses
(i) and (ii) of such proviso) by giving written notice to Cincinnati ▇▇▇▇ and
the Agents by 2:00 p.m. on the second Business Day after such posting. The
Lenders hereby authorize and direct the Agents to take the actions contemplated
by this paragraph (b) and confirm that the provisions of Article VIII of the
Credit Agreement will apply in connection therewith.
SECTION 2. CONDITIONS OF EFFECTIVENESS. (a) Section 1(a) of this Amendment
shall become effective on the date (the "Amendment Effective Date") when the
Administrative Agent shall have received counterparts of this Amendment executed
by the Borrowers, each Agent and the Required Lenders or, as to any of the
Lenders, advice satisfactory to the Administrative Agent that such Lender has
executed this Amendment, and when, and only when, each of the following
conditions precedent shall have been satisfied:
(i) the representations and warranties set forth in each of the Loan
Documents shall be correct in all material respects on and as of the
Amendment Effective Date, after giving effect to this Amendment, as though
made on and as of such date (except for any such representation and warranty
that, by its terms, refers to a specific date other than the Amendment
Effective Date, in which case as of such specific date);
(ii) Senior Notes (as defined herein) shall have been issued for gross
cash proceeds of not less than $250,000,000; and
(iii) after giving effect to this Amendment, no event shall have
occurred and be continuing that constitutes a Default or Event of Default.
(b) Section 1(b) of this Amendment shall become effective on the date (the
"Ratio Amendment Date") on which (i) each of the conditions set forth in
Section 2(a) hereof shall have been satisfied (as though each reference therein
to the "Amendment Effective Date" were a reference to the "Ratio Amendment
Date"), (ii) the ratios referred to in Section 1(b) shall have become final as
provided therein and (iii) the Administrative Agent shall have received a
certificate from a Responsible Officer of Cincinnati ▇▇▇▇ certifying that there
have been no changes to Cincinnati Bell's forecasts of Consolidated EBITDA
referred to in Section 1(b) in any manner that would impact the Interest
Coverage Ratios referred to in such Section.
The effectiveness of this Amendment is further conditioned upon the accuracy
in all material respects of all of the factual matters described herein. This
Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
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The Borrowers hereby agree to pay an amendment fee equal to 0.05% of the
aggregate outstanding principal amount of the Advances and the aggregate Unused
Revolving Credit Commitments (after giving effect to the prepayment of the
Advances and the reduction of the Revolving Credit Facility with the proceeds of
such Senior Notes in accordance with Section 5.02(b)(i)(B) of the Credit
Agreement) of each Lender that delivers an executed signature page to this
Amendment no later than 2:00 p.m. on July 2, 2003, to be paid ratably to such
Lenders on, and subject to the occurrence of, the Amendment Effective Date.
SECTION 3. EFFECT ON THE LOAN DOCUMENTS. (a) The Credit Agreement and the
other Loan Documents are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Collateral Documents and all of the Collateral
described therein do and shall continue to secure the payment of all Obligations
of the Loan Parties under the Loan Documents.
(b) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver or amendment of any provision of any of the
Loan Documents.
(c) Cincinnati ▇▇▇▇ hereby confirms that any issuance of Senior Notes
(including without limitation the issuance of Senior Notes on the Amendment
Effective Date) will be subject to the provisions of Section 5.02(b)(i)(B) of
the Credit Agreement and that the Net Cash Proceeds of any such issuance will be
applied as required thereby.
SECTION 4. COSTS, EXPENSES. Each of the Borrowers hereby agrees to pay on
demand all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery and administration,
modification and amendment of this Amendment (including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent) in
accordance with the terms of Section 9.04 of the Credit Agreement.
SECTION 5. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which will be deemed to be an original and all of which
taken together shall constitute but one and the same agreement. Delivery of an
executed counterpart of a signature page to this Amendment by telecopier shall
be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 6. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CINCINNATI ▇▇▇▇ INC. (f/k/a
BROADWING INC.)
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
BCSI INC. (f/k/a BROADWING
COMMUNICATIONS SERVICES
INC.)
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Agreed as of the date first above written:
CITICORP USA, INC.,
as Administrative Agent and as Lender
By /s/ ▇▇▇▇ ▇. Judge
Title: Vice President
BANK OF AMERICA, N.A.,
as Syndication Agent and as Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Lenders:
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Institution
By
-------------------------------------------
Title:
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CONSENT
Each of the undersigned, as (i) Grantor under the Second Amendment and
Restatement of the Non-Shared Collateral Security Agreement dated November 9,
1999 and amended and restated July 17, 2002 and further amended and restated
March 26, 2003 (as amended and restated, the "NON-SHARED COLLATERAL SECURITY
AGREEMENT") in favor of the Citicorp USA, Inc., as Administrative Agent (the
"ADMINISTRATIVE AGENT"), for its benefit and the benefit of the Lenders parties
to the Credit Agreement referred to in the foregoing Amendment, and/or
(ii) Grantor under the Second Amendment and Restatement of the Shared Collateral
Security Agreement dated November 9, 1999 and amended and restated July 17, 2002
and further amended and restated March 26, 2003 (as amended and restated, the
"SHARED COLLATERAL SECURITY AGREEMENT", and together with the Non-Shared
Collateral Security Agreement, the "SECURITY AGREEMENTS") in favor of Wilmington
Trust Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇, as Collateral Trustees, for their benefit and
the benefit of the Secured Holders referred to therein, and (iii) Guarantor
under the Amendment and Restatement of the BCSI Subsidiary Guaranty dated as of
November 9, 1999 and amended and restated March 26, 2003 (the "BCSI SUBSIDIARY
GUARANTY"), in favor of the Secured Parties referred to therein, and/or
(iv) Guarantor under the BRW Subsidiary Guaranty dated as of November 9, 1999
and amended and restated March 26, 2003 (the "BRW SUBSIDIARY GUARANTY", and
together with the BCSI Subsidiary Guaranty, the "GUARANTEES") in favor of the
Secured Parties referred to therein, hereby consents to the foregoing Amendment
and hereby confirms and agrees that (a) notwithstanding the effectiveness of the
foregoing Amendment, each Security Agreement and Guarantee to which it is a
party is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects, and (b) the Security Agreements to which
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such Grantor is a party and all of the Collateral described therein do, and
shall continue to, secure the payment of all of the Secured Obligations (in each
case, as defined therein.)
CINCINNATI ▇▇▇▇ INC.
(f/k/a BROADWING INC.)
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
BCSI INC. (f/k/a BROADWING
COMMUNICATIONS SERVICES
INC.)
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
BRCOM INC. (f/k/a BROADWING
COMMUNICATIONS INC.)
▇▇▇▇▇▇▇▇.▇▇▇ INC.
BRHI INC. (f/k/a BROADWING
HOLDINGS INC.)
CINCINNATI ▇▇▇▇ TECHNOLOGY
SOLUTIONS INC. (f/k/a BROADWING
TECHNOLOGY SOLUTIONS INC.)
CINCINNATI ▇▇▇▇ ANY DISTANCE
INC.
CINCINNATI ▇▇▇▇ WIRELESS
HOLDINGS LLC
CINCINNATI ▇▇▇▇ WIRELESS
COMPANY
CINCINNATI ▇▇▇▇
TELECOMMUNICATIONS SERVICES
INC.
CINCINNATI ▇▇▇▇ PUBLIC
COMMUNICATIONS INC.
BRFS LLC (f/k/a BROADWING
FINANCIAL LLC)
BTI INC. (f/k/a BROADWING
TELECOMMUNICATIONS INC.)
IXC BUSINESS SERVICES, LLC
BCSIVA INC. (f/k/a BROADWING COMMUNICATIONS
SERVICES OF
VIRGINIA, INC.)
IXC INTERNET SERVICES, INC.
BRWSVCS LLC (f/k/a BROADWING
SERVICES LLC)
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
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