Exhibit 99.1
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT dated as of February 17, 2010 (the “Amendment”) is entered into among CINCINNATI BELL INC., an Ohio corporation (the “Borrower”), the Guarantors signatories hereto, the Lenders signatories hereto and BANK OF AMERICA, N.A., as Administrative Agent and an L/C Issuer, and PNC BANK, NATIONAL ASSOCIATION, as Swingline Lender and an L/C Issuer.
RECITALS
A. The Borrower, the Guarantors, the Lenders, the Swingline Lender, the L/C Issuers and the Administrative Agent are party to that certain Credit Agreement originally dated as of February 16, 2005 (as amended, modified, restated or supplemented from time to time prior to the Fifth Amendment Effective Date, the “Existing Credit Agreement”); and
B. The Borrower has requested that the Lenders amend the Existing Credit Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.Certain Definitions. The following terms used in this Amendment, including its preamble and recitals, have the following meanings:
“Amended Credit Agreement” means the Existing Credit Agreement as amended hereby.
“Fifth Amendment Effective Date” shall have the meaning assigned to such term in introductory paragraph of Section 4 hereof.
2.Other Definitions. Unless otherwise defined herein or the context otherwise requires, terms used in this Amendment, including its preamble and recitals, have the meanings provided in the Amended Credit Agreement.
3.Amendments to Existing Credit Agreement.
(a)Amendment to Section 1.01.
The definition of “Consolidated EBITDA” set forth inSection 1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“Consolidated EBITDA” means, for any period, for the Consolidated Parties on a consolidated basis, an amount equal to Consolidated Net Income for such periodplus, without duplication (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by the Borrower and its Subsidiaries, (iii) depreciation and amortization expense, (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 in connection with the refinancing, repayment, repurchase or extinguishment of any Indebtedness of the Borrower, and (v) other non-cash items,minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits, (ii) all non-cash items increasing Consolidated Net Income and (iii) all cash expenditures (other than cash expenditures relating to the Disposition of the Borrower’s broadband business in an aggregate amount not exceeding $35,000,000 in the aggregate) made during such period in respect of any non-cash item that was added back to Consolidated Net Income in the calculation of Consolidated EBITDA for any prior period. Notwithstanding anything to the contrary herein, it is hereby acknowledged and agreed by the Borrower and the Lenders that, from and after the Fourth Amendment Effective Date, for all purposes of this Agreement Consolidated EBITDA (including in respect of periods any portion of which occurs before the Fourth Amendment Effective Date) will be calculated by deducting regular pension and post-retirement benefits expense in accordance with GAAP and cash contributions to pension and post-retirement benefit plans will not be deducted from Consolidated EBITDA.
(b)Amendment to Section 8.11(a).Section 8.11(a) of the Existing Credit Agreement is hereby amended in its entirety to read as follows:
(a)Consolidated Total Leverage Ratio. Permit the Consolidated Total Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater than 4.50 to 1.00.
4.Conditions Precedent. This Amendment shall become effective as of the date hereof upon satisfaction of the following conditions precedent (the “Fifth Amendment Effective Date”):
(a)Counterparts of Amendment. Receipt by the Administrative Agent of counterparts of this Amendment duly executed by the Borrower, the Guarantors, the Revolving Lenders, the Required Lenders and the Administrative Agent;
(b)Amendment Fee. For the account of each Lender approving this Amendment by 5:00 p.m. Eastern time on February 16, 2010 (as evidenced by delivery of an executed signature page prior to such time), the Administrative Agent shall have received an amendment fee equal to five (5) basis points on the amount equal to the sum of (i) such Lender’s Revolving Commitmentplus (ii) the outstanding Tranche B Term Loans held by such Lender; and
(c)Other Fees and Out of Pocket Costs. The Borrower shall have paid any and all reasonable out-of-pocket costs (to the extent invoiced) incurred by the Administrative Agent or Banc of America Securities LLC (including the reasonable fees and expenses of the Administrative Agent’s legal counsel), and all other fees and other amounts payable to the Administrative Agent or Banc of America Securities LLC, in each case in connection with the arrangement, negotiation, preparation, execution and delivery of this Amendment.
5.Miscellaneous.
(a)Representations and Warranties. Each of the Loan Parties represents and warrants to the Lenders and the Administrative Agent as follows:
(i) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.
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(ii) This Amendment has been duly executed and delivered by such Loan Party and constitutes such Loan Party’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be limited (x) by general principles of equity and conflicts of laws (whether enforcement is sought by proceedings in equity or at law) or (y) by Debtor Relief Laws.
(iii) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by such Loan Party of this Amendment (except for those which have been obtained on or prior to the Fifth Amendment Effective Date).
(iv) The execution and delivery of this Amendment does not diminish or reduce its obligations under the Loan Documents (including, without limitation, in the case of each Guarantor, such Guarantor’s guaranty pursuant to Article IV of the Existing Credit Agreement) in any manner.
(v) The representations and warranties of the Loan Parties set forth in Article VI of the Existing Credit Agreement are true and correct in all material respects as of the Fifth Amendment Effective Date;provided that the reference to the date of the Audited Financial Statements in Section 6.05(e) of the Amended Credit Agreement shall be deemed to be replaced by a reference to December 31, 2008. All of the provisions of the Loan Documents, except as amended hereby, are in full force and effect.
(vi) Subsequent to the execution and delivery of this Amendment and after giving effect hereto, no unwaived event has occurred and is continuing on the date hereof which constitutes a Default or an Event of Default.
(b)Liens. Each Loan Party affirms the liens and security interests created and granted by it in the Loan Documents (including, but not limited to, the Shared Collateral Security Agreement and the Non-Shared Collateral Security Agreement) and agrees that this Amendment shall in no manner adversely affect or impair such liens and security interests.
(c)Effect of Amendment. Except as expressly modified and amended in this Amendment, all of the terms, provisions and conditions of the Loan Documents shall remain unchanged and in full force and effect. On and after the Fifth Amendment Effective Date, any reference in the Loan Documents or any and all other documents thereafter executed and delivered pursuant to the terms of the Loan Documents to the “Credit Agreement” shall be deemed to refer to the Amended Credit Agreement.
(d)Construction. This Amendment is a Loan Document executed pursuant to the Existing Credit Agreement and shall (unless otherwise expressly indicated therein) be construed, administered and applied in accordance with the terms and provisions of the Amended Credit Agreement.
(e)Reaffirmation of Loan Party Obligations. Each Loan Party hereby ratifies the Amended Credit Agreement and acknowledges and reaffirms (i) that it is bound by all terms of the Amended Credit Agreement and (ii) that it is responsible for the observance and full performance of the Obligations. Without limiting the generality of the proceeding sentence, each of the Guarantors confirms that it jointly and severally guarantees the prompt payment when due of
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all Obligations in accordance with, and pursuant to the terms of, Article IV of the Amended Credit Agreement.
(f)Counterparts. This Amendment may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.
(g)GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h)Binding Effect. This Amendment, the Amended Credit Agreement and the other Loan Documents embody the entire agreement between the parties and supersede all prior agreements and understandings, if any, relating to the subject matter hereof. These Loan Documents represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. Except as expressly modified and amended in this Amendment, all the terms, provisions and conditions of the Loan Documents shall remain unchanged and shall continue in full force and effect.
(i)Severability. If any provision of this Amendment is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby and (ii) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.
| BORROWER: | CINCINNATI BELL INC., | |||
| an Ohio corporation | ||||
| By: | /s/ Kimberly H. Sheehy | |||
| Name: | Kimberly H. Sheehy | |||
| Title: | Vice President and Treasurer | |||
| GUARANTORS: | CINCINNATI BELL TELECOMMUNICATION SERVICES LLC,an Ohio limited liability company | |||
| CINCINNATI BELL ENTERTAINMENT INC. (formerly known as Zoomtown.com Inc.), an Ohio corporation | ||||
| CINCINNATI BELL COMPLETE PROTECTION INC., | ||||
| an Ohio corporation | ||||
| CINCINNATI BELL WIRELESS COMPANY, | ||||
| an Ohio corporation | ||||
| CINCINNATI BELL WIRELESS, LLC, | ||||
| an Ohio limited liability company | ||||
| CINCINNATI BELL TECHNOLOGY SOLUTIONS INC., | ||||
| a Delaware corporation | ||||
| BRCOM INC., | ||||
| a Delaware corporation | ||||
| MVNO HOLDINGS LLC, | ||||
| a Delaware limited liability company | ||||
| CINCINNATI BELL ANY DISTANCE INC., | ||||
| a Delaware corporation | ||||
| IXC INTERNET SERVICES, INC., | ||||
| a Delaware corporation | ||||
| GRAMTEL INC., | ||||
| a Virginia corporation | ||||
| CBTS SOFTWARE LLC, | ||||
| a Delaware limited liability company | ||||
| CINCINNATI BELL SHARED SERVICES LLC, | ||||
| an Ohio limited liability company | ||||
CINCINNATI BELL INC.
FIFTH AMENDMENT TO CREDIT AGREEMENT
| EVOLVE BUSINESS SOLUTIONS LLC, | ||||
| an Ohio limited liability company | ||||
| CINCINNATI BELL ANY DISTANCE OF VIRGINIA LLC, a Virginia limited liability company | ||||
| By: | /s/ Kimberly H. Sheehy | |||
| Name: | Kimberly H. Sheehy | |||
| Title: | Vice President and Treasurer | |||
| ADMINISTRATIVE AGENT: | BANK OF AMERICA, N. A., | |||
| as Administrative Agent | ||||
| By: | /s/ Antonikia Thomas | |||
| Name: | Antonikia (Toni) Thomas | |||
| Title: | Assistant Vice President | |||
| BANK OF AMERICA, N. A., | ||||
| as a Lender | ||||
| By: | /s/ Todd Shipley | |||
| Name: | Todd Shipley | |||
| Title: | Senior Vice President | |||
| LENDER: |
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| By: | /s/ Various Lenders | |||
| Name: |
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| Title: |
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CINCINNATI BELL INC.
FIFTH AMENDMENT TO CREDIT AGREEMENT