Contract
Exhibit 10.18
EXECUTION VERSION
JOINDER AGREEMENT No2, dated as of June 26, 2007 (this “Joinder Agreement”), to the
Intercreditor Agreement dated as of August 23, 2006, as amended on May 10, 2007 and further amended
and restated, amended and supplemented (the “Intercreditor Agreement”) by and among THE CIT
GROUP/BUSINESS CREDIT, INC., as Administrative Agent and Collateral Agent (and together with its
successors and assigns in such capacity, the “Administrative Agent” or the “First
Priority Agent”), THE BANK OF NEW YORK, as Trustee, Collateral Agent and Second Priority Agent
(and together with its successors and assigns in such capacities, the “Trustee” or the
“Second Priority Agent”), BROADVIEW NETWORKS HOLDINGS, INC., a Delaware corporation (the
“Company”), and its Subsidiaries party hereto.
W I T N E S S E T H
A. Reference is made to the Credit Agreement, dated as of August 23, 2006, among the Company
and several subsidiaries of the Company, the Lenders party thereto and The CIT Group/Business
Credit, Inc. as Administrative Agent and Collateral Agent (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”).
B. On May 31, 2007, the Company acquired the shares of capital stock of Eureka Broadband
Corporation pursuant to a merger agreement among the Company, Eureka Broadband Corporation, its
shareholders and the other parties listed therein. Each of Eureka Broadband Corporation and its
Subsidiaries listed on the signature pages hereto (together the “New Subsidiaries”) has
become (i) a “Guarantor” for purposes of the Credit Agreement and a “Grantor” for purposes of the
Collateral Agreement and (ii) a “Guarantor” for purposes of the Senior Secured Notes Indenture and
a “Grantor” for purposes of the Security Agreement (as that term is defined in such Indenture),
and each of the New Subsidiaries desires to become a party to the Intercreditor Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement and the Intercreditor Agreement.
Accordingly, the First Priority Agent, the Second Priority Agent and the New Subsidiaries
agree as follows:
SECTION 1. Each New Subsidiary by its signature below joins in the execution of, and becomes a
Grantor under, the Intercreditor Agreement with the same force and effect as if originally named
therein as a Grantor, and each New Subsidiary hereby (a) agrees to all the terms and provisions of
the Intercreditor Agreement applicable to it as a Grantor thereunder and (b) represents and
warrants that any representations and warranties made by it as a Grantor thereunder are true and
correct, in all material respects, on and as of the date hereof. Each reference to a
“Grantor” in the Intercreditor Agreement shall be deemed to include the New Subsidiaries.
The Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2. Each New Subsidiary represents and warrants to the First Priority Agent and to the
Second Priority Agent that this Joinder Agreement has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance
with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general
principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)
and (iii) implied covenants of good faith and fair dealing.
SECTION 3. This Joinder Agreement may be executed in two or more counterparts (including by
facsimile), each of which shall constitute an original but all of which when taken together shall
constitute but one contract. This Joinder Agreement shall become effective when the First Priority
Agent and the Second Priority Agent shall have received a counterpart hereof that bears the
signatures of the New Subsidiaries.
SECTION 4. Except as expressly supplemented hereby, the Intercreditor Agreement shall remain
in full force and effect.
SECTION 5. THIS JOINDER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In the event that any one or more of the provisions contained in this Joinder
Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and in the Intercreditor Agreement
shall not in any way be affected or impaired thereby.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided
in the Intercreditor Agreement.
SECTION 8. The New Subsidiaries agree to reimburse the First Priority Agent and the Second
Priority Agent for their reasonable out-of-pocket expenses in connection with this Joinder
Agreement, including the reasonable fees, disbursements and other charges of counsel for the First
Priority Agent and the Second Priority Agent.
[Remainder of Page Intentionally Left Blank.]
-2-
IN WITNESS WHEREOF, the parties hereto have duly executed this Joinder Agreement No2 as of the
day and year first above written.
| FIRST PRIORITY AGENT: | ||||||
| THE CIT GROUP/BUSINESS CREDIT, INC., as First Priority Agent |
||||||
| By: | /s/ Xxxxxx Xxxxx XxXxxxxx | |||||
| Title: Vice President | ||||||
| Address: | ||||||
| 00 Xxxx Xxxxx-xxxxxx Xxxxxx | ||||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||||
| Attention: Portfolio Manager | ||||||
| SECOND PRIORITY AGENT: | ||||||
| THE BANK OF NEW YORK, as Trustee, Collateral Agent and Second Priority Agent |
||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Name: Xxxxxx X. Xxxxxxx | ||||||
| Title: Vice President | ||||||
| Address: | ||||||
| 000 Xxxxxxx Xxxxxx, 0X | ||||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||||
| Facsimile no.:000 000 0000 | ||||||
| Attention: Xxxxxx Xxxxxxx | ||||||
| NEW GRANTORS: EUREKA BROADBAND CORPORATION |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer |
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| EUREKA HOLDINGS, LLC |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer |
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| EUREKA NETWORKS, LLC |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer |
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| EUREKA TELECOM, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer |
|||
| EUREKA TELECOM OF VA, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer |
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INFOHIGHWAY COMMUNICATIONS CORPORATION |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer |
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| XXX-X.XXX, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer |
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ARC NETWORKS, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer |
|||
| A.R.C. NETWORKS, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer |
|||
| INFOHIGHWAY OF VIRGINIA, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer |
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| INFO-HIGHWAY INTERNATIONAL, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer |
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