Loan and Security Agreement

Exhibit 10.11

Greystone Business Credit II, L.L.C.

This Loan and Security Agreement (as it may be amended, this “Agreement”) is entered into on October 12, 2007 between GREYSTONE BUSINESS CREDIT II, L.L.C. (“Lender”), having an address at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and WILMINGTON TRUST COMPANY AND XXXXXX XXXX XXXXXX AS CO-TRUSTEES U/A/D NOVEMBER 25, 1970, AS AMENDED FOR THE BENEFIT OF XXXX XXXXX XXXXXX (the “Mennen Trust”), and WAVE2WAVE COMMUNICATIONS, INC., a Delaware corporation (“Wave2Wave” and collectively with the Mennen Trust; each a “Borrower” and collectively, the “Borrowers”). The Schedules to this Agreement are an integral part of this Agreement and are incorporated herein by reference. Terms used, but not defined elsewhere, in this Agreement are defined in Schedule B.

1. LOANS.

1.1 Term Loan. Subject to the terms and conditions contained in this Agreement, Lender will make on the date of this Agreement an advance to Borrowers computed with respect to the value of all Eligible Securities owned by the Mennen Trust on the date of this Agreement (the “Advance”) in the principal amount, if any, set forth in Section 2(a) of Schedule A. The Advance is referred to as a “Term Loan Advance” and the “Term Loan” and will be wired to Borrowers’ Bank set forth in Section 16 of Schedule A or as directed by Borrowers pursuant to the terms of the authorization to pay proceeds dated as of the date hereof. The Term Loan will be evidenced by a term note in the form attached hereto as Exhibit A.

1.2 Repayment. Principal of the Term Loan shall be repaid as set forth in Section 2(c) of Schedule A. Notwithstanding the foregoing, Lender may, in its sole and absolute discretion, make or permit the Term Loan or any other monetary Obligations to be in excess of any of the Loan Limits; provided, that Borrowers shall, upon Lender’s demand, pay to Lender such amounts as shall cause Borrowers to be in full compliance with all of the Loan Limits. All unpaid monetary Obligations shall be payable in full on the Maturity Date or, if earlier, the date of any early termination pursuant to Section 7.2.

2. INTEREST’ AND FEES.

2.1 Interest. All Loans and other monetary Obligations shall bear interest at the Interest Rate set forth in Section 3 of Schedule A, except where expressly set forth to the contrary in this Agreement or another Loan Document; provided, that (i) after the occurrence of an Event of Default, all Loans and other monetary Obligations shall, at Lender’s option, bear interest at a rate per annum equal to two percent (2%) in excess of the rate otherwise applicable thereto (the “Default Rate”) until paid in full (notwithstanding the entry of any


Greystone Business Credit II, L.L.C.	Loan and Security Agreement

judgment against any Borrower or the exercise of any other right or remedy by Lender), and all such interest shall be payable on demand and (ii) after the occurrence of an Event of Default under either of clauses (vii) or (viii) of Section 8, the increase described in the foregoing clause (i) shall occur automatically and shall continue until all Loans and other monetary Obligations are paid in full. Changes in the Interest Rate shall be effective as of the date of any change in the Prime Rate. Notwithstanding anything to the contrary contained in this Agreement, the aggregate of all amounts deemed to be interest hereunder and charged or collected by Lender is not intended to exceed the highest rate permissible under any applicable law, but if it should, such interest shall automatically be reduced to the extent necessary to comply with applicable law and Lender will refund to Borrowers any such excess interest received by Lender.

2.2 Fees. Borrowers shall pay Lender the following fees, which are in addition to all interest and other sums payable by Borrowers to Lender under this Agreement, and are not refundable:

(a) Closing Fee. A closing fee (the “Closing Fee”) in the amount set forth in Section 6(a) of Schedule A, which shall be deemed to be fully earned as of, and payable on, the date hereof.

(b) Servicing Fee. A monthly servicing fee (the “Servicing Fee”) in the amount set forth in Section 6(c) of Schedule A, in consideration of Lender’s administration and other services pursuant to this Agreement for each month (or part thereat), which shall be fully earned as of, and payable in advance on, the date hereof and on the first day of each month thereafter so long as any of the Obligations are outstanding.

(c) Minimum Borrowing Fee. A minimum borrowing fee (the “Minimum Borrowing Fee”) equal to the excess, if any, of (i) interest which would have been payable in respect of any applicable interest period it at all times during such period, the principal balance of the Loans were equal to the Minimum Loan Amount over (ii) the actual interest payable in respect of such period, which fee shall be fully earned as of the last day of such period and payable on the date set forth in Section 2.4 with respect to such period and on the Maturity Date.

(d) Monitoring Fees. (i) A one time set-up fee for electronic collateral monitoring in the amount set forth in Section 6(e)(i) of Schedule A, which shall be deemed to be fully earned as of, and payable on, the date hereof and (ii) a monthly fee for electronic collateral monitoring in the amount set forth in Section 6(e)(ii) of Schedule A, which shall be fully earned as of, and payable in advance on, the date hereof, and on the first day of each month thereafter so long as any of the Obligations are outstanding

-2-


Greystone Business Credit II, L.L.C.	Loan and Security Agreement

2.3 Computation of Interest and Fees. All interest and fees shall be calculated daily on the closing balances in the Loan Account based on the actual number of days elapsed in a year of 360 days.

2.4 Loan Account; Monthly Accountings. Lender shall maintain a loan account for Borrowers reflecting all advances, charges, expenses and payments made pursuant to this Agreement (the “Loan Account”), and shall provide Borrower Representative with a monthly accounting reflecting the activity in the Loan Account. Each accounting shall be deemed correct, accurate and binding on Borrowers and an account stated. (except for reverses and reapplication of payments made and corrections of errors discovered by Lender), unless Borrower Representative notifies Lender in writing to the contrary within sixty days after such account is rendered, describing the nature of any alleged errors or omissions. However, Lender’s failure to maintain the Loan Account or to provide any such accounting shall not affect the legality or binding nature of any of the Obligations. With respect to each calendar month end, Lender shall provide Borrower Representative with a statement of interest, fees and any other Obligations then payable, which amount Borrowers shall pay within five (5) Business Days of receipt of such statement.

3. SECURITY INTEREST.

3.1 Grant of Security Interest.

(a) To secure the full payment and performance of all of the Obligations, the Mennen Trust hereby assigns to Lender and grants to Lender a continuing security interest in the following property of the Mennen Trust, whether tangible or intangible, now or hereafter owned, existing, acquired or arising and wherever now or hereafter located, and whether or not eligible for lending purposes: (i) the Securities Accounts, (ii) all Investment Property, deposit accounts, Money, cash and other property in the Securities Accounts; (ii) all Capital. Stock of Wave2Wave owned by the Mennen Trust; and (iii) all additions and accessions to, substitutions for, and replacements, products and Proceeds of the foregoing property, and all of the Mennen Trust’s books and records relating to any of the foregoing.

(b) To secure the full payment and performance of all of the Obligations, Wave2Wave hereby assigns to Lender and grants to Lender a continuing security interest in the following property of Wave2Wave, whether tangible or intangible, now or hereafter owned, existing, acquired or arising and wherever now or hereafter located, and whether or not eligible for lending purposes: (i) all Accounts and all Goods whose sale, lease or other disposition by Wave2Wave has given rise to Accounts and have been returned to, or repossessed or stopped in transit by, Wave2Wave; (ii) all Chattel Paper, Instruments, Documents and General Intangibles (including all patents, patent applications, trademarks, trademark applications, trade names, trade secrets, goodwill, copyrights, copyright applications, registrations, licenses, software, franchises, customer lists, tax refund claims, claims against carriers and shippers, guarantee claims, contracts rights, payment intangibles,

-3-


Greystone Business Credit II, L.L.C.	Loan and Security Agreement

security interests, security deposits and rights to indemnification); (iii) all Inventory; (iv) all Goods (other than Inventory), including Equipment, vehicles and Fixtures; (v) all Investment Property; (vi) all Deposit Accounts, bank accounts, deposits, Money and cash; (vii) all Letter-of-Credit Rights; (viii) all Commercial Tort Claims listed in Section 14 of Schedule A; (ix) all Supporting Obligations; (x) any other property of Wave2Wave now or hereafter in the possession, custody or control of Lender or any agent or any parent, Affiliate or Subsidiary of Lender or any participant with Lender in the Loans, for any purpose (whether for safekeeping, deposit, collection, custody, pledge, transmission or otherwise) and (xi) all additions and accessions to, substitutions for, and replacements, products and Proceeds of the foregoing property, including proceeds of all insurance policies insuring the foregoing property, and all of Wave2Wave’s books and records relating to any of the foregoing and to Wave2Wave’s business. Notwithstanding anything to the contrary in this Section 3.1(b), the types or items of Collateral of Wave2Wave shall not include (i) any rights or interest in any contract, license, or license agreement that is now or hereafter held by Wave2Wave but only to the extent that such item contains a term or is subject to a rule of law, statute or regulation that restricts, prohibits, or requires a consent (that has not been obtained) of a Person (other than an Obligor) to, the creation, attachment or perfection of the security interest granted herein, and any such restriction, prohibition and/or requirement of consent is effective and enforceable under applicable law and is not rendered ineffective by applicable law (including, without limitation, pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC) (provided, however, that (A) the provisions of this clause (i) shall not include, any Proceeds of any such item and (B) any such item that at any time ceases to satisfy the criteria of this clause (i) (whether as a result of obtaining any necessary consent, any change in any rule of law, statute or regulation, or otherwise), shall be Collateral hereunder), and (ii) any equipment or other property now existing or hereafter acquired in accordance with clause (i) of the definition of Permitted Liens in this Agreement and which is subject to a lease or other financing arrangement, the terms of which prohibit the granting of a lien or security interest in such property. By way of clarification, Collateral shall not include Capital Stock of RNK until the receipt of the final Regulatory Approval.

3.2 Possessory Collateral. Promptly upon any Borrower’s receipt of any portion of the Collateral evidenced by an agreement, Instrument or Document, including any Tangible Chattel Paper and any Investment Property consisting of certificated securities, such Borrower shall deliver the original thereof to Lender together with an appropriate endorsement or other specific evidence of assignment thereof to Lender (in form and substance acceptable to Lender). If an endorsement or assignment of any such items shall not be made for any reason, Lender is hereby irrevocably authorized, as such Borrower’s attorney and agent-in-fact, to endorse or assign the same on such Borrower’s behalf.

3.3 Preservation of Collateral and Perfection of Security Interest Therein. Each Borrower shall, at Lender’s request, at any time and from time to time, authenticate, execute and deliver to Lender such financing statements, documents and other agreements

-4-


Greystone Business Credit II, L.L.C.	Loan and Security Agreement

and instruments (and pay the cost of filing or recording the same in all public offices deemed necessary or desirable by Lender) and do such other acts and things or cause third parties to do such other acts and things as Lender may deem necessary or desirable in its sole and absolute discretion in order to establish and maintain a valid, attached and perfected security interest in the Collateral in. favor of Lender (free and clear of all other liens, claims, encumbrances and rights of third parties whatsoever, whether voluntarily or involuntarily created, except Permitted Liens) to secure payment of the Obligations and to facilitate the collection of the Collateral. Each Borrower authorizes Lender to file, transmit, or communicate, as applicable, financing statements and amendments describing the Collateral (including, with respect to Wave2Wave, as “all personal property of debtor” or “all assets of debtor” or words of similar effect), in order to perfect Lender’s security interest in the Collateral without such Borrower’s signature. Each Borrower also hereby ratifies its authorization for Lender to have filed in any jurisdiction any financing statements filed prior to the date hereof.

3.4 Supplement to Portfolio. In the event that the aggregate marked to market value of Eligible Securities in the Securities Accounts is on any date of determination less than the lesser of (a) $37,777,000 and (b) 111.11% of the then outstanding principal balance of the Obligations, the Borrowers shall within, one (1) Business Day, deposit Securities in the Securities Accounts such that the aggregate value of Securities in the Securities Accounts exceeds the lesser of (a) $40,000,000 and (b) 117.65% of the then outstanding principal balance of the Obligations immediately after giving effect to such deposit..

4. ADMINISTRATION.

4.1 [Intentionally Omitted]

4.2 Remittance of Proceeds. All Proceeds arising from the sale or other disposition of any Collateral (other than the provision of services in the ordinary course of business, or the sale of inventory in the ordinary course of business or Proceeds of Investment Property that remain on deposit in the Securities Accounts) shall be delivered, in kind, by each Borrower to Lender in the original form in which received by such Borrower not later than the following Business Day after receipt by such Borrower. Until so delivered to Lender, each Borrower shall hold such Proceeds separate and apart from such Borrower’s other funds and property in an express trust for Lender. Nothing in this Section 4.2 shall limit the restrictions on disposition of Collateral set forth elsewhere in this Agreement.

4.3 Application of Payments. Lender may, in its sole and absolute discretion, apply, reverse and re-apply all cash and non-cash Proceeds of Collateral or other payments received with respect to the Obligations, in such order and manner as Lender shall determine, whether or not the Obligations are due, and whether before or after the occurrence of a Default or an Event of Default.

-5-


Greystone Business Credit II, L.L.C.	Loan and Security Agreement

4.4 Notification; Verification. Lender or its designee may, from time to time, whether or not a Default or Event of Default has occurred: (i) verify directly with the Account Debtors of Wave2Wave the validity, amount and other matters relating to the Accounts and Chattel Paper, by means of mail, telephone or otherwise, either in the name of Wave2Wave or Lender or such other name as Lender may choose; (ii) notify Account Debtors that Lender has a security interest in the Accounts and that payment thereof is to be made directly to Lender; and (iii) demand, collect or enforce payment of any Accounts and Chattel Paper (but without any duty to do so). If no Default or Event of Default has occurred, Lender shall provide Borrower Representative with prompt written notice of any such verification, notification or demand.

4.5 Power of Attorney. Each Borrower hereby grants to Lender an irrevocable power of attorney, coupled with an interest, authorizing and permitting Lender (acting through any of its officers, employees, attorneys or agents), at any time (whether or not a Default or Event of Default has occurred and is continuing, except as expressly provided below), at Lender’s option, but without obligation, with or without notice to such Borrower, and at such Borrower’s expense, to do any or all of the following, in such Borrower’s name or otherwise: (i) execute on behalf of any Borrower any documents that Lender may, in its sole and absolute discretion, deem advisable in order to perfect and maintain Lender’s security interests in the Collateral, to exercise a right of any Borrower or Lender, or to fully consummate all the transactions contemplated by this Agreement and the other Loan Documents (including such financing statements and continuation financing statements, and amendments thereto, as Lender shall deem necessary or appropriate) and to file as a financing statement any copy of this Agreement or any financing statement signed by any Borrower; (ii) execute on behalf of any Borrower any document exercising, transferring or assigning any option to purchase, sell or otherwise dispose of or lease (as lessor or lessee) any real or personal property which is part of the Collateral or in which Lender has an interest; (iii) execute on behalf of Wave2Wave any invoices relating to any Accounts, any draft against any Account Debtor, any proof of claim in bankruptcy, any notice of Lien or claim, and any assignment or satisfaction of mechanic’s, materialman’s or other Lien; (iv) execute on behalf of Wave2Wave any notice, to any Account Debtor; (v) receive and otherwise take control’ in any mariner of any cash or non-cash items of payment or Proceeds of Collateral; (vi) after the occurrence of a Default or Event of Default, endorse any Borrower’s name on all checks and other forms of remittances received by Lender; (vii) pay, contest or settle any Lien, charge, encumbrance, security interest and adverse claim in or to any of the Collateral, or any judgment based thereon, or otherwise take any. action to terminate or discharge the same; (viii) after the occurrence of a Default or Event of Default, grant extensions of time to pay, compromise claims relating to, and settle Accounts, Chattel Paper and General Intangibles for less than face value and execute all releases and other documents in connection therewith; (ix) pay any sums required on account of any Borrower’s taxes or to secure the release of any Liens therefor; (x) pay any amounts necessary to obtain, or maintain in effect, any of the insurance described in Section 5.14; (xi) settle and adjust, and give

-6-


Greystone Business Credit II, L.L.C.	Loan and Security Agreement

releases of, any insurance claim that relates to any of the Collateral and obtain payment therefor; (xii) instruct any third party having custody or control of any Collateral or books or records belonging to, or relating to, any Borrower to give Lender the same rights of access and other rights with respect thereto as Lender has under this Agreement; (xiii) after the occurrence of a Default or Event of Default, change the address for delivery of any Borrower’s mail and receive and open all mail addressed to any Borrower, and (xiv) endorse or assign to Lender on any Borrower’s behalf any portion of Collateral evidenced by an agreement, Instrument or Document if an endorsement or assignment of any such items is not made by such Borrower pursuant to Section 3.2. Any and all sums paid, and any and all costs, expenses, liabilities, obligations and reasonable attorneys’ fees incurred, by Lender with respect to the foregoing shall be added to and become part of the Obligations, shall be payable on demand, and shall bear interest at a rate equal to the highest interest rate applicable to any of the Obligations. Each Borrower agrees that Lender’s rights under the foregoing power of attorney or any of Lender’s other rights under this Agreement or the other Loan Documents shall not be construed to indicate that Lender is in control of the business, management or properties of any Borrower.

4.6 Disputes. Wave2Wave shall promptly notify Lender of all disputes or claims in excess of $50,000 relating to Accounts and Chattel Paper of Wave2Wave. Wave2Wave will not, without Lender’s prior written consent, compromise or settle any Account or Chattel Paper for less than the full amount thereof, grant any extension of time of payment of any Account or Chattel Paper, release (in whole or in part) any Account Debtor or other person liable for the payment of any Account or Chattel Paper or grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any Account or Chattel Paper; except that prior to the occurrence of an Event of Default, Wave2Wave may take any of such actions in the ordinary course of its business, provided that Wave2Wave promptly reports the same to Lender.

4.7 Invoices. At Lender’s request, Wave2Wave will cause all invoices and statements which it sends to Account Debtors or other third parties to be marked, in a manner satisfactory to Lender, to reflect Lender’s security interest therein.

4.8 Inventory.

(a) Returns. Provided that no Event of Default has occurred and is continuing, if any Account Debtor returns any Inventory to Wave2Wave in the ordinary course of its business, Wave2Wave will promptly determine the reason for such return and promptly issue a credit memorandum to the Account Debtor in the appropriate amount (sending a copy to Lender). After the occurrence of an Event of Default, Wave2Wave will not accept any return without Lender’s prior written consent. Upon Lender’s demand, ‘regardless of whether an Event of Default has occurred, Wave2Wave will (i) hold the returned Inventory in trust for Lender; (ii) segregate all returned Inventory from all of Wave2Wave’s other property; (iii) conspicuously label the returned Inventory as Lender’s

-7-


Greystone Business Credit II, L.L.C.	Loan and Security Agreement

property; and (iv) immediately notify Lender of the return of such Inventory, specifying the reason for such return, the location and the condition of the returned Inventory and, at Lender’s request, deliver such returned Inventory to Lender at an address specified by Lender.

(b) Other Covenants. Wave2Wave will not, without Lender’s prior written consent, (i) store any Inventory with any warehouseman or other third party other than as set forth in Section 9(d) of Schedule A or (ii) sell any Inventory on a sale-or-return, guaranteed sale, consignment, or other contingent basis. All of the Inventory has been produced only in accordance with the Fair Labor Standards Act of 1938 and all rules, regulations and orders promulgated thereunder.

4.9 Access to Collateral, Books and Records. At reasonable times, and on one Business Day’s notice prior to the occurrence of a Default or an Event of Default and at any time and with or without notice after the occurrence of a Default or an Event of Default, Lender or its agents shall have the right to inspect the Collateral, and the right to examine and copy any Borrower’s books and records. Lender shall take reasonable steps to keep confidential all information obtained in any such inspection or examination, but Lender shall have the. right to disclose any such information to its auditors, regulatory agencies, attorneys, participants, agents, shareholders, directors, partners, managers, affiliates and financing sources, and pursuant to any subpoena or other legal process. Each Borrower agrees to give Lender access to any or all of any Borrower’s premises to enable Lender to conduct such inspections and examinations. Such inspections and examinations shall be at Borrowers’ expense and the charge therefor shall be $1,000 per person per day (or such higher amount as shall represent Lender’s then current standard charge), plus reasonable out-of-pocket expenses. Lender may, at Borrower& expense, use any Borrower’s personnel, computer and other equipment, programs, printed output and computer readable media, supplies and premises for the collection, sale or other disposition of Collateral to the extent Lender, in its sole and absolute discretion, deems appropriate. Each Borrower hereby irrevocably authorizes all accountants and third parties to disclose and deliver to Lender following Lender’s written request therefore which shall also be sent to Borrowers, at Borrowers’ expense, all financial information, books and records, work papers, management reports and other information in their possession regarding such Borrower. Wave2Wave will not enter into any agreement with any accounting firm, service bureau or third, party to store such Borrower’s books or records at any location other than Borrowers’ Address without first obtaining Lender’s written consent (which consent may be conditioned upon such accounting firm, service bureau or other third party agreeing to give Lender the same rights with respect to access to books and records and related rights as Lender has under this Agreement).

5. REPRESENTATIONS, WARRANTIES AND COVENANTS.

To induce Lender to enter into this Agreement, each Borrower represents, warrants and covenants as follows, after giving effect to the Related Transactions (it being

-8-


Greystone Business Credit II, L.L.C.	Loan and Security Agreement

understood that (i) each such representation and warranty will be deemed remade as of the date on which each Loan is made and shall not be affected by any knowledge of, or any investigation by, Lender, and (ii) the accuracy of each such representation, warranty and covenant will be a condition to each Loan):

5.1 Existence and Authority. The Mennen Trust is, and at all times will be, duly organized and validly existing under the laws of the State of Delaware and Wave2Wave is, and at all times will be, duly organized, validly existing and in good standing under the laws of the State of Delaware. Each Borrower is, and at all times will be, qualified and licensed to do business in all jurisdictions in which any failure to do so would have a material adverse effect on such Borrower. The execution, delivery and performance by each Borrower of this Agreement and, all of the other Loan Documents have been duly and validly authorized, do not violate such Borrower’s articles or certificate of incorporation, by-laws, trust or other organizational documents, as applicable, or any law or any agreement or instrument or any court order which is binding upon such Borrower or its property, do not constitute grounds for acceleration of any indebtedness or obligation under any agreement or instrument which is binding upon such Borrower or its property, and do not require the consent of any Person. This Agreement and such other Loan Documents have been duly executed and delivered by, and are enforceable against, each Borrower, and all other Obligors who have signed them, in accordance with their respective terms. Sections 9(g) and 9(h) of Schedule A set forth the trustees and beneficiaries of the Mennen Trust and the ownership of Wave2Wave and the names and ownership of each Borrower’s Subsidiaries as of the date of this Agreement.

5.2 Name; Trade Names and Styles. The name of each Borrower set forth in the heading to this Agreement is its correct and complete legal name as of the date hereof. Listed in Sections 9(a), 9(b) and 9(c) of Schedule A are all prior names of each Borrower and all of Wave2Wave’s present and prior trade names. Borrower shall give Lender at least thirty days’ prior written notice before changing its name or doing business under any other name. Wave2Wave has complied with all laws relating to the conduct of business under a fictitious business name. Wave2Wave represents and warrants that (1) each trade name does not refer to another corporation or other legal entity; and (ii) all Accounts invoiced under any such trade names are owned exclusively by Wave2Wave and are subject to the security interest of Lender and the other terms of this Agreement.

5.3 Title to Collateral; Permitted Liens. Each Borrower has good and marketable title to its Collateral. The Collateral now is and will at all times remain free and clear of any and all Liens, charges, security interests, encumbrances and adverse claims, except for Permitted Liens. Lender now has, and will continue to have, a first-priority perfected and enforceable security interest in all of the Collateral, subject only to the Permitted Liens, and each Borrower will at all times defend Lender and the Collateral against all claims of others. None of the Collateral which is Equipment with a value in excess of $500,000 is or will be affixed to any real property in such a manner, or with such intent, as to become a fixture. Except for leases or subleases for locations where the value of the Collateral exceeds

-9-


Greystone Business Credit II, L.L.C.	Loan and Security Agreement

$250,000 as to which Wave2Wave has delivered to Lender a landlord’s waiver in form and substance satisfactory to Lender, Wave2Wave is not a lessee or sublessee under any real property lease or sublease pursuant to which the lessor or sublessor may obtain any rights in any of the Collateral. Wave2Wave is not a lessee or sublessee under any real property lease or sublease pursuant to which it has granted the lessor or sublessor a contractual lien or security interest in any of the Collateral. Except for warehouses as to which Wave2Wave has delivered to Lender a warehouseman’s waiver in form and substance satisfactory to Lender, Wave2Wave is not a xxxxxx of any Goods at any warehouse under an arrangement pursuant to which the warehouseman may obtain any rights in any of the Collateral. Prior to causing or permitting any Collateral (other than Collateral which is located at an Excluded Collateral Location) to be located upon premises in which any third party has an interest (whether as owner, mortgagee, beneficiary under a deed of trust, lienholder or otherwise), Wave2Wave shall, whenever the value of the Collateral at such location exceeds $250,000 or otherwise reasonably requested by Lender, cause each such third party to execute and deliver to Lender, in form and substance acceptable to Lender, such waivers and subordination as- Lender shall specify, so- as to ensure that Lender’s rights in the Collateral are, and will continue to be, superior to the rights of any such third party. Wave2Wave will keep in full force and effect except for expirations of leases in the ordinary course of business, and will comply with all the material terms of, any lease of real property where any of the Collateral now or in the future may be located.

5.4 Accounts and Chattel Paper. All Accounts and Chattel Paper are genuine and in all respects what they purport to be, arise out of a completed, bona fide and unconditional and non-contingent sale and delivery of goods or rendition of services by Wave2Wave in the ordinary course of its business and in accordance with the terms and conditions of all purchase orders, contracts or other documented relating thereto, each Account Debtor thereunder had the capacity to contract at the time any contract or other document giving rise to such Accounts and Chattel Paper were executed, and the transactions giving rise to such Accounts and Chattel Paper comply with all applicable laws and governmental rules and regulations.

5.5 Electronic Chattel Paper. To the extent that Wave2Wave obtains or maintains any Electronic Chattel Paper, Wave2Wave shall create, store and assign the record or records comprising the- Electronic Chattel Paper in such a manner that (i) a single authoritative copy of the record or records exists which is unique, identifiable and except as otherwise provided below, unalterable, (ii) the authoritative copy identifies Lender as the assignee of the record or records, (iii) the authoritative copy is communicated to and maintained by the Lender or its designated custodian, (iv) copies or revisions that add or change an identified assignee of the authoritative copy can only be made with the participation of Lender, (v) each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative copy and (vi) any revision of the authoritative copy is readily identifiable as an authorized or unauthorized revision.

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

5.6 Investment Property. Each Borrower will take any and all actions required or reasonably requested by Lender, from time to time, to (i) cause Lender to obtain exclusive control of (x) any Investment Property of Wave2Wave and (y) any Investment Property of the Mennen Trust in the Securities Account, in each case in a manner acceptable to Lender and (ii) obtain from any issuers of such Investment Property and such other Persons as Lender shall specify, for the benefit of Lender, written confirmation of Lender’s exclusive control over such Investment Property and take such other actions as Lender may reasonably request to perfect Lender’s security interest in such Investment Property. For purposes of this Section 5.6, Lender shall have exclusive control of such Investment Property if (A) pursuant to Section 3.2, such Investment Property consists of certificated securities and the applicable Borrower delivers such certificated securities to Lender (with appropriate endorsements if such certificated securities are in registered form); (B) such Investment Property consists of uncertificated securities and either (x) the applicable Borrower delivers such uncertificated securities to Lender or (y) the issuer thereof agrees, pursuant to documentation in form and substance satisfactory to Lender, that it will comply with instructions originated by Lender without further consent by any Borrower, and (C) such Investment Property consists of security entitlements and either (x) Lender becomes the entitlement holder thereof or (y) the appropriate securities intermediary agrees, pursuant to documentation in form and substance satisfactory to Lender, that it will comply with entitlement order’s originated by Lender without further consent by any Borrower.

5.7 Commercial Tort Claims. Wave2Wave has no Commercial Tort Claims spending other than those listed in Section 14 of Schedule A, and Wave2Wave shall promptly notify Lender in writing upon incurring or otherwise obtaining a Commercial Tort Claim after the date hereof against any third party. Such notice shall constitute Wave2Wave’s authorization to amend such Section 14 to add such Commercial Tort Claim.

5.8 State of Organization; Location of Collateral. Borrowers’ Address is Wave2Wave’s chief executive office and the location of its books and records. The location of the Mennen Trust’s books and records is set forth on Section 9(d) of Schedule A. Wave2Wave has places of business and Collateral located only at the locations set forth on Section 9(e) of Schedule A (other than Collateral that is located at an Excluded Collateral Location). Each Borrower will give Lender at least thirty days’ prior written notice before changing any Borrower’s state of organization, opening any additional place of business, changing its chief executive office or the location of its books and records, or moving any of the Collateral (other than Collateral that is located at an than Excluded Collateral Location) to a location other than Borrowers’ Address or one of the locations set forth in Sections 9(d) and 9(e) of Schedule A, and will execute and deliver all financing statements and other agreements, instruments and documents which Lender shall require as a result thereof.

5.9 Financial Condition, Statements and Reports. All financial statements delivered to Lender by or on behalf of Wave2Wave have been, and will at all times continue to be, prepared in conformity with GAAP and all financial statements delivered to Lender by

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

or on behalf of any Borrower completely and fairly reflect the financial condition of such Borrower, at the times and for the periods therein stated. Between the last date covered by any such financial statement provided to Lender and the date hereof (or, with respect to the remaking of this representation in connection with the making of any Loan, the date such Loan is made) there has been no material adverse change in the financial condition or business of such Borrower. Each Borrower is solvent and able to pay its debts as they come due, and has sufficient capital to carry on its business as now conducted and as proposed to be conducted. All schedules, reports and other information and documentation delivered by any Borrower to Lender with respect to the Collateral are, or when delivered will be, true, correct and complete as of the date delivered or the date specified therein.

5.10 Tax Returns and Payments; Pension Contributions. Except as set forth in Section 9(j) of Schedule A, each Borrower has timely filed, and shall at all times continue to timely file, all tax returns and reports required by applicable law or a request for an extension thereof, has timely paid, and shall continue to timely pay, all applicable taxes, assessments, deposits and contributions owing by such Borrower and will timely pay all such items in the future as they become due and payable. Prior to the entrance by any Borrower into any payment plan with the Internal Revenue Service, the Internal Revenue Service and such Borrower shall enter into a subordination agreement with Lender in form and substance satisfactory to Lender with respect thereto. Each Borrower may, however, defer payment of any contested taxes; provided, that such Borrower (i) in good faith contests its obligation to pay such taxes by appropriate proceedings promptly and diligently instituted and conducted; (ii) notifies Lender in writing of the commencement of, and any material development in, the proceedings; (iii) posts bonds or takes any other steps required to keep the contested taxes from becoming a Lien upon any of the Collateral and (iv) maintains adequate reserves therefor in conformity with GAAP. Except as set forth in Section 9(j) of Schedule A, each Borrower is unaware of any claims or adjustments proposed for any of such Borrower’s prior tax years that could result in additional taxes becoming due and payable by such Borrower and shall give prompt written notice to Lender if it becomes aware of any such claims or adjustments. Each Borrower has paid, and shall continue to pay, all amounts necessary to fund all present and future pension, profit sharing and deferred compensation plans in accordance with their terms, and no Borrower has withdrawn from participation in, permitted partial or complete termination of, or permitted the occurrence of any other event with respect to, any such plan which could result in any liability of such Borrower, including any liability to the Pension Benefit Guaranty Corporation or any other governmental agency. Without the prior written consent of Lender, no Borrower will withdraw from participation in; permitted partial or complete termination of, or permitted the occurrence of any other event with respect to, any such plan which could result in any liability of such Borrower, including any liability to the Pension Benefit Guaranty Corporation or any other governmental agency.

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

5.11 Compliance with Laws. Each Borrower has complied, and shall at all times continue to comply, in all material respects with all provisions of all applicable laws and regulations, including those relating to such Borrower’s ownership of real or personal property, the conduct and licensing of such Borrower’s business, the payment and withholding of taxes, ERISA and other employee matters, safety and environmental matters.

5.12 Litigation. Section 9(f) of Schedule A discloses all claims, proceedings, litigation or investigations pending or (to the best of any Borrower’s knowledge) threatened against any Borrower. There is no claim, suit, litigation, proceeding or investigation pending or (to the best of any Borrower’s knowledge) threatened by or against or affecting any Borrower in any court or before any governmental agency (or any basis therefor known to Borrower) which may result, either separately or in the aggregate, in any material adverse change in the financial condition or business of any Borrower, or in any material impairment in the ability of any Borrower to carry on its business in substantially the same manner as it is now being conducted. Each Borrower will promptly inform Lender in writing of any claim, proceeding, litigation or investigation in the future threatened or instituted by or against any Borrower that could reasonably be expected to result in Costs to Borrowers in excess of $50,000.

5.13 Use of Proceeds. All proceeds of all Loans will be used solely for lawful business purposes, including to finance the Related Transactions.

5.14 Insurance. Wave2Wave will at all times carry property, liability and other insurance, with insurers acceptable to Lender, in such form and amounts, and with such deductibles and other provisions, as Lender shall require, and Wave2Wave will provide Lender with evidence satisfactory to Lender that such insurance is, at all times, in full force and effect. Each property insurance policy shall name Lender as loss payee and shall contain a lender’s loss payable endorsement in form acceptable to Lender, each liability insurance policy shall name Lender as an additional insured, and each business interruption insurance policy shall be collaterally assigned to Lender, all in form and substance satisfactory to Lender. All policies of insurance shall provide that they may not be cancelled or changed without at least thirty days’ prior written notice to Lender, shall contain breach of warranty coverage, and shall otherwise be in form and substance satisfactory to Lender. Upon receipt of the proceeds of any such insurance, Lender will apply such proceeds in reduction of the Obligations as Lender shall determine in its sole discretion; provided that with respect to proceeds of insurance of less than $100,000, Wave2Wave shall be permitted to retain the amount of such proceeds actually applied within 180 days of receipt thereof to repair, replace or reconstruct the property subject to the applicable insurance proceeds. Wave2Wave will promptly deliver to Lender copies of all reports made to insurance companies.

5.15 Financial and Collateral Reports. Each Borrower has kept and will keep adequate records and books of account with respect to its business and financial activities and the Collateral in which proper entries are made reflecting all its financial transactions (and

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

which entries with respect to Wave2Wave are made in accordance with GAAP), and will cause to be prepared and furnished to Lender the following (all to be prepared in accordance with GAAP, unless such Borrower’s certified public accountants concur in any change therein and such change is disclosed to Lender):

(a) Collateral Reports. On or before the fifteenth day of each month, an aging of Wave2Wave’s Accounts, Chattel Paper and notes receivable, and monthly Inventory reports, all in such form, and together with such additional certificates, schedules and other information with respect to the Collateral or the business of Wave2Wave or any Obligor, as Lender shall request; provided, that Wave2Wave’s failure to execute and deliver the same shall not affect or limit Lender’s security interests and other rights in any of the Accounts. Together with each such schedule, Wave2Wave shall furnish Lender with copies (or, at Lender’s request, originals) of all contracts, orders, invoices, and other similar documents, and all original shipping instructions, delivery receipts, bills of lading, and other evidence of delivery, for any goods the sale or disposition of which gave rise to such Accounts, and each Borrower warrants the genuineness of all of the foregoing. In addition, Wave2Wave shall deliver to Lender the originals of all Instruments, Chattel Paper, security agreements, guaranties and other documents and property evidencing or securing any Accounts, immediately upon receipt thereof and in the same form as received, with all necessary endorsements. The Mennen Trust shall create a portfolio report with respect to the Securities Accounts which shall be accessible on-line by Lender on a daily basis. Together with such report, the Mennen Trust shall furnish Lender such additional certificates, schedules and other information with respect to the Collateral as Lender shall request. Lender may destroy or otherwise dispose of all documents, schedules and other papers delivered to Lender pursuant to this Agreement six months after Lender receives them, unless the Mennen Trust requests their return in writing in advance and arranges for their return to the Mennen Trust at the Mennen Trust’s expense. Lender may destroy or otherwise dispose of all documents, schedules and other papers delivered to Lender pursuant to this Agreement (other than originals of Instruments, Chattel Paper, security agreements, guaranties and other documents and property evidencing or securing any Accounts) six months after Lender receives them, unless Borrower Representative requests their return in writing in advance and arranges for their return to Borrower Representative at Borrowers’ expense;

(b) Annual Statements. Not later than one hundred twenty (120) days after the close of each fiscal year of Wave2Wave, unqualified (except for a qualification for a change in accounting principles with which the accountant concurs) audited financial statements of Wave2Wave and its Subsidiaries as of the end of such year, on a consolidated and consolidating basis, certified by a firm of independent certified public accountants of recognized standing selected by Borrower Representative but reasonably acceptable to Lender, together with a copy of any management letter issued in connection therewith and a letter from such accountants acknowledging that Lender is relying on such financial statements. No later than April 15 of any calendar year, federal and state tax returns of the Mennen Trust prepared by independent certified public accountants of recognized standing selected by Borrower Representative but acceptable to Lender;

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

(c) Interim Statements. Not later than thirty (30) days after the end of each month hereafter, including the last month of Wave2Wave’s fiscal year, (i) unaudited interim financial statements of Wave2Wave and its Subsidiaries as of the end of such month and of the portion of Wave2Wave’s fiscal year then elapsed, on a consolidated and consolidating basis, certified by the chief financial officer of Borrower Representative as prepared in accordance with GAAP and fairly presenting the consolidated financial position and results of operations of the Wave2Wave and its Subsidiaries for such month and period subject only to changes from audit and year-end adjustments and except that such statements need not contain notes and (ii) for each month that. is the end of a fiscal quarter, a compliance certificate in form and substance satisfactory to Lender setting forth the financial covenants set forth in Section 8 of Schedule A for such quarter, as certified by officer of Borrower Representative;

(d) Projections, Etc. Such business projections, business plans, budgets and cash flow statements for Wave2Wave and its Subsidiaries as Lender shall reasonably request from time to time;

(e) Shareholder Reports, Etc. Promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or other material reports which any Borrower has made available to its trustees, beneficiaries or shareholders, as applicable, and copies of any regular, periodic and special reports or registration statements which such Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange;

(f) ERISA Reports. Upon request by Lender, copies of any annual report to be filed pursuant to the requirements of ERISA in connection with each plan subject thereto; and

(g) Other Information. Such other data and information (financial and otherwise) as Lender, from time to time, may reasonably request, bearing upon or related to the Collateral or any Borrower’s and each of its Subsidiary’s financial condition or results of Operations.

5.16 Litigation Cooperation. Should any third-party suit or proceeding be instituted by or against Lender with respect to any Collateral or in any manner relating to any Borrower or any Obligor, each Borrower shall, without expense to Lender, make available each Borrower and its trustees or beneficiaries and each Obligor, and its officers, employees and agents, and each Borrower’s and each Obligor’s books and records, without charge, to the extent that Lender may deem them reasonably necessary in order to prosecute or defend any such suit or proceeding.

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

5.17 Maintenance of Collateral, Etc. Wave2Wave will maintain all of its Equipment in good working condition, ordinary wear and tear excepted, and no Borrower will use the Collateral for any unlawful purpose. Each Borrower will promptly advise Lender in writing of any material loss or damage to the Collateral and of any investigation, action, suit, proceeding or claim relating to the Collateral or which may result in an adverse impact upon such Borrower’s business, assets or financial condition.

5.18 Notification of Changes. Each Borrower will promptly notify Lender in writing of any change in its trustees, beneficiaries, officers or directors, the opening of any new bank account or other deposit account, or any material adverse change in the business or financial affairs of any Borrower or the existence of any circumstance which would make any representation or warranty of any Borrower untrue in any material respect or constitute a material breach of any covenant of any Borrower.

5.19 Further Assurances. Each Borrower agrees at its expense, to take all actions, and execute or cause to be executed and delivered to Lender all promissory notes, security agreements, agreements with landlords, mortgagees and processors and other bailees, subordination and intercreditor agreements and other agreements, instruments and documents, as Lender may reasonably request from time to time to perfect and maintain Lender’s security interests in the Collateral and to fully carry out the transactions contemplated by this Agreement.

5.20 Negative Covenants. No Borrower will, without Lender’s prior written consent, (i) merge or consolidate with another Person or form any new Subsidiary or acquire any interest in any Person (other than the acquisition by the Mennen Trust of marketable Securities deposited in the Securities Accounts and consummation. f the Related Transaction by Wave2WaVe); (ii) sell or transfer any Collateral or other assets, except that Wave2Wave may provide services in the ordinary course-of its business and sell Inventory in the ordinary course of its business and the Mennen Trust may make sales of assets (provided that any sales of Investment Property in the Securities Accounts shall be for reasonably equivalent value); (iii) incur any debt outside the ordinary course of business other than Permitted Debt or (A) with respect to the Mennen Trust, debt with respect to which the Mennen Trust has provided Lender written notice prior to the incurrence thereof and (B) with respect to Wave2Wave, other. debt that Lender has consented to in writing (which consent shall not be unreasonably withheld); (iv) guaranty or otherwise become- liable with respect to the obligations of another party or entity other than guaranties of Permitted Debt or other guaranties that Lender has consented to in writing (which consent shall not be unreasonably withheld); (viii) pay or declare any dividends or other distributions from the Mennen Trust (ix) pay or declare any dividends or other distributions on Wave2Wave’s stock (except for dividends payable solely in Capital Stock of Wave2Wave); (xi) make any change in any of

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

Wave2Wave’s capital structure that causes the Mennen Trust to own less than 20% of the Capital Stock of Wave2Wave; (xii) dissolve or elect to dissolve; (xv) amend, restate, supplement or otherwise modify any agreements, documents or instruments governing the Mennen Trust or (xvi) change the state of Wave2Wave’s organization or enter into any transaction which has the effect Of changing Wave2Wave’s state of organization except as provided for in Section 5.8; or (xvii) agree to do any of the foregoing. Wave2Wave will not, without Lender’s prior written consent, (i) acquire any assets except in the ordinary course of business and as otherwise permitted by this Agreement and the other Loan Documents; (ii) enter into any transaction outside the ordinary course of business except as contemplated by this Agreement; (iii) except’ as set forth in Section 9(m) of Schedule A make any loans to, or investments in, any Affiliate or other Person in the form of money or other assets; (iv) redeem, retire, purchase or otherwise acquire, directly or indirectly, any Capital Stock or other equity interests (other than so long as no Default or Event of Default has occurred, the repurchase by Wave2Wave of Capital Stock issued pursuant to the Stock Plan not to exceed $2,500,000 in any fiscal year of Wave2Wave); (v) pay any principal or interest on any indebtedness owing to an Affiliate other than (A) Seller Notes subject to the terms of the Seller Subordination Agreement and (B) the regularly scheduled payments of interest on the Mennen Brothers Note; (vi) enter into any transaction with an Affiliate other than on arms-length terms and disclosed to Lender in writing with respect to any material transaction with an Affiliate; or (vii) agree to do any of the foregoing.

5.21 Financial Covenants. Each Borrower will comply with the financial covenants set forth in Section 8 of Schedule A.

5.22 Other Covenants. Each Borrower will comply with the additional covenants set forth in Section 12 of Schedule A.

5.23 Related Transactions. Wave2Wave has furnished Lender a true and correct copy of the Related Agreements. Wave2Wave and to Wave2Wave’s knowledge, each other party to the Related Agreements, has duly taken all necessary organizational action to authorize the execution, delivery and performance of the Related Agreements and the consummation of transactions contemplated thereby. As of the date hereof, the Related’ Transactions have been consummated (or are being consummated substantially contemporaneously with the initial credit extension hereunder) in accordance with the terms of the Related Agreements in all material respects (except for any matters to which the -Lender has consented). The Related Transactions will’ comply in all material respects with all applicable legal requirements, and except as provided in the Transition Services Agreement with respect to the Regulatory Approvals, all necessary governmental, regulatory, creditor, shareholder, partner and other material consents, approvals and exemptions required to be obtained by any Person and any such consents, approvals and exemptions in connection with the Related Transactions will be, prior to Consummation of the Related Transactions, duly obtained and will be in full force and effect. Except as provided in the Transition Services Agreement with respect to the Regulatory Approvals, as of the date Of the Related

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

Agreements, all applicable waiting periods with respect to the Related Transactions will have expired without any action being taken by any competent governmental authority which restrains, prevents or imposes material adverse conditions upon the consummation of the Related Transactions. The execution and delivery of the Related Agreements did not, and the consummation of the Related Transactions will not, violate any statute or regulation of the United States (including any securities law) or of any state or other applicable jurisdiction, or any order, judgment or decree of any court or governmental body binding on any Person, or result in a breach of, or constitute a default under, any material agreement, indenture, instrument or other document, or any judgment, order or decree, to which any Person is bound. No material statement or representation made in the Related Agreements by any Person, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements made therein; in light of the circumstances under which they are made, not misleading as of the time that such statement or representation is made. Except for the fees to Lender set forth in this Agreement, no Borrower is in any way obligated to any Person in respect of any finder’s or broker’s fee or similar commission in connection with the closing of the Loans or any part of the Related Transactions.

5.24 Subsidiaries. Wave2Wave VoIP Communications, LLC, a Delaware limited liability company, Wave2Wave Data Communications, LLC, a Delaware limited liability company, and Wave2Wave Communications Mid-West Region, LLC, a Delaware limited liability company, are the only subsidiaries of Wave2Wave on the date hereof, (collectively, the “Subsidiaries”). The Subsidiaries have no assets, individually or in the aggregate, together or separately, with a book value in excess of fifty thousand dollars ($50,000).

6. RELEASE AND INDEMNITY.

6.1 Release. Each Borrower hereby releases Lender and its Affiliates and their respective directors, officers, employees, attorneys and agents and any other Person affiliated with or representing Lender (the “Released Parties”) from any and all liability arising from acts or omissions under or pursuant to this Agreement; whether based on errors of judgment or mistake of law or fact, except with respect to any Released Party for those arising from willful misconduct or gross negligence of such Released Party. However, in no circumstance will any of the Released Parties be liable for lost profits or other special or consequential damages. Such release is made on the date- hereof and remade upon each request for a Loan by any Borrower. Without limiting the foregoing, Lender shall not be liable for (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gave rise to an Account; (ii) any error, act, omission, or delay of any kind occurring in the settlement, failure to settle, collection or failure to collect any Account; (iii) settling any Account in good faith for less than the full amount thereof; or (iv) any of Wave2Wave’s obligations under any contract or agreement giving rise to an Account.

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

6.2 Indemnity. Each Borrower hereby agrees to indemnify the Released Parties and hold them harmless from and against any and all claims, debts, liabilities, demands, obligations, actions, causes of action, penalties, costs and expenses (including attorneys’ fees), of every nature, character and description, which any Released Party may sustain or incur based upon or arising out of any of the transactions contemplated by this Agreement or the other Loan Documents or any of the Obligations, or any other matter, cause or thing Whatsoever occurred, done, omitted or suffered to be done by Lender relating to any Borrower or Obligor or the Obligations (except any such amounts sustained or incurred as the result of the willful misconduct or gross negligence of such Released Party). Notwithstanding any provision in this Agreement to the contrary, the indemnity agreement set forth in this Section shall survive any termination of this Agreement.

7. TERM.

7.1 Maturity Date. Lender’s obligation to make Loans under this Agreement shall initially continue in effect for a term (the “Term”) from the date of this Agreement until the Maturity Date set forth in Section 7 of Schedule A. This Agreement and the other Loan Documents and Lender’s security interests in and Liens upon the Collateral, and all representations, warranties and covenants of any Borrower contained herein and therein; shall remain in full force and effect after the Maturity Date until all of the monetary Obligations are indefeasibly paid in full (other than contingent indemnification Obligations that survive the termination of this Agreement).

7.2 Early Termination. Lender’s obligation to make Loans under this Agreement may he terminated prior to the Maturity Date as follows: (i) by Borrower Representative, effective thirty Business Days after written notice of termination is given to Lender or (ii) by Lender at any time after the occurrence of an Event of Default, without notice, effective immediately; provided, that (i) no such termination by Borrower Representative shall occur prior to May 12, 2008 and (ii) if any Subsidiary of any Borrower is also a party to a financing arrangement with Lender, no such early termination by Borrower Representative shall be effective unless such Subsidiary simultaneously terminates its financing arrangement with Lender. If so terminated under this Section 7.2 prior to the Maturity’ Date, Borrowers shall pay to Lender (i) an early termination fee (the “Early Termination Fee”) in the amount set forth in Section. 6(d) of Schedule A plus (ii) any earned but unpaid Servicing Fees, Minimum Borrowing Fee and other fees owing hereunder and under the other Loan Documents; provided that no such Early Termination Fee shall be payable if the Obligations are repaid in full in cash from either solely from (i) the proceeds of subsequent financing from Lender or (ii) proceeds of the cash flow of the Wave2Wave and its Subsidiaries and in no case from the -proceeds of any third party financing. Such fee shall be due and payable on the effective date of termination and thereafter shall bear interest at a rate equal to the highest rate applicable to any of the Obligations. In addition, if Borrower Representative so terminates and Borrowers repay the Obligations without having provided Lender with at least thirty days’ prior written notice thereof, Borrowers shall pay to Lender, on the effective date of termination, an

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

additional amount equal to thirty days of interest at the applicable interest rate(s), based on the average outstanding amount of the Obligations for the six month period immediately preceding the date of termination.

7.3 Payment of Obligations. On the Maturity Date or on any earlier effective date of termination, Borrowers shall pay in full all Obligations, whether or not all or any part of such Obligations are otherwise then due and payable.

7.4 Effect of Termination. No termination shall affect or impair any right or remedy of Lender or relieve any Borrower of any of the Obligations until all of the monetary Obligations have been indefeasibly paid in full. Upon indefeasible payment and performance in full of all of the monetary Obligations and termination of this Agreement, Lender shall promptly deliver to Borrower Representative termination statements, requests for reconveyances and such other documents as may be reasonably required to terminate Lender’s security interests in the Collateral.

7.5 Reinstatement. To the maximum extent not explicitly prohibited by applicable law, this Agreement shall continue to be effective or be reinstated if at any time any amount received by the Lender in respect of the Obligations hereunder or under any other Loan Document is rescinded or must otherwise be restored or returned by the Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Borrower or upon the appointment of any receiver, intervenor, conservator, trustee or similar official for any Borrower or any substantial part of any Borrower’s assets, or otherwise, all as though such payments had not been made.

8. EVENTS OF DEFAULT AND REMEDIES.

8.1 Events of Default. The occurrence of any of the following events shall constitute an “Event of Default” under this Agreement, and Borrower Representative shall give Lender immediate written notice thereof: (i) if any warranty, representation, statement, report or certificate made or delivered to Lender by any Borrower, any Obligor or any of any Borrower’s or any Obligor’s trustees, officers, employees or agents is untrue or misleading in any material respect; (ii) if any Borrower or any Obligor fails to pay when due any principal or interest on any Loan or any other monetary Obligation; (iii) if any Borrower or any Obligor breaches any covenant or obligation contained in this Agreement or any other Loan Document or fails to perform any other non-monetary Obligation; (iv) if any levy, assessment, attachment, seizure, lien, security interest or encumbrance (other than a Permitted Lien) involving amounts in excess of $25,000 is made or permitted to exist on all or any part of the Collateral and is not removed or bonded over within 30 days; (v) if one or more judgments aggregating in excess of $25,000, or any injunction or attachment, is obtained against any Borrower or any Obligor which remains unstayed for more than 30 days. or is enforced; (vi) the occurrence of any default beyond applicable grace or cure periods under any financing agreement, security agreement or other agreement, instrument or

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

document executed and delivered by (A) Wave2Wave with respect to the Seller Notes, (B) any Borrower or any Obligor with, or in favor of, any Person other than Lender or with respect to indebtedness in excess of $250,000 either comprising a payment default or any other default entitling the holder of such obligation to accelerate such indebtedness or (C) any Borrower, any Obligor or any other Affiliate of any Borrower with, or in favor of, Lender or any Affiliate of Lender (provided that for purposes of this clause (C), Affiliates of any Borrower shall not include managers, directors, officers or employees of such Borrower); (vii) the dissolution, death, termination of existence in good standing, insolvency or business failure or suspension or cessation of business as usual of any Borrower or any Obligor or the appointment of a receiver, trustee or custodian for all or any part of the property of, or an assignment for the benefit of creditors by any Borrower or any Obligor, or the commencement of any proceeding by any Borrower or any Obligor under any reorganization, bankruptcy, insolvency, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, now or in the future in effect, or if any Borrower makes or sends a notice of a bulk transfer or calls a meeting of its creditors; (viii) the commencement of any proceeding against any Borrower or any Obligor under any reorganization, bankruptcy, insolvency, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, now or in the future in effect; (ix) the actual or attempted revocation or termination of, or limitation or denial of liability upon, any guaranty of the Obligations, or any security document securing the Obligations, by any Borrower or any Obligor; (x) if any Borrower or any Obligor makes any payment on account of any indebtedness or obligation which has been subordinated to the Obligations other than as permitted in the applicable subordination agreement (and such amount is not repaid to Borrower or such Obligor or paid to Lender within five (5) Business Days), or if any Person who has subordinated such indebtedness or obligations attempts to limit or terminate its subordination agreement; (xi) if there is any actual or threatened indictment of any Borrower or any Obligor under any criminal statute or commencement or threatened commencement of criminal or civil proceedings against any Borrower or any Obligor, pursuant to which the potential penalties or remedies sought or available include forfeiture of any property of such Borrower or such Obligor; (xii) if there is. a change in the record or beneficial ownership of an aggregate of more than 20% of the outstanding shares, of Capital Stock of Wave2Wave, in one or more transactions, compared to the :ownership of outstanding shares of Capital Stock of Wave2Wave as of the date hereof, without the prior written consent of Lender; (xiii) if there is any change in the chief executive officer, chief operating officer or chief financial officer of Wave2Wave or any trustee of the Mennen Trust, in each case without the prior written consent of Lender; (xiv) if an Event of Default occurs under any agreement between Lender and any Obligor or other Affiliate of any Borrower; (xv) if Lender determines in good faith that the Collateral is insufficient to fully secure the Obligations; or (xvi) if, since June 30, 2007, a material adverse change in the business, financial or other condition of any Borrower or in the Collateral taken as a whole.

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

8.2 Remedies. Upon the occurrence of any Default, and at any time thereafter, Lender, at its option, may cease making Loans or otherwise extending credit to any Borrower under this Agreement or any other Loan Document. Upon the occurrence of an Event of Default, Lender may exercise from time to time any rights and remedies available to it under the UCC and any other applicable law in addition to, and not in lieu of, any rights and remedies expressly granted in this Agreement or in any of the other Loan Documents and all of Lender’s rights and remedies shall be cumulative and non-exclusive to the extent permitted by law. In particular, but not by way of limitation of the foregoing, upon the occurrence of any Event of Default, and at any time thereafter, Lender, at its option, and without notice or demand of any kind (all of which are hereby expressly waived by each Borrower), may do. any one or more of the following: (i) cease making Loans or otherwise extending credit to any Borrower under this Agreement or any other Loan Document; (ii) accelerate and declare all or any part of the Obligations to be immediately due, payable and performable, notwithstanding any deferred or installment payments allowed by any instrument evidencing or relating to any of the Obligations; (iii) take possession of any or all of the Collateral (in addition to Collateral of which it already has possession) wherever it may be found, and for -that purpose each Borrower hereby authorizes Lender, without judicial process, to enter onto any of any Borrower’s premises without interference to search for, take possession of, keep, store, or remove any of the Collateral, and remain (or cause a custodian to remain) on the premises in exclusive control thereof, without charge for so long as Lender deems it reasonably necessary in order to complete the enforcement of its rights under this Agreement or any other agreement; provided, that if Lender seeks to take possession of any of the Collateral by court process, each Borrower hereby irrevocably waives (A) any bond and any. surety or security relating. thereto required by law as an incident to such possession, (B) any demand for possession prior to the commencement of any suit or action to recover possession thereof and (C) any requirement that Lender retain possession of, and not dispose of, any such Collateral until after trial or final judgment; (iv) require any Borrower to assemble any or all of the Collateral and make it available to Lender at one or more places designated by Lender which are reasonably convenient to Lender and the applicable Borrower, and to, remove the Collateral to such locations. as Lender may deem advisable; (v) complete the processing, manufacturing or repair of any Collateral prior to a disposition thereof and, for such purpose and for the purpose of removal, Lender shall have the right to use any Borrower’s premises, vehicles and other Equipment and all other property without charge; (vi) sell, lease or otherwise dispose of any of the Collateral, in its condition at the time Lender obtains possession of it or after further manufacturing, processing or repair, at one or more public or private sales, in lots or in bulk, for cash, exchange or other property, or on credit (a “Sale”), and to adjourn any such Sale from time to time without notice. other than oral announcement at the time scheduled for Sale (and, in connection therewith, (A) Lender shall have the right to conduct such Sale on any Borrower’s premises without charge, for such times as Lender deems reasonable, on Lender’s premises, or elsewhere, and the Collateral need not be located at the place of Sale; (B) Lender may directly or through any of its Affiliates purchase or lease any of the Collateral at any such public disposition, and if

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

permissible under applicable law, at any private disposition and (C) any Sale of Collateral shall not relieve any Borrower of any liability any Borrower may have if any. Collateral is defective as to title, physical condition or otherwise at the time of sale); (vii) demand payment of and collect any Accounts, Chattel Paper, Instruments and General Intangibles included in the Collateral and, in connection therewith, each Borrower irrevocably authorizes Lender to endorse or sign any Borrower’s name on all collections, receipts, Instruments and other documents, to take possession of and open mail addressed to any Borrower and remove therefrom payments made with respect to any item of Collateral or Proceeds thereof and, in Lender’s sole discretion, to grant extensions of time to pay, compromise claims and settle Accounts, General Intangibles and the like for less than face value; and (viii) demand and receive possession of any of any Borrower’s federal and state income tax returns and the-books and records utilized in the preparation thereof or relating thereto. Each Borrower recognizes that if any Borrower fails to perform, observe or discharge any of its Obligations. under this Agreement or any of the Loan Documents, no remedy at law will provide adequate relief to Lender, and agrees that Lender shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages. Any notification of intended disposition of any of the Collateral required by law will be deemed to be a reasonable authenticated notification of disposition if given at least ten days. prior to such disposition and such notice shall (i) describe Lender and the applicable Borrower, :(ii) describe the Collateral that is the subject of the intended disposition, (iii) state the method of the intended disposition, (iv) state that Borrowers are entitled to an accounting of the Obligations and state the charge, if any, for an accounting and (v) state the time and place of any public disposition or the time after which any private sale is to be made. Lender may disclaim any warranties that might arise in connection with the sale, lease or other disposition of the Collateral and has no obligation to provide any warranties at such time. Any Proceeds of any disposition by Lender of any of the Collateral may be applied by Lender to the payment of expenses ‘in connection with the Collateral, including legal expenses and reasonable attorneys’ fees, and any balance of such Proceeds may be applied by Lender toward the payment of such of the Obligations, and in such order of application, as Lender. may from time to time elect. Exercise or partial exercise by Lender of one or more of its rights or remedies shall not be deemed an election or bar Lender from subsequent exercise or partial exercise of any other rights or remedies. The failure or delay of Lender to exercise any rights or remedies shall not operate as a waiver thereof, but all rights and remedies shall continue in full force and effect until all of the Obligations have been fully paid and performed.

8.3 Application of Proceeds. Subject to any application required by law, all Proceeds realized as the result of any Sale shall be applied by Lender to the Obligations in such order as Lender shall determine in its sole and absolute discretion. Any surplus shall be paid to Borrower or other Persons legally entitled thereto; but Borrowers shall remain liable to Lender for any deficiency. If Lender, in its sole and absolute discretion, directly or indirectly enters into a deferred payment or other credit transaction with any purchaser at any

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

Sale, Lender shall have the option, exercisable at any time, in its sole and absolute discretion, of either reducing the Obligations by the principal amount of the purchase price or deferring the reduction of the Obligations until the actual receipt by Lender of the cash therefor.

9. EFFECTIVE DATE.

The obligations of the Lender to make Loans on the date hereof shall not become effective until the date on which each of the conditions set forth in Section 17 of Schedule A is satisfied (or waived in writing by Lender).

10. GENERAL PROVISIONS.

10.1 Notices. All notices to be given under this Agreement shall be in writing and shall be given either personally, by reputable private delivery service, by regular first-class mail or certified mail return receipt requested, addressed to Lender or Borrower Representative at the address shown in the heading to this Agreement, or by facsimile to the facsimile number shown in Section 9(i) of Schedule A, or at any other address (or to any other facsimile number) designated in writing by one party to the other party in the manner prescribed in this Section 10.1. All notices shall be deemed to have been given when received or when delivery is refused by the recipient.

10.2 Severability. If any provision of this Agreement, or the application thereof to any party or circumstance, is held to be void or unenforceable by any court of competent jurisdiction, such defect shall not affect the remainder of this Agreement, which shall continue in full force and effect

10.3 Integration. This Agreement and the other Loan Documents represent the final, entire and complete agreement between Borrowers and Lender and supersede all prior and contemporaneous negotiations, oral representations and agreements, all of which are merged and integrated into this Agreement. THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS OR AGREEMENTS BETWEEN THE PARTIES THAT ARE NOT SET FORTH IN THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.

10.4 Waivers. The failure of Lender at any time or times to require any Borrower to strictly comply with any of the provisions of this Agreement or any other Loan Documents shall not waive or diminish any right of Lender later to demand and receive strict compliance therewith. Any waiver of any default shall not waive or affect any other default, whether prior or subsequent, and whether or not similar. None of the provisions of this Agreement or any other Loan Document shall be deemed to have been waived by any act or knowledge of Lender or its agents or employees, but only by a specific written waiver signed by an authorized officer of Lender and delivered to Borrower Representative. Each Borrower waives demand, protest, notice of protest and notice of default or dishonor, notice of payment

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

and nonpayment, release, compromise, settlement, extension or renewal of any commercial paper, Instrument, Account, General Intangible, Document, Chattel Paper, Investment Property or guaranty at any time held by Lender on which any Borrower is or may in any way be liable, and notice of any action taken by Lender, unless expressly required by this Agreement, and notice of acceptance hereof.

10.5 Amendment. This Agreement may not be amended or modified except in a writing executed by Borrower Representative and a duly authorized officer of Lender.

10.6 Time of Essence. Time is of the essence in the performance by Borrowers of each and every obligation under this Agreement and the other Loan Documents.

10.7 Attorneys Fees and Costs. Borrowers shall reimburse Lender for all attorneys’ and paralegals’ fees (including in-house attorneys and paralegals employed by Lender) and all filing, recording, search, title insurance, appraisal, audit, and other costs incurred by Lender, pursuant to, in connection with, or relating to this Agreement, including all attorneys’ fees and costs Lender incurs to prepare and negotiate this Agreement and the other Loan Documents; to obtain legal advice in connection with this Agreement and the other Loan Documents or any Borrower or any Obligor; to administer this Agreement and the other Loan Documents (including the cost of periodic financing statement, tax lien and other searches conducted by Lender); to enforce, or seek to enforce, any of its rights; prosecute actions against, or defend actions by, Account Debtors; to commence, intervene in, or defend any action or proceeding; to enforce and protect, or to seek to enforce and protect, any of its rights and interests in any bankruptcy case of any Borrower, including by initiating and prosecuting any motion for relief from the automatic stay and by initiating, prosecuting or defending any other contested matter or adversary proceeding in bankruptcy; to file or prosecute any probate claim, bankruptcy claim, third-party claim, or other claim; to examine, audit, copy, and inspect any of the Collateral or any of any Borrower’s books and records; to protect, obtain possession of, lease, dispose of, or otherwise enforce Lender’s security interests in, the Collateral; and to otherwise represent Lender in any litigation relating to any Borrower or any Obligor. If either Lender or any Borrower files any lawsuit against the other predicated on a breach of this Agreement, the prevailing party in such’ action shall be entitled to recover its costs and attorneys’ fees, including attorneys’ fees and costs incurred in the enforcement of, execution upon or defense of any order, decree, award or judgment. All attorneys’ fees and costs to which Lender may be entitled pursuant to this Section shall immediately become part of the Obligations, shall be due on demand, and shall bear interest at a rate equal to the highest interest rate applicable to any of the Obligations.

10.8 Benefit of Agreement; Assignability. The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors, assigns, heirs, beneficiaries and representatives of each Borrower and Lender; provided, that no Borrower may assign or transfer any of its rights under this Agreement without the prior written consent of Lender, and any prohibited assignment shall be void. No consent by Lender to

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

any assignment shall release any Borrower from its liability for any of the Obligations. Lender shall have the right to assign all or any of its rights and obligations under the Loan Documents, and to sell participating interests therein, to one or more other Persons, and each Borrower agrees to execute all agreements, instruments and documents requested by Lender in connection with each such assignment and participation. Notwithstanding any other provision set forth in this Agreement, the Lender may at any time, without the consent of any Borrower, assign, sell, convey, pledge, hypothecate, or otherwise encumber any or all of its rights and benefits under this Agreement, the other Loan Documents or the Collateral.

10.9 Headings; Construction. Section and subsection headings are used in this Agreement only for convenience and do not affect the meanings of the provisions that they precede.

10.10 GOVERNING LAW; CONSENT TO FORUM, ETC. THIS AGREEMENT HAS BEEN NEGOTIATED, EXECUTED AND DELIVERED, AND SHALL BE DEEMED TO HAVE BEEN MADE, IN NEW YORK COUNTY, NEW YORK, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH BORROWER HEREBY CONSENTS AND AGREES THAT THE STATE AND FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK OR ANY STATE IN WHICH ANY OF THE COLLATERAL IS LOCATED SHALL HAVE NON-EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN SUCH BORROWER AND LENDER PERTAINING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENTS OR ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH BORROWER EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND WAIVES ANY OBJECTION WHICH SUCH BORROWER MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. EACH BORROWER ALSO AGREES THAT ANY CLAIM OR DISPUTE BROUGHT BY SUCH BORROWER AGAINST LENDER PURSUANT. TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY MATTER ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK. EACH BORROWER HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE IN THE MANNER AND SHALL BE DEEMED RECEIVED AS SET FORTH IN SECTION 10.1 FOR NOTICES, TO THE EXTENT PERMITTED BY LAW. NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR TO PRECLUDE THE ENFORCEMENT BY

-26-


Greystone Business Credit II, L.L.C.	Loan and Security Agreement

LENDER OF ANY JUDGMENT OR ORDER OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.

10.11 WAIVER OF JURY TRIAL, ETC. EACH BORROWER. WAIVES (I) THE RIGHT TO TRIAL BY JURY (WHICH LENDER ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO ANY OF THE LOAN DOCUMENTS, THE OBLIGATIONS OR THE COLLATERAL OR ANY CONDUCT, ACTS OR OMISSIONS OF LENDER OR ANY BORROWER OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS OR ANY OTHER PERSONS AFFILIATED WITH LENDER OR. ANY BORROWER, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE; (II) THE RIGHT TO INTERPOSE ANY CLAIMS, DEDUCTIONS, SETOFFS OR COUNTERCLAIMS OF ANY KIND IN ANY ACTION OR PROCEEDING INSTITUTED BY LENDER. WITH RESPECT TO THE LOAN DOCUMENTS OR ANY MATTER RELATING THERETO, EXCEPT FOR COMPULSORY COUNTERCLAIMS; (111) NOTICE PRIOR TO LENDER’S TAKING POSSESSION OR CONTROL OF THE COLLATERAL OR ANY BOND OR SECURITY WHICH MIGHT BE REQUIRED BY ANY COURT PRIOR TO ALLOWING LENDER TO EXERCISE ANY OF LENDER’S REMEDIES AND (IV) THE BENEFIT OF ALL VALUATION, APPRAISEMENT AND EXEMPTION LAWS. EACH BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVERS ARE A MATERIAL INDUCEMENT TO LENDER’S ENTERING INTO THIS AGREEMENT AND THAT LENDER IS RELYING UPON THE FOREGOING WAIVERS IN ITS FUTURE DEALINGS WITH SUCH BORROWER. EACH BORROWER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THE FOREGOING WAIVERS WITH ITS LEGAL COUNSEL AND HAS KNOWINGLY AND VOLUNTARILY WAIVED ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

10.12 Joint and Several Liability.

(a) Notwithstanding anything to the contrary contained herein, all Obligations of each Borrower hereunder shall be joint and several obligations of Borrowers.

(b) Notwithstanding any provisions of this Agreement to the contrary, it is intended that the joint and several nature of the Obligations of Borrowers and the liens and security interests granted by Borrowers to secure the Obligations, not constitute a “Fraudulent Conveyance” (as defined below). Consequently, Lender and Borrowers agree that if the Obligations of a Borrower, or any liens or security interests granted by such Borrower securing the Obligations would, but for the application of this sentence, constitute a Fraudulent Conveyance, the Obligations of such Borrower and the liens and security interests

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

securing such Obligations shall be valid and enforceable only to the maximum extent that would not cause such Obligations or such lien or security interest to constitute a Fraudulent Conveyance, and the Obligations of such Borrower and this Agreement shall automatically be deemed to have been amended accordingly. For purposes hereof, “Fraudulent Conveyance” means a fraudulent conveyance under Section 548 of Chapter 11 of Title II of the United States Code (11 U.S.C. § 101, et seq.), as amended (the “Bankruptcy Code”) or a fraudulent conveyance or fraudulent transfer under the applicable provisions of any fraudulent conveyance or fraudulent transfer law or similar law of any state, nation or other governmental unit, as in effect from time to time.

(c) Each Borrower assumes responsibility for keeping itself informed of the financial condition of each other Borrower, and any and all endorsers and/or guarantors of any instrument or document evidencing all or any part of such other Borrower’s Obligations and of all other circumstances bearing upon the risk of nonpayment by such other Borrowers of their Obligations and each Borrower agrees that Lender shall have no duty to advise. such Borrower of information known to Lender regarding such condition or any such circumstances or to undertake any investigation not a part of its regular business routine. If Lender, in its sole discretion, undertakes at any time or from time to time to provide any such information to a Borrower, Lender shall not be under any obligation to update any such information or to provide any such information to such Borrower on any subsequent occasion.

(d) Lender is hereby authorized, without notice or demand and without affecting the liability of a Borrower hereunder, to, at any time and from time to time, (i) renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to a Borrower’s Obligations or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument now or hereafter executed by a Borrower and delivered to Lender; (ii) accept partial payments on a Borrower’s Obligations; (iii) take and hold security or collateral for the payment of a Borrower’s Obligations hereunder or for the payment of any guaranties of a 13pirower’s Obligations or other liabilities of a Borrower and exchange, enforce, waive and release any such security or collateral; (iv) apply such security or collateral and direct the order or manner of sale thereof as Lender, in its sole discretion, may determine; and (v) settle, release, compromise, collect or otherwise liquidate a Borrower’s Obligations and any security or collateral therefor in any manner, without affecting or impairing the obligations of the other Borrowers. Lender shall have the exclusive right to determine the time and manner of application of any payments or credits, whether received from a Borrower or any other source, and such determination shall be binding on such Borrower. All such payments and credits may be applied, reversed and reapplied, in whole or in part, to any of a Borrower’s Obligations as Lender shall determine in its sole discretion without affecting the validity or enforceability of the Obligations of the other Borrowers.

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

(e) Each Borrower hereby agrees that, except as hereinafter provided, its obligations hereunder shall be unconditional, irrespective of (i) the absence of any attempt to collect a Borrower’s Obligations from any Borrower or any guarantor or other action to enforce the same; (ii) the waiver or consent by Lender with respect to any provision of any instrument evidencing Borrowers’ Obligations, or any part thereof, or any other agreement heretofore, now or hereafter executed by a Borrower and delivered to Lender; (iii) failure by Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for Borrowers’ Obligations; (iv) the institution of any proceeding-under the Bankruptcy Code, or any similar proceeding, by or against a Borrower or Lender’s election in any such proceeding of the application of Section 1111(b)(2) of the Bankruptcy Code; (v) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the Bankruptcy Code; (vi) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of Lender’s claim(s) for repayment of any of Borrowers’ Obligations; or (vii) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than payment in full of the Obligations (other than contingent indemnification Obligations that survive the termination of this Agreement)).

(f) Until the payment in full of the Obligations (other than contingent indemnification Obligations that survive the termination of this Agreement), no payment made by or for the account of a Borrower including, without limitation, (i) a payment made by such Borrower on behalf of another Borrower’s Obligations or (ii) a payment made by any other person under any guaranty, shall entitle such Borrower, by subrogation or otherwise, to any payment from such other Borrower or from or out of such other Borrower’s property and such Borrower shall not exercise any right or remedy against such. other Borrower or any property of such other Borrower by reason of any performance of such Borrower of its joint and several obligations hereunder.

-00-


Xxxxxxxxx Xxxxxxxx Credit II, L.L.C.	Loan and Security Agreement

IN WITNESS WHEREOF, each Borrower and Lender have signed this Agreement as of the date first set forth above.


Borrowers:	Lender:

Wilmington Trust Company and Xxxxxx Xxxx Xxxxxx as co-trustees U/AJD November 25, 1970, as amended for the benefit of Xxxx Xxxxx Xxxxxx	GREYSTONE BUSINESS CREDIT II, L.L.C.

	By:	/s/ [illegible]

	Its authorized Signatory


By:	/s/ Xxxxxx Xxxx Xxxxxx

	Xxxxxx Xxxx Xxxxxx, Co-Trustee U/A/D November 25, 1970, as amended for the benefit of Xxxx Xxxxx Xxxxxx

By:	Wilmington Trust Company, Co-Trustee U/AJD November 25, 1970, as amended for the benefit of Xxxx Xxxxx Xxxxxx

	By:	/s/ Xxxx X. Xxxxx

		Xxxx X. Xxxxx, Vice President

WAVE2WAVE COMMUNICATIONS, INC.

By	/s/ Xxxxxx Xxxxx

			Xxxxxx Xxxxx
			President

Loan and Security Agreement

Document Metadata

Table of Contents

Loan and Security Agreement

Document Metadata