Exhibit 10.10


FINANCING AGREEMENT


Dated as of September 8, 2009


by and among


WAVE2WAVE COMMUNICATIONS, INC. 

as Borrower


THE SUBSIDIARIES OF BORROWER PARTY HERETO
as
Guarantors


THE LENDERS PARTY HERETO


and


VICTORY PARK MANAGEMENT, LLC 

as Agent


	
  

 
	
  

 
	
 $9,300,000 SENIOR SECURED NOTES

 
	
  

 










TABLE OF CONTENTS


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Page

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 1
 DEFINITIONS; CERTAIN TERMS

 	
  

 	
 2

 
	
  

 	
 Section 1.1

 	
  

 	
 Definitions

 	
  

 	
 2

 
	
  

 	
 Section 1.2

 	
  

 	
 Terms
 Generally

 	
  

 	
 14

 
	
  

 	
 Section 1.3

 	
  

 	
 Accounting
 and Other Terms

 	
  

 	
 14

 
	
  

 	
  

 	
  

 
	
 ARTICLE 2
 BORROWER’S AUTHORIZATION OF ISSUE

 	
  

 	
 14

 
	
  

 	
 Section 2.1

 	
  

 	
 Senior
 Secured Notes

 	
  

 	
 14

 
	
  

 	
 Section 2.2

 	
  

 	
 Interest and
 Fees

 	
  

 	
 15

 
	
  

 	
 Section 2.3

 	
  

 	
 Redemptions
 and Payments

 	
  

 	
 16

 
	
  

 	
 Section 2.4

 	
  

 	
 Payments

 	
  

 	
 18

 
	
  

 	
 Section 2.5

 	
  

 	
 Dispute
 Resolution

 	
  

 	
 18

 
	
  

 	
 Section 2.6

 	
  

 	
 Taxes

 	
  

 	
 19

 
	
  

 	
 Section 2.7

 	
  

 	
 Reissuance

 	
  

 	
 19

 
	
  

 	
 Section 2.8

 	
  

 	
 Register

 	
  

 	
 20

 
	
  

 	
 Section 2.9

 	
  

 	
 Maintenance
 of Register

 	
  

 	
 20

 
	
  

 	
 Section 2.10

 	
  

 	
 Compensation
 for Increased Costs and Taxes

 	
  

 	
 21

 
	
  

 	
 Section 2.11

 	
  

 	
 Capital
 Adequacy Adjustment

 	
  

 	
 21

 
	
  

 	
  

 	
  

 
	
 ARTICLE 3
 PURCHASE AND SALE OF NOTES

 	
  

 	
 22

 
	
  

 	
 Section 3.1

 	
  

 	
 Closing

 	
  

 	
 22

 
	
  

 	
  

 	
  

 
	
 ARTICLE 4
 CONDITIONS TO THE BORROWER’S OBLIGATION TO SELL

 	
  

 	
 22

 
	
  

 	
 Section 4.1

 	
  

 	
 Closing

 	
  

 	
 22

 
	
  

 	
  

 	
  

 
	
 ARTICLE 5
 CONDITIONS TO EACH LENDER’S OBLIGATION TO PURCHASE

 	
  

 	
 23

 
	
  

 	
 Section 5.1

 	
  

 	
 Closing

 	
  

 	
 23

 
	
  

 	
  

 	
  

 
	
 ARTICLE 6
 LENDER’S REPRESENTATIONS AND WARRANTIES

 	
  

 	
 26

 
	
  

 	
 Section 6.1

 	
  

 	
 No Public
 Sale or Distribution

 	
  

 	
 26

 
	
  

 	
 Section 6.2

 	
  

 	
 Investor
 Status

 	
  

 	
 27

 
	
  

 	
 Section 6.3

 	
  

 	
 No
 Governmental Review

 	
  

 	
 27

 
	
  

 	
 Section 6.4

 	
  

 	
 Transfer or
 Resale

 	
  

 	
 27

 
	
  

 	
 Section 6.5

 	
  

 	
 Legends

 	
  

 	
 27

 
	
  

 	
 Section 6.6

 	
  

 	
 Residency

 	
  

 	
 28

 
	
  

 	
  

 	
  

 
	
 ARTICLE 7
 CREDIT PARTIES’ REPRESENTATIONS AND WARRANTIES

 	
  

 	
 28

 
	
  

 	
 Section 7.1

 	
  

 	
 Organization
 and Qualification

 	
  

 	
 28

 
	
  

 	
 Section 7.2

 	
  

 	
 Authorization;
 Enforcement; Validity

 	
  

 	
 28

 
	
  

 	
 Section 7.3

 	
  

 	
 Issuance of
 Notes

 	
  

 	
 29

 
	
  

 	
 Section 7.4

 	
  

 	
 No Conflicts

 	
  

 	
 29

 
	
  

 	
 Section 7.5

 	
  

 	
 Consents

 	
  

 	
 30

 
	
  

 	
 Section 7.6

 	
  

 	
 Subsidiary
 Rights

 	
  

 	
 30

 
	
  

 	
 Section 7.7

 	
  

 	
 Equity
 Capitalization

 	
  

 	
 30

 
	
  

 	
 Section 7.8

 	
  

 	
 Indebtedness
 and Other Contracts

 	
  

 	
 31

 


i









	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Section 7.9

 	
  

 	
 Off Balance
 Sheet Arrangements

 	
  

 	
 31

 
	
  

 	
 Section 7.10

 	
  

 	
 Ranking of
 Notes

 	
  

 	
 31

 
	
  

 	
 Section 7.11

 	
  

 	
 Title

 	
  

 	
 31

 
	
  

 	
 Section 7.12

 	
  

 	
 Intellectual
 Property Rights

 	
  

 	
 32

 
	
  

 	
 Section 7.13

 	
  

 	
 Creation,
 Perfection, and Priority of Liens

 	
  

 	
 32

 
	
  

 	
 Section 7.14

 	
  

 	
 Absence of
 Certain Changes

 	
  

 	
 32

 
	
  

 	
 Section 7.15

 	
  

 	
 Absence of
 Litigation

 	
  

 	
 33

 
	
  

 	
 Section 7.16

 	
  

 	
 No
 Undisclosed Events, Liabilities, Developments or Circumstances

 	
  

 	
 33

 
	
  

 	
 Section 7.17

 	
  

 	
 No
 Disagreements with Accountants and Lawyers

 	
  

 	
 33

 
	
  

 	
 Section 7.18

 	
  

 	
 Reserved

 	
  

 	
 33

 
	
  

 	
 Section 7.19

 	
  

 	
 Reserved

 	
  

 	
 33

 
	
  

 	
 Section 7.20

 	
  

 	
 Tax Status

 	
  

 	
 33

 
	
  

 	
 Section 7.21

 	
  

 	
 Transfer
 Taxes

 	
  

 	
 34

 
	
  

 	
 Section 7.22

 	
  

 	
 Conduct of
 Business; Regulatory Permits

 	
  

 	
 34

 
	
  

 	
 Section 7.23

 	
  

 	
 Foreign
 Corrupt Practices

 	
  

 	
 34

 
	
  

 	
 Section 7.24

 	
  

 	
 Reserved

 	
  

 	
 34

 
	
  

 	
 Section 7.25

 	
  

 	
 Environmental
 Laws

 	
  

 	
 34

 
	
  

 	
 Section 7.26

 	
  

 	
 Margin Stock

 	
  

 	
 35

 
	
  

 	
 Section 7.27

 	
  

 	
 ERISA

 	
  

 	
 35

 
	
  

 	
 Section 7.28

 	
  

 	
 Investment
 Company

 	
  

 	
 35

 
	
  

 	
 Section 7.29

 	
  

 	
 U.S. Real
 Property Holding Corporation

 	
  

 	
 35

 
	
  

 	
 Section 7.30

 	
  

 	
 Internal
 Accounting and Disclosure Controls

 	
  

 	
 35

 
	
  

 	
 Section 7.31

 	
  

 	
 Financial
 Statements

 	
  

 	
 36

 
	
  

 	
 Section 7.32

 	
  

 	
 Reserved

 	
  

 	
 36

 
	
  

 	
 Section 7.33

 	
  

 	
 Transactions
 With Affiliates

 	
  

 	
 36

 
	
  

 	
 Section 7.34

 	
  

 	
 Acknowledgment
 Regarding Lender’s Purchase of Notes

 	
  

 	
 36

 
	
  

 	
 Section 7.35

 	
  

 	
 Reserved

 	
  

 	
 37

 
	
  

 	
 Section 7.36

 	
  

 	
 Registration
 Statement

 	
  

 	
 37

 
	
  

 	
 Section 7.37

 	
  

 	
 Insurance

 	
  

 	
 37

 
	
  

 	
 Section 7.38

 	
  

 	
 Reserved

 	
  

 	
 37

 
	
  

 	
 Section 7.39

 	
  

 	
 Employee
 Relations

 	
  

 	
 37

 
	
  

 	
 Section 7.40

 	
  

 	
 Disclosure

 	
  

 	
 38

 
	
  

 	
 Section 7.41

 	
  

 	
 Patriot Act

 	
  

 	
 38

 
	
  

 	
 Section 7.42

 	
  

 	
 Material
 Contracts

 	
  

 	
 38

 
	
  

 	
 Section 7.43

 	
  

 	
 Affiliate
 Contracts

 	
  

 	
 38

 
	
  

 	
  

 	
  

 
	
 ARTICLE 8
 COVENANTS

 	
  

 	
 39

 
	
  

 	
 Section 8.1

 	
  

 	
 Financial
 Covenants

 	
  

 	
 39

 
	
  

 	
 Section 8.2

 	
  

 	
 Deliveries

 	
  

 	
 39

 
	
  

 	
 Section 8.3

 	
  

 	
 Notices

 	
  

 	
 40

 
	
  

 	
 Section 8.4

 	
  

 	
 Rank

 	
  

 	
 42

 
	
  

 	
 Section 8.5

 	
  

 	
 Incurrence
 of Indebtedness

 	
  

 	
 43

 
	
  

 	
 Section 8.6

 	
  

 	
 Existence of
 Liens

 	
  

 	
 43

 
	
  

 	
 Section 8.7

 	
  

 	
 Restricted
 Payments

 	
  

 	
 43

 
	
  

 	
 Section 8.8

 	
  

 	
 Mergers;
 Acquisitions; Asset Sales

 	
  

 	
 43

 
	
  

 	
 Section 8.9

 	
  

 	
 No Further
 Negative Pledges

 	
  

 	
 44

 
	
  

 	
 Section 8.10

 	
  

 	
 Affiliate
 Transactions

 	
  

 	
 44

 


ii









	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Section 8.11

 	
  

 	
 Insurance

 	
  

 	
 44

 
	
  

 	
 Section 8.12

 	
  

 	
 Corporate
 Existence and Maintenance of Properties

 	
  

 	
 45

 
	
  

 	
 Section 8.13

 	
  

 	
 Non-circumvention

 	
  

 	
 45

 
	
  

 	
 Section 8.14

 	
  

 	
 Conduct of
 Business

 	
  

 	
 46

 
	
  

 	
 Section 8.15

 	
  

 	
 U.S. Real
 Property Holding Corporation

 	
  

 	
 46

 
	
  

 	
 Section 8.16

 	
  

 	
 Compliance
 with Laws

 	
  

 	
 46

 
	
  

 	
 Section 8.17

 	
  

 	
 Regulatory
 Consent

 	
  

 	
 46

 
	
  

 	
 Section 8.18

 	
  

 	
 IPO

 	
  

 	
 46

 
	
  

 	
 Section 8.19

 	
  

 	
 Reserved

 	
  

 	
 46

 
	
  

 	
 Section 8.20

 	
  

 	
 Additional
 Collateral

 	
  

 	
 46

 
	
  

 	
 Section 8.21

 	
  

 	
 Audit
 Rights; Field Exams; Appraisals; Meetings

 	
  

 	
 46

 
	
  

 	
 Section 8.22

 	
  

 	
 Pledge of
 Notes

 	
  

 	
 47

 
	
  

 	
 Section 8.23

 	
  

 	
 Additional
 Issuances of Securities

 	
  

 	
 47

 
	
  

 	
 Section 8.24

 	
  

 	
 Use of
 Proceeds

 	
  

 	
 48

 
	
  

 	
 Section 8.25

 	
  

 	
 Fees

 	
  

 	
 48

 
	
  

 	
 Section 8.26

 	
  

 	
 Reserved

 	
  

 	
 49

 
	
  

 	
 Section 8.27

 	
  

 	
 Modification
 of Organizational Documents and Certain Documents

 	
  

 	
 49

 
	
  

 	
 Section 8.28

 	
  

 	
 Joinder

 	
  

 	
 49

 
	
  

 	
 Section 8.29

 	
  

 	
 Investments

 	
  

 	
 49

 
	
  

 	
 Section 8.30

 	
  

 	
 Further
 Assurances

 	
  

 	
 50

 
	
  

 	
  

 	
  

 
	
 ARTICLE 9
 CROSS GUARANTY

 	
  

 	
 50

 
	
  

 	
 Section 9.1

 	
  

 	
 Cross-Guaranty

 	
  

 	
 50

 
	
  

 	
 Section 9.2

 	
  

 	
 Waivers by
 Guarantors

 	
  

 	
 51

 
	
  

 	
 Section 9.3

 	
  

 	
 Benefit of
 Guaranty

 	
  

 	
 51

 
	
  

 	
 Section 9.4

 	
  

 	
 Waiver of
 Subrogation, Etc

 	
  

 	
 51

 
	
  

 	
 Section 9.5

 	
  

 	
 Election of
 Remedies

 	
  

 	
 51

 
	
  

 	
 Section 9.6

 	
  

 	
 Limitation

 	
  

 	
 52

 
	
  

 	
 Section 9.7

 	
  

 	
 Contribution
 with Respect to Guaranty Obligations

 	
  

 	
 52

 
	
  

 	
 Section 9.8

 	
  

 	
 Liability
 Cumulative

 	
  

 	
 53

 
	
  

 	
 Section 9.9

 	
  

 	
 Stay of
 Acceleration

 	
  

 	
 53

 
	
  

 	
 Section 9.10

 	
  

 	
 Benefit to
 Borrower

 	
  

 	
 53

 
	
  

 	
  

 	
  

 
	
 ARTICLE 10
 RIGHTS UPON EVENT OF DEFAULT

 	
  

 	
 53

 
	
  

 	
 Section 10.1

 	
  

 	
 Event of
 Default

 	
  

 	
 53

 
	
  

 	
 Section 10.2

 	
  

 	
 Acceleration Right

 	
  

 	
 56

 
	
  

 	
 Section 10.3

 	
  

 	
 Consultation
 Rights

 	
  

 	
 57

 
	
  

 	
 Section 10.4

 	
  

 	
 Other
 Remedies

 	
  

 	
 57

 
	
  

 	
  

 	
  

 
	
 ARTICLE 11
 TERMINATION

 	
  

 	
 57

 
	
  

 	
  

 	
  

 
	
 ARTICLE 12
 AGENCY PROVISIONS

 	
  

 	
 58

 
	
  

 	
 Section 12.1

 	
  

 	
 Appointment

 	
  

 	
 58

 
	
  

 	
 Section 12.2

 	
  

 	
 Delegation
 of Duties

 	
  

 	
 58

 
	
  

 	
 Section 12.3

 	
  

 	
 Exculpatory
 Provisions

 	
  

 	
 58

 
	
  

 	
 Section 12.4

 	
  

 	
 Reliance by
 Agent

 	
  

 	
 59

 
	
  

 	
 Section 12.5

 	
  

 	
 Notices of
 Default

 	
  

 	
 59

 


iii









	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Section 12.6

 	
  

 	
 Non-Reliance
 on the Agent and Other Holders

 	
  

 	
 59

 
	
  

 	
 Section 12.7

 	
  

 	
 Indemnification

 	
  

 	
 60

 
	
  

 	
 Section 12.8

 	
  

 	
 The Agent in
 Its Individual Capacity

 	
  

 	
 60

 
	
  

 	
 Section 12.9

 	
  

 	
 Resignation
 of the Agent; Successor Agent

 	
  

 	
 60

 
	
  

 	
 Section
 12.10

 	
  

 	
 Reimbursement
 by Holders

 	
  

 	
 61

 
	
  

 	
  

 	
  

 
	
 ARTICLE 13
 MISCELLANEOUS

 	
  

 	
 61

 
	
  

 	
 Section 13.1

 	
  

 	
 Payment of
 Expenses

 	
  

 	
 61

 
	
  

 	
 Section 13.2

 	
  

 	
 Governing
 Law; Jurisdiction; Jury Trial

 	
  

 	
 62

 
	
  

 	
 Section 13.3

 	
  

 	
 Counterparts

 	
  

 	
 62

 
	
  

 	
 Section 13.4

 	
  

 	
 Headings

 	
  

 	
 62

 
	
  

 	
 Section 13.5

 	
  

 	
 Severability

 	
  

 	
 62

 
	
  

 	
 Section 13.6

 	
  

 	
 Entire
 Agreement; Amendments

 	
  

 	
 63

 
	
  

 	
 Section 13.7

 	
  

 	
 Notices

 	
  

 	
 63

 
	
  

 	
 Section 13.8

 	
  

 	
 Successors
 and Assigns

 	
  

 	
 65

 
	
  

 	
 Section 13.9

 	
  

 	
 No Third
 Party Beneficiaries

 	
  

 	
 65

 
	
  

 	
 Section
 13.10

 	
  

 	
 Survival

 	
  

 	
 65

 
	
  

 	
 Section
 13.11

 	
  

 	
 Further
 Assurances

 	
  

 	
 65

 
	
  

 	
 Section
 13.12

 	
  

 	
 Indemnification

 	
  

 	
 65

 
	
  

 	
 Section
 13.13

 	
  

 	
 No Strict
 Construction

 	
  

 	
 66

 
	
  

 	
 Section
 13.14

 	
  

 	
 Waiver

 	
  

 	
 66

 
	
  

 	
 Section
 13.15

 	
  

 	
 Payment Set
 Aside

 	
  

 	
 66

 
	
  

 	
 Section
 13.16

 	
  

 	
 Independent
 Nature of Lenders’ Obligations and Rights

 	
  

 	
 67

 


iv





EXHIBITS


	
  

 	
  

 
	
 Exhibit A

 	
 Note

 
	
 Exhibit B

 	
 Security
 Agreement

 
	
 Exhibit C

 	
 Fee Letter

 
	
 Exhibit D

 	
 Funds Flow
 Letter

 
	
 Exhibit E

 	
 Reserved

 
	
 Exhibit F

 	
 Reserved

 
	
 Exhibit G

 	
 Post-Closing
 Obligations Letter

 
	
 Exhibit H

 	
 Compliance
 Certificate

 
	
 Exhibit I

 	
 Officer’s
 Certificate

 
	
 Exhibit J-1

 	
 Affiliate
 Subordination Agreement (RNK)

 
	
 Exhibit J-2

 	
 Affiliate
 Subordination Agreement (Mennen)

 
	
 Exhibit K

 	
 Intellectual
 Property Security Agreements

 
	
 Exhibit L

 	
 Pledge
 Agreement

 
	
  

 	
  

 
	
 SCHEDULES

 
	
  

 	
  

 
	
 Schedule
 5.1(v)

 	
 Material Adverse
 Effect

 
	
 Schedule 7.1

 	
 Subsidiaries

 
	
 Schedule 7.5

 	
 Consents

 
	
 Schedule 7.6

 	
 Subsidiary
 Rights

 
	
 Schedule 7.7

 	
 Equity
 Capitalization

 
	
 Schedule 7.8

 	
 Indebtedness
 and Other Contracts

 
	
 Schedule 7.9

 	
 Off Balance
 Sheet

 
	
 Schedule
 7.11

 	
 Title

 
	
 Schedule
 7.12

 	
 Intellectual
 Property Rights

 
	
 Schedule
 7.14

 	
 Absence of
 Certain Changes

 
	
 Schedule
 7.15

 	
 Absence of
 Litigation

 
	
 Schedule
 7.16

 	
 Disclosure

 
	
 Schedule
 7.22

 	
 Conduct of
 Business; Regulatory Permits

 
	
 Schedule
 7.25

 	
 Environmental
 Laws

 
	
 Schedule
 7.27

 	
 ERISA

 
	
 Schedule
 7.33

 	
 Transactions
 with Affiliates

 
	
 Schedule
 7.42

 	
 Material
 Contracts

 
	
 Schedule
 7.43

 	
 Affiliate
 Contracts

 
	
 Schedule 8.6

 	
 Existing
 Liens

 
	
 Schedule 8.7

 	
 Restricted
 Payments

 
	
 Schedule
 8.24

 	
 Use of
 Proceeds

 
	
 Schedule
 8.29

 	
 Existing
 Investments

 


v






FINANCING AGREEMENT


          This FINANCING AGREEMENT (as modified, amended,
extended, restated, amended and restated or supplemented from time to time,
this “Agreement”), dated as of
September 8, 2009 is being entered into by and among WAVE2WAVE COMMUNICATIONS,
INC. (“Borrower”), the Guarantors
(as hereinafter defined), the lender(s) listed on the Schedule of Lenders
attached hereto (each individually, a “Lender”
and collectively, the “Lenders”)
and Victory Park Management, LLC, as administrative agent and collateral agent
(the “Agent”) for the Lenders and
the Holders (as defined herein).


RECITALS


          WHEREAS,
the Borrower has authorized a new series of senior secured notes of the
Borrower;


          WHEREAS,
each Lender wishes to purchase, and the Borrower wishes to sell, at the
Closing, upon the terms and conditions stated in this Agreement, that principal
amount of Notes, in substantially the form attached hereto as Exhibit A,
as set forth opposite such Lender’s name in column three (3) on the Schedule
of Lenders attached hereto;


          WHEREAS,
contemporaneously with the execution and delivery of this Agreement, (a) the
Borrower, the Guarantors and the Agent on behalf of the Holders and Lenders are
executing and delivering a Pledge and Security Agreement, substantially in the
form attached hereto as Exhibit B (the “Security Agreement”), pursuant to which substantially all of
the assets of the Borrower and Guarantors will be pledged as Collateral to
secure the Obligations and (b) certain stockholders of Borrower (the “Pledgors”) are executing and delivering a
Pledge Agreement, substantially in the form attached hereto as Exhibit L
(the “Pledge Agreement”), pursuant
to which not less than fifty-one percent (51%) of the Equity Interests of
Borrower will be pledged as Collateral to secure the Obligations; 


          WHEREAS,
contemporaneously with the execution and delivery of this Agreement, the
Borrower and the Agent are executing and delivering a Fee Letter, substantially
in the form attached hereto as Exhibit C (the “Fee Letter”), pursuant to which the
Borrower shall pay and reimburse the Agent for itself and on behalf of the
Holders and Lenders for the reasonable fees and expenses incurred in connection
with the transactions contemplated hereunder; 


          WHEREAS,
contemporaneously with the execution and delivery of this Agreement, the
Borrower, the holders of the Affiliate Notes and the Agent on behalf of the
Holders and Lenders are executing and delivering an Affiliate Subordination
Agreement, substantially in the forms attached hereto as Exhibit J-1
and Exhibit J-2 (the “Affiliate
Subordination Agreements”), pursuant to which the holders of the
Affiliate Notes shall agree that the payment of all Affiliate Indebtedness
shall be subordinated and junior in right of payment to the prior payment in
full in cash of the Obligations.


          NOW,
THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the Borrower, the Guarantors, the
Agent and each Lender hereby agree as follows:





ARTICLE 1


DEFINITIONS; CERTAIN TERMS


               Section
1.1     Definitions. As used
in this Agreement, the following terms have the respective meanings indicated
below, such meanings to be applicable equally to both the singular and plural
forms of such terms: 


          “1933 Act” means the Securities Act of 1933,
as amended.


          “1934 Act” means the Securities Exchange Act
of 1934, as amended.


          “Acquisition” means any transaction or
series of related transactions for the purpose of or resulting, directly or
indirectly, in (a) the acquisition of all or substantially all of the assets of
a Person, or of all or substantially all of any business line, unit or division
of a Person, (b) the acquisition of in excess of 50% of the Equity Interests of
any Person, or otherwise causing any Person to become a Subsidiary, or (c) a
merger or consolidation or any other combination with another Person. 


          “Affiliate” means, with respect to a
specified Person, another Person that (i) is a director or officer of such
specified Person, or (ii) directly or indirectly through one or more
intermediaries, Controls, is Controlled by or is under common Control with the
Person specified.


          “Affiliate Indebtedness” means Indebtedness
under the Affiliate Notes.


          “Affiliate Notes” means each of the RNK
Notes, the Mennen Notes and the M Brothers Note. 


          “Affiliate Subordination Agreement” has the
meaning set forth in the Recitals. 


          “Affiliated
Holder” means each legal and beneficial owner of an Affiliate Note.


          “Agent”
has the meaning set forth in the introductory paragraph hereto.


          “Annualized
EBITDA” shall mean, as of any date of determination,
the product obtained by multiplying (a) EBITDA for the three (3) month period
ended on such date of determination, by (b) four (4). 


          “Asset Sale” means (i) the sale, lease,
license, conveyance or other disposition of any assets or rights of Borrower or
any of the Borrower’s Subsidiaries, and (ii) the sale of Equity Interests
in any of the Borrower (other than the Capital Stock of the Borrower) or any of
the Borrower’s Subsidiaries.


          “Bankruptcy Law” has the meaning set forth
in Section 10.1(c).


          “Blocked Account” means each Controlled
Account (as defined in the Security Agreement) that is subject to the full
dominion and control of the Agent.


2





          “Business Day” means any day other than
Saturday or Sunday or any day that banks in Chicago, Illinois are required or
permitted to close.


          “Capital
Expenditures” means the any expenditure or obligation
which should be capitalized in accordance with GAAP. 


          “Capital Stock” means (1) in the case of a
corporation, corporate stock; (2) in the case of an association or business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (3) in the case of a
partnership or limited liability company, partnership interests (whether
general or limited) or membership interests; and (4) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible into, or
exchangeable for, Capital Stock, whether or not such debt securities include
any right of participation with Capital Stock.


          “Cash Equivalent Investment” means, at any
time, (a) any evidence of debt, maturing not more than one year after such
time, issued or guaranteed by the United States Government or any agency
thereof, (b) commercial paper, maturing not more than one year from the date of
issue, or corporate demand notes, in each case rated at least A-l by Standard
& Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. or
P-l by Moody’s Investors Service, Inc., (c) any certificate of deposit, time
deposit or banker’s acceptance, maturing not more than one year after such
time, or any overnight Federal Funds transaction that is issued or sold by a
commercial banking institution that is a member of the Federal Reserve System
and has a combined capital and surplus and undivided profits of not less than
$500,000,000, (d) any repurchase agreement entered into with any commercial
banking institution of the nature referred to in clause (c) which (i) is
secured by a fully perfected security interest in any obligation of the type
described in any of clauses (a) through (c) above and (ii) has a
market value at the time such repurchase agreement is entered into of not less
than 100% of the repurchase obligation of such commercial banking institution
thereunder, (e) money market accounts or mutual funds which invest exclusively
in assets satisfying the foregoing requirements, and (f) other short term
liquid investments approved in writing by Agent.


           “Change of Control” means, with respect to
Borrower or any Subsidiary of Borrower, that (A) Borrower or such Subsidiary
shall, directly or indirectly, in one or more related transactions,
(i) consolidate or merge with or into (whether or not Borrower or such
Subsidiary is the surviving corporation) another Person, (ii) sell, assign,
transfer, lease, license, convey or otherwise dispose of all or substantially
all of the properties or assets of Borrower or such Subsidiary to another
Person, (iii) allow another Person to make a purchase, tender or exchange offer
that is accepted by the holders of more than fifty percent (50%) of the
outstanding shares of Common Stock or other Equity Interests (not including any
shares of Common Stock held by the Person or Persons making or party to, or
associated or affiliated with the Persons making or party to, such purchase,
tender or exchange offer), (iv) consummate a stock purchase agreement or
other business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with another Person
whereby such other Person acquires more than fifty percent (50%) of the
outstanding shares of Common Stock or other Equity Interests, (v) reorganize,
recapitalize or reclassify the Common Stock, or (vi) cause to occur a “change
in control” under any Affiliate Indebtedness, or (B) with respect to the
Borrower, any 


3





“person” or “group” (as these terms are used for purposes of Sections
13(d) and 14(d) of the Exchange Act) is or shall become the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
fifty percent (50%) of the aggregate ordinary voting power represented by
issued and outstanding Common Stock. Nothing herein shall prohibit Borrower
from consummating the IPO concurrently with (or after) the payment in full, in
cash of all Obligations as required hereunder.


          “Closing” has the meaning set forth in
Section 3.1.


          “Closing Date” has the meaning set forth in
Section 3.1.


          “Code” means the Internal Revenue Code of
1986, as amended. 


          “Collateral” means the “Collateral” as
defined in the Security Agreement.


          “Common Stock” means Borrower’s common
stock, $0.0001 per value per share.


          “Common Stock Equivalents” means any
securities of the Borrower or the Subsidiaries which would entitle the holder
therefor to acquire at any time Common Stock, including, without limitation,
any preferred stock, rights, options, warrants or other instrument that is at
any time convertible into or exercisable or exchangeable for, or otherwise
entitles the holder thereof to receive, Common Stock. 


          “Compliance Certificate” means a certificate
signed by a responsible officer of the Borrower, in substantially the form
attached hereto as Exhibit H and reasonably satisfactory to the Agent. 


          “Contingent Obligation” means, as to any
Person, any direct or indirect liability, contingent or otherwise, of that
Person with respect to any indebtedness, lease, dividend or other obligation of
another Person if the primary purpose or intent of the Person incurring such
liability, or the primary effect thereof, is to provide assurance to the
obligee of such liability that such liability will be paid or discharged, or
that any agreements relating thereto will be complied with, or that the holders
of such liability will be protected (in whole or in part) against loss with
respect thereto. 


          “Control” means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Capital Stock having
ordinary voting power for the election of directors of a Person or (ii) to
direct or cause the direction of management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative
thereto. 


          “Credit Party” means Borrower and each
Guarantor.


          “Current Interest Rate” means a rate equal
to three percent (3%) per month, as adjusted pursuant to the terms of Section
2.2.


          “Custodian” has the meaning set forth in
Section 10.1(d).


4





          “Default Rate” means a rate of interest
equal to the Current Interest Rate.


          “Destruction” means any and all damage to,
or loss or destruction of, or loss of title to, all or any portion of the
Collateral (i) in excess of $100,000 in the aggregate for any Fiscal Year
or (ii) that results, individually or in the aggregate, in a Material
Adverse Effect.


          “Diligence Date” has the meaning set forth
in Section 7.14.


          “EBITDA”
means, as of any date of determination, for a specified period ending on such
date of determination, an amount equal to (a) Net Income, plus (b) in
each instance to the extent deducted in the computation of Net Income and
without duplication, (i) depreciation, amortization and other non-cash charges
(including, but not limited to, imputed interest and deferred compensation but
excluding non-cash charges that are an accrual or reserve for a cash
expenditure or payment to be made in a future period) for such period, plus
(ii) interest expense for such period plus (iii) fees paid during such
period to Lenders pursuant to this Agreement, plus (iv) income taxes for
such period. 


          “Employee Benefit Plan” means any “employee
benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored,
maintained or contributed to by, or required to be contributed to by, Borrower
or any of its respective Subsidiaries or ERISA Affiliates.


          “Environmental Laws” means all applicable
federal, state, local or foreign laws relating to pollution or protection of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata), including,
without limitation, laws relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous
substances or wastes (collectively, “Hazardous
Materials”) into the environment, the exposure of humans thereto, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials, as
well as all regulatory authorizations, codes, decrees, demands or demand
letters, injunctions, judgments, licenses, notices of violation or similar
notice letters, orders, permits, plans or regulations issued, entered,
promulgated or approved thereunder.


          “Equity Interests” means Capital Stock and
all warrants, options and other rights to acquire Capital Stock (but excluding
any debt security that is convertible into, or exchangeable for, Capital Stock,
whether or not such debt security includes the right of participation with
Capital Stock).


          “ERISA” means the Employee Retirement Income
Security Act of 1974, as amended from time to time.


          “ERISA Affiliate” means, as to Borrower, any
trade or business (whether or not incorporated) that is a member of a group
which includes Borrower and which is treated as a single employer under Section
414 of the Code.


          “ERISA Event” means (a) a “reportable event”
within the meaning of Section 4043 of ERISA and the regulations issued
thereunder with respect to any Pension Plan (excluding those for which the
provision for 30 day notice to the PBGC has been waived by regulation); (b) the
failure to meet the minimum funding standards of Sections 412 and 430 of the
Code with respect


5





to any Pension Plan (whether or not waived in accordance with Section
412(c) of the Code) or the failure to make by its due date a required
installment under Section 430(j) of the Code with respect to any Pension Plan
or the failure to make any required contribution to a Multiemployer Plan; (c)
the provision by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (d) the withdrawal by any of
the Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability to any of the
Borrower, any of its Subsidiaries or any of their respective Affiliates
pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any event or
condition which might constitute grounds under ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan; (f) the
imposition of liability on any of the Borrower, any of its Subsidiaries or any
of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the
withdrawal of any of the Borrower, any of its Subsidiaries or any of their
respective ERISA Affiliates in a complete or partial withdrawal (within the
meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if
there is any potential liability therefor, or the receipt by any of the
Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates
of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA; (h) the
occurrence of an act or omission which could give rise to the imposition on any
of the Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates of fines, penalties, taxes or related charges under Sections 4975 or
4971 of the Code or under Section 409, Section 502(c), (i) or (l), or Section
4071 of ERISA in respect of any Employee Benefit Plan; (i) the assertion of a
material claim (other than routine claims for benefits) against any Employee
Benefit Plan other than a Multiemployer Plan or the assets thereof, or against
any of the Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates in connection with any Employee Benefit Plan; (j) receipt from the
Internal Revenue Service of notice of the failure of any Pension Plan (or any
other Employee Benefit Plan intended to be qualified under Section 401(a) of
the Code) to qualify under Section 401(a) of the Code, or the failure of any
trust forming part of any Pension Plan to qualify for exemption from taxation
under Section 501(a) of the Code; or (k) the imposition of a Lien pursuant to
Section 401(a)(29) or 430(k) of the Code or pursuant to ERISA with respect to
any Pension Plan.


          “Event of Default” has the meaning set forth
in Section 10.1.


          “Event of Default Notice” has the meaning
set forth in Section 10.2(a).


          “Event of Default Redemption” has the
meaning set forth in Section 10.2(a).


          “Event of Default Redemption Notice” has the
meaning set forth in Section 10.2(a).


          “Event of Loss” means any Destruction to, or
any Taking of, any asset or property of the Borrower or any of its
Subsidiaries.


          “Extraordinary Receipts” means any cash
received by the Borrower or any of its Subsidiaries outside the ordinary course
of business (and not consisting of proceeds described in


6





Sections 2.3(b)(i), (b)(ii), (b)(iii) or (b)(iv)), including,
without limitation, (a) foreign, United States, state or local tax
refunds, (b) pension plan reversions, (c) judgments, proceeds of
court settlements or other consideration of any kind in connection with any cause
of action, and (d) any purchase price adjustment received in connection
with any Acquisition.


          “Fee Letter” has the meaning set forth in
the recitals.


          “Fiscal Quarter” means a fiscal quarter of
any Fiscal Year of the Borrower.


          “Fiscal Year” means a fiscal year of the
Borrower. 


          “Fixed
Charge Coverage Ratio” means the ratio, as of any date
of determination, of (a) Annualized EBITDA of Borrower and its Subsidiaries
less unfinanced Capital Expenditures of Borrower and its Subsidiaries to
(b) the sum of cash payments made, or required to be made, by Borrower and its
Subsidiaries for income taxes, interest expense, cash dividends or stock
redemptions, principal payments on debt (other than with respect to principal
payments made on account of a revolving line of credit), and lease payments, in
each instance, for the twelve (12) month period ending on such date (the
amounts in clause (b), collectively “Fixed Charges”). 


          “Funds Flow Letter” has the meaning set
forth in Section 4.1(b).


          “GAAP” means United States generally
accepted accounting principles, consistently applied.


          “Governmental Authority” means the
government of the United States of America, any other nation or any political
subdivision of any of the foregoing, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government. 


          “Guarantor” means (i) each Subsidiary of
Borrower listed as a “Guarantor” on the signature pages hereto, and (ii) each
other Person which guarantees in writing all or any part of the Obligations.


          “Hedging Obligations” means, with respect to
any specified Person, the obligations of such Person under: (i) interest rate
swap agreements (whether from fixed to floating or from floating to fixed),
interest rate cap agreements and interest rate collar agreements; (ii) other
agreements or arrangements designed to manage interest rates or interest rate
risk; and (iii) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates or commodity prices. 


          “Holder” means a holder of a Note.


          “Indebtedness” of any Person means, without
duplication (i) all indebtedness for borrowed money, (ii) all
obligations issued, undertaken or assumed as the deferred purchase price of
property or services (including, without limitation, “capital leases” in
accordance with GAAP) (other than trade payables entered into in the ordinary
course of business), (iii) all reimbursement or payment obligations with
respect to letters of credit, surety bonds and other


7





similar instruments, (iv) all obligations evidenced by notes,
bonds, notes or similar instruments whether convertible or not, including
obligations so evidenced incurred in connection with the acquisition of
property, assets or businesses, (v) all indebtedness created or arising under
any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to any property or assets acquired with
the proceeds of such indebtedness (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to
repossession or sale of such property), (vi) all indebtedness referred to
in clauses (i) through (v) above secured by (or for which the holder of
such indebtedness has an existing right, contingent or otherwise, to be secured
by) any mortgage, lien, pledge, charge, security interest or other encumbrance
upon or in any property or assets (including accounts and contract rights)
owned by any Person, even though the Person which owns such assets or property
has not assumed or become liable for the payment of such indebtedness,
(vii) all Contingent Obligations in respect of indebtedness or obligations
of others of the kinds referred to in clauses (i) through (vi) above;
(viii) banker’s acceptances; (ix) the balance deferred and unpaid of
the purchase price of any property or services due more than three months after
such property is acquired or such services are completed; (x) Hedging
Obligations; and (xi) obligations under convertible securities of the Borrower.
In addition, the term “Indebtedness” of Borrower or its Subsidiaries, as
applicable, includes (a) all Indebtedness of others secured by a Lien on any
assets of the Borrower or any of its Subsidiaries (whether or not such
Indebtedness is assumed by the Borrower or such Subsidiaries), and (b) to the
extent not otherwise included, the guarantee by the Borrower or any of its
Subsidiaries of any Indebtedness of any other Person.


          “Insolvent” means, with respect to Borrower
or any Subsidiary, (i) the present fair saleable value in a
non-liquidation context of Borrower’s or such Subsidiary’s assets is less than
the amount required to pay Borrower’s or such Subsidiary’s total Indebtedness
as applicable, (ii) Borrower or such Subsidiary is unable to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured, (iii) Borrower or such Subsidiary
intends to incur or believes that it will incur debts that would be beyond its
ability to pay as such debts mature or (iv) Borrower or such Subsidiary has
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted.


          “Intellectual Property Security Agreements” means
each of the trademark security agreement, the patent security agreement and the
copyright security agreement dated the Closing Date, in the forms of Exhibit
K attached hereto, by and among the Borrower or the applicable Guarantor
and the Agent.


          “Interest Date” has the meaning provided in
Section 2.2(a).


          “Inventory” has the meaning provided in the
UCC.


          “Investment” means, with respect to any
Person, any investment in another Person, whether by acquisition of any debt
security or Equity Interest, by making any loan or advance, by becoming
contingently liable in respect of obligations of such other Person or by making
an Acquisition.


          “IPO” means the initial public offering of
Common Stock of Borrower.


8





          “Issuance Date” has the meaning provided in
Section 2.2(a).


          “Late Charge” has the meaning provided in
Section 2.4.


          “Lender” and “Lenders” has the meaning set forth in the introduction.


          “Leverage
Ratio” means, as of any date of determination, the
ratio of (a) total Indebtedness of Borrower and its Subsidiaries on a
consolidated basis as of such date of determination, to (b) EBITDA of Borrower
and its Subsidiaries for the twelve (12) month period then ended. 


          “Lien” means any mortgage, lien, pledge,
security interest, conditional sale or other title retention agreement, charge
or other security interest or encumbrance of any kind, whether or not filed,
recorded or otherwise perfected under applicable law, including any conditional
sale or other title retention agreement or any lease or license in the nature
thereof, any option or other agreement to sell or give a security interest in.


          “M Brothers Note” means that certain
Promissory Note issued to M Brothers (formerly Hideaway Partners) dated June
22, 2007 in the original principal amount of $250,000. 


          “Material Adverse Effect” means any material
adverse effect on the business, properties, assets, operations, the Collateral,
results of operations or condition (financial or otherwise) of the Borrower and
its Subsidiaries, taken as a whole, or on the transactions contemplated hereby
and by the other Transaction Documents, or on the authority or ability of the
Borrower and its Subsidiaries, taken as a whole, to fully and timely perform
their obligations under any Transaction Document.


          “Material Contract” means (i) each of the
Affiliate Notes and (ii) any other contract or other arrangement to which the
Borrower or any of its Subsidiaries is a party (other than the Transaction
Documents) for which breach, nonperformance, cancellation, termination or
failure to renew could reasonably be expected to have a Material Adverse
Effect.


          “Maturity Date” means the earliest of (a)
May 8, 2010, (b) the consummation of the IPO, and (c) such earlier date as the
unpaid principal balance of all outstanding Notes becomes due and payable
pursuant to the terms of this Agreement and the Notes.


          “Maximum Commitment” means $9,300,000.


          “Mennen
Notes” means, collectively, (i) that certain Loan and
Security Agreement dated October 12, 2007 by and among Borrower, Wilmington
Trust Company and George Jeff Mennen, Co-Trustees U/A/D November 25, 1970 (the
“Mennen Trust”) and Greystone
Business Credit II, LLC, (ii) that certain
Amended and Restated Term Note in the original face amount of $34,000,000
issued by the Borrower to the Mennen Trust, (iii) that certain Amended and
Restated Term Note in the original face amount of $1,700,000 issued by the
Borrower to the Mennen Trust, and (iv) that certain Term
Promissory Note dated as of the date hereof issued by Borrower to the Mennen
Trust, in the original principal amount of $3,500,000, in each case, as in
effect on the date hereof or as modified in accordance with the terms of the
Affiliate Subordination Agreement.


9





          “Mortgage” means a mortgage or deed or
trust, in form and substance reasonably satisfactory to the Agent, as it may be
amended, supplemented or otherwise modified from time to time.


          “Multiemployer Plan” means any Employee
Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) of
ERISA.


          “Net
Income (Loss)” means, as of any date of determination,
as determined in accordance with GAAP, when calculated for a specified period
ending on such date of determination, the aggregate of the net income (loss) of
Borrower and its Subsidiaries for such period (but excluding to the extent
included therein any extraordinary gains or losses), provided, that,
the effect of any change in accounting principles adopted by Borrower after the
date hereof shall be excluded. For the purpose of this definition, net income
excludes any gain or loss, together with any related provision for taxes for
such gain or loss, realized upon the sale or other disposition of any assets
that are not sold in the ordinary course of business (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or of any
capital stock of Borrower, and any net income realized as a result of changes
in accounting principles or the application thereof to Borrower. 


          “Notes” has the meaning set forth in Section
2.1.


          “Obligations” means any and all obligations,
liabilities and indebtedness, including without limitation, principal, interest
(including, but not limited to, interest calculated at the Default Rate and
post-petition interest in any proceeding under any Bankruptcy Law), Late
Charges, Prepayment Premium, Yield Maintenance Premium, and other fees, costs, expenses
and other charges and other obligations under the Transaction Documents, of the
Credit Parties to the Agent, the Holders and the Lenders or to any parent,
affiliate or subsidiary of such Holders of any and every kind and nature,
howsoever created, arising or evidenced and howsoever owned, held or acquired,
whether now or hereafter existing, whether now due or to become due, whether
primary, secondary, direct, indirect, absolute, contingent or otherwise
(including, without limitation, obligations of performance), whether several,
joint or joint and several, and whether arising or existing under written or
oral agreement or by operation of law. 


          “Other Taxes” has the meaning set forth in
Section 2.6(b).


          “Outside Legal Counsel” means Mintz Levin
Cohn Ferris Glovsky and Popeo PC.


          “PBGC” means the Pension Benefit Guaranty
Corporation or any successor thereto.


          “Pension Plan” means any Employee Benefit
Plan, other than a Multiemployer Plan, which is subject to Sections 412 and 430
of the Code or Section 302 of ERISA.


           “Permitted Dispositions” means (i) sales of
Inventory in the ordinary course of business, (ii) disposals of obsolete, worn
out or surplus equipment in the ordinary course of business, (iii) the granting
of Permitted Liens, (iv) the licensing of patents, trademarks, copyrights and
other intellectual property rights in the ordinary course of business
consistent with past practice and (v) disposals of equipment and intellectual
property no longer necessary or useful in the conduct of Borrower’s or any
Subsidiary’s business, provided that, the aggregate


10





fair market value of all such equipment and intellectual property
disposed of pursuant to this clause (v) does not exceed $150,000 in any fiscal
year. 


          “Permitted Indebtedness” means (i)
Indebtedness outstanding as of the Closing Date as set forth on Schedule 7.8,
(ii) unsecured guaranties in the ordinary course of business of the obligations
of suppliers, customers and licensees of the Borrower or its Subsidiaries,
(iii) Indebtedness which may be deemed to exist pursuant to any unsecured
guaranties with respect to surety and appeal bonds, performance bonds, bid
bonds and similar obligations incurred in the ordinary course of business, (iv)
Indebtedness in respect of netting services, overdraft protections and
otherwise in connection with deposit accounts in the ordinary course of
business, (v) Affiliate Indebtedness to the extent subject to the terms and
conditions of the Affiliate Subordination Agreement, the aggregate outstanding
principal balance of which shall not exceed $39,200,000 with respect to the
Mennen Notes, $19,303,606 with respect to the RNK Notes, and $250,000 with
respect to the M Brothers Note, (vi) purchase money Indebtedness and
Indebtedness incurred in connection with any capital lease transaction provided
that the aggregate amount of all such Indebtedness at any time outstanding does
not exceed $250,000 and (vii) unsecured Indebtedness in an aggregate amount not
to exceed $500,000.


          “Permitted Liens” means (i) Liens in
favor of the Agent for the benefit of the Holders granted pursuant to any
Security Document, (ii) Liens for unpaid taxes, assessments, or other
governmental charges or levies that either (A) are not yet delinquent or (B) do
not have priority over Agent’s Liens, so long as in each case the underlying
taxes, assessments, charges or levies are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted, (iii) Liens
securing judgments for the payment of money not constituting an Event of
Default, (iv) Liens outstanding as of the Closing Date as set forth on Schedule
8.6, provided that any such
Lien only secures the Indebtedness that it secures on the Closing Date, (v) the
interests of lessors under operating leases and licensors under license
agreements in each case entered into in the ordinary course of business of the
Borrower and its Subsidiaries, (vi) Liens arising by operation of law in favor
of warehousemen, landlords, carriers, mechanics, materialmen, laborers or
suppliers, in each case incurred in the ordinary course of business and not in
connection with the borrowing of money and either (A) for amounts that are not
yet delinquent or (B) for amounts that are no more than 30 days overdue that
are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted, so long as such reserves or appropriate
provisions, if any, as shall be required by GAAP shall have been made for any
such contested amounts, (vii) Liens incurred in the ordinary course of business
in connection with workers’ compensation and other unemployment insurance, or
to secure the performance of tenders, surety and appeal bonds, bids, leases,
government contracts, trade contracts and other similar obligations (exclusive
of obligations for the payment of borrowed money), in each case so long as no
foreclosure, sale or similar proceedings have been commenced with respect to
any portion of the Collateral on account thereof, (viii) rights of setoff or
bankers’ liens upon deposits of cash in favor of banks or other depository
institutions, solely to the extent incurred in connection with the maintenance
of such deposit accounts in the ordinary course of business, (ix) easements,
reservations, rights of way, restrictions, minor defects or irregularities in
title and other similar charges or encumbrances affecting real property in a
manner not materially or adversely affecting the value or use of such property,
(x) Liens in favor of customs and revenue authorities arising as a matter of
law to secure payments of customs duties in connection with the importation of
goods, (xi) Liens to secure Indebtedness described in clause (vi) of the
definition


11





of “Permitted Indebtedness,” so long as such Liens encumber only those
assets acquired with the proceeds of such Indebtedness and (xii) Liens on cash
deposits in the Excluded Accounts (as defined in the Security Agreement) to
secure outstanding letters of credit.


          “Permitted Redemption” means the redemption
of Notes permitted pursuant to Section 2.3(a).


          “Permitted Redemption Amount” has the
meaning set forth in Section 2.3(a)(i).


          “Permitted Redemption Date” means the date
on which the Borrower is required to redeem the Notes in accordance with
Section 2.3(a).


          “Permitted Redemption Notice” has the
meaning set forth in Section 2.3(a)(i).


          “Person” means an individual, a limited
liability company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization, any other entity and a government or any
department or agency thereof.


          “Plan” means any Multiemployer Plan or
Pension Plan.


          “Pledge Agreement” has the meaning set forth
in the Recitals.


          “Pledgors” has the meaning set forth in the
Recitals and shall include Steven Asman, the Mennen Trust and Under Station
Limited.


          “Post-Closing Obligations Letter” means that
certain letter agreement dated the Closing Date, in the form of Exhibit G
attached hereto, by and among the Borrower and the Agent. 


          “Prepayment Premium” means (a) with respect
to a Permitted Redemption made on a Permitted Redemption Date on or prior to
the five (5) month anniversary of the Closing Date (i.e., February 4, 2010),
zero and (b) with respect to a Permitted Redemption made on a Permitted
Redemption Date after the five month anniversary of the Closing Date, the Yield
Maintenance Premium. Time is of the essence. 


          “Principal Market” means the NASDAQ, NYSE or
NYSE Amex.


          “Proceeding” has the meaning set forth in
Section 7.15.


          “Property” means any right or interest in or
to property of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible, including, without limitation, Capital Stock.


          “Registration Statement” means Form S-1
Registration Statement proposed to be filed by the Borrower with the SEC with
respect to the registration on the Principal Market of Common Stock.


          “Regulatory Consent” means the consent and
approval by the New Jersey Board of Public Utilities of (a) the pledge by
Borrower of one hundred percent (100%) of the Equity


12





Interests of RNK and (b) the grant by RNK of a Lien on substantially
all of its assets, in each instance, to secure the Obligations. 


          “Required Holders” means at any time the
Holders of Notes representing at least a majority of the aggregate principal
amount of the Notes then outstanding. 


          “Related Parties” of any Person means such
Person’s Affiliates or any of its respective partners, directors, agents,
employees and controlling persons.


          “RNK Notes” means, collectively, those
certain 6% Secured Promissory Notes dated as of October 12, 2007 issued by
Borrower to the RNK Stockholders in the original aggregate principal amount of $30,666,939,
as in effect on the date hereof or as modified in accordance with the terms of
the Affiliate Subordination Agreement.


          “Schedules” has the meaning set forth in ARTICLE
7.


          “SEC” means the United States Securities and
Exchange Commission.


          “Security Agreement” has the meaning set
forth in the Recitals. 


          “Security Documents” means the Security
Agreement, the Intellectual Property Security Agreements, the Mortgages, if
any, the Pledge Agreement and all other instruments, documents and agreements
delivered by any of the Borrower, any of its Subsidiaries or any stockholder of
Borrower in order to grant to Agent or any Holder a Lien on any real, personal
or mixed Property of the Borrower, one of its Subsidiaries or such stockholder
as security for the Obligations.


          “Subsidiaries” has the meaning set forth in
Section 7.1.


          “Taking” means any taking of any property of
the Borrower or any of its Subsidiaries or any portion thereof, in or by
condemnation or other eminent domain proceedings pursuant to any law, general
or special, or by reason of the temporary requisition of the use of such assets
or any portion thereof, by any Governmental Authority, civil or military (i) in
excess of $500,000 in the aggregate for any Fiscal Year or (ii) that
results, either individually or in the aggregated, in a Material Adverse Effect.


          “Taxes” has the meaning set forth in Section
2.6(a).


          “Territory” means the United States
(including its territories and possessions).


          “Transaction Documents” has the meaning set
forth in Section 7.2.


          “UCC” has the meaning set forth in Section
7.13.


          “Winncom Acquisition” means the acquisition
by Borrower of substantially all of the assets of (or all of the stock of),
Winncom Technologies Holdings Ltd. or its subsidiaries and affiliates.


13





          “Yield Maintenance Premium” shall be (a)
with respect to a prepayment or redemption (including a mandatory redemption)
on or prior to the five (5) month anniversary of the Closing Date, zero and (b)
with respect to a prepayment or redemption thereafter, an amount, calculated
immediately prior to the applicable redemption of the Notes, equal to the sum
of all scheduled interest (determined with reference to the interest rate then
in effect) in respect of the unredeemed Notes immediately prior to the
applicable redemption for the period from the date of such redemption to the
date set forth in clause (a) of the definition of Maturity Date. The foregoing
amount shall be calculated by Agent and shall be conclusive and binding on the
Borrower (absent manifest error). 


               Section 1.2     Terms Generally. The definitions of
terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires otherwise,
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns,
(c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words
“asset” and “property” shall be
construed to have the same meaning and effect and to refer to any right or
interest in or to assets and properties of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible. References in this
Agreement to “determination” by
the Agent include good faith estimates by the Agent (in the case of
quantitative determinations) and good faith beliefs by the Agent (in the case
of qualitative determinations).


               Section 1.3     Accounting
and Other Terms. Unless otherwise expressly provided herein,
each accounting term used herein shall have the meaning given it under GAAP
applied on a basis consistent with those used in preparing the financial
statements delivered to Agent pursuant to Section 8.2. 


ARTICLE 2


BORROWER’S AUTHORIZATION OF ISSUE 


               Section 2.1     Senior
Secured Notes. The Borrower has authorized the issue to the
Lenders of senior secured notes in the aggregate principal amount up to the
Maximum Commitment, to be dated the date of issue thereof, to mature on the
Maturity Date, to bear interest as provided in Section 2.2 below and to be in
the form of Exhibit A hereto (the “Notes”).
The Borrower shall repay the outstanding principal balance of the Notes in full
in cash on the Maturity Date, unless accelerated in accordance with Section
10.2 or redeemed or prepaid in accordance with Section 2.3. The term “Notes” as used herein shall include each
such senior


14






secured note delivered pursuant to any provision of this Agreement and
each such senior secured note delivered in substitution or exchange for, or
otherwise in respect of, any other Note pursuant to any such provision. 


               Section
2.2     Interest and Fees.
The Borrower shall pay interest on the unpaid principal amount of the Notes at
the rates, time and manner set forth below:


                 (a)     Rate of Interest. Each Note shall bear
interest on the unpaid principal amount thereof from the date issued through
the date such Note is paid in full in cash (whether upon final maturity, by
redemption, prepayment, acceleration or otherwise) at the Current Interest
Rate. Interest on each Note shall be computed on the basis of a 360-day year
and actual days elapsed and, subject to Section 2.2(b), shall be payable monthly,
in arrears, on the last day of each calendar month during the period beginning
on the date such Note is issued (the “Issuance
Date”) and ending on, and including, the date on which the
Obligations are paid in full (each, an “Interest
Date”). Notwithstanding anything herein to the contrary, on the
Closing Date, Borrower shall prepay interest that will accrue at the Current
Interest Rate on the principal amount of the Notes from the Closing Date
through February 8, 2010. Such interest shall be deemed fully earned and
non-refundable. 


                 (b)     Interest Payments. Subject to the last
sentence of Section 2.2(a), interest on each Note shall be payable on each
Interest Date or at any such other time the Notes become due and payable
(whether by acceleration, redemption or otherwise) to the record holder of such
Note on the applicable Interest Date. Each Interest Date shall be considered
the last day of an accrual period for U.S. federal income tax purposes.
Notwithstanding anything herein to the contrary, any payment of accrued but
unpaid interest due and owing on any Note shall be made by cash only by wire
transfer of immediately available funds.


                 (c)     Default Rate. Upon the occurrence and
continuance of any Event of Default, the Notes shall bear interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on the
unpaid principal amount thereof at the Default Rate from the date of such Event
of Default through and including the date such Event of Default is cured or
waived. In the event that such Event of Default is subsequently cured or
waived, the adjustment referred to in the preceding sentence shall cease to be
effective as of the date of such cure or waiver; provided that interest as calculated and unpaid at the
Default Rate during the continuance of such Event of Default shall continue to
be due to the extent relating to the days after the occurrence of such Event of
Default through and including the date on which such Event of Default is cured
or waived.


                 (d)     Savings
Clause. In no contingency or event shall the interest
rate charged pursuant to the terms of this Agreement exceed the highest rate
permissible under any law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that such a court
determines that the Holders have received interest hereunder in excess of the
highest applicable rate, the amount of such excess interest shall be applied
against the principal amount then outstanding under the Notes to the extent
permitted by applicable law, and any excess interest remaining after such
application shall be refunded promptly to the Borrower.


15






                    (e)          Fee.
In the event the Regulatory Consent has not been obtained and evidence thereof
delivered to Agent by the date which is one hundred fifty (150) days after the
Closing Date (i.e., February 4, 2010), if requested by Agent in its sole
discretion, Borrower shall pay to the Agent, for the ratable benefit of the
Lenders on such 150th day, a non-refundable fee in such amount as
Agent requests in its sole discretion (provided that such fee shall not exceed
$700,000). 


                    Section
2.3          Redemptions and Payments.


                    (a)          Permitted
Redemption.


	
  

 	
  

 
	
  

 	
                          (i)          The
 Borrower may, at its option, elect to pay to the Holders of the Notes the
 Permitted Redemption Amount (as defined below), on the Permitted Redemption
 Date, by redeeming the aggregate unpaid principal amount of all Notes, in
 whole (and not in part) (the “Permitted Redemption”). On or prior to
 the date which is the third (3rd) Business Day prior to the proposed
 Permitted Redemption Date, the Borrower shall deliver written notice (the “Permitted
 Redemption Notice”) to the Holders stating (i) that the Borrower
 elects to redeem pursuant to the Permitted Redemption and (ii) the proposed
 Permitted Redemption Date. The Permitted Redemption Amount shall be equal to
 (A) the aggregate unpaid outstanding principal amount of all Notes, (B) all
 accrued and unpaid interest with respect to such principal amount and all
 accrued and unpaid fees, (C) accrued and unpaid Late Charges with respect to
 such Permitted Redemption Amount, (D) the Prepayment Premium and (E) all
 other amounts due under the Transaction Documents. The Credit Parties
 acknowledge and agree that the Prepayment Premium represents bargained for
 consideration in exchange for the right and privilege to redeem the Notes.

 
	
  

 	
  

 
	
  

 	
                          (ii)          A
 Permitted Redemption Notice delivered pursuant to this subsection shall be
 irrevocable. If the Borrower elects to redeem pursuant to a Permitted
 Redemption under Section 2.3(a), then the Permitted Redemption Amount which
 is to be paid to the Holders on the Permitted Redemption Date shall be
 redeemed by the Borrower on the Permitted Redemption Date, and the Borrower
 shall pay to the Holders on the Permitted Redemption Date, by wire transfer
 of immediately available funds, an amount in cash equal to the Permitted
 Redemption Amount.

 



                    (b)          Mandatory
Prepayments.


	
  

 	
  

 
	
  

 	
                          (i)          On
 the date of receipt by the Borrower or any of its Subsidiaries of any net
 cash proceeds in excess of $100,000 in the aggregate from any Asset Sales
 (other than any Permitted Dispositions (except pursuant to clause (ii) of
 such definition)), the Borrower shall prepay the Notes as set forth in
 Section 2.3(d) in an aggregate amount equal to 100% of such net cash
 proceeds. 

 
	
  

 	
  

 
	
  

 	
                          (ii)          On
 the date of receipt by the Borrower or any of its Subsidiaries, or the Agent
 as loss payee, of any net cash proceeds in excess of $100,000 in the
 aggregate from any Destruction or Taking (without giving regard to clauses
 (i) or (ii) of each such definition), the Borrower shall prepay the Notes as
 set forth in Section 2.3(d) in an 

 


16









	
  

 	
  

 
	
  

 	
 aggregate amount equal
 to 100% of such net cash proceeds, provided, so long as no default or Event
 of Default shall have occurred and be continuing on the date of receipt
 thereof or caused thereby, Borrower shall have the option to apply such net
 cash proceeds, prior to the date that is 90 days following receipt thereof,
 for purposes of the repair, restoration or replacement of the applicable
 assets thereof.

 
	
  

 	
  

 
	
  

 	
                          (iii)          On
 the date of receipt by the Borrower or any of its Subsidiaries of any net
 cash proceeds from a capital contribution to, or the issuance of any Equity
 Interests of, the Borrower or any of its Subsidiaries (other than pursuant to
 any employee stock or stock option compensation plan), the Borrower shall
 prepay the Notes as set forth in Section 2.3(d) in an aggregate amount equal
 to 100% of such net cash proceeds. 

 
	
  

 	
  

 
	
  

 	
                          (iv)          On
 the date of receipt by the Borrower or any of its Subsidiaries of any net
 cash proceeds from the incurrence of any Indebtedness of the Borrower or any
 of its Subsidiaries (other than with respect to Permitted Indebtedness), the
 Borrower shall prepay the Notes as set forth in Section 2.3(d) in an
 aggregate amount equal to 100% of such net cash proceeds.

 
	
  

 	
  

 
	
  

 	
                          (v)           No
 later than the third Business Day following the date of receipt by the
 Borrower or any of its Subsidiaries of any Extraordinary Receipts, the
 Borrower shall prepay the Notes as set forth in Section 2.3(d) in an
 aggregate amount equal to 100% of such Extraordinary Receipts, provided
 that no payment shall be required pursuant to this Section 2.3(b)(vi) unless
 the amount of Extraordinary Receipts received on such date exceeds $250,000.

 
	
  

 	
  

 
	
  

 	
                          (vi)          Concurrently
 with any prepayment of the Notes pursuant to this Section 2.3(b), the
 Borrower shall deliver to the Agent a certificate of an authorized officer
 thereof demonstrating the calculation of the amount of the applicable
 proceeds. In the event that the Borrower shall subsequently determine that
 the actual amount received exceeded the amount set forth in such certificate
 (including as a result of the conversion of non-cash proceeds into cash), the
 Borrower shall promptly make an additional prepayment of the Notes in an
 amount equal to such excess (or applicable percentage thereof), and the
 Borrower shall concurrently therewith deliver to the Agent a certificate of
 an authorized officer thereof demonstrating the derivation of such excess. 

 


                    (c)          Waiver of
Mandatory Prepayments. Anything contained in Section 2.3(b) to the
contrary notwithstanding, in the event the Borrower is required to make any
mandatory prepayment (a “Waivable Mandatory Prepayment”) of the
Notes, not less than three (3) Business Days prior to the date (the “Required
Prepayment Date”) on which the Borrower is required to make such
Waivable Mandatory Prepayment, the Borrower shall notify the Agent of the
amount of such prepayment, and the Agent shall promptly thereafter notify each
Holder holding an outstanding Note of the amount of such Holder’s pro rata
share of such Waivable Mandatory Prepayment and such Holder’s option to refuse
such amount. Each such Holder may exercise such option by giving written notice
to the Borrower and the Agent of its election to do so on or before the first
Business Day prior to the Required Prepayment Date (it being
understood that any Holder which does not notify the Borrower and the Agent of
its election to exercise such option on or before the first Business Day prior
to the Required


17





Prepayment Date shall be deemed to have elected, as of such
date, not to exercise such option). On the Required Prepayment Date, the
Borrower shall pay to the Agent the amount of the Waivable Mandatory
Prepayment, which amount shall be applied in an amount equal to that portion of
the Waivable Mandatory Prepayment payable to those Holders that have elected
not to exercise such option, to prepay the Notes of such Holders.


                    (d)          Application
of Mandatory Prepayments. All mandatory prepayments made pursuant to
Section 2.3(b) and not waived pursuant to Section 2.3(c) shall be made to the
Holders on a pro rata basis with respect to the outstanding Notes. 


                    Section
2.4          Payments.
Whenever any payment of cash is to be made by Borrower to any Person pursuant
to the Notes or other Transaction Document, such payment shall be made in
lawful money of the United States of America by a check drawn on the account or
accounts of the Borrower and sent via overnight courier service to such Person
at such address as previously provided to the Borrower in writing (which
address, in the case of each of the Lenders, shall initially be as set forth on
the Schedule of Lenders attached hereto); provided that (i) any Holder
may elect to receive a payment of cash via wire transfer of immediately
available funds by providing the Borrower with three (3) Business Days’ prior
written notice setting out such request and such Holder’s wire transfer
instructions and (ii) Borrower may elect to make a payment of cash via wire
transfer of immediately available funds in accordance with wire transfer
instructions provided by each Holder upon request therefor. Whenever any amount
expressed to be due by the terms of any Note is due on any day which is not a
Business Day, the same shall instead be due on the next succeeding day which is
a Business Day and, in the case of any Interest Date which is not the date on
which this Note is paid in full in cash, the extension of the due date thereof
shall not be taken into account for purposes of determining the amount of
interest due on such date. Any amount due under the Transaction Documents
(other than principal and interest, if the same are already accruing interest
at the Default Rate), which is not paid when due shall result in a late charge
being incurred and payable by the Borrower in an amount equal to the Default
Rate from the date such amount was due until the same is paid in full in cash
(“Late Charge”). Such Late Charge shall continue to accrue post-petition in
any proceeding under any Bankruptcy Law. 


                    Section
2.5          Dispute
Resolution. Except as otherwise provided herein, in the case of
a dispute as to the determination of any amounts due and owing pursuant to a
redemption under Section 2.3 or otherwise or any other similar or related
amount, the Borrower shall submit the disputed determinations or arithmetic
calculations via facsimile within three (3) Business Days of receipt, or deemed
receipt, of the applicable notice of dispute to the Agent. If the Agent and the
Holders and the Borrower are unable to agree upon such determination or
calculation within three (3) Business Days of such disputed determination or
arithmetic calculation being submitted to the Agent, then the Borrower shall,
within three (3) Business Days submit via facsimile the disputed determinations
or arithmetic calculations to an independent outside national accounting firm
reasonably agreed to by Agent. The Borrower, at the Borrower’s expense, shall
cause the accountant to perform the determinations or calculations and notify
the Borrower and the Agent of the results no later than five (5) Business Days
from the time it receives the disputed determinations or calculations. Such
accountant’s determination or calculation, as the case may be, shall be binding
upon all parties absent demonstrable error. 


18





                    Section
2.6          Taxes.


                    (a)          Any
and all payments by or on behalf of the Borrower hereunder and under any
Transaction Document shall be made, free and clear of and without deduction for
any and all current or future taxes, levies, imposts, deductions, charges or
withholdings that are or would be applicable to the Holders, and all
liabilities with respect thereto, excluding (x) income taxes imposed on the net
income of a Holder and (y) franchise taxes imposed on the net income of a
Holder, in each case by the jurisdiction under the laws of which such Holder is
organized or qualified to do business or a jurisdiction or any political
subdivision thereof in which a Holder engages in business activity other than
activity arising solely from the Holder having executed this Agreement and
having enjoyed its rights and performed its obligations under this Agreement or
any Transaction Document (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities, collectively or
individually, being called “Taxes”). If Borrower must deduct any Taxes
from or in respect of any sum payable hereunder or under any other Transaction
Document to a Holder, (x) the sum payable shall be increased by the amount (an
“additional amount”) necessary so that, after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.6), such Holder shall receive an amount equal to the sum it would have
received had no such deductions been made, (y) Borrower shall make such
deductions and (z) Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.


                    (b)          The
Borrower will pay to the relevant Governmental Authority in accordance with
applicable law any current or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies that arise from any payment
made hereunder or under any Transaction Document, or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or
any Transaction Document that are or would be applicable to the Holders (“Other Taxes”).


                    (c)          The
Borrower agrees to indemnify each Holder
for the full amount of Taxes and Other Taxes paid by such Holder and any liability (including
penalties, interest and expenses (including reasonable attorney’s fees and
expenses)) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability prepared
by such Holder absent manifest
error, shall be final conclusive and binding for all purposes. Except to the
extent claimed by Borrower (in good faith) that such certificate contained
manifest error, such indemnification shall be made within thirty (30) days
after the date such Holder makes
written demand therefor. The Borrower shall have the right to receive that
portion of any refund of any Taxes and Other Taxes received by a Holder for which Borrower has
previously paid any additional amount or indemnified such Holder and which leaves the Holder, after Borrower’s receipt
thereof, in no better or worse financial position than if no such Taxes or
Other Taxes had been imposed or additional amounts or indemnification paid to
the Holder. 


                    Section
2.7          Reissuance.


                    (a)          Transfer.
If any Note is to be transferred, the Holder shall surrender such Note to the
Borrower, whereupon the Borrower will forthwith issue and deliver upon the
order of


19






the Holder a new Note (in
accordance with this Section 2.7, registered as the Holder may request,
representing the outstanding principal being transferred by the Holder and, if
less than the entire outstanding principal is being transferred, a new Note (in
accordance with this Section 2.7) to the Holder representing the outstanding
principal not being transferred.


                    (b)          Lost, Stolen
or Mutilated Note. Upon receipt by the Borrower of evidence
reasonably satisfactory to the Borrower of the loss, theft, destruction or
mutilation of any Note and (i) in the case of loss, theft or destruction, upon
delivery of an indemnity agreement reasonably satisfactory to the Borrower (provided,
however, that if the Holder is an institutional investor, the
affidavit of an authorized partner or officer of such Holder setting forth the
circumstances with respect to such loss, theft or destruction shall be accepted
as satisfactory evidence thereof and no indemnity agreement or other security
shall be required), and (ii) in the case of mutilation, upon surrender and
cancellation of the mutilated Note, the Borrower shall execute and deliver to
the Holder a new Note (in accordance with this Section 2.7) representing the
outstanding principal.


                    (c)          Note
Exchangeable for Different Denominations. The Notes are
exchangeable, upon the surrender thereof by the Holder at the principal office
of the Borrower, for a new Note or Notes (in accordance with this Section 2.7)
in principal amounts of at least $250,000) representing in the aggregate the
outstanding principal of the surrendered Note, and each such new Note will
represent such portion of such outstanding principal as is designated by the
Holder at the time of such surrender.


                    (d)          Issuance of
New Notes. Whenever the Borrower is required to issue a new Note
pursuant to the terms of this Agreement or the Notes, such new Note (i) shall
be of like tenor with the Note being replaced, (ii) shall represent, as indicated
on the face of such new Note, the principal remaining outstanding (or, in the
case of a new Note being issued pursuant to paragraph (a) or (b) of this
Section 2.7, the principal designated by the Holder which, when added to the
principal represented by the other new Notes issued in connection with such
issuance, does not exceed the principal remaining outstanding under the Note
being replaced immediately prior to such issuance of new Notes), (iii) shall
have an issuance date, as indicated on the face of such new Note, which is the
same as the Issuance Date of the Note being replaced, (iv) shall have the same
rights and conditions as the Note being replaced, and (v) shall represent
accrued interest on the principal and Late Charges of the Note being replaced,
from the Issuance Date.


                    Section
2.8          Register.
The Borrower shall maintain at its principal executive office (or such other
office or agency of the Borrower as it may designate by notice to each holder
of Notes), a register for the Notes in which the Borrower shall record the name
and address of the Person in whose name the Notes have been issued (including
the name and address of each transferee) and the principal amount of Notes held
by such Person. The Borrower shall keep the register open and available at all
times during business hours for inspection of any Holder or its legal
representatives. 


                    Section
2.9          Maintenance
of Register. Notwithstanding anything to the contrary contained
herein, the Notes are registered obligations and the right, title, and interest
of each Lender and its assignees in and to such Notes shall be transferable
only upon notation of


20





such transfer in the
Register. The Notes shall only evidence a Lender’s or its assignee’s right,
title and interest in and to the related Notes, and in no event is any such
Note to be considered a bearer instrument or obligation. This Section 2.9 shall
be construed so that the Notes are at all times maintained in “registered form”
within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and
any related Treasury regulations promulgated thereunder.


                    Section
2.10          Compensation
for Increased Costs and Taxes. In the event that any Holder
shall reasonably determine (which determination shall, absent manifest error,
be final and conclusive and binding upon all parties hereto) that any law,
treaty or governmental rule, regulation or order, or any change therein or in
the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof, or compliance by such Holder with any
guideline, request or directive issued or made after the date hereof by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law): (i) subjects such Holder (or its applicable lending
office) to any additional Taxes with respect to this Agreement or any of the
other Transaction Documents or any of its obligations hereunder or thereunder
or any payments to such Holder (or its applicable lending office) of principal,
interest, Late Charges, fees or any other amount payable hereunder; (ii)
imposes, modifies or holds applicable any reserve (including any marginal,
emergency, supplemental, special or other reserve), special deposit, compulsory
loan, FDIC insurance or similar requirement against assets held by, or deposits
or other liabilities in or for the account of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of
such Holder; or (iii) imposes any other condition (other than with respect to a
Tax matter) on or affecting such Holder or its obligations hereunder; and the
result of any of the foregoing is to increase the cost to such Holder of
holding Notes hereunder or to reduce any amount received or receivable by such
Holder with respect thereto; then, in any such case, the Borrower shall
promptly pay to such Holder, upon receipt of the statement referred to in the
next sentence, such additional amount or amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Holder in its reasonable discretion shall determine) as may be necessary to
compensate such Holder for any such increased cost or reduction in amounts
received or receivable hereunder. Such Holder shall deliver to the Borrower
(with a copy to the Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Holder
under this Section 2.10, which statement shall be conclusive and binding upon
all parties hereto absent manifest error.


                    Section
2.11          Capital
Adequacy Adjustment. In the event that any Holder shall have
determined that the adoption, effectiveness, phase-in or applicability after
the Closing Date of any law, rule or regulation (or any provision thereof)
regarding capital adequacy, reserve requirements, or similar requirements, or
any change therein or in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by any Holder with any guideline,
request or directive regarding capital adequacy (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on the
capital of such Holder or any corporation controlling such Holder as a
consequence of, or with reference to, such Holder’s Notes or other obligations
hereunder with respect to the Notes to a level below that which such Holder or
such


21





controlling corporation
could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Holder or such controlling corporation with regard to capital adequacy),
then from time to time, within five (5) Business Days after receipt by the
Borrower from such Holder of the statement referred to in the next sentence,
the Borrower shall pay to such Holder such additional amount or amounts as will
compensate such Holder or such controlling corporation on an after-tax basis
for such reduction. Such Holder shall deliver to the Borrower (with a copy to
the Agent) a written statement, setting forth in reasonable detail the basis
for calculating the additional amounts owed to such Holder under this Section
2.11, which statement shall be conclusive and binding upon all parties hereto
absent manifest error.


ARTICLE 3


PURCHASE AND SALE OF NOTES


                    Section
3.1          Closing.
In consideration for each Lender’s payment of its pro rata share of the
Purchase Price (as defined below), which is set forth opposite such Lender’s
name in column four (4) of the Schedule of Lenders attached hereto, the
Borrower shall issue and sell to each Lender, and each Lender severally, but
not jointly, agrees to purchase from the Borrower on the Closing Date (as
defined below), a principal amount of Notes, in substantially the form attached
hereto as Exhibit A, as is set forth opposite such Lender’s name in
column three (3) on the Schedule of Lenders attached hereto. The closing
(the “Closing”) of the purchase of such Notes by the Lenders shall occur at the offices of
Katten Muchin Rosenman LLP, 525 West Monroe Street, Suite 1900, Chicago,
Illinois 60661. The date and time of the Closing (the “Closing Date”) shall be 10:00
a.m., Chicago time, on the date hereof, subject to notification of satisfaction
(or waiver) of the conditions to the Closing set forth in Section 4.1 and
Section 5.1 below (or such later date as is mutually agreed to by the Borrower
and each Lender). The aggregate purchase price (the “Purchase Price”) of the Notes
to be purchased by the Lenders at the Closing shall be equal to $9,300,000. On
the Closing Date, (i) each Lender shall pay its pro rata share of the Closing
Purchase Price (less (x) the amounts withheld by it pursuant to Section 8.25
and (y) the five (5) months of interest payable to such Lender on the Closing
Date in accordance with Section 2.2(a)) to the Borrower for the Notes to be
issued and sold to such Lender at the Closing, by wire transfer of immediately
available funds in accordance with the Funds Flow Letter, and (ii) the Borrower
shall deliver to each Lender the Notes (in the denominations as such Lender
shall have requested prior to the Closing) which such Lender is then
purchasing, duly executed on behalf of the Borrower and registered in the name
of such Lender or its designee. 


ARTICLE 4


CONDITIONS TO THE BORROWER’S OBLIGATION TO SELL


                    Section 4.1          Closing.
The obligations of the Borrower hereunder to issue and sell the Notes to each
Lender at the Closing are subject to the satisfaction, at or before the Closing
Date, of each of the following conditions:


22





                    (a)          Such
Lender shall have executed each of the Transaction Documents to which it is a
party and delivered the same to the Borrower.


                    (b)          Such
Lender and each other Lender shall have delivered to the Borrower its pro rata
portion of the Closing Purchase Price (less the amounts withheld by it pursuant
to Section 8.25) for the Notes being purchased by such Lender at the Closing by
wire transfer of immediately available funds pursuant to the wire instructions
provided by the Borrower in the funds flow letter (the “Funds Flow Letter”) set forth
on Exhibit D attached hereto (which shall include a payment not to
exceed $1,000,000 to the holders of the RNK Notes and prepayment of five (5)
months interest on the Notes).


                    (c)          The
representations and warranties of such Lender shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
specific date, which shall be true and correct as of such specific date).


ARTICLE 5


CONDITIONS TO EACH LENDER’S OBLIGATION

TO PURCHASE


                    Section
5.1          Closing.
The obligation of each Lender hereunder to purchase the Notes at the Closing is
subject to the satisfaction, at or before the Closing Date, of each of the
following conditions:


                    (a)          (i)
The Borrower shall have executed and delivered to each Lender the Notes (in
such denominations as such Lender shall have requested prior to the Closing)
being purchased by such Lender at the Closing pursuant to this Agreement, and
(ii) the Credit Parties shall have executed and delivered to the Agent each of
the other Transaction Documents to which it is a party (other than the
Transaction Documents contemplated to be executed and delivered to the Agent
pursuant to the other subsections of this Section 5.1). 


                    (b)          The
Borrower shall have executed and delivered, or caused to be delivered, to the
Agent the Fee Letter and evidence satisfactory to the Agent that the Borrower
shall pay to the Agent on the Closing Date all fees and other amounts due and
owing thereon under the Fee Letter, this Agreement and the other Transaction
Documents.


                    (c)          The
applicable Credit Parties and certain stockholders of Borrower shall have
executed and delivered, or caused to be delivered, to the Agent the Security
Agreement and Pledge Agreement, respectively.


                    (d)          The
Credit Parties hall have executed and delivered, or caused to be delivered, to
the Agent deposit account control agreements and securities account control
agreements, in form and substance satisfactory to the Agent, executed by the
applicable banks, in each case as the Agent may request. 


                    (e)          All
parties to the Affiliate Subordination Agreements (other than Agent) shall have
executed and delivered, or caused to be delivered, to the Agent the Affiliate


23






Subordination Agreements,
the Affiliate Notes shall have amended in a manner acceptable to Agent. 


                    (f)           The
Agent shall have received the opinions of Outside Legal Counsel, dated the
Closing Date, in form and substance reasonably satisfactory to Agent.


                    (g)          The
Borrower shall have executed and delivered, or caused to be delivered, to the
Agent the Funds Flow Letter.


                    (h)          Each
Credit Party shall have delivered, or caused to be delivered, to the Agent a
certificate evidencing its incorporation and good standing in its jurisdiction
of incorporation issued by the Secretary of State of such jurisdiction, as of a
date reasonably proximate to the Closing Date.


                    (i)           Each
Credit Party shall have delivered, or caused to be delivered, to the Agent a
certificate evidencing its qualification as a foreign corporation and good
standing issued by the Secretary of State (or comparable office) of each
jurisdiction in which such Person is qualified to conduct business and failure
to so qualify would cause a Material Adverse Effect, as of a date reasonably
proximate to the Closing Date.


                    (j)           The
Borrower shall have executed and delivered, or caused to be delivered on behalf
of each Credit Party, to the Agent a certificate as to the fact that (other
than with respect to the Winncom Acquisition, which may be consummated
simultaneously with, or after the payment in full, in cash of all Obligations
hereunder) no action has been taken with respect to any merger, consolidation,
liquidation or dissolution of such Person, or with respect to the sale of
substantially all of its assets, nor is any such action pending or
contemplated.


                    (k)          Each
Credit Party shall have delivered or caused to be delivered, to the Agent a
certified copy of such Person’s certificate or articles of incorporation or
certificate of formation, as applicable, as certified by the Secretary of State
of its jurisdiction of incorporation or formation, as applicable, as of a date
reasonably proximate to the Closing Date.


                    (l)           Each
Credit Party shall have executed and delivered, or caused to be delivered, to
the Agent a certificate, executed by the secretary of such Person and dated the
Closing Date, as to (i) the resolutions consistent with Section 7.2 as adopted
by such Person’s board of directors (or similar governing body) in a form
reasonably acceptable to the Agent, (ii) such Person’s articles or certificate
of incorporation (or similar document), each as in effect at the Closing,
(iii) such Person’s bylaws (or similar document), each as in effect at the
Closing, and (iv) no action having been taken by such Person or its
stockholders, directors or officers in contemplation of any amendments to items
(i), (ii), or (iii) listed in this Section 5.1(l), as certified in the form
attached hereto as Exhibit H.


                    (m)         The
Borrower shall have obtained all governmental, regulatory and third party
consents and approvals, if any, necessary for the sale of the Notes at the
Closing.


                    (n)          Searches
of UCC filings in the jurisdictions of formation or incorporation of each
Credit Party, the jurisdiction of the chief executive offices of each Credit
Party and each jurisdiction where any Collateral is located or where a filing
would need to be made in order to


24





perfect the Agent’s and
Holders’ security interest in the Collateral, copies of the financing statements
on file in such jurisdictions and evidence that no Liens exist other than
Permitted Liens shall have been obtained by Agent.


                    (o)          Each
applicable Credit Party shall have authorized the filing of UCC financing
statements for each appropriate jurisdiction as is necessary, in the Agent’s
sole discretion, to perfect the Agent’s and Holders’ security interest in the
Collateral.


                    (p)          Each
applicable Credit Party shall have authorized the filing of the Intellectual
Property Security Agreements in the U.S. Patent and Trademark Office and the
U.S. Copyright Office, as applicable.


                    (q)          Reserved.


                    (r)           The
Borrower shall have delivered, or caused to be delivered, to the Agent such
information in form, scope and substance reasonably satisfactory to the Agent
regarding environmental matters relating to all real property owned, leased,
operated or used by the Credit Parties as of the Closing Date.


                    (s)           The
Borrower shall use its commercially reasonable best efforts to have executed
and delivered, or caused to be delivered, to the Agent such landlord waivers,
collateral access agreements or other similar documents as the Agent may
reasonably request.


                    (t)           The
Borrower shall have delivered, or caused to be delivered, to the Agent
certificates evidencing any Pledged Equity (as defined in the Security
Agreement and Pledge Agreement) pledged to the Agent pursuant to the Security
Agreement, together with duly executed in blank, undated stock or unit powers
attached thereto.


                    (u)          The
Agent shall have received a certificate from the chief financial officer of the
Borrower in form and substance satisfactory to the Agent, supporting the
conclusions that, after giving effect to the transactions contemplated by the
Transaction Documents, the Borrower and each of its Subsidiaries are not
Insolvent.


                    (v)          Except
as set forth on Schedule 5.1(v), since December 31, 2008, there shall have been
no change which has had or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect. 


                    (w)         The
Agent shall have received certificates from the Borrower’s insurance broker or
other evidence satisfactory to it that all insurance required to be maintained
pursuant to this Agreement is in full force and effect, together with
endorsements naming the Agent, for the benefit of the Holders, as additional
insured and lender’s loss payee thereunder. 


                    (x)          The
Borrower shall have executed and delivered, or caused to be delivered, to the
Agent the Post-Closing Obligations Letter.


                    (y)          Reserved.


25






                    (z)          The
representations and warranties of the Credit Parties shall be true and correct
in all material respects (without duplication of any materiality qualifier
contained therein) as of the date when made and as of the Closing Date as
though made at that time (except for representations and warranties that speak
as of a specific date, which representations and warranties shall be true and
correct in all material respects as of such specific date (without duplication
of any materiality qualifier contained therein), and the Credit Parties shall
have performed, satisfied and complied in all material respects (without
duplication of any materiality qualifier contained therein) with the covenants,
agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by the Credit Parties at or prior to the
Closing Date. The Agent shall have received certificates, executed by the chief
financial officer of the Borrower, dated the Closing Date, to the foregoing
effect and as to such other matters as may be reasonably requested by the
Agent, in the form attached hereto as Exhibit I.


                    (aa)        The
Borrower shall have caused to be executed and/or delivered to Agent such payoff
letters, termination statements, lien releases and other similar items as Agent
or its counsel may reasonably request, in form and substance reasonably
acceptable to Agent and its counsel.


                    (bb)        The
Credit Parties shall have executed and/or delivered to the Agent such other
documents relating to the transactions contemplated by this Agreement as the
Agent or its counsel may reasonably request.


                    (cc)        No
Event of Default (or event or circumstance that, with the passage of time, the
giving of notice, or both, would become an Event of Default) shall have
occurred and be continuing or would result from the issuance of the Notes at
the Closing.


                    (dd)        The
Agent shall have received unaudited consolidated and consolidating financial
statements of the Borrower and its Subsidiaries as of, and for the seven (7)
months ended, July 31, 2009. 


                    (ee)        The
Agent shall have received a certificate from the chief financial officer of the
Borrower setting forth a calculation of the ratio of (a) total Indebtedness of
Borrower and its Subsidiaries on a consolidated basis as of the Closing Date
calculated on proforma basis after giving effect to consummation of the
transactions contemplated by the Transaction Documents, to (b) EBITDA of
Borrower and its Subsidiaries for the twelve (12) month period ended July 31,
2009, and such ratio shall not exceed 4.5:1.00.


ARTICLE 6


LENDER’S REPRESENTATIONS AND WARRANTIES


          Each
Lender represents and warrants (severally and not jointly) with respect to only
itself that:


                    Section
6.1          No Public
Sale or Distribution. Such Lender is acquiring the Notes for its
own account and not with a view towards, or for resale in connection with, the
public sale or distribution thereof in a manner that would violate the 1933
Act, except pursuant


26





to sales registered or
exempted under the 1933 Act; provided, however, that by making the
representations herein, such Lender does not agree to hold any of the Notes for
any minimum or other specific term and reserves the right to dispose of the
Notes at any time in accordance with or pursuant to a registration statement or
an exemption under the 1933 Act. Such Lender does not presently have any
agreement or understanding, directly or indirectly, with any Person to
distribute any of the Notes.


                    Section
6.2          Investor
Status. Such Lender is an “accredited investor” as that term is
defined in Rule 501(a) of Regulation D.


                    Section
6.3          No
Governmental Review. Such Lender understands that no United
States federal or state agency or any other government or governmental agency
has passed on or made any recommendation or endorsement of the Notes or the
fairness or suitability of the investment in the Notes nor have such
authorities passed upon or endorsed the merits of the purchase of the Notes.


                    Section
6.4          Transfer or
Resale. Such Lender understands that the Notes have not been and
are not being registered under the 1933 Act or any state securities laws, and
may not be offered for sale, sold, assigned or transferred except pursuant to
an effective registration statement or an exemption from registration; provided,
however,
that, the Notes may be pledged in connection with a bona fide margin account or
other loan or financing arrangement secured by the Notes and such pledge of
Notes shall not be deemed by the Borrower to be a transfer, sale or assignment
of the Notes hereunder, and no Lender effecting such a pledge of Notes shall be
required to provide the Borrower with any notice thereof or otherwise make any
delivery to the Borrower pursuant to this Agreement or any other Transaction
Document, including, without limitation, this Section 6.4.


                    Section
6.5          Legends.
Such Lender understands that the certificates or other instruments representing
the Notes, except as set forth below, shall bear any legend as required by the
“blue sky” laws of any state and a restrictive legend in substantially the
following form:


	
  

 	
  

 	
  

 
	
  

 	
 THIS NOTE HAS NOT BEEN
 REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
 SECURITIES LAWS. THIS NOTE MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
 ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR
 THE NOTES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE
 SECURITIES LAWS, OR (B) AN OPINION OF COUNSEL, IN A FORM REASONABLY
 ACCEPTABLE TO THE ISSUER, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
 AND APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144
 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE NOTE MAY BE
 PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR
 FINANCING

 	
  

 


27









	
  

 	
  

 	
  

 
	
  

 	
 ARRANGEMENT SECURED BY
 THE NOTE, PROVIDED SUCH PLEDGE IS MADE IN COMPLIANCE WITH APPLICABLE FEDERAL
 AND STATE SECURITIES LAWS.

 	
  

 


The legend set forth
above shall be removed and the Borrower shall issue a Note without such legend
to the holder of the Notes upon which it is stamped, if (i) such Notes are
registered for resale under the 1933 Act, (ii) in connection with a sale,
assignment or other transfer, such holder provides the Borrower with an opinion
of counsel, in a form reasonably acceptable to the Borrower, to the effect that
such sale, assignment or transfer of the Notes may be made without registration
under the applicable requirements of the 1933 Act, or (iii) such Notes are
sold, assigned or transferred pursuant to Rule 144 under the 1933 Act, or such
holder provides the Borrower with reasonable assurance that the Notes can be
sold, assigned or transferred pursuant to Rule 144 under the 1933 Act.


                    Section 6.6          Residency.
Each Lender is a resident of that jurisdiction specified below its address on
the Schedule of Lenders attached hereto.


ARTICLE 7


CREDIT PARTIES’ REPRESENTATIONS AND WARRANTIES


          As
an inducement to the Agent and the Lenders to enter into this Agreement and to
consummate the transactions contemplated hereby, each of the Credit Parties
jointly and severally represents and warrants to each of the Agent and the
Lenders that each and all of the following representations and warranties (as
supplemented by the disclosure schedules delivered to the Agent and the Lenders
contemporaneously with the execution and delivery of this Agreement (the “Schedules”))
are true and correct as of the Closing Date. The Schedules shall be arranged by
the Borrower in paragraphs corresponding to the sections and subsections
contained in this ARTICLE 7.


                    Section
7.1          Organization
and Qualification. The Borrower and its subsidiaries (which, for
purposes of this Agreement, means any entity in which the Borrower, directly or
indirectly, owns at least 50% of the Capital Stock or other Equity Interests)
(“Subsidiaries”)
are entities duly incorporated or organized and validly existing in good
standing under the laws of the jurisdiction in which they are formed or
incorporated, and have the requisite power and authorization to own their
properties, carry on their business as now being conducted, enter into the
Transaction Documents to which they are party and carry out the transactions contemplated
thereby. Each of the Borrower and its Subsidiaries is duly qualified as a
foreign entity to do business and is in good standing in every jurisdiction in
which its ownership of property or the nature of the business conducted by it
makes such qualification necessary, except to the extent that the failure to be
so qualified or be in good standing would not have, either individually or in
the aggregate, a Material Adverse Effect. Except as set forth on Schedule 7.1,
(i) the Borrower has no Subsidiaries and (ii) all Capital Stock or other equity
or similar interests of the Subsidiaries is directly or indirectly owned by the
Borrower. 


                    Section
7.2          Authorization;
Enforcement; Validity. Each of the Credit Parties has the requisite
power and authority to enter into and perform its obligations under this


28





Agreement, the Notes, the
Security Agreement, the Fee Letter, the Intellectual Property Security
Agreements, the Affiliate Subordination Agreement and each of the other agreements,
documents and certificates entered into by the parties hereto in connection
with the transactions contemplated by this Agreement (collectively, the “Transaction
Documents”) and to issue the Notes in accordance with the terms
hereof and thereof. The execution and delivery of the Transaction Documents by
the Credit Parties have been duly authorized by each of the Credit Parties’
respective board of directors (or other governing body) and the consummation by
the Credit Parties of the transactions contemplated hereby and thereby,
including, without limitation, the issuance of the Notes by the Borrower, have
been duly authorized by the respective Credit Party’s board of directors (or
other governing body), and no further filing, consent, or authorization is
required by any Credit Party, its board of directors (or other governing body)
or its stockholders except, solely with respect to the pledge by Borrower of
the stock of RNK and the grant of a security interest by RNK in its assets, for
the Regulatory Consent. This Agreement and the other Transaction Documents have
been duly executed and delivered by each of the Credit Parties thereto, and
constitute the legal, valid and binding obligations of each of the Credit
Parties party thereto, enforceable against each of such Credit Parties in
accordance with their respective terms, except as such enforceability may be
limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of applicable creditors’ rights and
remedies.


                    Section
7.3          Issuance of
Notes. The Notes are duly authorized and, upon issuance in
accordance with the terms hereof, shall be validly issued and free from all
taxes, liens and charges with respect to the issue thereof. Assuming the truth
and accuracy of the representations and warranties of each Lender set forth in
ARTICLE 6 of this Agreement, the issuance by the Borrower of the Notes to the Lenders
is exempt from registration under the 1933 Act. 


                    Section
7.4          No Conflicts.
The execution, delivery and performance of the Transaction Documents by the
Credit Parties party thereto and the consummation by the Credit Parties of the
transactions contemplated hereby and thereby (including, without limitation,
the issuance of the Notes) will not (i) result in a violation of Borrower’s or
any Subsidiary’s certificate or articles of incorporation or bylaws or other
governing documents, or the terms of any capital stock or other equity
interests of the Borrower or any of its Subsidiaries; (ii) conflict with, or
constitute a breach or default (or an event which, with notice or lapse of time
or both, would become a breach or default) under, or give to others any rights
of termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Borrower or any of its Subsidiaries is a
party; (iii) result in any “price reset” or other material change in or other
modification to the terms of any Indebtedness, Equity Interests or other
securities of the Borrower or any of its Subsidiaries; or (iv) result in a
violation of any law, rule, regulation, order, judgment or decree (including,
without limitation, (A) any Environmental Laws, or (B) federal and state
securities laws or (C) the rules and regulations of the Principal Market)
applicable to the Borrower or its Subsidiaries or by which any property or
asset of the Borrower or its Subsidiaries is bound or affected except, solely
with respect to the pledge by Borrower of the stock of RNK and the grant of a
security interest by RNK in its assets, violations of certain regulations of
the New Jersey Board of Public Utilities which violations shall be immediately
cured upon receipt of the Regulatory Content.


29





                    Section
7.5          Consents.
No Credit Party is required to obtain any consent, authorization, approval,
order, license, franchise, permit, certificate or accreditation of, or make any
filing or registration (collectively, “Consents and Filings”) with, any court,
governmental agency or any regulatory or self-regulatory agency or authority or
any other Person in order for it to execute, deliver or perform any of its
obligations under or contemplated by the Transaction Documents, in each case in
accordance with the terms hereof or thereof (other than (x) filings required by
the Security Documents and (y) as set forth on Schedule 7.5). Except as set
forth on Schedule 7.5, all Consents and Filings which the Credit Parties are
required to obtain pursuant to the preceding sentence have been obtained or
effected on or prior to the Closing Date, and each Credit Party is unaware of
any facts or circumstances which might prevent any of the Credit Parties from
obtaining or effecting any of the registration, application or filings pursuant
to the preceding sentence. Without limiting the generality of the foregoing,
Schedule 7.5 sets forth all Consents and Filings which would be required to permit
RNK to grant a lien on its assets, and for Borrower to pledge the Equity
Interests of RNK, in each instance, to secure the Obligations. 


                    Section
7.6          Subsidiary
Rights. Except as set forth on Schedule 7.6, each Credit Party
has the unrestricted right to vote, and (subject to limitations imposed by
applicable law) to receive dividends and distributions on, all capital and
other equity securities of its Subsidiaries as owned by the Borrower or such
Subsidiary.


                    Section
7.7          Equity
Capitalization. As of the Closing Date, the authorized Capital
Stock and the issued and outstanding Equity Interests of each Credit Party and
each Subsidiary of each Credit Party is as set forth on Schedule 7.7. All of
such outstanding shares of Capital Stock or other Equity Interests of the
Borrower and its Subsidiaries have been duly authorized, validly issued and are
fully paid and nonassessable and are owned by the Persons and in the amounts
set forth on Schedule 7.7. Except as set forth on Schedule 7.7: (i) none of
Borrower’s or any Subsidiary’s Capital Stock or other Equity Interest in
Borrower or such Subsidiary is subject to preemptive rights or any other
similar rights or any liens or encumbrances suffered or permitted by Borrower
or such Subsidiary; (ii) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, or exercisable or
exchangeable for, any Capital Stock or other Equity Interest in the Borrower or
any of its Subsidiaries, or contracts, commitments, understandings or
arrangements by which the Borrower or any of its Subsidiaries is or may become
bound to issue additional Capital Stock or other Equity Interest in Borrower or
Subsidiary or options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into, or exercisable or exchangeable for, any Capital Stock or other
Equity Interest in the Borrower or any of its Subsidiaries; (iii) there are no
outstanding debt securities, notes, credit agreements, credit facilities or
other agreements, documents or instruments evidencing Indebtedness of the
Borrower or any of its Subsidiaries or by which the Borrower or any of its
Subsidiaries is or may become bound; (iv) there
are no financing statements securing obligations in any material amounts,
either singly or in the aggregate, filed in connection with the Borrower or any
of its Subsidiaries; (v) there are no agreements or arrangements under which
the Borrower or any of its Subsidiaries is obligated to register the sale of
any of its securities under the 1933 Act; (vi) there are no outstanding
securities or instruments of the Borrower or any of its Subsidiaries which
contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Borrower or any of its
Subsidiaries is or may


30





become bound to redeem a security of the Borrower or any
of its Subsidiaries; (vii) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of
the Notes or the Capital Stock as contemplated by Section 10.5 hereof; and
(viii) none of the Borrower or any of its Subsidiaries has any stock
appreciation rights or “phantom stock” plans or agreements or any similar plan
or agreement. Prior to the Closing, the Borrower has provided to the Lenders
true, correct and complete copies of (i) each Borrower’s and Subsidiary’s
certificate or articles of incorporation (or other applicable governing
document), as amended and as in effect on the Closing Date, and (ii) Borrower’s
and each of its Subsidiary’s bylaws, as amended and as in effect on the Closing
Date (or other applicable governing document). Schedule 7.7 identifies all
outstanding securities convertible into, or exercisable or exchangeable for,
shares of Capital Stock or other Equity Interests in the Borrower or any of its
Subsidiaries and the material rights of the holders thereof in respect thereto.


                    Section
7.8          Indebtedness
and Other Contracts. Except as disclosed on Schedule 7.8,
neither the Borrower nor any of its Subsidiaries (i) has any outstanding
Indebtedness, (ii) is a party to any contract, agreement or instrument, the
violation of which, or default under which, by the other party(ies) to such
contract, agreement or instrument could reasonably be expected to result in a
Material Adverse Effect, or (iii) is in violation of any term of or in default
under any contract, agreement or instrument relating to any Indebtedness or any
contract, agreement or instrument entered into in connection therewith that
could reasonably be expected to result in, either individually or in the
aggregate, a Material Adverse Effect.


                    Section
7.9          Off Balance
Sheet Arrangements. Except as set forth in Schedule 7.9, there
is no transaction, arrangement, or other relationship between the Borrower or
any of its Subsidiaries and an unconsolidated or other off balance sheet entity
that would be required to be disclosed by the Borrower in a 1934 Act filing if
Borrower were a reporting company or that otherwise would be reasonably likely
to have, either individually or in the aggregate, a Material Adverse Effect.


                    Section
7.10         Ranking of
Notes. No Indebtedness of any of the Credit Parties or any of
their Subsidiaries will rank senior to or pari passu with the Notes in right of
payment or collectability, whether with respect to payment of redemptions,
interest, damages or upon liquidation or dissolution or otherwise (other than
Permitted Indebtedness that is not Affiliate Indebtedness, which Permitted
Indebtedness may be pari passu with the Notes in right of payment).


                    Section
7.11         Title.
Except as described on Schedule 7.11, each of the Borrower and its Subsidiaries
has (i) good and marketable title to (in the case of fee interests in real
property), (ii) valid leasehold interests in (in the case of leasehold
interests in real or personal property), (iii) valid licensed rights in (in the
case of licensed interests in Intellectual Property Rights), and (iv) good and
marketable title to (in the case of all other personal property) all of its
real property and other properties and assets owned by it which are material to
the business of Borrower or such Subsidiary, in each case free and clear of all
liens, encumbrances and defects, other than Permitted Liens. Any real property
and facilities held under lease by the Borrower or any of its Subsidiaries are
held by it under valid, subsisting and enforceable leases. 


31







                    Section
7.12          Intellectual
Property Rights. Each of the Borrower and its Subsidiaries owns
or possesses adequate and valid rights to use all trademarks, trade names,
service marks, service mark registrations, service names, patents, patent
rights, copyrights, inventions, licenses, approvals, governmental authorizations,
trade secrets and other intellectual property rights (“Intellectual Property Rights”)
that are necessary to conduct its respective businesses as now conducted, and
such Intellectual Property Rights are free and clear of all liens, encumbrances
and defects other than Permitted Liens. Except as described on Schedule 7.12,
(i) none of the Borrower or any of its Subsidiaries has any knowledge of any
infringement, misappropriation, dilution or other violation by the Borrower or
any of its Subsidiaries of Intellectual Property Rights of other Persons; (ii)
none of the Borrower or any of its Subsidiaries has any knowledge of any
infringement, misappropriation, dilution or other violation by any other
Persons of the Intellectual Property Rights of the Borrower or any of its
Subsidiaries; (iii) there is no claim, action or proceeding pending or, to the
knowledge of each of the Credit Party, threatened in writing, against the
Borrower or any of its Subsidiaries regarding its Intellectual Property Rights
or the Intellectual Property Rights of other Persons; and (iv) none of the
Borrower or its Subsidiaries is aware of any facts or circumstances of
reasonable likelihood of giving rise to any of the foregoing infringements or
claims, actions or proceedings. Each of the Borrower and its Subsidiaries has
taken and is taking commercially reasonable measures, consistent with industry
standards, to maintain and protect the value of its Intellectual Property
Rights. 


                    Section
7.13          Creation,
Perfection, and Priority of Liens. Except with respect to the
pledge of Stock in RNK by Borrower and the grant of a security interest by RNK
in its assets (which grants may be subject to receipt of the Regulatory
Consent), the Security Documents are effective to create in favor of the Agent,
for the benefit of the Lenders, a legal, valid, binding, and (upon the filing
of the appropriate UCC financing statements and Intellectual Property Security
Agreement) enforceable perfected first priority security interest and Lien in
the Collateral described therein as security for the obligations under the
Notes to the extent that a legal, valid, binding, and enforceable security
interest and Lien in such Collateral may be created under applicable law
including without limitation, the uniform commercial code as in effect in any
applicable jurisdiction (“UCC”) and any other applicable governmental
agencies.


                    Section
7.14          Absence of
Certain Changes. Except as disclosed in Schedule 7.14, since
December 31, 2008 (the “Diligence Date”), there has been no
material adverse change in the business, assets, properties, operations,
condition (financial or otherwise), results of operations or prospects of the
Borrower or any of its Subsidiaries. Except as disclosed in Schedule 7.14,
since the Diligence Date, the Borrower and each of its Subsidiaries has not (i)
declared or paid any dividends, (ii) sold any assets (other than the sale of
Inventory in the ordinary course of business) or (iii) had capital expenditures,
individually or in the aggregate, in excess of $500,000. None of the Borrower
or any of its Subsidiaries has taken any steps to seek protection pursuant to
any bankruptcy law nor do the Borrower or any of its Subsidiaries have any
knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy proceedings or any actual knowledge of any fact which
would reasonably lead a creditor to do so. None of the Borrower or any of its
Subsidiaries intends to incur debts beyond its ability to pay such debts as
they mature (taking into account the timing and amounts of cash to be payable
on or in respect of its debt). None of the Borrower or any of its Subsidiaries
has any knowledge of any facts or circumstances which leads it to believe that
it will file for reorganization or


32





liquidation under the
bankruptcy or reorganization laws of any jurisdiction. Neither Borrower nor any
of its Subsidiaries is, as of the Closing Date, and after giving effect to the
transactions contemplated hereby to occur at the Closing, will be, Insolvent.


                    Section
7.15          Absence of
Litigation. Except as set forth in Schedule 7.15, there is no
action, suit, proceeding, inquiry or investigation before or by any court,
public board, government agency (including, without limitation, the SEC,
self-regulatory organization or other governmental body) (in each case, a “Proceeding”)
pending or, to the knowledge of any Credit Party, threatened in writing against
or affecting Borrower, or any of the Borrower’s Subsidiaries or any of
Borrower’s or its Subsidiaries’ officers or directors which (i) could
reasonably be expected to result, either individually or in the aggregate, in a
Material Adverse Effect, (ii) if adversely determined, could reasonably be
expected to result, either individually or in the aggregate, in a Material
Adverse Effect, or (iii) questions the validity of this Agreement or any of the
other Transaction Documents or any of the transactions contemplated hereby or
thereby or any action taken or to be taken pursuant hereto or thereto. 


                    Section
7.16          No
Undisclosed Events, Liabilities, Developments or Circumstances.
Except for the transactions contemplated by the Transaction Documents and as
set forth on Schedule 7.16, no event, liability, development or circumstance
has occurred or exists, or is contemplated to occur with respect to the
Borrower or any of its Subsidiaries or their respective business, properties,
prospects, operations or financial condition, that would reasonably be expected
to result, either individually or in the aggregate, in a Material Adverse
Effect.


                    Section
7.17          No
Disagreements with Accountants and Lawyers. There are no
disagreements of any kind presently existing, or reasonably anticipated by the
Borrower or any of its Subsidiaries to arise, between the Borrower or any of
its Subsidiaries and the accountants and lawyers formerly or presently employed
by the Borrower and Subsidiaries which could affect the ability of the Credit
Parties to perform any of their obligations under any of the Transaction
Documents. 


                    Section
7.18          Reserved


                    Section
7.19          Reserved


                    Section
7.20          Tax Status.
Each of the Borrower and its Subsidiaries (i) has made or filed all foreign,
federal and state income and all other material tax returns, reports and
declarations required by any jurisdiction to which it is subject, except prior
to the Closing Date where any failure to do so did not result in any material
penalties to the Borrower or its Subsidiaries, (ii) has paid all taxes and
other governmental assessments and charges shown or determined to be due on
such returns, reports and declarations, except those being contested in good
faith, and (iii) has set aside on its books adequate reserves in accordance
with GAAP for the payment of all taxes for periods subsequent to the periods to
which such returns, reports or declarations apply. There are no unpaid taxes in
any material amount claimed to be delinquent by the taxing authority of any
jurisdiction (other than those being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and subject to
adequate reserves taken by the Borrower or such subsidiaries as shall be
required in conformity with


33





GAAP), and the officers
of each of the Borrower and its Subsidiaries know of no basis for any such
claim.


                    Section
7.21          Transfer
Taxes. On each applicable Closing Date, all transfer or other
taxes (other than income or similar taxes) which are required to be paid in
connection with the sale and transfer of the Notes to be sold to each Lender
hereunder will be, or will have been, fully paid or provided for by the
Borrower, and all laws imposing such taxes will be or will have been complied
with.


                    Section
7.22          Conduct of
Business; Regulatory Permits. None of the Borrower or any of its
Subsidiaries is in violation of any term of or in default under its certificate
or articles of incorporation or bylaws or other governing documents. None of
the Borrower or any of its Subsidiaries is in violation of any judgment, decree
or order or any statute, ordinance, rule or regulation applicable to Borrower
or its Subsidiaries. Except as set forth on Schedule 7.22, each of the Borrower
and its Subsidiaries possesses all material consents, authorizations,
approvals, orders, licenses, franchises, permits, certificates, accreditations
and permits and all other appropriate regulatory authorities necessary to
conduct their respective businesses, and none of the Borrower or any of its
Subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such consents, authorizations, approvals, orders,
licenses, franchises, permits, certificates, accreditations or permits.
Borrower and each of its Subsidiaries is in compliance with all laws, rules,
regulations and ordinances of all applicable Governmental Authorities,
including, without limitation, the Telecommunication Act of 1996 and all
applicable state regulatory and similar laws, rules, regulations and orders,
except to the extent any such non-compliance would not reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect.


                    Section
7.23          Foreign
Corrupt Practices. None of the Borrower or any of its
Subsidiaries, nor any director, officer, agent, employee or other Person acting
on behalf of the Borrower or any of its Subsidiaries has, in the course of its
actions for, or on behalf of, the Borrower or any of its Subsidiaries (i) used
any corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expenses relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or
(iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or
other unlawful payment to any foreign or domestic government official or
employee.


                    Section
7.24          Reserved.


                    Section 7.25          Environmental
Laws. Except as set forth on Schedule 7.25, each of the Borrower
and its Subsidiaries (a) (i) is in compliance with any and all Environmental
Laws, (ii) has received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct its respective businesses,
(iii) is in compliance with all material terms and conditions of any such
permit, license or approval, and (iv) has, to its knowledge, no outstanding
Liability under any Environmental Laws and is not aware of any facts that could
reasonably result in Liability under any Environmental Laws, in each of the
foregoing clauses of this clause (a), except to the extent, either individually
or in the aggregate, a Material Adverse


34





Effect could not reasonably
be expected to occur, and (b) has provided Agent and Lenders with copies of all
environmental reports, assessments and other documents related to any material
Liability under any Environmental Laws.


                    Section
7.26          Margin Stock.
None of Borrower or any of its respective Subsidiaries is engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System), and no part of the proceeds from the issuance of any
Note will be used to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying any margin stock, or for any
purpose that violates, or is inconsistent with, the provisions of Regulation T,
U or X of the Board of Governors of the Federal Reserve System.


                    Section
7.27          ERISA.
Except as set forth on Schedule 7.27, none of the Borrower or any ERISA
Affiliate (a) maintains or has maintained any Pension Plan, (b) contributes or
has contributed to any Multiemployer Plan or (c) provides or has provided
post-retirement medical or post-retirement insurance benefits with respect to
employees or former employees (other than benefits required under Section 601
of ERISA, Section 4980B of the Code or applicable state law). Except as set
forth on Schedule 7.27, none of the Borrower nor any ERISA Affiliate has
received any notice or has any knowledge to the effect that it is not in full
compliance with any of the requirements of ERISA, the Code or applicable state
law with respect to any Employee Benefit Plan. No ERISA Event exists. Each
Employee Benefit Plan which is intended to qualify under the Code has received
a favorable determination letter (or opinion letter in the case of a prototype
Employee Benefit Plan) to the effect that such Employee Benefit Plan is so
qualified and to Borrower’s knowledge, there exists no reasonable basis for the
revocation of such determination or opinion letter. None of the Borrower or any
ERISA Affiliate has (i) any unpaid minimum required contributions under any
Plan, whether or not waived, (ii) any liability under Section 4201 or 4243 of
ERISA for any withdrawal, or partial withdrawal, from any Multiemployer Plan,
(iii) a Pension Plan that is “at risk” within the meaning of Section 430 of the
Code, (iv) received notice from any Multiemployer Plan that it is either in
endangered or critical status within the meaning of Section 432 of the Code or
(v) any liability or knowledge of any facts or circumstances which could result
in any liability to the PBGC, the Internal Revenue Service, the Department of
Labor or any participant in connection with any Employee Benefit Plan (other
than routine claims for benefits under the Employee Benefit Plan).


                    Section
7.28          Investment
Company. None of the Borrower or any of its Subsidiaries is a
“registered investment company” or a company “controlled” by a “registered
investment company” or a “principal underwriter” of a “registered investment
company” as such terms are defined in the Investment Company Act of 1940, as
amended.


                    Section
7.29          U.S. Real
Property Holding Corporation. None of the Borrower or any of its
Subsidiaries is, nor has it ever been, a U.S. real property holding corporation
within the meaning of Section 897 of the Code, as amended, and the Borrower
will so certify upon the request of any Lender.


                    Section
7.30          Internal
Accounting and Disclosure Controls. The Borrower and each of its
Subsidiaries maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management’s


35





general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset and liability accountability, (iii) access to assets or incurrence of
liabilities is permitted only in accordance with management’s general or
specific authorization and (iv) the recorded accountability for assets and
liabilities is compared with the existing assets and liabilities at reasonable
intervals and appropriate action is taken with respect to any difference. The
Borrower maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15 under the 1934 Act) that are effective in ensuring that
information required to be disclosed by the Borrower in the reports that it
would be required to file or submit under the 1934 Act after consummation of
the IPO is recorded, processed, summarized and reported, within the time
periods specified in the rules and forms of the SEC, including, without
limitation, controls and procedures designed to ensure that information
required to be disclosed by the Borrower in the reports that it would be
required to file or submit under the 1934 Act is accumulated and communicated
to the Borrower’s management, including its principal executive officer or
officers and its principal financial officer or officers, as appropriate, to
allow timely decisions regarding required disclosure. During the twelve months
prior to the Closing Date, none of the Borrower or any of its Subsidiaries has
received any notice or correspondence from any accountant relating to any
potential material weakness in any part of the system of internal accounting
controls of the Borrower or any of its Subsidiaries.


                    Section
7.31          Financial
Statements. Each of the (a) consolidated audited financial
statements of Borrower and its Subsidiaries dated December 31, 2008 and
consolidated unaudited financial statements of Borrower and its Subsidiaries
dated July 31, 2009 for the seven (7) months then ended have been prepared in
accordance with GAAP, consistently applied, during the periods involved (except
(i) as may be otherwise indicated in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim statements, to the extent
they may exclude footnotes or may be condensed or summary statements) and
fairly present in all material respects the consolidated financial position of
the Borrower as of the dates thereof and the results of its operations and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments). 


                    Section
7.32          Reserved.


                    Section
7.33          Transactions
With Affiliates. Except (i) as set forth on Schedule 7.33 or
7.43 and (ii) for transactions that have been entered into on terms no less
favorable to the Borrower and its Subsidiaries than those that might be
obtained at the time from a Person who is not an officer, director or employee,
none of the officers, directors or employees of the Borrower or any of its
Subsidiaries is presently a party to any transaction with the Borrower or any
of its Subsidiaries (other than for ordinary course services as employees,
officers or directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
such officer, director or employee or, to the knowledge of the Credit Parties,
any corporation, partnership, trust or other entity in which any such officer,
director, or employee has a substantial interest or is an officer, director,
trustee or partner.


                    Section
7.34          Acknowledgment
Regarding Lender’s Purchase of Notes. Each of the Credit Parties
acknowledges and agrees that each Lender is acting solely in the capacity of


36





an arm’s length purchaser
with respect to the Transaction Documents and the transactions contemplated
hereby and thereby and that no Lender is (i) an officer or director of Borrower
or any Subsidiary, (ii) an Affiliate of Borrower or any Subsidiary or (iii) to
the knowledge of the Credit Parties, a “beneficial owner” (as defined for
purposes of Rule 13d-3 of the 1934 Act) of more than 10% of the shares of
Capital Stock of Borrower. Each of the Credit Parties further acknowledges that
no Lender is acting as a financial advisor or fiduciary of Borrower or any
Subsidiary (or in any similar capacity) with respect to the Transaction
Documents and the transactions contemplated hereby and thereby, and any advice
given by a Lender or any of its representatives or agents in connection with
the Transaction Documents and the transactions contemplated hereby and thereby
is merely incidental to such Lender’s purchase of the Notes. Each of the Credit
Parties further represents to each Lender that each Credit Party’s decision to
enter into the Transaction Documents to which it is a party have been based
solely on the independent evaluation by such Person and its respective
representatives.


                    Section
7.35          Reserved.


                    Section
7.36          Registration
Statement. To the knowledge of the Borrower, no facts or
circumstances exist that would inhibit or delay the preparation and filing of
the Registration Statement.


                    Section
7.37          Insurance.
Each of the Borrower and its Subsidiaries is insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which the Borrower and
Subsidiaries are engaged. None of the Borrower or any of its Subsidiaries has
been refused any insurance coverage sought or applied for and none of the
Borrower or any of its Subsidiaries believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.


                    Section
7.38          Reserved.


                    Section
7.39          Employee
Relations. None of the Borrower or any of its Subsidiaries is a
party to any collective bargaining agreement or employs any member of a union
in such person’s capacity as a union member or to perform union labor work.
Each of the Credit Parties believes that its relations with its employees are
good. As of the Closing Date, no executive officer of the Borrower or any of
its Subsidiaries has notified Borrower or such Subsidiary that such officer
intends to leave Borrower or such Subsidiary or otherwise terminate such
officer’s employment with Borrower or such Subsidiary. As of the Closing Date,
no executive officer of the Borrower or any of its Subsidiaries, to the
knowledge of the Credit Parties, is, or is now expected to be, in violation of
any material term of any employment contract, confidentiality, disclosure or
proprietary information agreement, non-competition agreement, or any other
contract or agreement or any restrictive covenant. Each of the Borrower and its
Subsidiaries is in compliance with all federal, state, local and foreign laws
and regulations respecting labor, employment and employment practices and
benefits, terms and conditions of employment and wages and hours, except where
failure to be in compliance would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.


37





                    Section
7.40          Disclosure.
Notwithstanding any other provision of this Agreement, all disclosure provided
to the Lenders regarding the Borrower and each of its Subsidiaries, its
business and properties, and the transactions contemplated hereby, including
the Schedules to this Agreement, furnished by or on behalf of each Credit
Party, is true and correct in all material respects and does not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, taken as a whole and in
the light of the circumstances under which they were made, not materially
misleading. No event or circumstance has occurred or information exists with
respect to the Borrower or any of its Subsidiaries or any of their business,
properties, prospects, operations or condition (financial or otherwise), which,
under applicable law, rule or regulation, requires public disclosure or
announcement by the Borrower or such Subsidiary but which has not been so
publicly announced or disclosed. The Credit Parties (i) are financially
experienced and sophisticated, (ii) have been represented by competent counsel
in connection with negotiation of the Transaction Documents, which negotiations
have been conducted on an arm’s length basis in good faith, and (iii) are
entering into the Transaction Documents of their own free will without duress
or other unconscionable conduct on the part of Agent or any Lender, the
proceeds of which are being used to refinance indebtedness which has matured
and with respect to which the lender thereunder has expressed an intent to
exercise its rights and remedies. 


                    Section
7.41          Patriot Act.
To the extent applicable, each of the Borrower and its Subsidiaries is in
compliance, in all material respects, with (i) the Trading with the Enemy Act,
as amended, and each of the foreign assets control regulations of the United
States Treasury Department and any other enabling legislation or executive
order relating thereto, and (ii) the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)). 


                    Section
7.42          Material
Contracts. Schedule 7.42 contains a true, correct and complete
list of all the Material Contracts of the Borrower and its Subsidiaries, and
all such Material Contracts are in full force and effect and no defaults
currently exist thereunder.


                    Section
7.43          Affiliate
Contracts. Schedule 7.43 contains a true, correct and complete
list of each of the following: 


                       (a)          All
documents, agreements and instruments entered into and/or delivered by or
between any Credit Party and Richard N. Koch and/or his Affiliates; and


                       (b)          All
documents, agreements and instruments entered into and/or delivered by or
between any Credit Party and Steven Asman and/or his Affiliates; and


             (c)          All
documents, agreements and instruments entered into and/or delivered by or
between any Credit Party and G. Jeff Mennen and/or his Affiliates (including,
in any event, the Mennen Trust).


True, correct and
complete of all such documents, agreements and instruments have been delivered
to Agent. There are no agreements or understandings, written or oral, between
any Credit Party and any of the foregoing Persons except as set forth in the
documents, agreements and instruments disclosed on Schedule 7.43.


38






ARTICLE 8


COVENANTS


                 Section
8.1          Financial
Covenants. The Credit Parties shall, and shall
cause their Subsidiaries to, comply with the following financial covenants: 


                    (a)          Cash
Balance. The Credit Parties shall at all times maintain cash in
their Blocked Accounts in an aggregate amount not less than nine percent (9.0%)
of the aggregate principal amount of all Notes at such time outstanding. 


                    (b)          Leverage Ratio. The Credit Parties shall
not permit the Leverage Ratio as of the last day of any calendar month
(commencing September 30, 2009) to be greater than 4.5. 


                    (c)          Fixed Charge Coverage Ratio. The Credit
Parties shall not permit Fixed Charge Coverage Ratio as of the last day of any
calendar month (commencing September 30, 2009) to be less than 1.15. 


                    (d)          Net Collections. The Credit Parties shall
not allow aggregate net cash collections of the Credit Parties in any calendar month
to be less than thirty five percent (35%) of the daily average aggregate
outstanding balance of the Notes during such calendar month. 


                    (e)          EBITDA. The Credit Parties shall not permit
EBITDA for any month, commencing with September, 2009, to be less than
$1,200,000. 


                    (f)           Operating
Leases. The Credit Parties shall not enter into any operating lease
except operating leases for equipment having an equipment cost at inception of
the lease of not more than $250,000 in the aggregate for all operating leases
entered into on or after the Closing Date. 


                    (g)          Capital Expenditures. The Credit Parties
shall not make any Capital Expenditures in excess of $250,000 during any calendar
year. 


                 Section
8.2          Deliveries.
The Borrower agrees to deliver the following to the Agent and each Holder: 


                    (a)          Monthly Financial Statements. As soon as
available and in any event within thirty (30) days after the end of each month
(including December), the consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as at the end of such month and the related
consolidated and consolidating statements of operations, stockholders’ equity
and cash flows of the Borrower and its Subsidiaries for such month and for the
period from the beginning of the then current Fiscal Year to the end of such
month, all in reasonable detail, and certified by the chief financial officer
of the Borrower as being true and correct and fairly presenting in accordance
with GAAP, the financial position and results of operations of Borrower and its
Subsidiaries, subject to normal year end adjustments and absence of footnote
disclosure; 


39





                    (b)          Annual Financial Statements. As soon as
available, and in any event within ninety (90) days after the end of each
Fiscal Year, the audited consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as at the end of such Fiscal Year and the related
consolidated and consolidating statements of operations, stockholders’ equity
and cash flows of the Borrower and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the corresponding figures for
the previous Fiscal Year, in reasonable detail and certified by the chief
financial officer of the Borrower as being true and correct and fairly
presenting in accordance with GAAP, the financial position and results of
operations of Borrower and its Subsidiaries, accompanied by an unqualified
opinion of an independent accounting firm acceptable to Agent; 


                    (c)          Compliance Certificate. On the dates that
the financial statements under clauses (a) and (b) above are delivered, a duly
completed Compliance Certificate, with appropriate insertions, dated the date
of the applicable monthly financial statements, and signed on behalf of the
Borrower by the chief financial officer of the Borrower, containing a
computation of each of the covenants set forth in Section 8.1 hereof and to the
effect that such officer has not become aware of any Event of Default or
default that has occurred and is continuing or, if there is any such Event of
Default or default, describing it and the steps, if any, being taken to cure
it. 


                    (d)          Monthly Compliance Checklist. On the dates
that the financial statements under clause (a) above are delivered, a duly
completed compliance checklist, in form and substance satisfactory to the Agent,
dated the date of the applicable monthly financial statements, and signed on
behalf of the Borrower by the chief financial officer of the Borrower,
indicating whether or not the Borrower is in compliance with each covenant set
forth in ARTICLE 8 of the Agreement and whether each representation and
warranty contained in ARTICLE 7 of the Agreement is true and correct as though
made on such date (except for representations and warranties that speak as of a
specific date). 


                    (e)          Forecast. On the first Business Day of each
week commencing September 7, 2009, a rolling thirteen (13) week cash flow
forecast for Borrower and its Subsidiaries, in form and detail reasonably
acceptable to Agent. 


                    (f)          Agings. As soon as available but in any
event within fifteen (15) days after the end of each month (including
December), a monthly trial balance showing accounts receivable outstanding aged
from invoice date as follows: 1 to 30 days, 31 to 60 days, 61 to 90 days, 91
days to 120 days and 120 days or more, accompanied by such supporting detail
and documentation as shall be requested by Agent. 


                 Section
8.3          Notices.
The Borrower agrees to deliver the following to the Agent and each Holder: 


                    (a)          Collateral Information. Upon request of
Agent, a certificate of one of its duly authorized officers (i) either
confirming that there has been no change in the information set forth in the
perfection certificate executed and delivered to the Agent on the Closing Date
since such date or the date of the most recent certificate delivered pursuant
to this Section and/or identifying such changes, and (ii) certifying that all
UCC financing statements (including fixtures 


40





filings, as applicable) and other appropriate filings, recordings and
registrations have been filed of record in each governmental, municipal and
other appropriate office in each jurisdiction identified pursuant to clause (i)
above (or in such certificate) to the extent necessary to effect, protect and
perfect the security interests under the Security Documents for a period of not
less than 18 months after the date of such certificate (except as noted therein
with respect to any continuation statements to be filed within such period); 


                    (b)          Auditor Reports. Promptly upon receipt
thereof, copies of any reports submitted by the Borrower’s independent public
accountants in connection with each annual, interim or special audit or review
of any type of the financial statements or internal control systems of the
Borrower or any of its Subsidiaries made by such accountants, including any
comment letters submitted by such accountants to management of the Borrower or
any Subsidiary in connection with their services; 


                    (c)          Notice of Default. Promptly upon any
officer of Borrower obtaining knowledge (i) of any condition or event that
constitutes a default or an Event of Default or that notice has been given to
Borrower with respect thereto; (ii) that any Person has given any notice to
Borrower or taken any other action with respect to any event or condition set
forth in ARTICLE 10; or (iii) of the occurrence of any event or change that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect, a certificate of its chief executive officer or chief financial officer
specifying the nature and period of existence of such condition, event or
change, or specifying the notice given and action taken by any such Person and
the nature of such claimed Event of Default, default, event or condition, and
the action(s) the Borrower has taken, is taking and proposes to take with
respect thereto; 


                    (d)          Notice of Litigation. Promptly upon any
officer of Borrower obtaining knowledge of (i) the institution of, or
non-frivolous threat of, any adverse Proceeding not previously disclosed in
writing by the Borrower to the Agent and the Holders, or (ii) any material
development in any adverse Proceeding that, in the case of either clause (i) or
(ii) if adversely determined, could be reasonably expected to have a Material
Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the transactions
contemplated hereby, written notice thereof together with such other
information as may be reasonably available to the Borrower to enable the Agent
and the Holders and their counsel to evaluate such matters; 


                    (e)          ERISA. (i) Promptly upon becoming aware of
the occurrence of or forthcoming occurrence of any ERISA Event, a written
notice specifying the nature thereof, the action(s) the Borrower, any of its
Subsidiaries or any of their respective ERISA Affiliates has taken, is taking
or proposes to take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, the Department of Labor or the PBGC
with respect thereto; and (ii) with reasonable promptness, copies of (1) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates with the Internal Revenue Service with respect to each Pension Plan;
(2) all notices received by the Borrower, any of its Subsidiaries or any of
their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning
an ERISA Event; and (3) copies of such other documents or governmental reports
or filings relating to any Employee Benefit Plan as any Holder shall reasonably
request; 


41





                    (f)          Insurance Report. Upon request by Agent, a
report by the Borrower’s insurance broker(s) in form and substance reasonably
satisfactory to the Agent outlining all material insurance coverage maintained
as of the date of such report by the Borrower and all material insurance
coverage planned to be maintained by the Borrower in the immediately succeeding
Fiscal Year; 


                    (g)          Environmental Reports and Audits. As soon
as practicable following receipt thereof, copies of all environmental audits
and reports with respect to environmental matters at any facility or property
used by the Borrower or any of its Subsidiaries or which relate to any
environmental liabilities of Borrower or any of its Subsidiaries which, in any
such case, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect; 


                    (h)          Corporate Information. Ten (10) days’ prior
written notice of any change (i) in any Credit Parties’ corporate name, (ii) in
any Credit Parties’ identity or organizational structure, (iii) in any Credit
Parties’ jurisdiction of organization, or (iv) in any Credit Parties’ Federal
Taxpayer Identification Number or state organizational identification number.
The Credit Parties agree not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the UCC or otherwise
and all other actions that are required in order for the Agent to continue at
all times following such change to have a valid, legal and perfected security
interest in all the Collateral as contemplated in the Security Agreement and
other Transaction Documents; 


                    (i)          Tax Returns. Within ten (10) days following
request by the Agent or any Holder, copies of each federal income tax return
filed by or on behalf of Borrower and requested by such Holder; 


                    (j)          Event of Loss. Promptly (and in any event
within three (3) Business Days) notice of (i) any claim with respect to any
liability against the Borrower or any of its Subsidiaries that (A) is in excess
of $250,000 and (B) could reasonably be expected to result in a Material
Adverse Effect or (ii) any event which, with or without the passage of time,
could reasonably be expected to constitute an Event of Loss. 


                    (k)          Other Information. Promptly upon their
becoming available, deliver copies of (i) all financial statements, reports,
notices and proxy statements sent or made available generally by the Borrower
to its security holders acting in such capacity or by any of its Subsidiaries
to its security holders other than the Borrower or another Subsidiary, (ii) all
regular and periodic reports and all registration statements and prospectuses,
if any, filed by the Borrower or any of its Subsidiaries with any securities
exchange or with the SEC or any governmental or private regulatory authority,
(iii) all press releases and other statements made available generally by the
Borrower or any of its Subsidiaries to the public concerning material
developments in the business of the Borrower or any of its Subsidiaries, and
(iv) such other information and data with respect to the Borrower or any of its
Subsidiaries as from time to time may be reasonably requested by any Holder. 


                 Section
8.4          Rank.
All Indebtedness due under the Notes shall be senior in right of payment,
whether with respect to payment of redemptions, interest, damages or upon 


42





liquidation or dissolution or otherwise, to all other current and
future Indebtedness of the Borrower and its Subsidiaries (other than Permitted
Indebtedness that is not Affiliate Indebtedness, which Permitted Indebtedness
may be pari passu with the Notes in right of payment). 


                 Section
8.5          Incurrence of
Indebtedness. Borrower shall not, and Borrower shall not permit
any of its Subsidiaries to, directly or indirectly, create, incur or guarantee,
assume, or suffer to exist any Indebtedness or engage in any sale and
leaseback, synthetic lease or similar transaction, other than (i) the
Obligations and (ii) Permitted Indebtedness. 


                 Section
8.6          Existence of
Liens. Borrower shall not, and Borrower shall not permit any of
its Subsidiaries to, directly or indirectly, allow or suffer to exist any
Liens, other than Permitted Liens. 


                 Section
8.7          Restricted
Payments. Except as set forth on Schedule 8.7, Borrower shall
not, and Borrower shall not permit any of its Subsidiaries to, directly or
indirectly, 


                    (a)          declare
or pay any dividend or make any other payment or distribution on account of
Borrower’s or any of its Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation
involving Borrower or any of its Subsidiaries) or to the direct or indirect
holders of Borrower’s or Subsidiaries’ Equity Interests in their capacity as
such, other than dividends or distributions by a Subsidiary of Borrower to
Borrower or another Subsidiary who is its parent; 


                    (b)          purchase,
redeem or otherwise acquire or retire for value (including, without limitation,
in connection with any merger or consolidation involving Borrower or any
Subsidiary) any Equity Interests of Borrower or any Subsidiary or any direct or
indirect parent of Borrower or any Subsidiary, other than repurchases of Equity
Interests by Borrower pursuant to the terms of employee stock purchase plans,
employee restricted stock agreements or similar arrangements in an aggregate
amount not to exceed $100,000 each Fiscal Year; 


                    (c)          make
any payment (including by setoff) on or with respect to, accelerate the
maturity of, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness of Borrower or any Subsidiary (or set aside or escrow
any funds for any such purpose), except for (i) payments of principal, interest
and other amounts under (A) the Notes and (B) regularly scheduled non
accelerated payments of Permitted Indebtedness and (ii) Permitted Subordinated
Indebtedness Payments on the Mennen Notes (as defined in the applicable
Affiliate Subordination Agreement); 


                    (d)          other
than reasonable costs and expenses incurred in connection with the IPO and the
Winncom Acquisition, incur any costs or payments outside of the ordinary course
of business that (i) individually exceeds $25,000, or (ii) in the aggregate
$100,000 per year; provided that
this subsection does not prohibit the use of proceeds as permitted by Section
8.24. 


                 Section
8.8          Mergers;
Acquisitions; Asset Sales. Borrower shall not, and Borrower
shall not permit any of its Subsidiaries to, directly or indirectly, (a) be a
party to any merger or consolidation, or Acquisition, or (b) consummate any
Asset Sale other than Permitted 


43





Dispositions; provided however, notwithstanding the foregoing, Borrower
may enter into definitive documentation with respect to the Winncom Acquisition
provided that the Winncom Acquisition (and the documentation evidencing the
Winncom Acquisition provides that that the Winncom Acquisition) is consummated
only after (or concurrently with) the payment in full, in cash of all
Obligations hereunder. 


                 Section
8.9          No Further
Negative Pledges. Borrower shall not, and Borrower shall not
permit any of its Subsidiaries to, enter into, assume or become subject to any
agreement prohibiting or otherwise restricting the existence of any Lien upon
any of their properties or assets in favor of Agent or the Holders of Notes as
set forth under the Transaction Documents, whether now owned or hereafter
acquired, or requiring the grant of any security for any obligation if such
property or asset is given as security under the Transaction Documents, except
in connection with any Permitted Liens or any document or instrument governing
any Permitted Liens, provided
that any such restriction contained therein relates only to the property or
asset subject to such Permitted Liens (or proceeds thereof). 


                 Section
8.10          Affiliate
Transactions. Except with respect to any transaction set forth
on Schedule 7.33 or 7.43, Borrower shall not, and Borrower shall not permit any
of its Subsidiaries to, directly or indirectly, enter into or permit to exist
any transaction (including the purchase, sale, lease or exchange of any
property or the rendering of any service) with any Affiliate of Borrower or any
Subsidiary, unless such transaction is on terms that are no less favorable to
Borrower or such Subsidiary, as the case may be, than those that might be
obtained at the time from a Person who is not an Affiliate and are fully
disclosed in writing to Agent prior to consummation thereof. 


                 Section
8.11          Insurance.



                    (a)          The
Credit Parties shall keep the Collateral properly housed and insured against
loss or damage by fire, theft, explosion, sprinklers, collision (in the case of
motor vehicles) and such other risks as are customarily insured against by
Persons engaged in businesses similar to that of the Credit Parties, with such
companies, in such amounts, with such deductibles and under policies in such
form as shall be reasonably satisfactory to the Agent. Certificates of
insurance or, if requested by the Agent, original (or certified) copies of such
policies of insurance have been or shall be, no later than the Closing Date, delivered
to the Agent, and shall contain an endorsement, in form and substance
reasonably acceptable to Agent, showing loss under such insurance policies
payable to the Agent, for the benefit of the Holders. Borrower will use
commercially reasonable efforts to ensure that such endorsement, or an
independent instrument furnished to the Agent, shall provide that the insurance
company shall give the Agent at least thirty (30) days’ written notice before
any such policy of insurance is altered or canceled and that no act, whether
willful or negligent, or default of Borrower or any other Person shall affect
the right of the Agent to recover under such policy of insurance in case of
loss or damage. In addition, Borrower shall cause to be executed and delivered to
the Agent no later than the Closing Date an assignment of proceeds of its
business interruption insurance policies. Each Credit Party hereby directs all
insurers under all policies of insurance to pay all proceeds payable thereunder
directly to the Agent. Each Credit Party irrevocably makes, constitutes and
appoints the Agent (and all officers, employees or agents designated by the
Agent) as such Person’s true and lawful attorney (and agent-in-fact) for the
purpose of making, 


44





settling and adjusting claims under such policies of insurance,
endorsing the name of such Person on any check, draft, instrument or other item
of payment for the proceeds of such policies of insurance and making all
determinations and decisions with respect to such policies of insurance, provided however, that if no Event of
Default shall have occurred and be continuing, such Credit Party may make,
settle and adjust claims involving less than $250,000 in the aggregate without
the Agent’s consent. 


                    (b)          The
Credit Parties shall maintain, at their expense, such public liability and
third-party property damage insurance as is customary for Persons engaged in
businesses similar to that of the Credit Parties with such companies and in
such amounts with such deductibles and under policies in such form as shall be
reasonably satisfactory to the Agent and certificates of insurance or, if
requested by the Agent, original (or certified) copies of such policies have
been or shall be, no later than the Closing Date, delivered to the Agent; each
such policy shall contain an endorsement showing the Agent as additional
insured thereunder and Borrower shall use its commercially reasonable efforts
to ensure that the endorsement provides that the insurance company shall give
the Agent at least thirty (30) days’ written notice before any such policy
shall be altered or canceled. 


                    (c)          If
any Credit Party at any time or times hereafter shall fail to obtain or
maintain any of the policies of insurance required above or to pay any premium
relating thereto, then the Agent, without waiving or releasing any obligation
or default by the Credit Parties hereunder, may (but shall be under no
obligation to) obtain and maintain such policies of insurance and pay such
premiums and take such other actions with respect thereto as the Agent
reasonably deems advisable. Such insurance, if obtained by the Agent, may, but
need not, protect each Credit Parties’ interests or pay any claim made by or
against any Credit Party with respect to the Collateral. Such insurance may be
more expensive than the cost of insurance the Credit Parties may be able to
obtain on their own and may be cancelled only upon the Credit Parties providing
evidence that they have obtained the insurance as required above. All sums
disbursed by the Agent in connection with any such actions, including, without
limitation, court costs, expenses, other charges relating thereto and
reasonable attorneys’ fees, shall constitute part of the obligations due and
owing hereunder, shall be payable on demand by the Credit Parties to the Agent
and, until paid, shall bear interest at the highest rate applicable to Notes
hereunder. 


                 Section
8.12          Corporate
Existence and Maintenance of Properties. Borrower shall, and
shall cause each of its Subsidiaries to, maintain and preserve (a) its
existence and good standing in the jurisdiction of its organization and (b) its
qualification to do business and good standing in each jurisdiction where the
nature of its business makes such qualification necessary (other than such
jurisdictions in which the failure to be so qualified or in good standing could
not reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect). Borrower will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of the Borrower and its Subsidiaries and from
time to time will make or cause to be made all appropriate repairs, renewals
and replacements thereof. 


                 Section
8.13          Non-circumvention.
Each Credit Party hereby covenants and agrees that neither Borrower nor any of its
Subsidiaries will, by amendment of its articles or  


45





certificate of incorporation, bylaws, or other governing documents, or
through any reorganization, transfer of assets, consolidation, merger, scheme
of arrangement, dissolution, issue or sale of securities, or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of this Agreement or the other Transaction Documents, and will at
all times in good faith carry out all of the provisions of this Agreement and
the other Transaction Documents and take all action as may be reasonably
required to protect the rights of the Holders of the Notes. 


                 Section
8.14          Conduct of
Business. The Credit Parties shall not conduct their businesses
in violation of any law, ordinance or regulation of any governmental entity,
except where such violations would not result, either individually or in the
aggregate, in a Material Adverse Effect. The Credit Parties shall not engage in
any line of business other than the businesses engaged in on the Closing Date
and businesses incidental thereto. 


                 Section
8.15          U.S. Real
Property Holding Corporation. None of the Credit Parties shall
become a U.S. real property holding corporation or permit or cause its shares
to be U.S. real property interests, within the meaning of Section 897 of the
Code. 


                 Section
8.16          Compliance
with Laws. The Borrower shall, and shall cause its Subsidiaries
to, (i) comply in all material respects with federal, state and other
applicable securities laws, and (ii) comply in all material respects with the
requirements of all other applicable laws, rules, regulations and orders of any
Governmental Authority (including all Environmental Laws). 


                 Section
8.17          Regulatory
Consent. Borrower and RNK shall use their best efforts to obtain
as soon as reasonably possible but in no event later than one hundred fifty
(150) days after the Closing, the Regulatory Consent, and deliver evidence thereof
to Agent. 


                 Section
8.18          IPO.
Borrower shall use its commercially reasonable best efforts to consummate the
IPO on or prior to January 31, 2010. 


                 Section
8.19          Reserved.


                 Section 8.20          Additional
Collateral. With respect to any Property acquired after the
Issuance Date by any Credit Party as to which the Agent, for the benefit of the
Holders, does not have a perfected Lien, such Credit Party shall promptly (i)
execute and deliver to the Agent, for the benefit of the Holders, or its agent
such amendments to the Security Documents or such other documents as the Agent,
for the benefit of the Holders, deems necessary or advisable to grant to the
Agent, for the benefit of the Holders, a security interest in such Property and
(ii) take all other actions necessary or advisable to grant to the Agent, for
the benefit of the Holders, a perfected first priority security interest in
such Property, including, without limitation, the filing of Mortgages and UCC
financing statements in such jurisdictions as may be required by the Security
Documents or by law or as may be requested by the Agent. 


                 Section
8.21          Audit
Rights; Field Exams; Appraisals; Meetings.


                    (a)          The
Credit Parties shall, upon reasonable prior written notice (except during the
occurrence and continuance of an Event of Default, when such written notice
shall not 


46





be required), subject to reasonable safety and security procedures, and
at the Credit Parties’ sole cost and expense, permit the Agent and each Holder
(or any of their respective designated representatives) up to two (2) times per
year (except during the occurrence and continuance of an Event of Default, when
no such limits shall exist) to visit and inspect any of the properties of the
Borrower and its Subsidiaries, to examine the books of account of the Borrower
and its Subsidiaries (and to make copies thereof and extracts therefrom), and
to discuss the affairs, finances and accounts of the Borrower and its
Subsidiaries, and to be advised as to the same by their respective officers,
and to conduct examinations and verifications (whether by internal commercial
finance examiners or independent auditors), all at such reasonable times and
intervals as the Agent and the Holders may reasonably request. 


                    (b)          The
Credit Parties shall, upon reasonable prior written notice, subject to
reasonable safety and security procedures, and at the Credit Parties’ sole cost
and expense, permit the Agent and each Holder (or any of their respective
designated representatives) to conduct field exams of the Collateral, all at
such reasonable times and intervals as the Agent and the Holders may reasonably
request. 


                    (c)          The
Credit Parties shall, at Agent’s request and upon reasonable prior written
notice, and at the Credit Parties’ sole cost and expense, obtain an appraisal
of the Collateral from an independent appraisal firm satisfactory to Agent. 


                    (d)          The
Credit Parties will, upon the request of the Agent or Required Holders,
participate in a meeting of the Agent and the Holders once (or more frequently
at Agent’s request at any time an Event of Default has occurred and is
continuing during each Fiscal Year to be held at the Borrower’s corporate
offices (or at such other location as may be agreed to by the Borrower and the
Agent) at such time as may be agreed to by the Borrower and the Agent. 


                 Section 8.22          Pledge
of Notes. Each of the Credit Parties acknowledges and agrees
that the Notes may be pledged by a Holder in connection with a bona fide margin
account or other loan or financing arrangement that is secured by the Notes; provided such pledge is made in
compliance with applicable federal and state securities laws. Such pledge of
Notes shall not be deemed to be a transfer, sale or assignment of the Notes
hereunder, and no Holder effecting such pledge of Notes shall be required to
provide any Credit Party with any notice thereof or otherwise make any delivery
to any Credit Party pursuant to this Agreement or any other Transaction
Document, including, without limitation, Section 6.4 hereof, unless required by
applicable law. Each of the Credit Parties hereby agrees to execute and deliver
such documentation as a pledgee of the Notes may reasonably request in
connection with a pledge of the Notes to such pledgee by Holder. 


                 Section
8.23          Additional
Issuances of Securities. None of the Borrower or any Subsidiary
shall, directly or indirectly, offer, sell, grant any option to purchase, or
otherwise dispose of (or announce any offer, sale, grant or any option to
purchase or other disposition of) any of its debt securities or Equity
Interests, including without limitation any debt, preferred stock or other
instrument or security that may be, at any time during its life, and under any
circumstance, convertible into or exchangeable or exercisable for shares of
Equity Interests, convertible securities or debt securities (any such offer,
sale, grant, disposition or announcement 


47






being referred to as a “Subsequent
Placement”) without the prior written consent of the Agent and the
Required Holders; provided, that
notwithstanding the foregoing, the Borrower may issue (A) shares of Common
Stock or Common Stock Equivalents issued or issuable to directors, officers,
employees or consultants of the Borrower in connection with their service as
directors or officers of the Borrower, their employment by the Borrower or
their retention as consultants by the Borrower pursuant to any benefit plans,
programs or agreements approved by the Borrower’s board of directors or any
committee thereof; (B) shares of Common Stock or Common Stock Equivalents issued
(or issuable upon the exercise of rights, options or warrants outstanding from
time to time) to financial institutions, equipment lessors, brokers or similar
persons in connection with commercial credit arrangements, equipment
financings, commercial property lease transactions or similar transactions, (C)
shares of Common Stock or Common Stock Equivalents issued in connection with an
acquisition, combination, strategic alliance or similar transaction, (D) shares
of Common Stock or Common Stock Equivalents issued (or issuable upon exercise
of rights, options or warrants outstanding from time to time) for bona fide
services, (E) shares of Common Stock issued to RNK Holding Company; Wellesley
Leasing, LLC; Doug Denny Brown; Neal Hart; Glenn Pokraka; John Skinner and Fred
Weymss (each, an “RNK Stockholder”)
in accordance with the terms of that certain Stock Issuance and Payment
Agreement dated as of the date hereof by and among the RNK Stockholders and
Borrower, as in effect on the date hereof and (F) shares of Common Stock issued
or issuable upon exercise of rights, options, warrants, notes or other rights
to acquire securities of the Borrower outstanding on the Closing Date,
provided, with respect to each of the issuances described in the foregoing
clauses (A) through (F), no Event of Default has occurred and is continuing or
would result therefrom, and so long as, the mandatory prepayment required to be
made pursuant to Section 2.3(b)(iii) is made concurrently therewith.
Notwithstanding the foregoing, nothing in this Section 8.23 shall prevent the
issuance of Common Stock in connection with the IPO, provided that the IPO is
consummated after (or concurrently with) the payment in full, in cash of all
Obligations hereunder. 


                 Section 8.24          Use
of Proceeds. The Credit Parties will use the proceeds from the
sale of the Notes as set forth on Schedule 8.24 (which shall include the
payment of fees and expenses pursuant to the Fee Letter); provided that, except as expressly set
forth in the Funds Flow Letter, no proceeds from the sale of the Notes shall be
used to pay or repay any Indebtedness, any accrued and unpaid executive officer
salary and/or bonus, or, except as disclosed in writing to Agent prior to the
Closing Date, any accrued and unpaid placement agent’s fees, financial advisory
fees or broker’s commissions. 


                 Section
8.25          Fees.
The Borrower, on behalf of itself and the other Credit Parties, shall pay the
Lenders the fees and expenses set forth in the Fee Letter, and shall reimburse
the Lenders or their designee(s) for reasonable and documented costs and
expenses incurred in connection with the transactions contemplated by the
Transaction Documents (including reasonable legal fees and disbursements in
connection therewith, documentation and implementation of the transactions
contemplated by the Transaction Documents and due diligence in connection
therewith), which amounts, less any amounts paid in advance by Borrower, shall
be withheld by each Lender from the purchase price paid by such Lender on the
Closing Date in accordance with the Fee Letter. In addition, the Borrower
shall, within five (5) Business Days of receiving a request from any Lender or
the Agent therefor, reimburse such Lender for any additional reasonable legal
fees incurred post-closing in connection with  


48





perfecting the Lenders’ security interests and any additional filing or
recording fees in connection therewith. The Borrower shall be responsible for
the payment of, and shall pay, any reasonable agent’s fees, financial advisory
fees, or broker’s commissions relating to or arising out of the transactions
contemplated hereby, and shall hold each Lender harmless against, any
liability, loss or expense (including, without limitation, reasonable attorney’s
fees and out-of-pocket expenses) arising in connection with any claim relating
to any such payment. 


                 Section
8.26          Reserved.



                 Section
8.27          Modification
of Organizational Documents and Certain Documents. The Borrower
shall not, without the prior written consent of the Agent or the Required
Holders, (i) permit the charter, by-laws or other organizational documents of
any Credit Party, or any Material Contract, to be amended or modified in any
material respect (provided that, Borrower may amend its organizational
documents in connection with the IPO, solely to the extent such changes are not
adverse to Agent or the Lenders), or (ii) amend, supplement or otherwise
modify, or waive any rights under, the Affiliate Subordination Agreement. 


                 Section
8.28          Joinder.
The Credit Parties shall notify the Holders prior to the formation or
acquisition of any Subsidiaries. For any Subsidiaries formed or acquired after
the Closing Date, the Credit Parties shall at their own expense, upon formation
or acquisition of such Subsidiary, cause each such Subsidiary to execute an
instrument of joinder (a “Joinder Agreement”)
in form and substance reasonably satisfactory to the Agent obligating such
Subsidiary to any or all of the Transaction Documents deemed necessary or
appropriate by the Holders and cause the applicable Person that owns the Equity
Interests of such Subsidiary to pledge to the Holders 100% of the Equity
Interests owned by it of each such Subsidiary formed or acquired after the
Closing Date and execute and deliver all documents or instruments required
thereunder or appropriate to perfect the security interest created thereby. In
the event a Person becomes a Guarantor (a “New Guarantor”) pursuant to the
Joinder Agreement, upon such execution the New Guarantor shall be bound by all
the terms and conditions hereof and the other Transaction Documents to the same
extent as though such New Guarantor had originally executed the Transaction
Documents. The addition of a New Guarantor shall not in any manner affect the
obligations of the other Credit Parties hereunder or thereunder. Each Credit
Party and Lender and the Agent hereto acknowledges that the schedules and
exhibits hereto or thereto may be amended or modified in connection with the
addition of any New Guarantor to reflect information relating to such New
Guarantor. Compliance with this Section 8.28 shall not excuse any violation of
Section 8.8.  


                 Section
8.29          Investments.
Borrower shall not, and Borrower shall not permit any of its Subsidiaries to,
make or permit to exist any Investment in any other Person, except the
following: 


                    (a)          Cash
Equivalent Investments; 


                    (b)          bank
deposits in the ordinary course of business; 


49





                    (c)          Investments
in securities of account debtors received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
account debtors; 


                    (d)          advances
made in connection with purchases of goods or services in the ordinary course
of business; 


                    (e)          Investments
owned by the Borrower on the Closing Date as set forth on Schedule 8.29; 


                    (f)          deposits
of cash in the ordinary course of business to secure performance of operating
leases; and 


                    (g)          guaranties
that constitute Permitted Indebtedness. 


                 Section 8.30          Further
Assurances. At any time or from time to time upon the request of
the Agent, each Credit Party will, at its expense, promptly execute,
acknowledge and deliver such further documents and do such other acts and
things as the Agent may reasonably request in order to effect fully the
purposes of the Transaction Documents. In furtherance and not in limitation of
the foregoing, each Credit Party shall take such actions as the Agent may
reasonably request from time to time to ensure that the Obligations are
guaranteed by all Subsidiaries of Borrower and secured by substantially all of
the assets of the Credit Parties and their Subsidiaries. 


ARTICLE 9


CROSS GUARANTY


                 Section
9.1          Cross-Guaranty.
Each Guarantor, jointly and severally, hereby absolutely and unconditionally
guarantees to the Holders and their respective successors and assigns the full
and prompt payment (whether at stated maturity, by acceleration or otherwise)
and performance of, all Obligations. Each Guarantor agrees that its guaranty
obligation hereunder is a continuing guaranty of payment and performance and
not of collection, that its obligations under this ARTICLE 9 shall not be
discharged until payment and performance, in full, of the obligations under the
Transaction Documents has occurred and all commitments (if any) to lend
hereunder have been terminated, and that its obligations under this ARTICLE 9
shall be absolute and unconditional, irrespective of, and unaffected by: 


                    (a)          the
genuineness, validity, regularity, enforceability or any future amendment of,
or change in, this Agreement, any other Transaction Document or any other
agreement, document or instrument to which any Credit Party is or may become a
party; 


                    (b)          the
absence of any action to enforce this Agreement (including this ARTICLE 9) or
any other Transaction Document or the waiver or consent by the Holders with
respect to any of the provisions thereof; 


                    (c)          the
Insolvency of any Credit Party or Subsidiary; or 


50





                    (d)          any
other action or circumstances that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor. 


Each Guarantor shall be regarded, and shall be in the same position, as
principal debtor with respect to the obligations guaranteed hereunder. 


                 Section
9.2          Waivers by
Guarantors. Each Guarantor expressly waives all rights it may
have now or in the future under any statute, or at common law, or at law or in
equity, or otherwise, to compel the Holders to marshal assets or to proceed in
respect of the obligations guaranteed hereunder against any other Credit Party
or Subsidiary, any other party or against any security for the payment and
performance of the obligations under the Transaction Documents before
proceeding against, or as a condition to proceeding against, such Guarantor. It
is agreed among each Guarantor that the foregoing waivers are of the essence of
the transaction contemplated by this Agreement and the other Transaction
Documents and that, but for the provisions of this ARTICLE 9 and such waivers,
the Holders would decline to enter into this Agreement. 


                 Section
9.3          Benefit of
Guaranty. Each Guarantor agrees that the provisions of this
ARTICLE 9 are for the benefit of the Holders and their respective successors,
transferees, endorsees and assigns, and nothing herein contained shall impair,
as between any other Credit Party and the Holders, the obligations of such
other Credit Party under the Transaction Documents. 


                 Section
9.4          Waiver of
Subrogation, Etc. Notwithstanding anything to the contrary in
this Agreement or in any other Transaction Document, and except as set forth in
Section 9.7, each Guarantor hereby expressly and irrevocably waives any and all
rights at law or in equity to subrogation, reimbursement, exoneration,
contribution, indemnification or set off and any and all defenses available to
a surety, guarantor or accommodation co-obligor. Each Guarantor acknowledges
and agrees that this waiver is intended to benefit the Holders and shall not
limit or otherwise affect such Guarantor’s liability hereunder or the
enforceability of this ARTICLE 9, and that the Holders and their respective
successors and assigns are intended third party beneficiaries of the waivers
and agreements set forth in this Section 9.4. 


                 Section
9.5          Election of
Remedies. If the Holders may, under applicable law, proceed to
realize their benefits under any of the Transaction Documents, the Agent or any
of the Holders may, at its sole option, determine which of its remedies or
rights it may pursue without affecting any of its rights and remedies under
this ARTICLE 9. If, in the exercise of any of its rights and remedies, any of
the Holders shall forfeit any of its rights or remedies, including its right to
enter a deficiency judgment against any Credit Party or any other Person,
whether because of any applicable laws pertaining to “election of remedies” or
the like, each Credit Party hereby consents to such action by such Holders and
waives any claim based upon such action, even if such action by such Holders
shall result in a full or partial loss of any rights of subrogation that any
Credit Party might otherwise have had but for such action by such Holders. Any
election of remedies that results in the denial or impairment of the right of
the Holders to seek a deficiency judgment against any Credit Party shall not impair
any other Credit Party’s obligation to pay the full amount of the obligations
under the Transaction Documents. 


51






                    Section
9.6          Limitation.
Notwithstanding any provision herein contained to the contrary, each
Guarantor’s liability under this ARTICLE 9 (which liability is in any event in
addition to amounts for which such Borrower is primarily liable under the
Transaction Documents) shall be limited to an amount not to exceed as of any
date of determination the greater of:


                    (a)          the
net amount of all amounts advanced to such Guarantor under this Agreement or
otherwise transferred to, or for the benefit of, such Guarantor (including any
interest and fees and other charges); and


                    (b)          the
amount that could be claimed by the Holders from such Guarantor under this
ARTICLE 9 without rendering such claim voidable or avoidable under Section 548
of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute
or common law after taking into account, among other things, such Guarantor’s
right of contribution and indemnification from each other Credit Party under
Section 9.7.


                    Section
9.7          Contribution
with Respect to Guaranty Obligations.


                    (a)          To
the extent that any Guarantor shall make a payment under this ARTICLE 9 of all
or any of the obligations under the Transaction Documents (other than financial
accommodations made to that Guarantor for which it is primarily liable) (a “Guarantor
Payment”) that, taking into account all other Guarantor Payments
then previously or concurrently made by any other Guarantor, exceeds the amount
that such Guarantor would otherwise have paid if each Guarantor had paid the
aggregate obligations under the Transaction Documents satisfied by such
Guarantor Payment in the same proportion that such Guarantor’s “Allocable
Amount” (as defined below) (as determined immediately prior to such Guarantor
Payment) bore to the aggregate Allocable Amounts of each of the Guarantor as
determined immediately prior to the making of such Guarantor Payment, then,
following indefeasible payment in full in cash of the obligations under the
Transaction Documents and termination of the Transaction Documents (including
all commitments (if any) to lend hereunder), such Guarantor shall be entitled
to receive contribution and indemnification payments from, and be reimbursed
by, each other Guarantor for the amount of such excess, pro rata based upon
their respective Allocable Amounts in effect immediately prior to such
Guarantor Payment.


                    (b)          As
of any date of determination, the “Allocable Amount” of any Guarantor shall be
equal to the maximum amount of the claim that could then be recovered from such
Guarantor under this ARTICLE 9 without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any
applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance
Act or similar statute or common law.


                    (c)          This
Section 9.7 is intended only to define the relative rights of Guarantor and
nothing set forth in this Section 9.7 is intended to or shall impair the
obligations of Credit Parties, jointly and severally, to pay any amounts as and
when the same shall become due and payable in accordance with the terms of this
Agreement, including Section 9.1. Nothing contained in this Section 9.7 shall
limit the liability of any Credit Party to pay the financial


52





accommodations made
directly or indirectly to that Credit Party and accrued interest, fees and
expenses with respect thereto for which such Credit Party shall be primarily
liable.


                    (d)          The
parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Guarantor to which such contribution
and indemnification is owing.


                    (e)          The
rights of the indemnifying Guarantor against other Guarantor under this Section
9.7 shall be exercisable upon the full and indefeasible payment of the
obligations under the Transaction Documents and the termination of the
Transaction Documents.


                    Section
9.8          Liability
Cumulative. The liability of each Guarantor under this ARTICLE 9
is in addition to and shall be cumulative with all liabilities of each other
Credit Party to the Holders under this Agreement and the other Transaction
Documents to which such Credit Party is a party or in respect of any
obligations under the Transaction Documents or obligation of the other Credit
Party, without any limitation as to amount, unless the instrument or agreement
evidencing or creating such other liability specifically provides to the
contrary.


                    Section
9.9          Stay of
Acceleration. If acceleration of the time for payment of any
amount payable by the Credit Parties under this Agreement is stayed upon the
insolvency, bankruptcy or reorganization of any of the Credit Parties, all such
amounts otherwise subject to acceleration under the terms of this Agreement
shall nonetheless be payable jointly and severally by the Credit Parties
hereunder forthwith on demand by the Required Holders.


                    Section
9.10        Benefit to
Borrower. All of the Credit Parties and their Subsidiaries are
engaged in related businesses and integrated to such an extent that the
financial strength and flexibility of each such Person has a direct impact on
the success of each other Person. Each Credit Party and each Subsidiary will
derive substantial direct and indirect benefit from the purchase and sale of
the Notes hereunder.


ARTICLE 10


RIGHTS UPON EVENT OF DEFAULT


                    Section
10.1        Event of
Default. Each of the following events shall constitute an “Event
of Default”:


                    (a)          any
Credit Parties’ failure to pay to the Agent and/or Holders and/or Lenders (i)
any amount of principal or interest (including interest calculated at the
Default Rate) when and as due under this Agreement and the Notes or (ii) any
Late Charges, redemptions or other amounts when and as due (or within five (5)
Business Days thereof) under this Agreement and the Notes (including, without
limitation, Borrower’s failure to pay any redemption payments or amounts
hereunder or under the Notes) or any other Transaction Document, or any other
agreement, document, certificate or other instrument delivered in connection
with the transactions contemplated hereby and thereby;


                    (b)          any
default occurs and is continuing under, or any redemption of or acceleration
prior to maturity of, any Indebtedness of the Borrower or any of its
Subsidiaries in


53





excess of $500,000; provided,
that, in the event that any such default or acceleration of indebtedness is
cured or rescinded by the holders thereof prior to acceleration of the Notes,
no Event of Default shall exist as a result of such cured default or rescinded
acceleration;


                    (c)          (i)
the Borrower or any of its Subsidiaries, pursuant to or within the meaning of
Title 11, U.S. Code, or any similar federal, foreign or state law for the
relief of debtors (collectively, “Bankruptcy Law”), (A) commences a voluntary
case, (B) consents to the entry of an order for relief against it in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, (C) consents to the appointment of or taking of possession by a receiver,
trustee, assignee, liquidator or similar official (a “Custodian”) for all or a
substantial part of its property, (D) makes a general assignment for the
benefit of its creditors, or (E) admits in writing that it is Insolvent or is
otherwise generally unable to pay its debts as they become due; or (ii) the
board of directors (or similar governing body) of the Borrower or any of its
Subsidiaries (or any committee thereof) adopts any resolution or otherwise
authorizes any action to approve any of the actions referred to in this Section
10.1(c) or Section 10.1(d);


                    (d)          a
court of competent jurisdiction (i) enters an order or decree under any
Bankruptcy Law, which order or decree (A) (1) is not stayed or (2) is not
rescinded, vacated, overturned, or otherwise withdrawn within thirty (30) days
after the entry thereof, and (B) is for relief against the Borrower or any of
its Subsidiaries in an involuntary case, (ii) appoints a Custodian over all or
a substantial part of the property of the Borrower or any of its Subsidiaries
and such appointment continues for thirty (30) days, (iii) orders the liquidation
of the Borrower or any of its Subsidiaries, or (iv) issues a warrant of
attachment, execution or similar process against any substantial part of the
property of the Borrower or any of its Subsidiaries;


                    (e)          a
final judgment or judgments for the payment of money in excess of $500,000 or
that otherwise could reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect are rendered against the Borrower or
any of its Subsidiaries and which judgments are not, within fifteen (15) days
after the entry thereof, bonded, discharged or stayed pending appeal, or are
not discharged within fifteen (15) days after the expiration of such stay,
unless (in the case of a monetary judgment) such judgment is covered by
third-party insurance, so long as the applicable Credit Party or Subsidiary
provides the Holders a written statement from such insurer (which written
statement shall be reasonably satisfactory to the Agent and the Required
Holders) to the effect that such judgment is covered by insurance and such
Credit Party or Subsidiary will receive the proceeds of such insurance within a
reasonable period of time but in no event later than forty five (45) days
following the issuance of such judgment;


                    (f)          any
Credit Party or Pledgor breaches any covenant, or other term or condition of
any Transaction Document or any other agreement with the Agent or any Holder,
except (i) in the case of a breach of a covenant or other term or condition of
any Transaction Document (other than Sections 8.1, 8.2, 8.3(c), 8.4 through
8.10, 8.13, 8.23, 8.24, 8.27, 8.28, 8.29 and 10.5 of this Agreement) which is
curable, only if such breach is not cured within fifteen (15) days, and (ii) a
breach addressed by the other provisions of this Section 10.1; 


                    (g)          a
Change of Control occurs;


54





                    (h)          any
representation or warranty made by any Credit Party or Pledgor herein or any
other Transaction Document is breached or is false or misleading, each in any
material respect;


                    (i)           any
default or “Event of Default” or similarly defined term occurs and is
continuing with respect to any of the other Transaction Documents;


                    (j)           the
repudiation by any Credit Party, Pledgor or Affiliated Holder of any of its
obligations under any Security Document or Affiliate Subordination Agreement,
or any Security Document or Affiliated Subordination Agreement or any term
thereof shall cease to be, or is asserted by any Credit Party, Pledgor or
Affiliated Holder not to be, a legal, valid and binding obligation of any
Credit Party enforceable in accordance with its terms;


                    (k)          any
Lien against any material portion of the Collateral intended to be created by
any Security Document shall at any time be invalidated, subordinated or
otherwise cease to be in full force and effect, for whatever reason, or any
security interest purported to be created by any Security Document shall cease
to be, or shall be asserted by any Credit Party or Pledgor not to be, a valid,
first priority perfected Lien (to the extent that any Transaction Document
obligates the parties to provide such a perfected first priority Lien, and
except to the extent Permitted Liens are permitted by the terms of the
Transaction Documents to have priority) in any material portion of the
Collateral (except as expressly otherwise provided under and in accordance with
the terms of such Transaction Document);


                    (l)           any
material provision of any Transaction Document shall at any time for any reason
be declared to be null and void, or the validity or enforceability thereof
shall be contested by any Credit Party, Pledgor or Affiliated Holder, or a
proceeding shall be commenced by any Credit Party, Pledgor or Affiliated
Holder, or by any Governmental Authority having jurisdiction over such Credit
Party, Pledgor or Affiliated Holder, seeking to establish the invalidity or
unenforceability thereof, or any Credit Party or Pledgor shall deny that it has
any liability or obligation purported to be created under any Transaction
Document;


                    (m)         the
material breach by any Credit Party or any of its Subsidiaries of an agreement
or agreements (in each case, other than a Transaction Document) to which it is
a party that involves the payment to or by such Credit Party or Subsidiary,
individually or in the aggregate, of more than $500,000 (whether by set-off or
otherwise) in any six (6) month period; 


                    (n)          the
occurrence of any event which could reasonably be expected to have a Material
Adverse Effect;


                    (o)          any
Credit Party or Subsidiary liquidates, dissolves, terminates or suspends its
business operations or otherwise fails to operate its business in the ordinary
course; 


                    (p)          if
(i) Richard Koch at any time ceases to be employed by RNK in the same position
and with duties substantially similar to those held as of the Closing Date due
to a termination by RNK without Cause (as such term is defined in the
Employment Agreement dated as of October 12, 2007 by and among Richard Koch,
Borrower and RNK, the “RNK Employment Agreement” or any employment agreement
that replaces the RNK Employment Agreement upon the expiration of its term
(such replacement agreement, the “Replacement RNK


55





Employment Agreement”)),
(ii) Richard Koch at any time ceases to be employed by RNK in the same position
and with duties substantially similar to those held as of the Closing Date due
to either (x) a termination by RNK for Cause (as defined in the RNK Employment
Agreement or the Replacement RNK Employment Agreement, as applicable) or a (y)
voluntary termination by Richard Koch and, solely with respect to this clause
(ii), a permanent replacement with experience and qualifications in the
telecommunications industry appropriate for the position (and who is otherwise
reasonably acceptable to Agent) has not been employed by RNK within thirty (30)
calendar days of such termination or (iii) provided that Richard Koch remains
employed by RNK at the time of its expiration, the RNK Employment Agreement
expires in accordance with its terms and the parties thereto have not entered
into the Replacement RNK Employment Agreement; 


                    (q)         (i)
any material decline or depreciation in the value or market price of the
Collateral (whether actual or reasonably anticipated), which causes the
Collateral, in the sole opinion of Agent acting in good faith, to become
unsatisfactory as to value or character, or which causes the Agent to
reasonably believe that the Obligations are inadequately secured and that the
likelihood for repayment of the Obligations is or will soon be impaired, time
being of the essence, or (ii) any other event or circumstance which causes the
Agent to reasonably believe that the Obligations are inadequately secured and
that the likelihood for repayment of the Obligations is or will soon be impaired,
time being of the essence;


                    (r)          (i)
there occurs one or more ERISA Events which individually or in the aggregate
result(s) in or could reasonably be expected to result in liability of the
Credit Parties or any of their Subsidiaries in excess of $500,000 during the
term hereof; or (ii) there exists any fact or circumstance that could
reasonably be expected to result in the imposition of a Lien pursuant to
Section 430(k) of the Code or ERISA or a violation of Section 436 of the Code; 


                    (s)          any
default or event of default (monetary or otherwise) shall occur with respect to
any Material Contract; 


                    (t)          at
anytime prior to the receipt of the Regulatory Consent, Agent ceases to have a
fully perfected first priority lien on at least fifty-one percent (51%) of the
Equity Interests of Borrower on a fully diluted basis; or


                    (u)          Borrower
or any Subsidiary of Borrower enters into any settlement agreement with respect
to any pending legal matter which requires Borrower or such Subsidiary to make
a payment to a third party in excess of $500,000.


                    Section
10.2          Acceleration
Right.


                    (a)          Promptly
after the occurrence of an Event of Default, the Borrower shall deliver written
notice thereof via email, facsimile and overnight courier (an “Event of
Default Notice”) to the Agent and the Holders. At any time after the
earlier of the Agent’s and the Holders’ receipt of an Event of Default Notice
and the Agent and the Holders becoming aware of an Event of Default which has
not been cured or waived, the Required Holders may require the Borrower to
redeem all or any portion of the Notes (an “Event of Default Redemption”)
by delivering written notice thereof (the “Event of Default Redemption Notice”) to the
Borrower,


56





which Event of Default
Redemption Notice shall indicate the portion of the Notes that the Required
Holders are requiring the Borrower to redeem; provided, that upon the
occurrence of any Event of Default described in Section 10.1(c) or Section
10.1(d), the Notes, in whole, shall automatically, and without any action on
behalf of the Agent or any Holder, be redeemed by the Borrower. All Notes
subject to redemption by the Borrower pursuant to this Section 10.2 shall be
redeemed by the Borrower at a price equal to the outstanding principal amount
of the Notes, plus accrued and unpaid interest and accrued and unpaid Late
Charges, Yield Maintenance Premium and all other amounts due under the
Transaction Documents (the “Event of Default Redemption Price”). 


                    (b)          In
the case of an Event of Default Redemption, the Borrower shall deliver the
applicable Event of Default Redemption Price to the Agent within three (3)
Business Days after the Borrower’s receipt of the Event of Default Redemption
Notice. In the case of an Event of Default Redemption of less than all of the
principal of the Notes, the Borrower shall promptly cause to be issued and
delivered to the Holders new Notes (in accordance with Section 2.7)
representing the outstanding principal which has not been redeemed.


                    Section
10.3          Consultation
Rights. Without in any way limiting any remedy that the Holders
may have, at law or in equity, under any Transaction Document (including under
the foregoing provisions of this ARTICLE 10) or otherwise, upon the occurrence
and during the continuance of any Event of Default, upon the request of the
Agent or the Required Holders, the Credit Parties shall hire or otherwise
retain a consultant, advisor or similar Person acceptable to the Agent to
advise the Credit Parties with respect to their business and operations.


                    Section
10.4          Other Remedies.
The remedies provided herein and in the Notes shall be cumulative and in
addition to all other remedies available under any of the other Transaction
Documents, at law or in equity (including a decree of specific performance
and/or other injunctive relief), and nothing herein shall limit the Agent’s or
any Holder’s right to pursue actual and consequential damages for any failure
by the Credit Parties to comply with the terms of this Agreement, the Notes and
the other Transaction Documents. Amounts set forth or provided for herein and
in the Notes with respect to payments and the like (and the computation
thereof) shall be the amounts to be received by the Holders and shall not,
except as expressly provided herein, be subject to any other obligation of the
Credit Parties (or the performance thereof). Each of the Credit Parties
acknowledges that a breach by it of its obligations hereunder and under the
Notes and the other Transaction Documents will cause irreparable harm to the
Holders and that the remedy at law for any such breach may be inadequate. The
Credit Parties therefore agree that, in the event of any such breach or
threatened breach, the Holders shall be entitled, in addition to all other
available remedies, to an injunction restraining any breach, without the
necessity of showing economic loss and without any bond or other security being
required.


ARTICLE 11


TERMINATION


          In
the event that the Closing shall not have occurred with respect to a Lender on
or before five (5) Business Days from the date hereof due to the Borrower’s or
such Lender’s


57





failure to satisfy the
conditions set forth in Sections 4.1 and 5.1 (and the non-breaching party’s
failure to waive such unsatisfied condition(s)), the non-breaching party shall
have the option to terminate this Agreement with respect to such breaching
party at the close of business on such date without liability of any party to
any other party; provided, however, if this Agreement is terminated
pursuant to this ARTICLE 11, the Credit Parties shall remain obligated to
reimburse the Lenders for the expenses described in Section 8.25 above.


ARTICLE 12


AGENCY PROVISIONS


                    Section
12.1          Appointment.
Each of the Holders hereby irrevocably designates and appoints Agent as the administrative
agent and collateral agent of such Holder (or the Holders represented by it)
under this Agreement and the other Transaction Documents for the term hereof
(and Agent hereby accepts such appointment), and each such Holder irrevocably
authorizes Agent to take such action on its behalf under the provisions of this
Agreement and the other Transaction Documents and to exercise such powers and
perform such duties as are expressly delegated to the Agent by the terms of
this Agreement and the other Transaction Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement or the other Transaction Documents,
the Agent shall not have any duties or responsibilities, except those expressly
set forth herein and therein, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or the other Transaction Documents or otherwise exist against the
Agent. Any reference to the Agent in this Agreement or the other Transaction
Documents shall be deemed to refer to the Agent solely in its capacity as Agent
and not in its capacity, if any, as a Holder. Each Lender hereby consents and
agrees to the execution by Agent on behalf of such Lender of the Affiliate
Subordination Agreement and further agrees to be bound by the terms and
provisions thereof


                    Section
12.2          Delegation
of Duties. The Agent may execute any of its respective duties
under this Agreement or the other Transaction Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by the
Agent with reasonable care.


                    Section
12.3          Exculpatory
Provisions. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact, Subsidiaries or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement (except for actions
occasioned by its or such Person’s own gross negligence or willful misconduct),
or (ii) responsible in any manner to any of the Holders for any recitals,
statements, representations or warranties made by the Borrower or any of its
Subsidiaries or any officer thereof contained in this Agreement, the other
Transaction Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or the other Transaction Documents or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Transaction Document or for any failure of the
Borrower or any of its Subsidiaries to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to


58





any Holder to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or of any other Transaction
Document, or to inspect the properties, books or records of the Borrower or any
of its Subsidiaries.


                    Section
12.4          Reliance by
Agent. The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless the
Agent shall have actual notice of any transferee. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement and
the other Transaction Documents unless it shall first receive such advice or
concurrence of the Required Holders (or, when expressly required hereby, all
the Holders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Holders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action
except for its own gross negligence or willful misconduct. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Transaction Documents in accordance with a request
of the Required Holders (or, when expressly required hereby, all the Holders),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Holders and all future Holders.


                    Section
12.5          Notices of
Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default hereunder or under any other
Transaction Document unless it has received notice of such Event of Default in
accordance with the terms hereof or thereof or notice from a Holder or the
Borrower referring to this Agreement or the other Transaction Documents
describing such Event of Default and stating that such notice is a “notice of
default.” In the event that the Agent receives such a notice, it shall promptly
give notice thereof to the Holders. The Agent shall take such action with
respect to such Event of Default as shall be reasonably directed by the
Required Holders; provided that unless and until the Agent shall have received
such directions, the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Event of Default as it
shall deem advisable in the best interests of the Holders, except to the extent
that other provisions of this Agreement or the other Transaction Documents
expressly require that any such action be taken or not be taken only with the
consent and authorization or upon the request of the Holders or Required
Holders, as applicable.


                    Section
12.6          Non-Reliance
on the Agent and Other Holders. Each of the Holders expressly
acknowledges that neither the Agent nor any of its respective officers,
directors, employees, agents, attorneys-in-fact, Subsidiaries or Affiliates has
made any representations or warranties to it and that no act by the Agent
hereinafter taken, including any review of the affairs of the Borrower or any
of its Subsidiaries, shall be deemed to constitute any representation or
warranty by the Agent to any Holder. Each of the Holders represents that it has
made and will continue to make, independently and without reliance upon the
Agent or any other Holder, and based on such documents and information as it
shall deem appropriate at the time, its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement


59





and the other Transaction
Documents, and such investigation as it deems necessary to inform itself as to
the business, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries. Except for notices, reports
and other documents expressly required to be furnished to the Holders by the
Agent hereunder or under the other Transaction Documents, the Agent shall not
have any duty or responsibility to provide any Holder with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of the Borrower or any of its Subsidiaries which
may come into the possession of the Agent or any of its respective officers,
directors, employees, agents, attorneys-in-fact, Subsidiaries or Affiliates.


                    Section
12.7          Indemnification.
Each of the Holders hereby agrees to indemnify the Agent in its capacity as
such (to the extent not reimbursed by the Credit Parties and without limiting
the obligation of the Credit Parties to do so), ratably according to the
respective amounts of their Notes, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes)
be imposed on, incurred by or asserted against the Agent in any way relating to
or arising out of this Agreement, the other Transaction Documents, or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing; provided that no Holder shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent they result from the Agent’s gross negligence or
willful misconduct. The agreements in this Section 12.7 shall survive the
payment of the Notes and all other amounts payable hereunder and the
termination of this Agreement and the other Transaction Documents.


                    Section
12.8          The Agent in
Its Individual Capacity. The Agent and its Subsidiaries and
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower or any of its Subsidiaries as though the
Agent were not an Agent hereunder. With respect to any Note issued to it, the
Agent shall have the same rights and powers under this Agreement and the other
Transaction Documents as any Holder and may exercise the same as though it were
not an Agent, and the term “Holders” shall include the Agent in its individual
capacity.


                    Section
12.9          Resignation
of the Agent; Successor Agent. The Agent may resign as Agent at
any time by giving thirty (30) days advance written notice thereof to the
Holders and the Borrower and, thereafter, the retiring Agent shall be
discharged from its duties and obligations hereunder; provided however, no such
notice shall be required and Agent may resign immediately in the event that any
party to any Affiliate Subordination Agreement exercises its purchase option
set forth therein. Upon any such resignation, the Required Holders shall have
the right to appoint a successor Agent. If no successor Agent shall have been
so appointed by the Required Holders, then the Agent may, on behalf of the
Holders, appoint a successor Agent reasonably acceptable to the Borrower (so
long as no Event of Default has occurred and is continuing). Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Agent. After any retiring Agent’s
resignation hereunder as Agent, the provisions of this Section 12.9 shall
continue in effect for its benefit in


60





respect of any actions
taken or omitted to be taken by it while it was acting as Agent. If no
successor has accepted appointment as Agent by the date which is thirty (30)
days following a retiring Agent’s notice of resignation, the retiring Agent’s
resignation shall nevertheless thereupon become effective and the Required
Holders shall perform all of the duties of the Agent hereunder until such time,
if any, as the Required Holders appoint a successor agent as provided for
above.


                    Section
12.10        Reimbursement
by Holders. To the extent that the Borrower for any reason fails
to indefeasibly pay any amount required under Section 13.1 or Section 13.12 to
be paid by it to the Agent (or any sub-agent thereof), or any Related Party of
any of the foregoing, each Holder severally agrees to pay to the Agent (or any
such sub-agent) or such Related Party, as the case may be, such Holder’s
applicable percentage thereof (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the
Agent (or any such sub-agent) in its capacity as such, or against any Related
Party of any of the foregoing acting for the Agent (or any such sub-agent) in
connection with such capacity. For the purposes of this Section 12.10, the
“applicable percentage” of a Holder shall be the percentage of the total
aggregate principal amount of the Notes represented by the Notes held by such
Holder at such time.


ARTICLE 13


MISCELLANEOUS


                    Section
13.1          Payment of
Expenses. The Borrower shall reimburse Agent and the Holders on
demand for all reasonable costs and expenses, including, without limitation,
legal expenses and reasonable attorneys’ fees (whether for internal or outside
counsel), incurred by Agent and the Holders in connection with the (i)
documentation and consummation of the transactions contemplated hereunder and
any other transactions between the Borrower and Agent and the Holders,
including, without limitation, UCC and other public record searches and
filings, overnight courier or other express or messenger delivery, appraisal
costs, surveys, title insurance and environmental audit or review (including
due diligence review) costs; (ii) collection, protection or enforcement of any
rights in or to the Collateral; (iii) collection of any Obligations; (iv)
administration and enforcement of Agent’s and any Holder’s rights under this Agreement
or any other Transaction Document (including, without limitation, any costs and
expenses of any third party provider engaged by Agent or the Holders for such
purposes); (v) costs associated with any refinancing or restructuring of the
Notes whether in the
nature of a “work-out,” in any insolvency or bankruptcy proceeding or
otherwise, and whether or not consummated; (vi) all reasonable out-of-pocket
costs and expenses of the Agent and the Holders and their assignees (including,
without limitation, attorneys’ fees) in connection with the assignment,
transfers or syndication of the Notes; and (vii) from and against all liability
for any intangibles, documentary, stamp or other similar taxes, fees and
excises, if any, including any interest and penalties, and any finder’s or
brokerage fees, commissions and expenses (other than any fees, commissions or
expenses of finders or brokers engaged by the Holders), that may be payable in
connection with the Notes contemplated by this Agreement and the other Transaction
Documents. The Borrower shall also pay all normal service charges with
respect to all accounts maintained by the Borrower


61





with the Holders and any
additional services requested by Borrower from the Holders. All such costs,
expenses and charges shall constitute Obligations hereunder, shall be payable
by the Borrower to the Holders on demand, and, until paid, shall bear interest
at the highest rate then applicable to Notes hereunder. Without limiting the
foregoing, if (a) any Note is placed in the hands of an attorney for collection
or enforcement or is collected or enforced through any legal proceeding or any
Holder otherwise takes action to collect amounts due under such Note or to
enforce the provisions of such Note or (b) there occurs any bankruptcy,
reorganization, receivership of any Credit Party or other proceedings affecting
creditors’ rights and involving a claim under such Note, then the Borrower
shall pay the costs incurred by such Holder for such collection, enforcement or
action or in connection with such bankruptcy, reorganization, receivership or
other proceeding, including, but not limited to, reasonable attorneys’ fees and
disbursements (including such fees and disbursements related to seeking relief
from any stay, automatic or otherwise, in effect under any Bankruptcy Law).


                    Section
13.2          Governing
Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by the internal laws of the State of Illinois, without giving
effect to any choice of law or conflict of law provision or rule (whether of
the State of Illinois or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State of Illinois.
Each party hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in Chicago, Illinois, for the adjudication of
any dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the address for
such notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF
ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR
ANY TRANSACTIONS CONTEMPLATED HEREBY.


                    Section
13.3          Counterparts.
This Agreement may be executed in two or more identical counterparts, all of
which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to each other
party; provided
that a facsimile signature shall be considered due execution and shall be
binding upon the signatory thereto with the same force and effect as if the
signature were an original, not a facsimile signature.


                    Section
13.4          Headings.
The headings of this Agreement are for convenience of reference and shall not
form part of, or affect the interpretation of, this Agreement.


                    Section 13.5          Severability.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the


62





validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.


                    Section
13.6          Entire
Agreement; Amendments. This Agreement and the other Transaction
Documents supersede all other prior oral or written agreements between the
Lenders, the Borrower, their Affiliates and Persons acting on their behalf with
respect to the matters discussed herein and therein, and this Agreement, the
other Transaction Documents and the instruments referenced herein and therein
contain the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or
therein, none of the Credit Parties or any Lender makes any representation,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement, the Notes or any of the other Transaction Documents may be
amended or waived other than by an instrument in writing signed by the
Borrower, the Agent and the Required Holders (or by the Agent with the consent
of the Required Holders) (provided, that no amendment or waiver
hereof shall increase any Lender’s obligations hereunder or materially
adversely affect the rights of such Lender hereunder, in either case, without
such Lender’s written consent; and provided, further, no amendment or waiver
shall extend the due date of any payment hereunder or under the Notes, decrease
the amount of interest or other compensation payable hereunder or under the
Notes, or modify Section 8.1 without the consent of the Holders of all Notes),
and any amendment or waiver to this Agreement made in conformity with the
provisions of this Section 13.6 shall be binding on all Lenders and holders of
Securities, as applicable. No such amendment or waiver shall be effective to
the extent that it applies to less than all of the holders of the applicable
Securities then outstanding. No consideration shall be offered or paid to any
Person to amend or consent to a waiver or modification of any provision of any
of the Transaction Documents unless the same consideration also is offered to
all of the parties to the Transaction Documents or Holders of Notes, as the
case may be. None of the Credit Parties has, directly or indirectly, made any
agreements with any Lenders relating to the terms or conditions of the
transactions contemplated by the Transaction Documents except as set forth in
the Transaction Documents. Without limiting the foregoing, each of the Credit
Parties confirms that, except as set forth in this Agreement, no Lender has
made any commitment or promise or has any other obligation to provide any
financing to the Credit Parties or otherwise.


                    Section
13.7          Notices.
Any notices, consents, waivers or other communications required or permitted to
be given under the terms of this Agreement must be in writing and will be
deemed to have been delivered: (i) upon receipt, when delivered personally;
(ii) upon receipt, when sent by facsimile (provided, confirmation of transmission is
mechanically or electronically generated and kept on file by the sending
party); or (iii) one Business Day after deposit with an overnight courier
service, in each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:


63









	
  

 
	
  

 
	
           If
 to the Borrower:

 
	
  

 
	
                     Wave2Wave
 Communications, Inc.

 
	
                     433
 Hackensack Avenue, 5th Floor

 
	
                     Hackensack,
 New Jersey 07601

 
	
                     Telephone:
     (201) 968-9797

 
	
                     Facsimile:
      (201) 968-1886

 
	
                     Attention:
       Eric Mann, Chief Financial Officer

 
	
  

 
	
           With
 a copy (for informational purposes only) to:

 
	
  

 
	
                     RNK,
 Inc.

 
	
                     333
 Elm Street

 
	
                     Dedham,
 Massachusetts 02026

 
	
                     Telephone:
 781-613-6100

 
	
                     Facsimile:
 781-297-9836

 
	
                     Attention:
 John Skinner

 
	
  

 
	
           With
 a copy (for informational purposes only) to:

 
	
  

 
	
                     Mintz
 Levin Cohn Ferris Glovsky and Popeo PC

 
	
                     666
 Third Avenue

 
	
                     New
 York, New York 10017

 
	
                     Telephone:
     (212) 692-6784

 
	
                     Facsimile:
      (212) 983-3115

 
	
                     Attention:       Ivan
 Blumenthal

 
	
  

 
	
           If
 to the Agent:

 
	
  

 
	
                     Victory
 Park Management, LLC

 
	
                     227
 W. Monroe Street, Suite 3900

 
	
                     Chicago,
 Illinois 60606

 
	
                     Telephone:     (312)
 701-0792

 
	
                     Facsimile:      (312)
 701-0794

 
	
                     Attention:       Earle
 Goldin

 
	
  

 
	
 If to a Lender, to its
 address and facsimile number set forth on the Schedule of Lenders,
 with copies to such Lender’s representatives as set forth on the Schedule
 of Lenders, 

 
	
  

 
	
           with
 a copy (for informational purposes only) to:

 
	
  

 
	
                     Katten
 Muchin Rosenman LLP

 
	
                     525
 West Monroe Street

 
	
                     Chicago,
 Illinois 60661

 
	
                     Telephone:     (312)
 902-5694

 
	
                     Facsimile:      (312)
 577-8680

 
	
                     Attention:
       Stuart P. Shulruff

 


64





or to such other address and/or facsimile number and/or to the
attention of such other Person as the recipient party has specified by written
notice given to each other party five days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine containing the time, date,
recipient facsimile number and an image of the first page of such transmission
or (C) provided by an overnight courier service shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from an overnight courier
service in accordance with clauses (i), (ii) or (iii) above, respectively. 


                    Section
13.8        Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties
and their respective permitted successors and assigns, including any purchasers
of the Notes or the Shares. None of the Credit Parties shall assign this
Agreement or any rights or obligations hereunder without the prior written
consent of each of the Holders of the Notes, including by way of a Change of
Control. A Lender may assign some or all of its rights and obligations
hereunder in connection with transfer of any of its Notes without the consent
of the Credit Parties, in which event such assignee shall be deemed to be the
Lender hereunder with respect to such assigned rights and obligations, and the
Credit Parties shall use their best efforts to ensure that such transferee is
registered as a Holder and that any Liens on the Collateral shall be for the
benefit of such Holder (as well as the other Holders of Notes). 


                    Section
13.9        No Third Party
Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other Person. 


                    Section
13.10      Survival.
Unless this Agreement is terminated under ARTICLE 11, the representations,
warranties, agreements and covenants of the Credit Parties and the Lenders
contained in the Transaction Documents shall survive the Closing. Each Lender
shall be responsible only for its own representations, warranties, agreements
and covenants hereunder. 


                    Section
13.11      Further Assurances.
Each Credit Party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as any other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.



                    Section
13.12      Indemnification. In
consideration of each Lender’s execution and delivery of the Transaction
Documents and acquiring the Notes thereunder and in addition to all of the
Credit Parties’ other obligations under the Transaction Documents, the Credit
Parties shall jointly and severally defend, protect, indemnify and hold
harmless each Lender and each other Holder of any Notes and all of their
stockholders, partners, members, officers, directors, employees and direct or
indirect investors and any of the foregoing Persons’ agents or other
representatives (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all
actions, causes of action, suits, claims, losses, costs, penalties, fees,
liabilities and damages, and expenses in connection therewith (irrespective of
whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys’ fees and
disbursements (the “Indemnified Liabilities”),
incurred by any Indemnitee as a result of, or  


65





arising out of, or relating to (a) any misrepresentation or breach of
any representation or warranty made by any Credit Party in this Agreement or
any other Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby, (b) any breach of any covenant,
agreement or obligation of any Credit Party contained in this Agreement or any
other Transaction Documents or any other certificate, instrument or document contemplated
hereby or thereby, (c) the present or former status of any Credit Party as a
U.S. real property holding corporation for federal income tax purposes within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, if
applicable, or (d) any cause of action, suit or claim brought or made against
such Indemnitee by a third party (including for these purposes a derivative
action brought on behalf of any Credit Party) and arising out of or resulting
from (i) the execution, delivery, performance or enforcement of this Agreement
or any other Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby, (ii) any transaction financed or to be
financed in whole or in part, directly or indirectly, with the proceeds of the
issuance of the Notes, or (iii) the status of such Lender or Holder of the
Notes as a lender to the Borrower pursuant to the transactions contemplated by
the Transaction Documents. To the extent that the foregoing undertakings by the
Credit Parties may be unenforceable for any reason, the Credit Parties shall
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. No Credit
Party shall assert, and each waives, any claim against the Indemnitees on any
theory of liability for special, indirect, consequential or punitive damages
arising out of, in connection with or as a result of, this Agreement of any of
the other Transaction Documents or the transactions contemplated hereby or
thereby. The agreements in this Section 13.12 shall survive the payment of the
Notes and all other amounts payable hereunder and the termination of this
Agreement and the other Transaction Documents. 


                    Section
13.13     No Strict Construction.
The language used in this Agreement will be deemed to be the language chosen by
the parties to express their mutual intent, and no rules of strict construction
will be applied against any party. 


                    Section
13.14     Waiver. No
failure or delay on the part of any Holder in the exercise of any power, right
or privilege hereunder or any of the other Transaction Documents shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege. 


                    Section
13.15     Payment Set Aside.
To the extent that any of the Credit Parties makes a payment or payments to the
Lenders hereunder or pursuant to any of the other Transaction Documents or the
Lenders enforce or exercise their rights hereunder or thereunder, and such
payment or payments or the proceeds of such enforcement or exercise or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by or are required to be
refunded, repaid or otherwise restored to any of the Credit Parties, a trustee,
receiver or any other Person under any law (including, without limitation, any
bankruptcy law, foreign, state or federal law, common law or equitable cause of
action), then to the extent of any such restoration the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement
or setoff had not occurred.  


66





                    Section
13.16     Independent Nature of Lenders’
Obligations and Rights. The obligations of each
Lender under any Transaction Document are several and not joint with the
obligations of any other Lender, and no Lender shall be responsible in any way
for the performance of the obligations of any other Lender under any
Transaction Document. Nothing contained herein or in any other Transaction
Document, and no action taken by any Lender pursuant hereto or thereto, shall
be deemed to constitute the Lenders as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Lenders
are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by the Transaction Documents and each of the
Credit Parties acknowledges that the Lenders are not acting in concert or as a
group with respect to such obligations or the transactions contemplated by the
Transaction Documents. Each Lender confirms that it has independently
participated in the negotiation of the transactions contemplated hereby with
the advice of its own counsel and advisors. Each Lender shall be entitled to
independently protect and enforce its rights, including, without limitation,
the rights arising out of this Agreement or out of any other Transaction
Documents, and it shall not be necessary for any other Lender to be joined as
an additional party in any proceeding for such purpose. 


[Signature Pages Follow]


67






          IN WITNESS
WHEREOF, each party has caused its signature page to this Financing Agreement
to be duly executed as of the date first written above.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 BORROWER:

 
	
  

 	
  

 
	
  

 	
 WAVE2WAVE COMMUNICATIONS, INC., a Delaware corporation

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Eric
 Mann

 
	
  

 	
 Name: 

 	
 Eric Mann

 
	
  

 	
 Title:

 	
 Chief
 Financial Officer

 
	
  

 	
  

 	
  

 
	
  

 	
 GUARANTORS:

 
	
  

 	
  

 
	
  

 	
 RNK, INC., a
 Massachusetts corporation

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Eric
 Mann

 
	
  

 	
 Name:

 	
 Eric Mann

 
	
  

 	
 Title:

 	
 Chief
 Financial Officer

 
	
  

 	
  

 	
  

 
	
  

 	
 WAVE2WAVE VOIP COMMUNICATIONS, LLC, a
 Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Eric
 Mann

 
	
  

 	
 Name:

 	
 Eric Mann

 
	
  

 	
 Title:

 	
 Chief
 Financial Officer

 
	
  

 	
  

 	
  

 
	
  

 	
 WAVE2WAVE DATA COMMUNICATIONS, LLC,
 a Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Eric
 Mann

 
	
  

 	
 Name:

 	
 Eric Mann

 
	
  

 	
 Title:

 	
 Chief
 Financial Officer

 
	
  

 	
  

 	
  

 
	
  

 	
 WAVE2WAVE COMMUNICATIONS MID-WEST REGION,
 LLC, a Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Eric
 Mann

 
	
  

 	
 Name:

 	
 Eric Mann

 
	
  

 	
 Title:

 	
 Chief
 Financial Officer

 


Signature Page to Financing Agreement









	
  

 	
  

 	
  

 
	
  

 	
 RNK VA, LLC, a
 Virginia limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Eric
 Mann

 
	
  

 	
 Name:

 	
 Eric Mann

 
	
  

 	
 Title:

 	
 Chief
 Financial Officer

 
	
  

 	
  

 	
  

 
	
  

 	
 AGENT:

 
	
  

 	
  

 	
  

 
	
  

 	
 VICTORY PARK MANAGEMENT, LLC

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 /s/ Matthew
 Ray

 	
  

 
	
  

 	
 Name: 

 	
 Matthew Ray

 
	
  

 	
 Its: 

 	
 Manager

 
	
  

 	
  

 	
  

 
	
  

 	
 LENDERS: 

 
	
  

 	
  

 	
  

 
	
  

 	
 VICTORY PARK CREDIT OPPORTUNITIES, L.P.

 
	
  

 	
  

 	
  

 
	
  

 	
 By: Victory Park
 Capital Advisors, LLC

 
	
  

 	
 Its:
 Investment Manager

 






	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Scott R. Zemnick

 
	
  

 	
 Name: Scott
 R. Zemnick

 
	
  

 	
 Its: General
 Counsel

 
	
  

 	
  

 	
  

 
	
  

 	
 VICTORY PARK SPECIAL SITUATIONS, L.P.

 
	
  

 	
  

 	
  

 
	
  

 	
 By: Victory
 Park Capital Advisors, LLC

 
	
  

 	
 Its:
 Investment Manager

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Scott R. Zemnick

 
	
  

 	
 Name: Scott
 R. Zemnick

 
	
  

 	
 Its: General
 Counsel

 


Signature Page to Financing Agreement