Exhibit 10.1


 


EXECUTION COPY


 




 





 


AMENDED AND RESTATED
CREDIT AGREEMENT


 


DATED AS OF August 31,
2007,


 


among


 


ATLANTIC TELE-NETWORK,
INC.,


 


as Borrower,


 


COBANK, ACB,


 


as Administrative Agent,
Arranger, an Issuing Lender and a Lender,


 


BANCO POPULAR DE PUERTO
RICO


 


as  an
Issuing Lender and  a
Lender,


 


 


and


 


the other Lenders
referred to herein


 




 





 

















 


TABLE OF CONTENTS


 


	
  SECTION 1 AMOUNTS AND TERMS OF FACILITIES

  	
  1

  
	
  1.1

  	
  Facilities

  	
  1

  
	
   

  	
  (A)

  	
  Revolver
  Facility

  	
  2

  
	
   

  	
  (B)

  	
  Term Loan
  Facility

  	
  2

  
	
   

  	
  (C)

  	
  Notes

  	
  2

  
	
   

  	
  (D)

  	
  Advances

  	
  2

  
	
   

  	
  (E)

  	
  Letters of
  Credit

  	
  2

  
	
  1.2

  	
  Interest

  	
  6

  
	
   

  	
  (A)

  	
  Interest Options

  	
  6

  
	
   

  	
  (B)

  	
  Applicable
  Margins

  	
  7

  
	
   

  	
  (C)

  	
  Interest Periods

  	
  7

  
	
   

  	
  (D)

  	
  Calculation and
  Payment

  	
  8

  
	
   

  	
  (E)

  	
  Default Rate of
  Interest

  	
  8

  
	
   

  	
  (F)

  	
  Excess Interest

  	
  8

  
	
   

  	
  (G)

  	
  Selection,
  Conversion or Continuation of Loans; LIBOR and Quoted Rate Availability

  	
  9

  
	
  1.3

  	
  Notice of
  Borrowing, Conversion or Continuation of Loans

  	
  9

  
	
  1.4

  	
  Fees and
  Expenses

  	
  10

  
	
   

  	
  (A)

  	
  Unused
  Commitment Fees

  	
  10

  
	
   

  	
  (B)

  	
  Certain Other
  Fees

  	
  10

  
	
   

  	
  (C)

  	
  Breakage Fee

  	
  10

  
	
   

  	
  (D)

  	
  Expenses and
  Attorneys’ Fees

  	
  10

  
	
   

  	
  (E)

  	
  Letter of Credit
  Fees

  	
  11

  
	
  1.5

  	
  Payments

  	
  11

  
	
  1.6

  	
  Repayments of
  Loans and Reduction of the Revolver Loan Commitment

  	
  12

  
	
   

  	
  (A)

  	
  Scheduled
  Termination of Revolver Loan Commitment and Repayments of the Term Loan

  	
  12

  
	
   

  	
  (B)

  	
  Reductions
  Resulting From Mandatory Repayments

  	
  12

  
	
   

  	
  (C)

  	
  Voluntary
  Reduction of the Revolver Loan Commitment

  	
  13

  
	
   

  	
  (D)

  	
  Mandatory
  Repayments

  	
  13

  
	
  1.7

  	
  Voluntary
  Prepayments and Other Mandatory Repayments

  	
  13

  
	
   

  	
  (A)

  	
  Voluntary
  Prepayment of Loans

  	
  13

  
	
   

  	
  (B)

  	
  Repayments from
  Insurance Proceeds

  	
  13

  
	
   

  	
  (C)

  	
  Repayments from
  Certain Asset Dispositions

  	
  14

  
	
   

  	
  (D)

  	
  Repayments from
  Debt Issuances

  	
  14

  
	
  1.8

  	
  Application of
  Prepayments and Repayments; Payment of Breakage Fees, Etc.

  	
  14

  
	
  1.9

  	
  Loan Accounts

  	
  15

  
	
  1.10

  	
  Changes in LIBOR
  Rate Availability

  	
  15

  
	
  1.11

  	
  Capital Adequacy
  and Other Adjustments

  	
  16

  
	
  1.12

  	
  Optional
  Prepayment/Replacement of Lender in Respect of Increased Costs

  	
  16

  
	
  1.13

  	
  Taxes

  	
  17

  
	
   

  	
  (A)

  	
  No Deductions

  	
  17

  



 

















 


	
   

  	
  (B)

  	
  Foreign Lenders

  	
  17

  
	
  1.14

  	
  Changes in Tax
  Laws

  	
  18

  
	
  1.15

  	
  Term of This
  Agreement

  	
  19

  
	
  1.16

  	
  Letter of Credit
  Liability

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 2 AFFIRMATIVE COVENANTS

  	
  19

  
	
  2.1

  	
  Compliance With
  Laws

  	
  19

  
	
  2.2

  	
  Maintenance of
  Books and Records; Properties; Insurance

  	
  20

  
	
  2.3

  	
  Inspection;
  Lender Meeting

  	
  21

  
	
  2.4

  	
  Legal Existence,
  Etc.

  	
  21

  
	
  2.5

  	
  Use of Proceeds

  	
  22

  
	
  2.6

  	
  Further
  Assurances; Notices of Acquisition of Real Property

  	
  22

  
	
  2.7

  	
  CoBank Patronage
  Capital

  	
  22

  
	
  2.8

  	
  Collateral
  Assignments of Material Contracts

  	
  22

  
	
  2.9

  	
  Investment
  Company Act

  	
  23

  
	
  2.10

  	
  Payment of
  Obligations

  	
  23

  
	
  2.11

  	
  Environmental
  Laws

  	
  23

  
	
  2.12

  	
  Creation or
  Acquisition of Subsidiaries

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3 NEGATIVE COVENANTS

  	
  24

  
	
  3.1

  	
  Indebtedness

  	
  25

  
	
  3.2

  	
  Liens and
  Related Matters

  	
  25

  
	
  3.3

  	
  Investments

  	
  25

  
	
  3.4

  	
  Contingent
  Obligations

  	
  26

  
	
  3.5

  	
  Restricted
  Junior Payments

  	
  27

  
	
  3.6

  	
  Restriction on
  Fundamental Changes

  	
  27

  
	
  3.7

  	
  Disposal of Assets
  or Subsidiary Stock

  	
  28

  
	
  3.8

  	
  Transactions
  with Affiliates

  	
  28

  
	
  3.9

  	
  Management Fees

  	
  29

  
	
  3.10

  	
  Conduct of
  Business

  	
  29

  
	
  3.11

  	
  Fiscal Year

  	
  29

  
	
  3.12

  	
  Modification of
  Agreements

  	
  29

  
	
  3.13

  	
  Inconsistent
  Agreements

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4 FINANCIAL COVENANTS AND REPORTING

  	
  29

  
	
  4.1

  	
  Total Leverage
  Ratio

  	
  29

  
	
  4.2

  	
  Commnet Leverage
  Ratio

  	
  30

  
	
  4.3

  	
  Debt Service
  Coverage Ratio

  	
  30

  
	
  4.4

  	
  Equity to Assets
  Ratio

  	
  30

  
	
  4.5

  	
  Financial
  Statements and Other Reports

  	
  30

  
	
   

  	
  (A)

  	
  Quarterly
  Financials; Other Quarterly Reports

  	
  31

  
	
   

  	
  (B)

  	
  Year-End Financials

  	
  31

  
	
   

  	
  (C)

  	
  Compliance
  Certificates

  	
  31

  
	
   

  	
  (D)

  	
  Accountants’
  Reliance Letter

  	
  31

  
	
   

  	
  (E)

  	
  Accountants’
  Reports

  	
  31

  
	
   

  	
  (F)

  	
  Management
  Report

  	
  31

  



 

















 


	
   

  	
  (G)

  	
  Budget

  	
  32

  
	
   

  	
  (H)

  	
  SEC Filings and
  Press Releases

  	
  32

  
	
   

  	
  (I)

  	
  Events of
  Default, Etc.

  	
  32

  
	
   

  	
  (J)

  	
  Litigation

  	
  32

  
	
   

  	
  (K)

  	
  Regulatory and
  Other Notices

  	
  32

  
	
   

  	
  (L)

  	
  Material Adverse
  Effect

  	
  33

  
	
   

  	
  (M)

  	
  Environmental
  Notices

  	
  33

  
	
   

  	
  (N)

  	
  ERISA Events

  	
  33

  
	
   

  	
  (O)

  	
  Other
  Information

  	
  33

  
	
  4.6

  	
  Accounting
  Terms; Utilization of GAAP for Purposes of Calculations Under Agreement

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5 REPRESENTATIONS AND WARRANTIES

  	
  34

  
	
  5.1

  	
  Disclosure

  	
  34

  
	
  5.2

  	
  No Material
  Adverse Effect

  	
  34

  
	
  5.3

  	
  Organization,
  Powers, Authorization and Good Standing

  	
  34

  
	
   

  	
  (A)

  	
  Organization and
  Powers

  	
  34

  
	
   

  	
  (B)

  	
  Authorization;
  Binding Obligation

  	
  34

  
	
   

  	
  (C)

  	
  Qualification

  	
  35

  
	
  5.4

  	
  Compliance of
  Agreement, Loan Documents and Borrowings with Applicable Law

  	
  35

  
	
  5.5

  	
  Compliance with
  Law; Governmental Approvals

  	
  35

  
	
  5.6

  	
  Tax Returns and
  Payments

  	
  35

  
	
  5.7

  	
  Environmental
  Matters

  	
  36

  
	
  5.8

  	
  Financial
  Statements

  	
  36

  
	
  5.9

  	
  Intellectual
  Property

  	
  36

  
	
  5.10

  	
  Litigation,
  Investigations, Audits, Etc.

  	
  36

  
	
  5.11

  	
  Employee Labor
  Matters

  	
  37

  
	
  5.12

  	
  ERISA Compliance

  	
  37

  
	
  5.13

  	
  Communications
  Regulatory Matters

  	
  37

  
	
  5.14

  	
  Perfection and
  Priority

  	
  38

  
	
  5.15

  	
  Solvency

  	
  38

  
	
  5.16

  	
  Investment
  Company Act

  	
  38

  
	
  5.17

  	
  Material
  Contracts

  	
  39

  
	
  5.18

  	
  Title to
  Properties

  	
  39

  
	
  5.19

  	
  Subsidiaries

  	
  39

  
	
  5.20

  	
  Transactions
  with Affiliates

  	
  39

  
	
  5.21

  	
  Patriot Act

  	
  39

  
	
   

  	
   

  	
   

  
	
  SECTION 6 EVENTS OF DEFAULT AND RIGHTS AND REMEDIES

  	
  39

  
	
  6.1

  	
  Event of Default

  	
  39

  
	
   

  	
  (A)

  	
  Payment

  	
  39

  
	
   

  	
  (B)

  	
  Default in Other
  Agreements

  	
  40

  
	
   

  	
  (C)

  	
  Breach of
  Certain Provisions

  	
  40

  
	
   

  	
  (D)

  	
  Breach of
  Warranty

  	
  40

  
	
   

  	
  (E)

  	
  Other Defaults
  Under Loan Documents

  	
  40

  



 

















 


	
   

  	
  (F)

  	
  Involuntary
  Bankruptcy; Appointment of Receiver; Etc.

  	
  40

  
	
   

  	
  (G)

  	
  Voluntary
  Bankruptcy; Appointment of Receiver; Etc.

  	
  40

  
	
   

  	
  (H)

  	
  Governmental
  Liens

  	
  41

  
	
   

  	
  (I)

  	
  Judgment and
  Attachments

  	
  41

  
	
   

  	
  (J)

  	
  Dissolution

  	
  41

  
	
   

  	
  (K)

  	
  Solvency

  	
  41

  
	
   

  	
  (L)

  	
  Injunction

  	
  41

  
	
   

  	
  (M)

  	
  ERISA; Pension
  Plans

  	
  41

  
	
   

  	
  (N)

  	
  Environmental
  Matters

  	
  41

  
	
   

  	
  (O)

  	
  Invalidity of
  Loan Documents

  	
  42

  
	
   

  	
  (P)

  	
  Damage; Strike;
  Casualty

  	
  42

  
	
   

  	
  (Q)

  	
  Franchises,
  Licenses, Permits and Contracts

  	
  42

  
	
   

  	
  (R)

  	
  Failure of
  Security

  	
  42

  
	
   

  	
  (S)

  	
  Change in
  Control

  	
  42

  
	
   

  	
  (T)

  	
  Expropriation

  	
  42

  
	
  6.2

  	
  Suspension of
  Loan Commitments

  	
  42

  
	
  6.3

  	
  Acceleration

  	
  43

  
	
  6.4

  	
  Rights of
  Collection

  	
  43

  
	
  6.5

  	
  Consents

  	
  43

  
	
  6.6

  	
  Performance by
  Administrative Agent

  	
  43

  
	
  6.7

  	
  Set Off and
  Sharing of Payments

  	
  44

  
	
  6.8

  	
  Application of
  Payments

  	
  44

  
	
  6.9

  	
  Adjustments

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7 CONDITIONS TO LOANS

  	
  45

  
	
  7.1

  	
  Conditions to
  Initial Loan

  	
  45

  
	
   

  	
  (A)

  	
  Executed Loan
  Documents

  	
  45

  
	
   

  	
  (B)

  	
  Control
  Agreements

  	
  45

  
	
   

  	
  (C)

  	
  Closing
  Certificates; Opinions

  	
  45

  
	
   

  	
  (D)

  	
  Collateral

  	
  46

  
	
   

  	
  (E)

  	
  Consents

  	
  47

  
	
   

  	
  (F)

  	
  Financial
  Matters

  	
  47

  
	
   

  	
  (G)

  	
  Miscellaneous

  	
  48

  
	
  7.2

  	
  Conditions to
  All Loans

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 8 ASSIGNMENT AND PARTICIPATION

  	
  49

  
	
  8.1

  	
  Assignments and
  Participations in Loans and Notes

  	
  49

  
	
  8.2

  	
  Agent

  	
  51

  
	
   

  	
  (A)

  	
  Appointment

  	
  51

  
	
   

  	
  (B)

  	
  Nature of Duties

  	
  51

  
	
   

  	
  (C)

  	
  Rights,
  Exculpation, Etc.

  	
  52

  
	
   

  	
  (D)

  	
  Reliance

  	
  52

  
	
   

  	
  (E)

  	
  Indemnification

  	
  53

  
	
   

  	
  (F)

  	
  CoBank,
  Syndication Agent and Documentation Agent Individually

  	
  53

  
	
   

  	
  (G)

  	
  Notice of
  Default

  	
  53

  
	
   

  	
  (H)

  	
  Successor Agent

  	
  54

  



 

















 


	
   

  	
  (I)

  	
  Collateral
  Matters

  	
  54

  
	
   

  	
  (J)

  	
  Agency for
  Perfection; Enforcement of Security by Administrative Agent

  	
  55

  
	
   

  	
  (K)

  	
  Dissemination of
  Information

  	
  56

  
	
  8.3

  	
  Amendments,
  Consents and Waivers for Certain Actions

  	
  56

  
	
  8.4

  	
  Disbursement of
  Funds

  	
  56

  
	
  8.5

  	
  Disbursements of
  Advances; Payments

  	
  57

  
	
   

  	
  (A)

  	
  Pro Rata
  Treatment; Application

  	
  57

  
	
   

  	
  (B)

  	
  Availability of
  Lender’s Pro Rata Share

  	
  57

  
	
   

  	
  (C)

  	
  Return of
  Payments

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9 MISCELLANEOUS

  	
  58

  
	
  9.1

  	
  Indemnities

  	
  58

  
	
  9.2

  	
  Amendments and
  Waivers

  	
  58

  
	
  9.3

  	
  Notices

  	
  59

  
	
  9.4

  	
  Failure or
  Indulgence Not Waiver; Remedies Cumulative

  	
  59

  
	
  9.5

  	
  Marshaling;
  Payments Set Aside

  	
  59

  
	
  9.6

  	
  Severability

  	
  60

  
	
  9.7

  	
  Lenders’
  Obligations Several; Independent Nature of Lenders’ Rights

  	
  60

  
	
  9.8

  	
  Headings

  	
  60

  
	
  9.9

  	
  Applicable Law

  	
  60

  
	
  9.10

  	
  Successors and
  Assigns

  	
  60

  
	
  9.11

  	
  No Fiduciary
  Relationship

  	
  60

  
	
  9.12

  	
  Construction

  	
  60

  
	
  9.13

  	
  Confidentiality

  	
  60

  
	
  9.14

  	
  Consent to
  Jurisdiction and Service of Process

  	
  61

  
	
  9.15

  	
  Waiver of Jury
  Trial

  	
  62

  
	
  9.16

  	
  Survival of
  Warranties and Certain Agreements

  	
  62

  
	
  9.17

  	
  Entire Agreement

  	
  62

  
	
  9.18

  	
  Counterparts; Effectiveness

  	
  63

  
	
  9.19

  	
  Effectiveness of
  Amendment and Restatement; No Novation

  	
  63

  
	
  9.20

  	
  Patriot Act

  	
  63

  
	
   

  	
   

  	
   

  
	
  SECTION 10 DEFINITIONS

  	
  63

  
	
  10.1

  	
  Certain Defined
  Terms

  	
  63

  
	
  10.2

  	
  Other
  Definitional Provisions

  	
  77

  



 

















 


	
  SCHEDULES

  
	
   

  
	
  Schedule 3.3(C)

  	
  Existing Investments

  
	
  Schedule 3.8

  	
  Transactions with Affiliates

  
	
  Schedule 5.3(A)

  	
  Jurisdiction of Organization

  
	
  Schedule 5.3(C)

  	
  Qualification to Transact Business

  
	
  Schedule 5.10

  	
  Litigation, Etc.

  
	
  Schedule 5.11

  	
  Labor Matters

  
	
  Schedule 5.13(A)

  	
  License Information

  
	
  Schedule 5.13(B)

  	
  Valid Licenses

  
	
  Schedule 5.17

  	
  Material Contracts

  
	
  Schedule 5.19

  	
  Subsidiaries

  
	
   

  	
   

  
	
  EXHIBITS

  
	
   

  	
   

  
	
  Exhibit 1.3

  	
  Form of Notice of Borrowing/Conversion/Continuation

  
	
  Exhibit 4.5(C)

  	
  Form of Compliance Certificate

  
	
  Exhibit 10.1(A)

  	
  Form of Lender Addition Agreement

  
	
  Exhibit 10.1(B)

  	
  Form of Revolver Note

  
	
  Exhibit 10.1(C)

  	
  Form of Term Note

  



 

















 


INDEX OF DEFINED TERMS


 


	
  Defined Term

  	
   

  	
  Defined in Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounting
  Changes

  	
   

  	
   

  	
  §4.6

  	
   

  
	
  Acquisition

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Act

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Adjustment Date

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Administrative
  Agent

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Affiliate

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Affected Lender

  	
   

  	
   

  	
  §1.12

  	
   

  
	
  Agreement

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Airplane
  Indebtedness

  	
   

  	
   

  	
  §3.1(D)

  	
   

  
	
  Amendment Date

  	
   

  	
   

  	
  Preamble

  	
   

  
	
  Applicable Law

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Arranger

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Asset
  Disposition

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Available
  Revolver Loan Commitment

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Bankruptcy Code

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Base Rate

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Base Rate Loans

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Benefited Lender

  	
   

  	
   

  	
  §6.9

  	
   

  
	
  Bermuda Digital
  Communications, Ltd.

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Borrower

  	
   

  	
   

  	
  Preamble

  	
   

  
	
  Breakage Fee

  	
   

  	
   

  	
  §1.4(C)

  	
   

  
	
  Budgets

  	
   

  	
   

  	
  §4.5(G)

  	
   

  
	
  Business Day

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Calculation
  Period

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Capital Lease

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Cash Equivalents

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Certificate of
  Exemption

  	
   

  	
   

  	
  §1.13(B)

  	
   

  
	
  Change of
  Control

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Closing Date

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  CoBank

  	
   

  	
   

  	
  Preamble

  	
   

  
	
  Collateral

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Collateral
  Contract Assignments

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Commnet

  	
   

  	
   

  	
  Recitals

  	
   

  
	
  Commnet Leverage
  Ratio

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Commnet
  Operating Agreement

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Communications
  Act

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Communications
  System

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Compliance
  Certificate

  	
   

  	
   

  	
  §4.5(C)

  	
   

  
	
  Contingent
  Obligation

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Debt Service

  	
   

  	
   

  	
  §10.1

  	
   

  



 

















 


Amended and Restated Credit Agreement/Atlantic Tele-Network, Inc.


 


	
  Debt Service
  Coverage Ratio

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Default

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  EBITDA

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Electing Lender

  	
   

  	
   

  	
  §1.8

  	
   

  
	
  Eligible
  Assignee

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Environmental
  Laws

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Equity

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Equity to Assets
  Ratio

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  ERISA

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  ERISA Affiliate

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  ERISA Event

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Event of Default

  	
   

  	
   

  	
  §6.1

  	
   

  
	
  Excess Cash Flow

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Existing Credit
  Agreement

  	
   

  	
   

  	
  Recitals

  	
   

  
	
  Facility(ies)

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  FCC

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  FDPA

  	
   

  	
   

  	
  §2.2

  	
   

  
	
  Federal Funds
  Rate

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Fixed Charge
  Coverage Ratio

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Fixed Charges

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Foreign Lender

  	
   

  	
   

  	
  §1.13(B)

  	
   

  
	
  Franchise

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Funding Date

  	
   

  	
   

  	
  §7.2

  	
   

  
	
  GAAP

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Governmental
  Approvals

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Governmental
  Authority

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Guaranty

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Indebtedness

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Indemnitees

  	
   

  	
   

  	
  §9.1

  	
   

  
	
  Intellectual
  Property Rights

  	
   

  	
   

  	
  §5.9

  	
   

  
	
  Interest Expense

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Interest Period

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Interest Rate
  Agreement

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Investment

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Issuing Lender

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  IRC

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Lender(s)

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Lender Addition
  Agreement

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Letter(s) of
  Credit

  	
   

  	
   

  	
  §1.1(E)

  	
   

  
	
  Letter of Credit
  Liability

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Letter of
  Non-Exemption

  	
   

  	
   

  	
  §1.13(B)

  	
   

  
	
  LIBOR

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  LIBOR Interest
  Period

  	
   

  	
   

  	
  §1.2(B)

  	
   

  
	
  LIBOR Loans

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  LIBOR Margin

  	
   

  	
   

  	
  §10.1

  	
   

  



 


2

















 


	
  Licenses

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Lien

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Loan(s)

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Loan
  Commitment(s)

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Loan Documents

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Material Adverse
  Effect

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Material
  Contracts

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Multi-employer
  Plan

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Net Proceeds

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Note(s)

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Notice of
  Borrowing/Conversion/Continuation

  	
   

  	
   

  	
  §1.3(A)

  	
   

  
	
  Obligations

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Patriot Act

  	
   

  	
   

  	
  §9.20

  	
   

  
	
  PBGC

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Pension Plan

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Permitted
  Acquisition

  	
   

  	
   

  	
  §3.6

  	
   

  
	
  Permitted
  Encumbrances

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Person

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Plan

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Pro Rata Share

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  PUC

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Purchase
  Agreement

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Put—Call

  	
   

  	
   

  	
  §3.5

  	
   

  
	
  Quoted Rate

  	
   

  	
   

  	
  §1.2(a)(i)(3)

  	
   

  
	
  Quoted Rate Loan

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Quoted Rate
  Interest Period

  	
   

  	
   

  	
  §1.2(a)(i)(3)

  	
   

  
	
  Replacement
  Lender

  	
   

  	
   

  	
  §1.12(A)

  	
   

  
	
  Representatives

  	
   

  	
   

  	
  §8.2(E)

  	
   

  
	
  Related Interest
  Rate Agreement

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Reportable Event

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Requisite
  Lenders

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Restricted
  Junior Payment

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Revolver
  Commitment Fee

  	
   

  	
   

  	
  §1.4(A)

  	
   

  
	
  Revolver
  Expiration Date

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Revolver
  Facility

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Revolver Loan
  Commitment

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Revolver Loan(s)

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Revolver Note(s)

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  SEC

  	
   

  	
   

  	
  §4.5(H)

  	
   

  
	
  Security
  Agreements

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Security
  Documents

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Security
  Interest

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Statement

  	
   

  	
   

  	
  §4.5(B)

  	
   

  
	
  Subsidiary

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Tax Liabilities

  	
   

  	
   

  	
  §1.13(A)

  	
   

  



 


3

















 


	
  Term Loan

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Term Loan
  Commitment

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Term Loan
  Facility

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Term Loan
  Maturity Date

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Term Loan
  Note(s)

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Term Loans

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  Total Leverage
  Ratio

  	
   

  	
   

  	
  §10.1

  	
   

  
	
  UCP

  	
   

  	
   

  	
  §1.1(E)

  	
   

  



 


4
















 


AMENDED AND RESTATED CREDIT
AGREEMENT


 


This AMENDED AND RESTATED CREDIT AGREEMENT is entered into
as of August 31, 2007 (the “Amendment Date”),
among ATLANTIC TELE-NETWORK, INC.,
a Delaware corporation (“Borrower”),
COBANK, ACB (individually, “CoBank”), as Administrative Agent,
Arranger, an Issuing Lender and a Lender, BANCO
POPULAR DE PUERTO RICO, as an Issuing Lender and a Lender, and such
other Lenders as may from time to time become a party to this Agreement. Capitalized
terms used and not otherwise defined herein shall have the meanings given to
them in Subsection 10.1.


 


R E C
I T A L S:


 


WHEREAS,
Borrower, Administrative Agent and Lenders previously entered into a Credit
Agreement, dated as of September 15, 2005 (the “Existing Credit Agreement”), pursuant to which Lenders
extended certain financial accommodations to Borrower consisting of the
Revolver Facility, and the Term Loan Facility, the proceeds of which are
available to fund Borrower’s purchase of 95% of the outstanding membership
interests of Commnet Wireless, LLC (“Commnet”),
to repay in full all outstanding principal of and interest on all indebtedness
of Commnet and its Subsidiaries, to provide funds for the capital expenditures
of Borrower and its Subsidiaries, to provide funds for the working capital
needs and other general corporate purposes of Borrower and its Subsidiaries,
and to finance certain costs associated with the Facilities; and


 


WHEREAS,
Borrower has secured all of its Obligations under the Loan Documents by
granting to Administrative Agent, for the benefit of itself and Lenders, a
first priority security interest in and lien upon all or substantially all of
its now owned or hereafter acquired personal and real property; and


 


WHEREAS,
Borrower, Administrative Agent and Lenders have agreed to amend and restate the
Existing Credit Agreement as described herein, to provide for Letters of Credit
and for certain other amendments described herein.


 


NOW, THEREFORE,
in consideration of the premises and the agreements, provisions and covenants
herein contained, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree, and
amend and restate the Existing Credit Agreement in its entirety, as follows:


 


SECTION 1

AMOUNTS AND TERMS OF FACILITIES


 


1.1           Facilities.
Subject to the terms and conditions of this Agreement and in reliance upon the
representations, warranties and covenants of Borrower contained herein and in
the other Loan Documents:


 

















 


(A)          Revolver
Facility. Each Lender, severally and not jointly, agrees to lend to
Borrower, from time to time during the period commencing on the date all
conditions precedent set forth in Subsections 7.1 and 7.2 are satisfied or
waived as provided herein and ending on the Business Day immediately preceding
the Revolver Expiration Date, its Pro Rata Share of each Revolver Loan; provided
that no Lender shall be required at any time to lend more than its respective
Pro Rata Share of the Available Revolver Loan Commitment; and provided, further,
that at any one time the aggregate principal amount of the Revolver Loans
outstanding may not exceed the Revolver Loan Commitment less the outstanding
Letter of Credit Liability. Within the limits of and subject to the Available
Revolver Loan Commitment, this Subsection 1.1(A) and Subsections 1.6, 1.7
and 1.8, amounts borrowed under this Subsection 1.1(A) may be repaid or
prepaid and, at any time up to and including the Business Day immediately
preceding the Revolver Expiration Date, reborrowed.


 


(B)           Term
Loan Facility. Each Lender, severally and not jointly, agrees to lend to
Borrower, in a single advance on the Closing Date, its Pro Rata Share of the
Term Loan Commitment; provided all conditions precedent set forth in
Subsections 7.1 and 7.2 are satisfied or waived as provided herein. Amounts
borrowed under this Subsection 1.1(B) that are repaid or prepaid may not be
reborrowed.


 


(C)           Notes.
Borrower shall execute and deliver to each Lender a Revolver Note and a Term
Note, dated the Closing Date, in the principal amount of such Lender’s Pro Rata
Share of the Revolver Loan Commitment and the Term Loan Commitment,
respectively.


 


(D)          Advances.
Loans will be made available by wire transfer of immediately available funds. Wire
transfers will be made to such account or accounts as may be authorized by
Borrower. Advances under the Term Loan are only available on the Closing Date.


 


(E)           Letters
of Credit. The Revolver Loan Commitment shall, in addition to advances as
Revolver Loans, be utilized, upon the request of Borrower, for the issuance of
irrevocable letters of credit (individually, a “Letter of Credit” and, collectively, the “Letters of Credit”) by an Issuing Lender
for the account of Borrower or any of its Subsidiaries. Immediately upon the
issuance by an Issuing Lender of a Letter of Credit, and without further action
on the part of Administrative Agent or any Lenders, each Lender shall be deemed
to have purchased from such Issuing Lender a participation in such Letter of
Credit equal to such Lender’s Pro Rata Share of the Revolver Loan Commitment of
the aggregate amount available to be drawn under such Letter of Credit. Each
Letter of Credit shall reduce the amount available under the Revolver Loan
Commitment by the maximum amount capable of being drawn under such Letter of
Credit.


 


(i)            Maximum Amount. The aggregate
amount of Letter of Credit Liability with respect to all Letters of Credit
outstanding at any time for the account of Borrower or any of its Subsidiaries
may not exceed $1,000,000 and the aggregate amount of Letter of Credit
Liability with respect to all Letters of Credit outstanding for the account of
Borrower or any of its Subsidiaries plus the aggregate principal amount
of Revolver Loans outstanding at any time may not exceed the Revolver Loan
Commitment.


 


(ii)           Reimbursement. Borrower is
irrevocably and unconditionally obligated without presentment, demand, protest
or other formalities of any kind to reimburse


 


2

















 


an Issuing Lender in immediately available
funds for any amounts paid by an Issuing Lender with respect to a Letter of
Credit issued hereunder for the account of Borrower or any of its Subsidiaries.
Upon receipt from the beneficiary of any Letter of Credit of any notice of
drawing under such Letter of Credit, the Issuing Lender shall notify Borrower
and Administrative Agent thereof. Not later than 11:00 a.m. on the date of any
payment by the Issuing Lender under a Letter of Credit, Borrower shall
reimburse the Issuing Lender through Administrative Agent in the amount equal
to the amount of such drawing. If Borrower fails to so reimburse the Issuing
Lender by such time, Borrower shall be deemed to have requested Administrative
Agent to make a Revolver Loan in the amount of the payment made by such Issuing
Lender with respect to such Letter of Credit, provided that, after giving
effect to such Revolver Loan, the outstanding amount of all Revolver Loans
shall not exceed the Revolver Loan Commitment. If the Letter of Credit is
payable in a foreign currency, the amount owed by Borrower in connection with
such Letter of Credit shall equal the United States dollar equivalent of such
foreign currency (determined by the Administrative Agent in its reasonable
discretion) on the date such payment is made by such Issuing Lender. All
amounts paid by an Issuing Lender with respect to any Letter of Credit that are
not immediately repaid by Borrower or that are not repaid with a Revolver Loan
shall bear interest at the sum of the Base Rate plus 1% per annum. Each
Lender agrees to fund its Pro Rata Share of any Revolver Loan made pursuant to
this Subsection 1.1(E)(2). In the event Administrative Agent elects not to
debit Borrower’s account and Borrower fails to reimburse an Issuing Lender in
full on the date of any payment in respect of a Letter of Credit issued for the
account of Borrower or any of its Subsidiaries, Administrative Agent shall
promptly notify each Lender the amount of such unreimbursed payment and the
accrued interest thereon and each such Lender, on the next Business Day, shall
deliver to Administrative Agent an amount equal to its Pro Rata Share thereof
in same day funds. Each Lender hereby absolutely and unconditionally agrees to
pay to each Issuing Lender upon demand by such Issuing Lender such Lender’s Pro
Rata Share of each payment made by such Issuing Lender in respect of a Letter
of Credit and not immediately reimbursed by Borrower. Each Lender acknowledges
and agrees that its obligations to acquire participations pursuant to this
Subsection 1.1(E)(2) in respect of Letters of Credit and to make the payments
to each Issuing Lender required by the preceding sentence are absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or an Event of Default or
any failure by Borrower to satisfy any of the conditions set forth in
Subsection 7.2. If any Lender fails to make available to an Issuing Lender the
amount of such Lender’s Pro Rata Share of any payments made by such Issuing
Lender in respect of a Letter of Credit as provided in this Subsection
1.1(E)(2), such Issuing Lender shall be entitled to recover such amount on
demand from such Lender together with interest at the Base Rate.


 


(iii)          Conditions of Issuance of Letters
of Credit. In addition to all other terms and conditions set forth in this
Agreement, the issuance by an Issuing Lender of any Letter of Credit shall be
subject to the conditions precedent that the Letter of Credit shall be in such
form, be for such amount, and contain such terms and conditions as are
reasonably satisfactory to Administrative Agent and the Issuing Lender. The
expiration date of each Letter of Credit must be on a date which is the earlier
of one year from its date of issuance or


 


3

















 


the 30th day before the date set forth in
clause (ii) of the definition of the term “Revolver Loan Expiration Date,”
or such other date as agreed to by both Administrative Agent and the Issuing
Lender, in their sole discretion.


 


(iv)          Request for Letters of Credit. Borrower
must give Administrative Agent at least three Business Days’ prior written
notice, which notice will be irrevocable, specifying the date a Letter of
Credit is requested to be issued and the amount and the currency in which such
Letter of Credit is payable, identifying the beneficiary and describing the
nature of the transactions proposed to be supported thereby. Any notice
requesting the issuance of a Letter of Credit shall be accompanied by the form
of the Letter of Credit to be provided by an Issuing Lender. Borrower must also
complete any application procedures and documents required by an Issuing Lender
in connection with the issuance of any Letter of Credit, including a
certificate regarding Borrower’s compliance with the provisions of Subsection
7.2 of this Agreement.


 


(v)           Borrower Obligations Absolute.
The obligations of Borrower under this Subsection 1.1(E) are irrevocable,
will remain in full force and effect until the Issuing Lender and Lenders have
no further obligations to make any payments or disbursements under any
circumstances with respect to any Letter of Credit, shall be absolute and
unconditional, shall not be subject to counterclaim, setoff or other defense or
any other qualification or exception whatsoever and shall be paid in accordance
with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:


 


(1)           Any lack of validity or
enforceability of this Agreement, any of the other Loan Documents or any
documents or instruments relating to any Letter of Credit;


 


(2)           Any change in the time, manner or
place of payment of, or in any other term of, all or any of the obligations in
respect of any Letter of Credit or any other amendment, modification or waiver
of or any consent to or departure from any Letter of Credit, any documents or
instruments relating thereto, or any Loan Document in each case whether or not
Borrower or its Subsidiaries has notice or knowledge thereof;


 


(3)           The existence of any claim, setoff,
defense or other right that Borrower or its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any Letter
of Credit (or any Person for whom any such transferee may be acting),
Administrative Agent, any Issuing Lender, any Lender, or any other Person,
whether in connection with this Agreement, any other Loan Document, any Letter
of Credit, the transactions contemplated hereby or any other related or unrelated
transaction or transactions (including any underlying transaction between
Borrower or its Subsidiaries and the beneficiary named in any such Letter of
Credit);


 


4

















 


(4)           Any draft, certificate or any other
document presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect, any errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, telecopier or otherwise, or
any errors in translation or in interpretation of technical terms;


 


(5)           Payment under any Letter of Credit
against presentation of a demand, draft or certificate or other document which
does not comply with the terms of such Letter of Credit;


 


(6)           Any defense based upon the failure of
any drawing under any Letter of Credit to conform to the terms of such Letter
of Credit (provided that any draft, certificate or other document
presented pursuant to such Letter of Credit appears on its face to comply with
the terms thereof), any nonapplication or misapplication by the beneficiary or
any transferee of the proceeds of such drawing or any other act or omission of
such beneficiary or transferee in connection with such Letter of Credit;


 


(7)           The exchange, release, surrender or
impairment of any collateral or other security for the obligations;


 


(8)           The occurrence of any Default or
Event of Default; or


 


(9)           Any other circumstance or event
whatsoever, including, without limitation, any other circumstance that might
otherwise constitute a defense available to, or a discharge of, Borrower, any
Subsidiary or a guarantor.


 


Any action
taken or omitted to be taken by an Issuing Lender under or in connection with
any Letter of Credit, if taken or omitted in the absence of gross negligence or
willful misconduct, is binding upon Borrower and its Subsidiaries and shall not
create or result in any liability of such Issuing Lender to Borrower or any of
its Subsidiaries. It is expressly agreed that, for purposes of determining
whether a wrongful payment under a Letter of Credit resulted from such Issuing
Lender’s gross negligence or willful misconduct, none of the following shall be
deemed to constitute gross negligence or willful misconduct by such Issuing
Lender: (i)  Issuing Lender’s acceptance of documents that appear on their
face to comply with the terms of such Letter of Credit, without responsibility
for further investigation, (ii)  Issuing Lender’s exclusive reliance on
the documents presented to it under such Letter of Credit as to any and all
matters set forth therein, including the amount of any draft presented under
such Letter of Credit, whether or not the amount due to the beneficiary
thereunder equals the amount of such draft and whether or not any document
presented pursuant to such Letter of Credit proves to be insufficient in any
respect (so long as such document appears on its face to comply with the terms
of such Letter of Credit), and whether or not any other statement or any other
document presented pursuant to such Letter of Credit proves to be forged or
invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever, and


 


5

















 


(iii) any
noncompliance in any immaterial respect of the documents presented under such
Letter of Credit with the terms thereof.


 


(vi)          Obligations of Issuing Lenders.
Each Issuing Lender (other than CoBank) hereby agrees that it will not issue a
Letter of Credit hereunder until it has provided Administrative Agent with
written notice specifying the amount and intended issuance date of such Letter
of Credit and Administrative Agent has returned a written acknowledgment of
such notice to Issuing Lender. Each Issuing Lender (other than CoBank) further
agrees to provide to Administrative Agent: (a) a copy of each Letter of Credit
issued by such Issuing Lender promptly after its issuance; (ii) a monthly
report summarizing available amounts under Letters of Credit issued by such
Issuing Lender, the dates and amounts of any draws under such Letters of
Credit, the effective date of any increase or decrease in the face amount of
any Letters of Credit during such month and the amount of any unreimbursed
draws under such Letters of Credit; and (iii) such additional information
reasonably requested by Administrative Agent from time to time with respect to
the Letters of Credit issued by such Issuing Lender.


 


(vii)         UCP. The Uniform Customs and
Practice for Documentary Credits as most recently published from time to time
by the International Chamber of Commerce (the “UCP”) is hereby incorporated in this Agreement and shall be
deemed incorporated by this reference into each Letter of Credit issued
pursuant to this Agreement. The terms and conditions of the UCP shall be
binding on the parties to this Agreement and each beneficiary of any Letter of
Credit issued pursuant to this Agreement.


 


1.2           Interest.


 


(A)          Interest
Options.


 


(i)            From the date each Loan is made,
based upon the election of Borrower, at such time and from time to time
thereafter (as provided in Subsection 1.3 and subject to the conditions
set forth in such Subsection and Subsection 1.2(G)), each such Loan shall
accrue interest as follows:


 


(1)           as a Base Rate Loan, at the sum of
the Base Rate plus 1% per annum; or


 


(2)           as a LIBOR Loan, for the applicable
LIBOR Interest Period, at the sum of LIBOR plus the LIBOR Margin applicable to such Loan from time to time as
provided in Subsection 1.2(B); or


 


(3)           for the Term Loan only, as a Quoted
Rate Loan, at a fixed annual interest rate (the “Quoted Rate”) to be quoted by CoBank in its sole and absolute
discretion. Under this option, the interest rate may be fixed for periods
ranging from 180 days to the Term Loan Maturity Date (each such period, a “Quoted Rate Interest Period”); provided,
however, that a Quoted Rate Interest Period may only expire on a
Business Day; and provided, however, further, that there
initially shall be 


 


6

















 


a Quoted Rate
Interest Period for the full amount of the Term Loan from the Closing Date to
the Term Loan Maturity Date at a fixed per annum interest rate of 5.85%; and


 


(ii)           Except as otherwise provided in
Subsections 1.2(E) and 6.6, interest on all other Obligations not paid when due
will accrue at the Base Rate plus 1% per annum.


 


(B)           Applicable
Margins.


 


Initially, and continuing through the day immediately preceding the
first Adjustment Date occurring on or after September 30, 2005 on which Borrower
demonstrates that a change in the LIBOR Margin is warranted and requests such
change in writing, the LIBOR Margin shall be 1.50%. Commencing on such
Adjustment Date, the applicable Base Rate Margin and LIBOR Margin for any
Revolver Loan and any Term Loan shall be for each Calculation Period the per
annum percentage set forth in the pricing table below opposite the applicable
Total Leverage Ratio of Borrower, determined on a consolidated basis for
Borrower and its Subsidiaries; provided, that effective (i) upon the
occurrence of an Event of Default and until such Event of Default is cured or
waived or (ii) in the event that Administrative Agent shall not receive the
financial statements and Compliance Certificate required pursuant to
Subsections 4.5(A), 4.5(B) and 4.5(C) when due, from such due date and until
the fifth Business Day following Administrative Agent’s receipt of such overdue
financial statements and Compliance Certificate (and in the event a decrease in
the applicable margin is then warranted, receipt of Borrower’s written request
to decrease such margin), the LIBOR Rate Margin shall be 1.50% per annum.


 


PRICING TABLE — Revolver
Loan and Term Loan 


 


	
  Total Leverage Ratio

  	
   

  	
  LIBOR Margin

  	
   

  
	
  >
  1.5x

  	
   

  	
  1.50

  	
  %

  
	
  < 1.5x

  	
   

  	
  1.25

  	
  %

  



 


(C)           Interest
Periods. Each LIBOR Loan may be obtained for a one, two, three, six, nine
or 12 month period (each such period being an “LIBOR Interest Period”). With respect to all LIBOR Loans:


 


(i)            the LIBOR Interest Period will
commence on the date that the LIBOR Loan is made or the date on which any
portion of the Base Rate Loan is converted into a LIBOR Loan, or, in the case
of immediately successive Interest Periods, each successive Interest Period
shall commence on the day on which the immediately preceding LIBOR Interest
Period expires;


 


(ii)           if the LIBOR Interest Period would
otherwise expire on a day that is not a Business Day, then it will expire on
the next Business Day; provided, that if any LIBOR Interest Period would
otherwise expire on a day that is not a Business Day and such day is the last
Business Day of a calendar month, such LIBOR Interest Period shall expire on
the Business Day next preceding such day;


 


7

















 


(iii)          any LIBOR Interest Period that begins
on the last Business Day of a calendar month or on a day for which there is no
numerically corresponding day in the last calendar month in such LIBOR Interest
Period shall end on the last Business Day of the last calendar month in such
LIBOR Interest Period; and


 


(iv)          no LIBOR Interest Period shall be
selected that extends beyond the Revolver Expiration Date or the Term Loan
Maturity Date.


 


(D)          Calculation
and Payment. Interest on Loans including amounts due under Subsection 1.4,
shall be calculated on the basis of a 360-day year for the actual number of
days elapsed. The date of funding or conversion to a Base Rate Loan and the
first day of an Interest Period shall be included in the calculation of
interest. The date of payment (as determined in Subsection 1.5) of any Loan and
the last day of an Interest Period shall be excluded from the calculation of
interest; provided, if a Loan is repaid on the same day that it is made,
one day’s interest shall be charged.


 


Interest accruing on Base Rate Loans and Quoted Rate
Loans  is payable in arrears on
each of the following dates or events: (i) the last day of each calendar
quarter; (ii) the prepayment of such Loan (or portion thereof), to the extent
accrued on the principal prepaid; and (iii) the Term Loan Maturity Date or the
Revolver Expiration Date, as the case may be, whether by acceleration or
otherwise. Interest accruing on each LIBOR Loan is payable in arrears on each
of the following dates or events: (i) the last day of each applicable LIBOR
Interest Period; (ii) if the LIBOR Interest Period is longer than three months,
on each three-month anniversary of the commencement date of such LIBOR Interest
Period; (iii) the prepayment of such Loan (or portion thereof), to the extent
accrued on the principal prepaid; and (iv) the Term Loan Maturity Date or the
Revolver Expiration Date, as the case may be, whether by acceleration or
otherwise.


 


(E)           Default
Rate of Interest. At the election of Administrative Agent or Requisite
Lenders, after the occurrence of an Event of Default and for so long as it
continues, all Loans and other Obligations shall bear interest at rates that
are 2% in excess of the rates otherwise in effect, including, without
limitation, rates in effect pursuant to the proviso in the second sentence of
Subsection 1.2(B), with respect to such Loans and other Obligations.


 


(F)           Excess
Interest. Notwithstanding anything to the contrary set forth herein, the
aggregate interest, fees and other amounts required to be paid by Borrower to
Lenders or any Lender hereunder are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration of maturity
of the Indebtedness evidenced hereby or otherwise, shall the amount paid or
agreed to be paid to Lenders or any Lender for the use or the forbearance of
the Indebtedness or Obligations evidenced hereby exceed the maximum permissible
under Applicable Law. If under or from any circumstances whatsoever,
fulfillment of any provision hereof or of any of the other Loan Documents at
the time of performance of such provision shall be due, shall involve exceeding
the limit of such validity prescribed by Applicable Law then the obligation to
be fulfilled shall automatically be reduced to the limit of such validity and
if under or from circumstances whatsoever Lenders or any Lender should ever
receive as interest any amount which would exceed the highest lawful rate, the
amount of such interest that is excessive shall be applied to the reduction of
the principal balance of the Obligations evidenced hereby and not to the
payment of interest.


 


8

















 


Additionally, should the method used for calculating interest (i.e.,
using a 360-day year) be unlawful, such calculation method shall be
automatically changed to a 365-6-day year or such other lawful calculation
method as is reasonably acceptable to Administrative Agent. This provision
shall control every other provision of this Agreement and all provisions of
every other Loan Document.


 


(G)           Selection,
Conversion or Continuation of Loans; LIBOR and Quoted Rate Availability. Provided
that no Default or Event of Default has occurred and is then continuing,
Borrower shall have the option to (i) select all or any part of a new borrowing
to be a Base Rate Loan, a LIBOR Loan or, only under the Term Loan Facility, a
Quoted Rate Loan, in the case of a Base Rate Loan in a principal amount equal
to at least $100,000, in the case of a LIBOR Loan in a principal amount equal
to $1,000,000 or any whole multiple of $500,000 in excess thereof, or, only
under the Term Loan Facility, a Quoted Rate Loan in a principal amount equal to
$5,000,000 or any whole multiple of $1,000,000 in excess thereof,
(ii) convert at any time all or any portion of a Base Rate Loan in a
principal amount equal to $1,000,000 or any whole multiple of $500,000 in
excess thereof into a LIBOR Loan or, only under the Term Loan Facility, in a
principal amount equal to $5,000,000 or any whole multiple of $1,000,000 in
excess thereof into a Quoted Rate Loan, (iii) upon the expiration of its
Interest Period, convert all or any part of any LIBOR Loan or, only under the
Term Loan Facility, a Quoted Rate Loan into a Base Rate Loan, and
(iv) upon the expiration of its Interest Period, continue any LIBOR Loan
or, only under the Term Loan Facility, a Quoted Rate Loan into one or more
LIBOR Loans in a principal amount of $1,000,000 or any whole multiple of
$500,000 in excess thereof or, only under the Term Loan Facility, one or more
Quoted Rate Loans in a principal amount of $5,000,000 or any whole multiple of
$1,000,000 in excess thereof, for such new Interest Period(s) as selected by
Borrower. Each LIBOR Loan shall be made under any one of the Revolver Facility
or the Term Loan Facility, but may not be made under more than one Facility concurrently.
During any period in which any Default or Event of Default is continuing, as
the Interest Periods for LIBOR Loans or Quoted Rate Loans then in effect
expire, such Loans shall be converted into a Base Rate Loan and the LIBOR and
Quoted Rate options will not be available to Borrower until all Defaults and
Events of Default are cured or waived. In the event Borrower fails to elect a
LIBOR Loan or Quoted Rate Loan upon any advance hereunder or upon the
termination of any Interest Period, Borrower shall be deemed to have elected to
have such amount constitute a Base Rate Loan. There shall be no more than an
aggregate of five LIBOR Loans and Quoted Rate Loans Outstanding at any one
time.


 


1.3           Notice
of Borrowing, Conversion or Continuation of Loans. Whenever Borrower
desires to request a Loan pursuant to Subsection 1.1(A) or (B)  or to convert or continue Loans pursuant
to Subsection 1.2(G), Borrower shall give Administrative Agent irrevocable
prior written notice in the form attached hereto as Exhibit 1.3 (a “Notice of Borrowing/Conversion/Continuation”)
not later than 11:00 a.m. (Denver, Colorado time) three Business Days before
the proposed borrowing, conversion or continuation is to be effective. Each
Notice of Borrowing/Conversion/Continuation shall specify (i) the Loan (or
portion thereof) to be advanced, converted or continued and, with respect to
any LIBOR Loan or Quoted Rate Loan to be converted or continued, the last day
of the current Interest Period therefor, (ii) the effective date of such
borrowing, conversion or continuation (which shall be a Business Day),
(iii) the principal amount of such Loan to be borrowed, converted or
continued, (iv) the Interest Period to be applicable to any new LIBOR Loan
or Quoted Rate Loan, and (v) the Facility under which such borrowing,
conversion or continuation is to be made.


 


9

















 


Administrative Agent shall give each Lender prompt written notice of
any Notice of Borrowing/Conversion/Continuation given on by Borrower.


 


1.4           Fees
and Expenses.


 


(A)          Unused
Commitment Fees. From the Closing Date, Borrower shall be obligated to pay
Administrative Agent, for the benefit of all Lenders (based upon their
respective Pro Rata Shares of the Revolver Loan Commitment), a fee (the “Revolver Commitment Fee”) in an amount
equal to (i) the Revolver Loan Commitment less the sum of (a) the
average daily outstanding balance of Revolver Loans plus (b) the
average daily outstanding Letter of Credit Liability, in each case during the
preceding calendar quarter multiplied  by (ii) .375%
calculated on the basis of a 360-day year for the actual number of days elapsed.
Such fees are to be paid quarterly in arrears on the last day of each calendar
quarter for such calendar quarter (or portion thereof), with the final such
payment due on the Revolver Expiration Date.


 


(B)           Certain
Other Fees. Borrower shall be obligated to pay to CoBank, individually,
fees in the amounts and at the times specified in the letter agreement dated
July 22, 2005, between Borrower and CoBank and to the Administrative Agent fees
in the amounts specified in the letter agreement dated as of the Amendment
Date, between Borrower and Administrative Agent.


 


(C)           Breakage
Fee. Upon any repayment or payment of a LIBOR Loan or Quoted Rate Loan on
any day that is not the last day of the Interest Period applicable thereto
(regardless of the source of such repayment or prepayment and whether
voluntary, mandatory, by acceleration or otherwise), Borrower shall be
obligated to pay Administrative Agent, for the benefit of all affected Lenders,
an amount (the “Breakage Fee”)
equal to the present value of any losses, expenses and liabilities (including
any loss (including interest paid) sustained by each such affected Lender in
connection with the reemployment of such funds) that any such affected Lender
may sustain as a result of the payment of such LIBOR Loan or Quoted Rate Loan
on such day. For purposes of calculating amounts payable by Borrower to Lenders
under this Subsection 1.4(C), each LIBOR Loan or Quoted Rate Loan made by a
Lender (and each related reserve, special deposit or similar requirement) shall
be conclusively deemed to have been funded at the LIBOR rate for such LIBOR
Loan or Quoted Rate for such Quoted Rate Loan by a matching deposit or other
borrowing in the interbank eurocurrency market for a comparable amount and for
a comparable period, whether or not such LIBOR Loan or Quoted Rate Loan is in
fact so funded. In addition, upon any repayment or prepayment of a LIBOR Loan
or Quoted Rate Loan on any day that is not the last day of the Interest Period
applicable thereto (regardless of the source of such repayment or prepayment
and whether voluntary, mandatory, by acceleration or otherwise), Borrower shall
be obligated to pay Administrative Agent, not for the benefit of Lenders, an
administrative fee of $300.


 


(D)          Expenses
and Attorneys’ Fees. In addition to fees due under Subsections 1.4(A)
and 1.4(B), Borrower agrees to pay promptly all reasonable fees, costs and
expenses (including those of attorneys) incurred by Administrative Agent in
connection with (i) any matters contemplated by or arising out of the Loan
Documents, (ii) the continued administration of the Loan Documents,
including any such fees, costs and expenses incurred in perfecting,
maintaining, determining the priority of and releasing any security and any tax
payable in connection


 


10

















 


with any Loan Documents and any amendments, modifications and waivers. In
addition to fees due under Subsections 1.4(A) and (B), Borrower shall also
reimburse on demand each of Administrative Agent and Banco Popular de Puerto
Rico  for its expenses (including
reasonable attorneys’ fees and expenses) incurred in connection with the
documenting and closing the transactions contemplated herein. In addition to
fees due under Subsections 1.4(A) and (B), Borrower agrees to pay promptly
(i) all reasonable fees, costs and expenses incurred by Administrative and
Lenders in connection with any amendment, supplement, waiver or modification of
any of the Loan Documents and (ii) all reasonable out-of-pocket fees, costs and
expenses incurred by each of Administrative Agent  and Lenders in connection with any Default or Event of
Default and any enforcement of collection proceeding resulting therefrom or any
workout or restructuring of any of the transactions hereunder or contemplated
thereby or any action to enforce any Loan Document or to collect any payments
due from Borrower. All fees, costs and expenses for which Borrower is
responsible under this Subsection 1.4(D) shall be deemed part of the
Obligations when incurred, payable upon demand and in accordance with the
second paragraph of Subsection 1.5 and shall be secured by the Collateral.


 


(E)           Letter
of Credit Fees. From the Closing Date, Borrower shall pay Administrative
Agent for the account of all Lenders committed to make Revolver Loans (based
upon their respective Pro Rata Shares) a fee for each Letter of Credit from the
date of issuance to the date of termination in an amount equal to the
applicable LIBOR Margin per annum multiplied by the face amount of such Letter
of Credit. Such fee shall be payable to Administrative Agent for the benefit of
all Lenders committed to make Revolver Loans (based upon their respective Pro
Rata Shares). Such fee is to be paid quarterly in arrears on the last day of
each calendar quarter and the termination of the Letter of Credit. With respect
to each Letter of Credit, Borrower shall also pay Administrative Agent, for the
benefit of the Issuing Lender issuing such Letter of Credit, an issuance fee
equal to the greater of (1) $100 or (ii) 0.125% of the face amount of such
Letter of Credit, which amount shall be paid upon the date of issuance and, if
the expiration date of such Letter of Credit is later than one year from its
date of issuance, upon each anniversary of the date of issuance during the term
of such Letter of Credit.


 


1.5           Payments.
All payments by Borrower of the Obligations shall be made in same day funds and
delivered to Administrative Agent, for the benefit of itself and Lenders, as
applicable, by wire transfer to the following account or such other place as
Administrative Agent may from time to time designate:


 


CoBank, ACB

Greenwood Village, Colorado

ABA Number 3070-8875-4

Reference:  CoBank for the benefit of ATN


 


Borrower shall receive credit on the day of receipt for funds received
by Administrative Agent by 11:00 a.m. (Denver, Colorado time) on any
Business Day. Funds received on any Business Day after such time shall be
deemed to have been paid on the next Business Day. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a Business Day,
the payment shall be due on the next succeeding Business Day and such extension
of time shall be included in the computation of the amount of interest and fees
due hereunder.


 


11

















 


Borrower authorizes Lenders to make (but Lenders shall
not be obligated to make) a Base Rate Loan under the Revolver Facility, on the
basis of the Lenders’ respective Pro Rata Shares of the Revolver Facility, for
the payment of interest, commitment fees, Breakage Fees and any other costs and
expenses due hereunder at any time during the continuance of an Event of Default
without prior notice to Borrower, provided that Administrative Agent shall give
Borrower notice thereof promptly thereafter although the failure of
Administrative Agent to give such notice shall not affect the validity of such
Base Rate Loan.


 


To the extent Borrower or any other party or Person
makes a payment or payments to Administrative Agent for the ratable benefit of
Lenders or for the benefit of Administrative Agent in its individual capacity,
which payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, state or federal
law, common law or equitable cause, or any combination of the foregoing (whether
by demand, litigation, settlement or otherwise), then, to the extent of such
payment or proceeds repaid, the Obligations or part thereof intended to be
satisfied shall be revived and continued in full force and effect as if such
payment or proceeds had not been received by Administrative Agent.


 


Each payment received by Administrative Agent under
this Agreement or any Note for account of any Lender shall be remitted by
Administrative Agent to such Lender promptly after Administrative Agent’s
receipt thereof, and such remittance shall be made in immediately available
funds for the account of such Lender for the Loans or other obligation in
respect of which such payment is made.


 


1.6           Repayments
of Loans and Reduction of the Revolver Loan Commitment.


 


(A)          Scheduled
Termination of Revolver Loan Commitment and Repayments of the Term Loan.


 


(1)           Scheduled Termination of Revolver
Loan Commitment. In addition to any reduction pursuant to Subsections
1.6(B) and 1.6(C), the Revolver Loan Commitment shall be permanently terminated
in full on the Revolver Expiration Date, and any outstanding principal balance
of the Revolver Loans not sooner due and payable will become due and payable on
the Revolver Expiration Date.


 


(2)           Scheduled Repayments of the Term
Loan. In addition to any repayments pursuant to Subsections 1.7 and 1.8,
the outstanding principal balance of the Term Loan not sooner due and payable
will become due and payable on the Term Loan Maturity Date.


 


(B)           Reductions
Resulting From Mandatory Repayments. The Revolver Loan Commitment also will
be permanently reduced to the extent and in the amount that Borrower is
required, pursuant to Subsection 1.8, to apply mandatory repayments to be made
pursuant to Subsection 1.7(B), (C) and (D) to the Revolver Facility (whether or
not any Revolver Loans are then outstanding and available to be repaid). All
reductions provided for in this Subsection 1.6(B) shall be in addition to
the voluntary reductions provided for in Subsection 1.6(C) and, accordingly,
may


 


12

















 


result in the termination of the Revolver Loan Commitment prior to the
date set forth in clause (ii) of the definition of the term Revolver
Expiration Date.


 


(C)           Voluntary
Reduction of the Revolver Loan Commitment. Borrower shall have the right,
upon at least three Business Days’ prior written notice to Administrative
Agent, to terminate or permanently reduce the then unused portion of the
Revolver Loan Commitment. Each partial reduction shall be in a minimum amount
of at least $250,000, or any whole multiple thereof in excess thereof, and
shall be applied as to each Lender based upon its Pro Rata Share. Notwithstanding
the foregoing, no reduction shall be permitted if, after giving effect thereto
and to any prepayment made in connection therewith, the aggregate principal
balance of the Revolver Loans then outstanding under the Revolver Facility plus
the amount of the Letter of Credit Liability would exceed the Revolver Loan
Commitment as so reduced. All reductions elected under this Subsection 1.6(C)
shall be in addition to the reductions in the Revolver Loan Commitment provided
for in Subsections 1.6(A)(1) and 1.6(B) and, accordingly, may result in the
termination of the Revolver Loan Commitment prior to the date set forth in
clause (ii) of the definition of the term Revolver Expiration Date.


 


(D)          Mandatory
Repayments. If at any time the aggregate outstanding amount of Revolver
Loans plus the amount of the Letter of Credit Liability exceeds the
Revolver Loan Commitment, Borrower shall be obligated to repay promptly the
Revolver Loans or reduce the Letter of Credit Liability pursuant to Subsection
1.16 in an amount at least sufficient to reduce the aggregate principal
balance of such Revolver Loans then outstanding plus the amount of the
Letter of Credit Liability to the amount of the Revolver Loan Commitment, and
until such repayment is made, Lenders shall not be obligated to make any
additional Revolver Loans. Any repayments pursuant to this Subsection 1.6(D)
shall be paid and applied in accordance with Subsection 1.8 and must be
accompanied by accrued interest on the amount repaid and any applicable
Breakage Fees.


 


1.7           Voluntary
Prepayments and Other Mandatory Repayments.


 


(A)          Voluntary
Prepayment of Loans. Subject to the provisions of Subsection 1.8 and the
notice requirement in the following sentence, at any time, Borrower may prepay
(i) the Base Rate Loan, in whole or in part, without penalty, and (ii) any
LIBOR Loan or Quoted Rate Loan, in whole or in part, upon payment of applicable
Breakage Fees. Notice of any prepayment of (a) a Base Rate Loan shall be given
not later than 11 a.m. (Denver, Colorado time) on the Business Day immediately
preceding the date of prepayment, and (b) a LIBOR Loan or Quoted Rate Loan
shall be given not later than 11:00 a.m. (Denver, Colorado time) on the
third Business Day immediately preceding the date of prepayment. All partial
prepayments shall be in a minimum amount of at least $250,000, or any whole
multiple thereof in excess thereof (or the entire remaining balance of the
applicable Loan Commitment), and shall be paid and applied in accordance with
Subsection 1.8. All prepayment notices shall be irrevocable. All prepayments
shall be accompanied by accrued interest on the amount prepaid and any
applicable Breakage Fees.


 


(B)           Repayments
from Insurance Proceeds. Immediately upon receipt thereof, Borrower shall
be obligated to repay the Loans (or reduce the Letter of Credit Liability
pursuant to Subsection 1.16) in an amount equal to all Net Proceeds
received by Borrower or any Subsidiary of Borrower that are insurance proceeds
from any Asset Disposition (which Asset Disposition, together 


 


13

















 


with all other such Asset Dispositions covered by this Subsection
1.7(B), exceeds $3,000,000 in the aggregate over the term of this Agreement); provided,
however, that if no Default or Event of Default has occurred and is
continuing, Borrower shall not be required to repay the Loans with the Net
Proceeds if Borrower or such Subsidiary (i) has previously applied cash or (ii)
applies such Net Proceeds, to repair or replace the lost, damaged or destroyed
assets within 180 days of receipt by Borrower or such Subsidiary of such Net
Proceeds. All such repayments shall be paid and applied in accordance with
Subsection 1.8. All prepayments shall be accompanied by accrued interest on the
amount prepaid and any applicable Breakage Fees.


 


(C)           Repayments
from Certain Asset Dispositions. Immediately upon receipt thereof, Borrower
shall be obligated to repay the Loans (or reduce the Letter of Credit Liability
pursuant to Subsection 1.16) in an amount equal to all Net Proceeds by
Borrower or any Subsidiary of Borrower that are from Asset Dispositions, other
than insurance proceeds or from Asset Dispositions permitted pursuant to
Subsection 3.7; provided, however, that if (i) no Default or
Event of Default has occurred and is continuing and (ii) the aggregate of all
such Net Proceeds during the 12-month period ending on the date of such
proposed reinvestment does not exceed 5% of Borrower’s then amount of
consolidated assets, Borrower shall not be required to repay the Loans with the
Net Proceeds if Borrower or such Subsidiary applies such Net Proceeds to
acquire equipment or other assets that are used or useful in the business of
Borrower and or such Subsidiary within 180 days of receipt by Borrower or such
Subsidiary of such Net Proceeds. All such repayments shall be paid and applied
in accordance with Subsection 1.8. All prepayments shall be accompanied by
accrued interest on the amount prepaid and any applicable Breakage Fees.


 


(D)          Repayments
from Debt Issuances. Immediately upon receipt by Borrower or any Subsidiary
of Borrower of Net Proceeds relating to the issuance by Borrower or any
Subsidiary of Borrower of any public or private debt (other than pursuant to
Subsection 3.1), Borrower shall be obligated to repay the Loans (or reduce the
Letter of Credit Liability pursuant to Subsection 1.16) in an amount
equal to such Net Proceeds. All such repayments shall be paid and applied in
accordance with Subsection 1.8. All prepayments shall be accompanied by accrued
interest on the amount prepaid and any applicable Breakage Fees.


 


1.8           Application
of Prepayments and Repayments; Payment of Breakage Fees, Etc. Absent a
prior written direction from Borrower to apply any repayment made pursuant to
Subsection 1.7(B) through (D) to the principal balance of the Term Loan
facility, each such repayment shall be first applied to reduce the Revolver
Loan Commitment (and, to the extent as a result thereof the Revolver Loan
Commitment exceeds the then outstanding principal balance of the Revolver Loans
plus the amount of the Letter of Credit Liability, to repay the Revolver
Loans (or reduce the Letter of Credit Liability pursuant to Subsection 1.16)).
After the Revolver Loan Facility is repaid and the Revolver Loan Commitment
reduced in full, each repayment made pursuant to Subsection 1.7(B) through (D)
shall be applied to the principal balance of Term Loan Facility. All repayments
made pursuant to Subsections 1.6 and 1.7 shall first be applied to a Base Rate
Loan or such of the LIBOR Loans or Quoted Rate Loans as Borrower shall direct
in writing and, in the absence of such direction, shall first be applied to a
Base Rate Loan and then to such LIBOR Loans and then to such Quoted Rate Loans
as Administrative Agent shall select. All prepayments and repayments required
or permitted hereunder shall be accompanied by payment of all applicable
Breakage Fees and accrued interest on


 


14

















 


the amount prepaid or repaid. All prepayments and repayments applied to
the Term Loan shall be applied to principal installments in the inverse order
of maturity.


 


1.9           Loan
Accounts. Administrative Agent will maintain loan account records for (i)
all Loans, interest charges and payments thereof, (ii) all Letter of
Credit Liability, (iii) the charging and payment of all fees, costs and
expenses and (iv) all other debits and credits pursuant to this Agreement. The
balance in the loan accounts shall be presumptive evidence of the amounts due
and owing to Lenders, absent manifest error, provided that any failure
by Administrative Agent to maintain such records shall not limit or affect Borrower’s
obligation to pay. During the continuance of an Event of Default, Borrower
irrevocably waives the right to direct the application of any and all payments
and Borrower hereby irrevocably agrees that Administrative Agent shall have the
continuing exclusive right to apply and reapply payments to any of the
Obligations in any manner it deems appropriate.


 


1.10         Changes
in LIBOR Rate Availability. (A)  If
with respect to any proposed LIBOR Interest Period, Administrative Agent or any
Lender (after consultation with Administrative Agent) determines that deposits
in dollars (in the applicable amount) are not being offered in the relevant
market for such LIBOR Interest Period, or Lenders having a Pro Rata Share of
50% or more under a Facility determine (and notify Administrative Agent) that
the LIBOR rate applicable pursuant to Subsection 1.2(A)(1) for any requested
LIBOR Interest Period with respect to a proposed LIBOR Loan under such Facility
does not adequately and fairly reflect the cost to such Lenders of funding such
Loan, Administrative Agent shall forthwith give notice thereof to Borrower and
Lenders, whereupon and until such affected Lender or Lenders notifies
Administrative Agent, and Administrative Agent notifies Borrower and the other
Lenders that the circumstances giving rise to such situation no longer exist,
the obligations of any affected Lender to make its portion of such type of
LIBOR Loan shall be suspended and such affected Lender shall make its Pro Rata
Share of such type of LIBOR Loans as a Base Rate Loan or such other type of
Loan as permitted by Administrative Agent. Any Lender may, in its sole
discretion, waive the benefits and provisions of this Subsection with respect
to any proposed LIBOR Interest Period.


 


(B)           If
the introduction of, or any change in, any Applicable Law or any change 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 Lender with any request or directive (whether or
not having the force of law) of any such Governmental Authority, central bank
or comparable agency, in each case occurring after the Closing Date, shall make
it unlawful or impossible for one or more Lenders to honor its obligations
hereunder to make or maintain any LIBOR Loan, such Lender shall promptly give
notice thereof to Administrative Agent, and Administrative Agent shall promptly
give notice thereof to Borrower and all other Lenders. Thereafter, until such
Lender or Lenders notifies Administrative Agent, and Administrative Agent
notifies Borrower and the other Lenders that such circumstances no longer
exist, (i) the obligations of such Lender or Lenders to make LIBOR Loans and
the right of Borrower to convert any Loan of such Lender or Lenders to a LIBOR
Loan or continue any Loan of such Lender or Lenders as a LIBOR Loan shall be
suspended and (ii) if any Lender may not lawfully continue to maintain a LIBOR
Loan to the end of the then current LIBOR Interest Period applicable thereto,
such Loan shall immediately be converted to the Base Rate Loan.


 


15
















 


1.11                           Capital
Adequacy and Other Adjustments.


 


(A)                              If
after the Closing Date there occurs the introduction, or change in the
interpretation, of any law, rule, or regulation the effect of which would
increase the reserve requirement or otherwise increase the cost to any Lender
of making or maintaining a LIBOR Loan, then Administrative Agent, on behalf of
all affected Lenders, shall submit a certificate to Borrower setting forth the
amount and demonstrating the calculation of such increased cost. Borrower shall
be obligated to pay the amount of such increased cost to Administrative Agent
for the benefit of the affected Lenders within 15 days after receipt of such
certificate. Such certificate shall, absent manifest error, be final,
conclusive and binding for all purposes. There is no limitation on the number
of times such a certificate may be submitted; provided that any
such certificate may not seek increased costs for any period prior to the
date that is six months prior to the date of such certificate.


 


(B)                                In
the event that the adoption after the Closing Date of any law, treaty,
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy, reserve requirements or similar requirements or
compliance by any Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy, reserve requirements or
similar requirements (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) from any central bank or
governmental agency or body having jurisdiction does or shall have the effect
of increasing the amount of capital, reserves or other funds required to be
maintained by such Lender or any corporation controlling such Lender and
thereby reducing the rate of return on such Lender’s or such corporation’s
capital as a consequence of its obligations hereunder, then Borrower shall be
obligated, from time to time within 15 days after notice and demand from such
Lender (together with the certificate referred to in the next sentence and with
a copy to Administrative Agent), to pay to Administrative Agent, for the
account of such Lender, additional amounts sufficient to compensate such Lender
for such reduction. A certificate as to the amount of such cost and showing the
basis of the computation of such cost submitted by such Lender to Borrower and
Administrative Agent shall, absent manifest error, be final, conclusive and
binding for all purposes. There is no limitation on the number of times such a
certificate may be submitted; provided that any such certificate may not
seek increased costs for any period prior to the date that is six months prior
to the date of such certificate.


 


1.12                           Optional
Prepayment/Replacement of Lender in Respect of Increased Costs. Within 15
days after receipt by Borrower of written notice and demand from any Lender (an
“Affected Lender”) for payment of
additional costs as provided in Subsections 1.11, 1.13 or 1.14 or if it becomes
illegal or impossible for any Lender to continue to fund or to make LIBOR Loans
pursuant to Subsection 1.10(B), as a result of any condition described in
either of such Subsections, then, unless such Lender has theretofore removed or
cured the conditions creating the cause for such obligation to pay such
additional amounts or for such illegality or impossibility, Borrower may, at
its option, notify Administrative Agent and such Affected Lender of its
intention to do one of the following:


 


(A)                              Borrower
may obtain, at Borrower’s expense, a replacement Lender (“Replacement Lender”) for such Affected
Lender, which Replacement Lender shall be reasonably satisfactory to
Administrative Agent. In the event Borrower obtains a Replacement Lender within
90 days following notice of its intention to do so, the Affected Lender shall
sell and assign its Loans and


 


16

















 


its obligations under the Loan Commitments to such Replacement Lender
at a price (including accrued interest) that is reasonably acceptable to the
Affected Lender and the Replacement Lender, provided that Borrower has
reimbursed such Affected Lender for its increased costs for which it is
entitled to reimbursement under this Agreement through the date of such sale
and assignment; or


 


(B)                                Borrower
may prepay in full all outstanding Obligations owed to such Affected
Lender and terminate such Affected Lender’s Pro Rata Share of the Loan
Commitments, in which case the Loan Commitments will be permanently reduced by
the amount of such Pro Rata Share. Borrower shall, within 90 days following
notice of its intention to do so, prepay in full all outstanding Obligations
owed to such Affected Lender (including all applicable Breakage Fees and such
Affected Lender’s increased costs for which it is entitled to reimbursement
under this Agreement through the date of such prepayment), and terminate such
Affected Lender’s obligations under the Loan Commitments. Any such prepayment
pursuant to this Subsection 1.12(B) shall be applied in accordance
with Subsection 1.8 (except that such prepayment shall be solely for the
account of the Affected Lender and not for the account of all the Lenders in
accordance with their Pro Rata Shares) and shall be accompanied by payment of
all applicable Breakage Fees and accrued interest on the amount repaid.


 


1.13                           Taxes.


 


(A)                              No
Deductions. Any and all payments or reimbursements made hereunder or under
the Notes shall be made free and clear of and without deduction for any and all
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto (all such taxes, levies, imposts, deductions,
charges or withholdings and all liabilities with respect thereto, excluding
such taxes imposed on net income, herein “Tax Liabilities”),
excluding, however, franchise taxes and taxes imposed on the net income of a
Lender or Administrative Agent by the federal, state, local or foreign taxing
authorities in the jurisdiction in which the principal place of business of
such Lender or Administrative Agent is located. If Borrower shall be required
by law to deduct any such amounts from or in respect of any sum payable
hereunder to any Lender or Administrative Agent, then, except as provided in
Subsection 1.13(B) and the last sentence of this Subsection 1.13(A),
the sum payable hereunder shall be increased as may be necessary so that,
after making all required deductions, such Lender or Administrative Agent
receives an amount equal to the sum it would have received had no such
deductions been made. Notwithstanding the foregoing, any Lender that fails to
provide Borrower and Administrative Agent a properly completed and executed IRS
Form W-9 will be subject to backup withholding on payments to such Lender
without any gross-up hereunder.


 


(B)                                Foreign
Lenders. Each Lender which would be considered a foreign lender under the
IRC (“Foreign Lender”) as to which
payments made under this Agreement or under the Notes is exempt for withholding
tax under the IRC or is subject to withholding tax at a reduced rate under an
applicable statute or tax treaty shall provide to Borrower and Administrative
Agent (i) a properly completed and executed United States Internal Revenue
Service Form W-8ECI or W-8BEN or other applicable form, certificate or
document prescribed by the Internal Revenue Service of the United States
certifying as to such Foreign Lender’s entitlement to such exemption or reduced
rate of withholding with respect to payments to be made to such Foreign Lender
under this Agreement and under the Notes (a “Certificate
of Exemption”) or (ii) letter from any such Foreign Lender
stating that it is not entitled to any such exemption or reduced rate of
withholding (a “Letter of Non-Exemption”).


 


17

















 


Prior to becoming a
Lender under this Agreement and within 15 days after a reasonable written
request of Borrower or Administrative Agent from time to time thereafter, each
Foreign Lender that becomes a Lender under this Agreement shall provide a
Certificate of Exemption or a Letter of Non-Exemption to Borrower and
Administrative Agent.


 


If a Foreign Lender is
entitled to an exemption with respect to payments to be made to such Foreign
Lender under this Agreement (or to a reduced rate of withholding) and does not
provide a Certificate of Exemption to Borrower and Administrative Agent within
the time periods set forth in the preceding paragraph, Borrower shall withhold
taxes from payments to such Foreign Lender at the applicable statutory rates
and Borrower shall not be required to pay any additional amounts as a result of
such withholding, provided that all such withholding shall cease or be
reduced, as appropriate, upon delivery by such Foreign Lender of a Certificate
of Exemption to Borrower and Administrative Agent.


 


1.14                           Changes
in Tax Laws. In the event that, subsequent to the Closing Date, (i) any
changes in any existing law, regulation, treaty or directive or in the
interpretation or application thereof, (ii) any new law, regulation,
treaty or directive enacted or any interpretation or application thereof, or (iii) compliance
by Administrative Agent or any Lender with any request or directive (whether or
not having the force of law) from any Governmental Authority:


 


(1)                                  does
or shall subject Administrative Agent or any Lender to any tax of any kind
whatsoever with respect to this Agreement, the other Loan Documents or any
Loans made hereunder, or change the basis of taxation of payments to
Administrative Agent or such Lender of principal, fees, interest or any other
amount payable hereunder (except for net income taxes or franchise taxes,
imposed generally by federal, state, local or foreign taxing authorities in the
jurisdiction in which the principal place of business of such Lender or
Administrative Agent is located with respect to interest or commitment or other
fees payable hereunder or changes in the rate of tax imposed by such
jurisdictions on the overall net income of Administrative Agent or such
Lender); or


 


(2)                                  does
or shall impose on Administrative Agent or any Lender any other condition or
increased cost in connection with the transactions contemplated hereby or
participations herein;


 


and the result
of any of the foregoing is to increase the cost to Administrative Agent or any
such Lender of making or continuing any Loan hereunder, or to reduce any amount
receivable hereunder, as the case may be, then, in any such case, Borrower
shall be obligated to promptly pay to Administrative Agent or such Lender, upon
its demand, any additional amounts necessary to compensate Administrative Agent
or such Lender, on an after-tax basis, for such additional cost or reduced
amount receivable, as reasonably determined by Administrative Agent or such
Lender with respect to this Agreement or the other Loan Documents. If
Administrative Agent or such Lender becomes entitled to claim any additional
amounts pursuant to this Subsection 1.14, it shall promptly notify
Borrower of the event by reason of which Administrative Agent or such Lender
has become so entitled. A certificate as to any additional amounts payable
pursuant to the foregoing sentence submitted by Administrative Agent or such
Lender to Borrower and Administrative Agent shall,


 


18

















 


absent
manifest error, be final, conclusive and binding for all purposes. There is no
limitation on the number of times such a certificate may be submitted.


 


1.15                           Term
of This Agreement. All of the Obligations shall become due and payable as
otherwise set forth herein, but in any event, all of the remaining Obligations
shall become due and payable on October 31, 2010. This Agreement shall
remain in effect through and including, and (except with respect to provisions
hereof expressly stated herein to survive any such termination) shall terminate
immediately after, the date on which all Obligations shall have been
indefeasibly and irrevocably paid and satisfied in full.


 


1.16                           Letter
of Credit Liability. Upon the occurrence and during the continuance of an
Event of Default and at the direction of Administrative Agent, and in the event
any Letters of Credit are outstanding at the time that Borrower terminates the
Revolver Loan Commitment, then (a) with respect to each such Letter of
Credit, Borrower shall either (i) deliver to Administrative Agent for the
benefit of all Lenders with a Revolver Loan Commitment a letter of credit in
the same currency that such Letter of Credit is payable, with a term that
extends 60 days beyond the expiration date of such Letter of Credit, issued by
a bank satisfactory to Administrative Agent and in an amount equal to 103% of
the aggregate outstanding Letter of Credit Liability with respect to such
Letter of Credit, which letter of credit shall be drawable by Administrative
Agent to reimburse payments of drafts drawn under such Letter of Credit and to
pay any fees and expenses related thereto or (ii) immediately deposit with
Administrative Agent an amount equal to the aggregate outstanding Letter of
Credit Liability to enable Administrative Agent to make payments under the
Letters of Credit when required and such amount shall become immediately due
and payable, and (b) Borrower shall prepay the fees payable under Subsection 1.4(F) with
respect to all such Letters of Credit for the full remaining terms of such
Letters of Credit. Upon termination of any such Letter of Credit, the unearned
portion of such prepaid fee attributable to such Letter of Credit shall be
refunded to Borrower.


 


SECTION 2

AFFIRMATIVE COVENANTS


 


Borrower hereby
covenants and agrees that so long as this Agreement is in effect and until
payment in full of all Obligations (other than unasserted indemnity claims),
unless Requisite Lenders shall otherwise give their prior written consent,
Borrower shall perform and comply, and shall cause each of its
Subsidiaries to perform and comply, with all covenants in this Section 2.


 


2.1                                 Compliance
With Laws. Borrower will (i) comply with and will cause its respective
Subsidiaries to comply with the requirements of all Applicable Laws (including
laws, rules, regulations and orders relating to taxes, employer and employee
contributions, securities, employee retirement and welfare benefits,
environmental protection matters and employee health and safety) as now in
effect and which may be imposed in the future in all jurisdictions in
which Borrower or any Subsidiary of Borrower are now or hereafter doing
business, (ii) obtain and maintain and will cause each of its
Subsidiaries, to obtain and maintain all licenses, qualifications and permits
(including the Franchises and the Licenses) now held or hereafter required for Borrower
or any Subsidiary of


 


19

















 


Borrower to operate, and (iii) comply with and will cause its
respective Subsidiaries to comply with all Material Contracts, other than, in
all such cases, as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. This Subsection 2.1 shall not
preclude Borrower or any Subsidiary of Borrower from contesting any taxes or
other payments, if they are being diligently contested in good faith and if
adequate reserves therefor are maintained in conformity with GAAP.


 


2.2                                 Maintenance
of Books and Records; Properties; Insurance. Borrower will keep and will
cause each of its Subsidiaries to keep adequate records and books of account,
in which full, true and correct entries will be made in accordance with GAAP
consistently applied, reflecting all financial transactions of such Persons. Borrower
will maintain or cause to be maintained and will cause each of its Subsidiaries
to maintain or cause to be maintained in good repair, working order and
condition all Collateral used in its business and the business of its
Subsidiaries, and will make or cause to be made all appropriate repairs,
renewals and replacements thereof, except for (i) dispositions of assets
permitted hereunder or (ii) as would not reasonably, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. Borrower
will and will cause each of its Subsidiaries to maintain complete, accurate and
up-to-date books, records, accounts and other information relating to all
Collateral in such form and in such detail as may be satisfactory to
Administrative Agent. Borrower will maintain or cause to be maintained and will
cause each of its Subsidiaries to maintain or cause to be maintained, with
financially sound and reputable insurers, insurance with respect to its
business and properties and the business and properties of its Subsidiaries
against loss and damage of the kinds and of such types, with such insurers, in
such amounts, with such limits and deductibles and otherwise on such terms and
conditions as customarily carried or maintained by corporations of established
reputation engaged in similar businesses, and will deliver evidence thereof to
Administrative Agent on or prior to the Closing Date, and thereafter at least
30 days prior to any expiration thereof, evidence of renewal of such insurance.
If any part of the Collateral lies within a “special flood hazard area” as
defined and specified by the Federal Emergency Management Agency (or other
appropriate Governmental Authority) pursuant to the Flood Disaster Protection
Act of 1973, as amended (the “FDPA”),
and Administrative Agent determines that flood insurance coverage is required
to be obtained for such Collateral in order for Administrative Agent and
Lenders to comply with the FDPA, the appropriate Borrower shall obtain and
maintain such flood insurance policies as Administrative Agent reasonably
requests so that Administrative Agent and Lenders shall be deemed in compliance
with the FDPA and shall deliver evidence thereof to Administrative Agent. Such
policies of flood insurance shall be in form and substance reasonably
satisfactory to Administrative Agent and shall be in an amount of at least the
lesser of the value of such Collateral constituting buildings, structures or
personal property located within the “special flood hazard area” or the maximum
limit of coverage available under Applicable Law. Borrower will cause (i) Administrative
Agent, for the benefit of itself and Lenders, pursuant to endorsements and
assignments in form and substance reasonably satisfactory to
Administrative Agent, to be named (A) as a lender loss payee or mortgagee
in the case of property loss and damage insurance, (B) as assignee in the
case of all business interruption insurance and (C) as an additional
insured in the case of all flood insurance and workers’ compensation insurance
(to the extent permitted by Applicable Law) and (ii) Administrative Agent,
pursuant to endorsements in form and substance reasonably acceptable to
Administrative Agent, to be named as an additional insured in the case of all
liability insurance. All insurance policies required hereunder shall (i) include
effective waivers by the insurer


 


20

















 


of subrogation against
Administrative Agent, Lenders and their respective affiliates and any right of
insurer to any setoff or counterclaim or any other deduction, whether by
attachment or otherwise, in respect of any liability of Borrower (or its
Subsidiaries), (ii) following notice to Borrower during the continuation
of a Default or Event of Default, provide that all insurance proceeds shall be
adjusted with and paid to Administrative Agent, (iii) be non-cancelable and
not subject to material change as to Administrative Agent except upon 30 days
prior written notice given by the insurer to Administrative Agent, (iv) contain
a breach of representation or warranty provision in favor of Administrative
Agent, (v) contain a cross liability clause, (vi) with respect to
property loss and damage insurance and business interruption insurance, provide
that the interests of the Administrative Agent shall not be invalidated by any
action or inaction (other than non-payment) of Borrower, its Subsidiaries, or
any other Person, and shall insure the Administrative Agent regardless of any
breach or violation by Borrower, its Subsidiaries or any other person, of any
warranties, declarations or conditions of such policies and (vii) provide
that the insurance be primary and without right of contribution from any other
insurance which may be available to Administrative Agent and expressly
provide that all provisions thereof, except the limits of liability (which
shall be applicable to all insureds as a group), shall operate in the same
manner as if there were a separate policy covering each insured, and liability
for premiums shall be solely a liability of Borrower.


 


Administrative Agent shall be entitled, upon
reasonable advance notice, to review and/or receive copies of, the insurance
policies of Borrower and its Subsidiaries carried and maintained with respect
to Borrower’s obligations under this Subsection 2.2. Notwithstanding
anything to the contrary herein, no provision of this Subsection 2.2 or
any provision of this Agreement shall impose on Administrative Agent and
Lenders any duty or obligation to verify the existence or adequacy of the
insurance coverage maintained by Borrower and its Subsidiaries, nor shall
Administrative Agent and Lenders be responsible for any representations or
warranties made by or on behalf of Borrower and its Subsidiaries to any
insurance broker, company or underwriter. Administrative Agent, at its sole
option, may obtain such insurance if not provided by Borrower and in such
event, Borrower shall reimburse Administrative Agent upon demand for the cost
thereof.


 


2.3                                 Inspection;
Lender Meeting. Borrower will permit and will cause each of its
Subsidiaries to permit, at the expense of Borrower, any authorized representatives
of any Lender (i) to visit and inspect any of its properties and the
properties of its Subsidiaries, including their financial and accounting
records, and to make copies and take extracts therefrom, and (ii) to
discuss its and their affairs, finances and business with its and their
officers, employees and certified public accountants, in both cases upon
reasonable prior notice at such reasonable times during normal business hours
and as often as may be reasonably requested; provided, that, except
during the continuance of a Default, each visit or inspection by a Lender in
excess of one visit or inspection  during
a calendar year shall be at the expense of such Lender. Without in any way
limiting the foregoing, Borrower will participate in and will cause its key
management personnel to participate in a meeting with Administrative Agent and
Lenders at least once during each year, which meeting shall be held at such
time and such place as may be reasonably requested by Administrative
Agent.


 


2.4                                 Legal
Existence, Etc. Except as otherwise permitted by Subsection 3.6,
Borrower will, and will cause each of its Subsidiaries to, at all times
preserve and keep in full force and effect its legal existence and good
standing and all rights and franchises (including the Franchises and the


 


21

















 


Licenses), except as
permitted hereunder as and as would not reasonably be expected to have a
Material Adverse Effect.


 


2.5                                 Use
of Proceeds. Borrower will use the proceeds of the Loans, and will cause
any of its Subsidiaries who receive (directly or indirectly) proceeds of the
Loans to use such proceeds, solely for the purposes described in the recital
paragraphs to this Agreement. No part of any Loan will be used (directly
or indirectly) to purchase any “margin stock” as defined in, or otherwise in
violation of, the regulations of the Federal Reserve System.


 


2.6                                 Further
Assurances; Notices of Acquisition of Real Property. Borrower will, and
will cause each of its Subsidiaries to, from time to time, do, execute and
deliver all such additional and further acts, documents and instruments as
Administrative Agent or any Lender reasonably requests to consummate the
transactions contemplated hereby and to vest completely in and assure Administrative
Agent and Lenders of their respective rights under this Agreement and the other
Loan Documents, including such financing statements, documents, security
agreements and reports to evidence, perfect or otherwise implement the security
for repayment of the Obligations contemplated by the Loan Documents. Borrower
will notify Administrative Agent in each Compliance Certificate delivered
pursuant to Subsection 4.5(C) of the acquisition (including by way of
lease) by Borrower (or its Subsidiaries) of any real property or any interest
therein including all easements and licenses (and the cost thereof or annual
rentals with respect thereto), and of any registered intellectual property, or
the opening of any new deposit, investment or other accounts, and will execute
and deliver all such additional documents and instruments as Administrative
Agent may reasonably  require,
promptly upon the request of Administrative Agent (including, upon written
request of Administrative Agent, mortgages, title insurance policies, landlord
and mortgagee waivers and consents, UCC financing statements (including fixture
filings), environmental audits, completed environmental questionnaires,
surveys, assignments, control agreements and legal opinions).


 


2.7                                 CoBank
Patronage Capital. So long as CoBank is a Lender hereunder, Borrower will
acquire non-voting participation certificates in CoBank in such amounts and at
such times as CoBank may require in accordance with CoBank’s Bylaws and
Capital Plan (as each may be amended from time to time), except that the
maximum amount of participation certificates that Borrower may be required
to purchase in CoBank in connection with the Loans may not exceed the
maximum amount permitted by the Bylaws at the time this Agreement is entered into.
The rights and obligations of the parties with respect to such participation
certificates and any distributions made on account thereof or on account of
Borrower’s patronage with CoBank shall be governed by CoBank’s Bylaws. CoBank
agrees that all Loans that are made by CoBank and that are retained for its own
account and not sold in a participation shall be entitled to patronage
distributions in accordance with the CoBank’s Bylaws; all Loans that are made
by CoBank and are included in a sale of a participation shall not be entitled
to patronage distributions. CoBank’s Pro Rata Share of the Loans and other
Obligations due to CoBank shall be secured by a statutory first lien on all
equity which Borrower may now own or hereafter acquire in CoBank. Such
equity shall not, however, constitute security for the Obligations due
to any other Lender. CoBank shall not be obligated to set off or otherwise
apply such equities to Borrower’s obligations to CoBank.


 


2.8                                 Collateral
Assignments of Material Contracts. Borrower and its Subsidiaries, as
appropriate, shall promptly execute and deliver to Administrative Agent, for
the benefit of


 


22

















 


Administrative Agent and
all Lenders, all such Collateral Contract Assignments with respect to Material
Contracts as Administrative Agent may request from time to time, such
Collateral Contract Assignments to contain, to the extent obtainable through
the use of reasonably commercial efforts, a consent to the collateral
assignment of the applicable Material Contract satisfactory to Administrative
Agent and containing such other reasonable terms and conditions in light of the
nature of the applicable Material Contract and the parties thereto other than
Borrower and its Subsidiaries.


 


2.9                                 Investment
Company Act. Neither Borrower nor any of its Subsidiaries shall be required
to register under, or is otherwise subject to regulation as an “investment
company” as that term is defined in, the Investment Company Act of 1940, as
amended.


 


2.10                           Payment
of Obligations. Unless contested in good faith by appropriate proceedings
and then only to the extent reserves required by GAAP have been set aside
therefore, Borrower will, and will cause each of its Subsidiaries to, (i) pay,
discharge or otherwise satisfy at or before maturity all liabilities and
obligations as and when due (subject to any applicable subordination
provisions), and any additional costs that are imposed as a result of any
failure to so pay, discharge or otherwise satisfy such obligations, except to
the extent failure to do so would not be reasonably likely to have a Material
Adverse Effect, and (ii) pay and discharge all taxes, assessments, claims
and governmental charges or levies imposed upon it, upon its income or profits
or upon any of its properties, prior to the date on which penalties would
attach thereto or a lien would attach to any of the properties of Borrower if
unpaid unless the same are being contested in good faith and by appropriate
proceedings and then only if and to the extent reserves required by GAAP have
been set aside therefor.


 


2.11                           Environmental
Laws. Borrower will, and will at all times cause each of its Subsidiaries
to:


 


(A)                              Comply
in all material respects with, and ensure compliance in all material respects
by all tenants and subtenants, if any, with, all applicable Environmental Laws
and obtain and comply in all material respects with and maintain, and ensure
that all tenants and subtenants obtain and comply in all material respects with
and maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect;


 


(B)                                Conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws except to the
extent that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not reasonably be
expected to have a Material Adverse Effect; and


 


(C)                                Defend,
indemnify and hold harmless Administrative Agent and Lenders, and their
respective employees, Administrative Agent, officers and directors, from and
against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under, any Environmental Law
applicable


 


23

















 


to the operations of Borrower or any of its Subsidiaries or their
respective properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable attorney’s
and consultant’s fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the foregoing
is determined by a final and nonappealable judgment of a court of competent
jurisdiction to have resulted from the negligence or willful misconduct of the
party seeking indemnification therefor. The agreements in this Subsection 2.12 shall survive
repayment of the Obligations and the termination of this Agreement.


 


2.12                           Creation
or Acquisition of Subsidiaries. Subject to the provisions of Subsection 3.6,
Borrower may from time to time create new Subsidiaries, and Subsidiaries
of Borrower may create or acquire new Subsidiaries, provided that
concurrently with (and in any event within ten Business Days thereafter) the
creation or acquisition of any new Subsidiary, all the capital stock of or
other equity interest in such new Subsidiary owned by the Borrower or any
Subsidiary of the Borrower will be pledged to the Administrative Agent as
follows (provided that any equity interests in any new foreign
Subsidiary formed or acquired after the Closing Date that constitutes a “controlled
foreign corporation” under Section 956 of the IRC which, when aggregated
with all of the other shares of equity interests in such Subsidiary pledged to
Administrative Agent, would result in more than 65% of the total equity
interests of such Subsidiary being pledged to Administrative Agent, need not be
pledged):  (i) if Borrower directly
owns any of the capital stock of or other equity interest in such new
Subsidiary, Borrower will execute and deliver to the Administrative Agent any
amendment or supplement to its Security Agreement as Administrative Agent may reasonably
request pursuant to which all such capital stock or other equity interest shall
be pledged to the Administrative Agent, together, if applicable, with the
certificates evidencing such capital stock and undated stock powers duly
executed in blank; and (ii) if any of the capital stock of or other equity
interest in such new Subsidiary is owned by a wholly-owned direct or indirect
Subsidiary of Borrower, such other Subsidiary will execute and deliver to the
Administrative Agent (except in connection with a Permitted Acquisition where
the stock is pledged to another Person in connection with such acquisition or
any debt assumed thereunder) a Security Agreement or an amendment or supplement
to its Security Agreement, pursuant to which all of the capital stock of or
other equity interest in such new Subsidiary owned by such other Subsidiary
shall be pledged to the Administrative Agent, together with the certificates
evidencing such capital stock and undated stock powers duly executed in blank. As
promptly as reasonably possible, Borrower and its Subsidiaries will deliver any
such other documents, certificates and opinions (including opinions of local
counsel in the jurisdiction of organization of each such new Subsidiary), in form and
substance reasonably satisfactory to the Administrative Agent, as the
Administrative Agent may reasonably request in connection therewith and
will take such other action as the Administrative Agent may reasonably
request to create in favor of the Administrative Agent a perfected security
interest on a first-priority basis in the Collateral being pledged pursuant to
the documents described above.


 


SECTION 3

NEGATIVE COVENANTS


 


Borrower hereby
covenants and agrees that so long as this Agreement is in effect and until
payment in full of all Obligations (other than unasserted indemnity claims),
unless Requisite Lenders


 


24

















 


shall otherwise give
their prior written consent, Borrower shall perform and comply, and shall
cause each of its Subsidiaries to perform and comply, with all covenants
in this Section 3.


 


3.1                                 Indebtedness.
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume, guaranty or otherwise become or remain
liable with respect to any Indebtedness other than:


 


(A)                              the
Obligations;


 


(B)                                the
Contingent Obligations permitted by Subsection 3.4;


 


(C)                                Indebtedness
under purchase money security agreements and Capital Leases, the aggregate
principal amount of which shall not exceed $5,000,000 at any one time;


 


(D)                               Indebtedness
to US Bancorp Equipment Finance, Inc. in a principal amount not to exceed
$1,900,000, existing on the Closing Date (the “Airplane Indebtedness”);


 


(E)                                 Indebtedness
incurred in connection with any Related Interest Rate Agreement and incurred in
connection with any Interest Rate Agreement to hedge the interest rate exposure
applicable to any portions of other Indebtedness permitted pursuant to this Subsection 3.1;


 


(F)                                 Indebtedness
assumed in connection with Permitted Acquisitions; and


 


(G)                                other
Indebtedness, the aggregate principal amount of which shall not exceed
$2,000,000 at any one time.


 


3.2                                 Liens
and Related Matters. Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset (including any
document or instrument with respect to goods or accounts receivable) of
Borrower or any of its Subsidiaries, whether now owned or hereafter acquired,
or any income or profits therefrom, except Permitted Encumbrances.


 


3.3                                 Investments.
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, make or own any Investment in any Person except:


 


(A)                              Borrower
and its Subsidiaries may make and own Investments in Cash Equivalents, provided
that such Cash Equivalents are not subject to set off rights;


 


(B)                                obligations
of or equities in CoBank, as set forth in Subsection 2.8;


 


(C)                                existing
Investments set forth on Schedule 3.3(c);


 


(D)                               the
Acquisition and Permitted Acquisitions;


 


(E)                                 exercise
of the Put-Call;


 


(F)                                 purchases
after the Closing Date of additional ownership interests in BDC, in an
aggregate amount during each fiscal year of Borrower not to exceed $250,000;


 


25

















 


(G)                                in
addition to Subsection 3.3(F), within one year of the Amendment Date,
purchases of additional ownership interests in BDC, and Investments in BDC made
to allow BDC to redeem such interests, provided, that  (i) the aggregate amount of the
Investments made in reliance on this Subsection (G) may not
exceed $20,000,000 and (ii), subject to the last sentence of Section 2.3
of the Security Agreement, all of the ownership interests of the Borrower in
BDC are pledged to the Administrative Agent and the Borrower has delivered to
the Administrative Agent the stock certificates evidencing such ownership
interest and all other documents required by Section 2.3(i) or Article V
of the Security Agreement;


 


(H)                               advances
to Subsidiaries, provided that such advances are evidenced by written
promissory notes, such notes are demand notes and contain terms and provisions,
including applicable interest rates, reasonable acceptable to Administrative
Agent,  and such notes have been
delivered to Administrative Agent; and


 


(I)                                    other
Investments in the Communications industry, the aggregate amount of which shall
not exceed for any fiscal year (X) 5% of Borrower’s consolidated assets for the
prior fiscal year plus (Y) the excess, if any, of the amount that
Borrower was permitted in the prior fiscal year to dividend or distribute
pursuant to clause (i) of the first proviso in Subsection 3.5 over
the aggregate amount of dividends and distributions actually made by Borrower
during such fiscal year pursuant to clause (i) of the first proviso in Subsection 3.5,
minus (Z) the aggregate amount of assets or business acquired in reliance
on the proviso of Subsection 3.6(iv) for the fiscal year of the
Investment.


 


3.4                                 Contingent
Obligations. Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or become or be liable with respect to any
Contingent Obligation except those:


 


(A)                              resulting
from endorsement of negotiable instruments for collection in the ordinary
course of business;


 


(B)                                arising
under indemnity agreements to title insurers in connection with mortgagee title
insurance policies in favor of Collateral Agent for the benefit of itself and
the other Lenders;


 


(C)                                arising
with respect to customary indemnification obligations incurred in connection
with Permitted Acquisitions and permitted Asset Dispositions (provided
that such obligations shall in no event exceed the amount of proceeds received
in connection therewith);


 


(D)                               arising
in the ordinary course of business with respect to customary indemnification
obligations incurred in connection with liability insurance coverage;


 


26

















 


(E)                                 incurred
in the ordinary course of business with respect to surety and appeal bonds,
performance and return-of-money bonds and other similar obligations not
exceeding at any time outstanding $500,000 in aggregate liability;


 


(F)                                 incurred
as a guaranty of Indebtedness permitted by Subsection 3.1 (provided
that such guaranty obligation shall in no event exceed the amount of such
Indebtedness plus other related costs and expenses of collection as set forth
in such guaranty); and


 


(G)                                Contingent
Obligations arising under the Loan Documents.


 


3.5                                 Restricted
Junior Payments. Borrower will not, directly or indirectly, declare, order,
pay, make or set apart any sum for any Restricted Junior Payment; provided,
however, that so long as no Default or Event of Default exists before or
will result after giving effect to such distribution on a pro forma basis,
Borrower may, during any fiscal year commencing with the fiscal year ending December 31,
2005, (i) make, declare or pay lawful cash dividends or distributions to
its shareholders or redeem capital stock in an aggregate amount which is
greater of 50% of (y) Borrower’s consolidated net income (excluding non-cash
extraordinary items, such as the writedown or writeup of assets) for the
immediately preceding fiscal year or (z) Borrower’s consolidated net
income for the current year annualized and (ii) redeem or repurchase
capital stock of Borrower in connection with the termination of an employee or
any other Board approved stock redemption or repurchase plan in an aggregate
amount during each fiscal year not to exceed $250,000; provided, however,
further, that notwithstanding any other provisions of this Subsection 3.5,
Borrower shall be permitted to (y) exercise the “call” and perform the “put”
provisions relating to the 5% minority interest of BAS (as defined in the
Commnet Operating Agreement) in Commnet provided for in the Commnet Operating
Agreement in effect  as of the Closing
Date (the “Put-Call”), and (z)
make the tax distributions provided for in the Commnet Operating Agreement in
effect as of the Closing Date.


 


3.6                                 Restriction
on Fundamental Changes. Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly: 
(i) unless and only to the extent required by law or as would not
be reasonably expected to be adverse to the interests of Lenders, amend, modify
or waive any term or provision of its articles of organization, operating
agreement, management agreements, articles of incorporation, certificates of
designations pertaining to preferred stock or by-laws; (ii) enter into any
transaction of merger or consolidation, except that any Subsidiary of
Borrower may be merged with or into Borrower or any wholly owned
Subsidiary (provided that Borrower or such wholly owned Subsidiary is
the surviving entity) and except that any Permitted Acquisition or any
permitted Asset Disposition may be structured as merger; (iii) liquidate,
wind-up or dissolve itself (or suffer any liquidation or dissolution), except
in connection with another transaction permitted under clause (ii) above;
or (iv) acquire by purchase or otherwise all or any substantial part of
the business or assets of any other Person (whether by stock purchase or
otherwise), provided, that Borrower or any Subsidiary of Borrower may acquire
all or any substantial part of the business or assets of any other Person
or equity interests in any Person so long as (a) no Default or Event of
Default exists before or will result after giving effect to such acquisition on
a pro forma basis, (b) such assets or business are held in Borrower, an
existing Subsidiary or a new Subsidiary that complies with Subsection 2.12,
and (c) the aggregate amount of assets or business acquired pursuant to
this proviso in any fiscal year of Borrower (without deduction for Indebtedness
assumed) does not exceed the sum of  (X)
5% of Borrower’s consolidated assets for the prior fiscal year plus (Y)
the


 


27

















 


excess, if any, of the
amount that Borrower was permitted in the prior fiscal year to dividend or
distribute pursuant to clause (i) of the first proviso in Subsection 3.5
over the aggregate amount of dividends and distributions actually made by
Borrower during such fiscal year pursuant to clause (i) of the first
proviso in Subsection 3.5, minus (Z) the aggregate amount of
Investments made pursuant to Section 3.3(I) for the fiscal year of the
acquisition (each, a “Permitted Acquisition”).


 


3.7                                 Disposal
of Assets or Subsidiary Stock. Borrower will not, and will not permit any
of its Subsidiaries to, directly or indirectly, convey, sell (including,
without limitation, pursuant to a sale and leaseback transaction, except those
that would be permitted under Subsection 3.1(G) deeming any such
sale-leaseback to be Indebtedness, subject to documentation reasonably
satisfactory to Administrative Agent), lease (including, without limitation,
pursuant to a lease and leaseback transaction), sublease, transfer or otherwise
dispose of, or grant any Person an option to acquire, in one transaction or a series of
transactions, any of its property, business or assets, or the capital stock of
or other equity interests in any of its Subsidiaries, whether now owned or
hereafter acquired, except for (i) bona fide sales or leases of inventory
to customers in the ordinary course of business, dispositions of surplus, worn
out or obsolete equipment, and any conveyance, lease, sublease, transfer or
other disposition of assets of any of Borrower or its Subsidiaries to Borrower
or any of its wholly owned Subsidiaries; (ii) fair market value sales of
Cash Equivalents; (iii) leasing or subleasing of its property in the
ordinary course of business; (iv) the sale of all or substantially all of
the assets of Comnet Illinois, LLC and MoCelCo, LLC to AT&T Mobility, LLC
on terms (a) substantially the same as those set forth in the term sheet,
dated as of May 1, 2007, between Comnet Wireless, LLC and AT&T
Mobility, LLC, or (b) reasonably satisfactory to the Administrative Agent;
and (v) all other Asset Dispositions if all of the following conditions
are met: (a) the aggregate market value of such assets sold in any fiscal
year of Borrower does not exceed $5,000,000 in the aggregate for Borrower and
its Subsidiaries; (b) the consideration received by Borrower or such
Subsidiary is at least equal to the fair market value of such assets; (c) the
sole consideration received is cash or other equipment of comparable value to
that disposed of and that is to be used in the business of Borrower or such
Subsidiary; (d) after giving effect to the Asset Disposition, Borrower, on
a combined and consolidated basis with its Subsidiaries as set forth in Section 4,
are in compliance on a pro forma basis with the covenants set forth in Section 4
recomputed for the most recently ended fiscal quarter for which information is
available; and (e) no Default or Event of Default then exists or shall
result from the Asset Disposition.


 


3.8                                 Transactions
with Affiliates. Borrower will not, and will 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 or with any director, officer
or employee of Borrower or any Affiliate, except (i) as set forth on Schedule 3.8
or as permitted pursuant to Subsections 3.3, 3.5, 3.6, 3.7 and 3.9; (ii) transactions
upon fair and reasonable terms which (in the case of transactions requiring
payments by Borrower or its Subsidiaries in the aggregate in excess of $250,000
in any fiscal year) are fully disclosed to Lenders and are no less favorable to
Borrower or such Subsidiary than would be obtained in a comparable arm’s length
transaction with a Person that is not an Affiliate; (iii) transactions
among Borrower and its wholly owned Subsidiaries; or (iv) payment of
compensation to directors, officers and employees in the ordinary course of
business for services actually rendered in their capacities as directors, officers
and employees, provided such compensation is reasonable and comparable
with compensation paid by companies of like nature and similarly situated.


 


28

















 


3.9                                 Management
Fees. Borrower will not, and will not permit any of its Subsidiaries to,
directly or indirectly, pay any management or other similar fees to any Person;
except management fees paid to Borrower or, by any Subsidiary of Commnet, to
Commnet, Borrower or any wholly owned Subsidiary of Borrower, or other
management or similar fees proposed by Borrower and satisfactory to Requisite
Lenders.


 


3.10                           Conduct
of Business. Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, engage in any business other than businesses of
owning, constructing, managing, operating and investing (subject to Subsection 3.3)
in Communications Systems or other businesses related thereto.


 


3.11                           Fiscal
Year. Borrower will not, and will not permit any of its Subsidiaries to,
change its fiscal year, which ends on December 31.


 


3.12                           Modification
of Agreements. Borrower will not amend, modify or change, or consent or
agree to any amendment, modification or change to, any of the terms of any
Material Contracts, except to the extent such change, amendment, modification
or consent is not materially adverse to Administrative Agent or any Lender and
would not otherwise have a Material Adverse Effect.


 


3.13                           Inconsistent
Agreements. Borrower will not, and will
not permit any of its Subsidiaries to, enter into any agreement containing any
provision which would (a) be violated or breached by any borrowing by
Borrower hereunder or by the performance by Borrower or such Subsidiary of any
of its obligations hereunder or under any other Loan Document (other than
permitted Capital Leases and purchase money security agreements), (b) prohibit
Borrower or such Subsidiary from granting to Administrative Agent, for the
benefit of itself and Lenders a lien on any of its assets (other than assets
subject to a purchase money security interest or a Capital Lease) or (c) create
or permit to exist or become effective any encumbrance or restriction on the
ability of such Subsidiary to (i) pay dividends or make other
distributions to its parent or any other applicable Subsidiary of its parent,
or pay any Indebtedness owed to its parent or any Subsidiary of its parent, (ii) make
loans or advances to its parent or (iii) transfer any of its assets or
properties to its parent.


 


SECTION 4

FINANCIAL COVENANTS AND REPORTING


 


Borrower hereby covenants and agrees that so long as
this Agreement is in effect and until payment in full of all Obligations (other
than unasserted indemnity claims), unless Requisite Lenders shall otherwise
give their prior written consent, Borrower shall perform and comply with,
and shall cause each of its Subsidiaries to perform and comply with, all
covenants in this Section 4. For the purposes of this Section 4,
except as expressly provided below, all covenants calculated for Borrower shall
be calculated on a consolidated basis for Borrower and its Subsidiaries.


 


4.1                                 Total
Leverage Ratio. Commencing on the Closing Date, Borrower shall maintain at
all times, measured at each fiscal quarter end, a Total Leverage Ratio of less
than or equal to 2.0:1:0 ; provided, however, Borrower will have
60 days after the applicable reporting date to cure any default


 


29

















 


under this Subsection 4.1
by reducing the Indebtedness of Borrower on a consolidated basis through an
equity issuance.


 


4.2                                 Commnet
Leverage Ratio. Commencing on the Closing Date, Commnet shall maintain at
all times, measured at each fiscal quarter end occurring during the periods set
forth below and maintained through the next measurement date, a Commnet
Leverage Ratio of less than or equal to the ratio set forth below opposite such
period:


 


	
  Date

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Closing
  Date through and including December 31, 2005

  	
   

  	
  7.500:1.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  January 1,
  2006 through and including June 30, 2006

  	
   

  	
  7.000:1.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  July 1,
  2006 through and including December 31, 2006

  	
   

  	
  6.250:1.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  January 1,
  2007 through and including June 30, 2007

  	
   

  	
  5.750:1.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  July 1,
  2007 through and thereafter

  	
   

  	
  5.000:1.0

  	
   

  



 


; provided, however, Borrower will have 60 days after the
applicable reporting date to cure any default under this Subsection 4.2 by
reducing the Indebtedness of Borrower on a consolidated basis or increasing the
Borrower Pledged Cash, except that, Borrower and any of its Subsidiaries,
including Commnet, may not incur an additional Indebtedness in order to
cure such default.


 


4.3                                 Debt
Service Coverage Ratio. Commencing on the Closing Date, Borrower shall
maintain at all times, measured at each fiscal quarter end, a Debt Service
Coverage Ratio greater than or equal to 3.0:1.0.


 


4.4                                 Equity
to Assets Ratio. Commencing on the Closing Date, Borrower shall maintain at
all times, measured at each fiscal quarter end, an Equity to Assets Ratio
greater than or equal to 0.40:1.0.


 


4.5                                 Financial
Statements and Other Reports. Borrower will maintain, and cause each of its
Subsidiaries to maintain, a system of accounting established and administered
in accordance with sound business practices to permit preparation of financial
statements in conformity with GAAP consistently applied (it being understood
that quarterly financial statements are not required to have footnote
disclosures or reflect year end adjustments). Borrower will deliver or cause to
be delivered each of the financial statements and other reports described below
to Administrative Agent (and each Lender in the case of the financial
statements and other reports described in Subsections 4.5(A) through
(I) and (K)).


 


30

















 


(A)                              Quarterly
Financials; Other Quarterly Reports. As soon as available and in any event
within 60 days after the end of each of its first three fiscal quarters,
Borrower will deliver or cause to be delivered consolidated and consolidating
balance sheets of Borrower and its Subsidiaries, as at the end of such fiscal
quarter, and the related consolidated and consolidating statements of income,
stockholders’ equity and cash flows for such fiscal quarter and for the period
from the beginning of the then current fiscal year of Borrower to the end of
such quarter.


 


(B)                                Year-End
Financials. As soon as available and in any event within 120 days after the
end of each fiscal year of Borrower, Borrower will deliver or cause to be
delivered (i) consolidated and consolidating balance sheets of Borrower
and its Subsidiaries, as at the end of such year, and the related consolidated
and consolidating statements of income, stockholders’ equity and cash flows for
such fiscal year, and (ii) reports with respect to the financial
statements received pursuant to this Subsection from PriceWaterhouseCoopers
or another nationally recognized firm of independent certified public
accountants selected by Borrower and reasonably acceptable to Administrative
Agent, which report shall be prepared in accordance with Statement of Auditing
Standards No. 58 (the “Statement”),
as amended, entitled “Reports on Audited Financial Statements” and such report
shall be “Unqualified” (as such term is defined in the Statement).


 


(C)                                Compliance
Certificates. Together with each delivery of financial statements of
Borrower and its Subsidiaries pursuant to Subsections 4.5(A) and (B),
Borrower will deliver or cause to be delivered a fully and properly completed
compliance certificate in substantially the same form as Exhibit 4.5(C) (each,
a “Compliance Certificate”) signed
by two of the chief executive officer, the chief financial officer and the
chief accounting officer of Borrower.


 


(D)                               Accountants’
Reliance Letter. Together with each delivery of financial statements of
Borrower and its Subsidiaries pursuant to Subsection 4.5(B), Borrower will
deliver or cause to be delivered a copy of letters addressed to Borrower’s
certified public identifying Lenders as parties that Borrower intend to rely on
such professional services provided to Borrower by such accountants.


 


(E)                                 Accountants’
Reports. Promptly upon receipt thereof, Borrower will deliver or cause to
be delivered copies of all significant reports submitted by Borrower’s firm of
certified public accountants in connection with each annual, interim or special
audit or review of any type of the financial statements or related internal
control systems of Borrower made by such accountants, including any comment
letter submitted by such accountants to management in connection with their
services.


 


(F)                                 Management
Report. Together with each delivery of financial statements of Borrower and
its Subsidiaries pursuant to Subsections 4.5(A) and 4.5(B), Borrower will
deliver or cause to be delivered (i) if the Borrower is no longer subject
to reporting requirements of the Exchange Act, reports in scope and content
substantively similar to its present SEC reporting and (ii) quarterly
operational data in scope and content substantially similar to that data now
provided to Borrower’s Board of Directors as its monthly “Dashboard.”  The
information above shall be presented in reasonable detail and shall be
certified by the chief financial officer or chief operating officer of
Borrower, respectively, to the effect that, to his or her knowledge after
reasonable


 


31

















 


diligence, such
information fairly presents the results of operations and financial condition
of Borrower and its Subsidiaries as at the dates and for the periods indicated.


 


(G)                                Budget.
(i)  As soon as reasonably available, but in any event within 60 days
after the first day of each fiscal year of Borrower, respectively, occurring
during the term hereof, Borrower shall deliver or cause to be delivered
operating and capital spending budgets (the “Budgets”)
of Borrower and its Subsidiaries for such fiscal year, quarter by quarter and (ii) promptly
after becoming aware thereof, Borrower will deliver or cause to be delivered
any material amendment to or deviation from such Budgets.


 


(H)                               SEC
Filings and Press Releases. Promptly upon their becoming available,
Borrower will deliver or cause to be delivered copies of (i) all financial
statements, reports, notices and proxy statements sent or made available by
Borrower or any Subsidiary of Borrower to its or their respective security
holders, (ii) all regular and periodic reports and all registration
statements and prospectuses, if any, filed by Borrower or any Subsidiary of
Borrower with any securities exchange or with the Securities and Exchange
Commission (the “SEC”) or any
governmental or private regulatory authority, and (iii) all press releases
and other statements made available by Borrower or any Subsidiary of Borrower
to the public concerning developments in the business of any such Person.


 


(I)                                    Events
of Default, Etc. Promptly upon any executive officer of Borrower obtaining
knowledge of any of the following events or conditions, Borrower shall deliver
copies of all notices given or received by Borrower or any Subsidiary of
Borrower with respect to any such event or condition and a certificate of the
chief executive officer or chief operating officer of Borrower or such
Subsidiary specifying the nature and period of existence of such event or
condition and what action, if any, 
Borrower or such Subsidiary has taken, is taking and proposes to take
with respect thereto:  (i) any Event
of Default or Default; (ii) any notice that any Person has given to
Borrower or any Subsidiary of Borrower or any other action taken with respect
to a claimed default or event or condition of the type referred to in Subsection 6.1(B);
or (iii) any event or condition that could reasonably be expected to have
a Material Adverse Effect.


 


(J)                                   Litigation.
Promptly upon any executive officer of Borrower obtaining knowledge of (i) the
institution of any action, suit, proceeding, governmental investigation or
arbitration against or affecting Borrower or any Subsidiary of Borrower not
previously disclosed by Borrower to Administrative Agent or (ii) any
material development in any action, suit, proceeding, governmental
investigation or arbitration at any time pending against or affecting Borrower
or any Subsidiary of Borrower which, in each case, could reasonably be expected
to have a Material Adverse Effect, Borrower will promptly give notice thereof
to Administrative Agent and provide such other information as may be
requested by Administrative Agent and reasonably available to Borrower to
enable Administrative Agent and its counsel to evaluate such matter.


 


(K)                               Regulatory
and Other Notices. Within 30 days after filing, receipt or becoming aware
thereof, Borrower will deliver or cause to be delivered copies of any filings
or communications sent to or notices and other communications received by
Borrower or any Subsidiary of Borrower from any Governmental Authority,
including the FCC, any applicable PUC and the SEC, relating to any
noncompliance by Borrower or any Subsidiary of Borrower with any


 


32

















 


law or with respect to
any matter or proceeding the effect of which could reasonably be expected to
have a Material Adverse Effect.


 


(L)                                 Material
Adverse Effect. Promptly after becoming aware thereof, Borrower will give
written notice to Administrative Agent and Lenders of any change in events or
changes in facts or circumstances affecting Borrower or any Subsidiary of
Borrower which individually or in the aggregate have had or could reasonably be
expected to have a Material Adverse Effect.


 


(M)                            Environmental
Notices. Promptly after becoming aware of any violation by Borrower or any
Subsidiary of Borrower of Environmental Laws or promptly upon receipt of any
notice that a Governmental Authority has asserted that Borrower or any
Subsidiary of Borrower is not in compliance with Environmental Laws or that its
compliance is being investigated, Borrower will give notice to Administrative
Agent and Lenders thereof and provide such other information as may be
reasonably available to Borrower to enable Administrative Agent and Lenders to
reasonably evaluate such matter.


 


(N)                               ERISA
Events. Immediately after becoming aware of any ERISA Event, accompanied by
any materials required to be filed with the PBGC with respect thereto;
immediately after Borrower’s or any of its Subsidiaries’ receipt of any notice
concerning the imposition of any withdrawal liability under Section 4042
of ERISA with respect to a Plan; immediately upon the establishment of any
Pension Plan not existing at the Closing Date or the commencement of
contributions by Borrower or any of its Subsidiaries to any Pension Plan to
which Borrower or any of its Subsidiaries was not contributing at the Closing
Date; and immediately upon becoming aware of any other event or condition
regarding a Plan or Borrower’s, or any of its Subsidiaries’ or an ERISA
Affiliate’s compliance with ERISA which could reasonably be expected to have a
Material Adverse Effect, Borrower will give notice to Administrative Agent and
Lenders thereof and provide such other information as may be reasonably
available to Borrower to enable Administrative Agent and Lenders to reasonably
evaluate such matter.


 


(O)                               Other
Information. With reasonable promptness, Borrower will deliver such other
information and data with respect to Borrower and any of its Subsidiaries as
from time to time may be reasonably requested by Administrative Agent,
Collateral Agent or any Lender.


 


4.6                                 Accounting
Terms; Utilization of GAAP for Purposes of Calculations Under Agreement. For
purposes of this Agreement, all accounting terms not otherwise defined herein
shall have the meanings assigned to such terms in conformity with GAAP. Except
as otherwise expressly provided, financial statements and other information
furnished to Administrative Agent pursuant to this Agreement shall be prepared
in accordance with GAAP as in effect at the time of such preparation. No Accounting
Changes (as defined below) shall affect financial covenants, standards or terms
in this Agreement; provided that Borrower shall prepare footnotes to
each Compliance Certificate and the financial statements required to be
delivered hereunder that show the differences between the financial statements
delivered (which reflect such Accounting Changes) and the basis for calculating
financial covenant compliance in accordance with GAAP as in effect as of the
Closing Date (without reflecting such Accounting Changes). “Accounting Changes” means:  (i) changes in accounting principles
required by GAAP and implemented by Borrower or any Subsidiary of Borrower; (ii) changes
in accounting principles recommended by Borrower’s certified


 


33

















 


public accountants and
implemented by Borrower or any Subsidiary of Borrower; and (iii) changes
in the method of determining carrying value of Borrower’s or any of its
Subsidiary’s assets, liabilities or equity accounts. All such adjustments
resulting from expenditures made subsequent to the Closing Date (including, but
not limited to, capitalization of costs and expenses or payment of pre-Closing
Date liabilities) shall be treated as expenses in the period the expenditures
are made.


 


SECTION 5

REPRESENTATIONS AND WARRANTIES


 


In order to induce
Administrative Agent and Lenders to enter into this Agreement and to make
Loans, Borrower hereby represents and warrants to Administrative Agent and each
Lender on the Closing Date (taking into account the consummation of the
Acquisition), the Amendment Date and on the date of each request for a Loan or
the issuance of a Letter of Credit that the following statements are true,
correct and complete; provided, such statements shall take into account
the completion of the Acquisition:


 


5.1                                 Disclosure.
The information furnished by or on behalf of Borrower and its Subsidiaries
contained in this Agreement, the financial statements referred to in Subsection 5.8
and any other document, certificate, opinion or written statement furnished to
Administrative Agent or any Lender pursuant to this Agreement or any other Loan
Document (other than projections), taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained herein or therein not misleading in
light of the circumstances in which the same were made. Any projections
provided by or on behalf of Borrower and its Subsidiaries have been prepared by
management in good faith and based upon assumptions believed by management to
be reasonable at the time the projections were prepared. Borrower is not aware
of any fact which it has not disclosed in writing to Administrative Agent
having or which could reasonably be expect to have a Material Adverse Effect.


 


5.2                                 No
Material Adverse Effect. Since the Closing Date, there has been no event or
change in facts or circumstances affecting Borrower or any of its Subsidiaries
which individually or in the aggregate have had or could reasonably be expected
to have a Material Adverse Effect and that have not been disclosed herein or in
the attached Schedules.


 


5.3                                 Organization,
Powers, Authorization and Good Standing.


 


(A)                              Organization
and Powers. Borrower and its Subsidiaries are limited liability companies,
corporations or partnerships duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization or incorporation
(which jurisdiction is set forth on Schedule 5.3(A)). Except as
disclosed on Schedule 5.3(A), Borrower and its Subsidiaries have
all requisite legal power and authority to own and operate its properties, to
carry on its business as now conducted and proposed to be conducted, to enter
into each Loan Document to which it is a party and to carry out its respective
obligations with respect thereto.


 


(B)                                Authorization;
Binding Obligation. Borrower and its Subsidiaries have taken all necessary
limited liability company, partnership, corporate and other action to authorize
the


 


34

















 


execution, delivery and
performance of this Agreement and each of the other Loan Documents to which it
is a party. This Agreement is, and the other Loan Documents when executed and
delivered will be, the legally valid and binding obligations of the applicable
parties thereto (other than Administrative Agent and Lenders), each enforceable
against each of such parties, as applicable, in accordance with their
respective terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar state or federal debt or
relief laws from time to time in effect which affect the enforcement of
creditors’ rights in general and general principles of equity.


 


(C)                                Qualification.
Borrower and its Subsidiaries are duly qualified and authorized to do business
and in good standing in each jurisdiction where the nature of its business and
operations requires such qualification and authorization, except where the
failure to be so qualified, authorized and in good standing could not
reasonably be expected to have a Material Adverse Effect. All jurisdictions in
which each such Person is qualified and authorized to do business are set forth
on Schedule 5.3(C).


 


5.4                                 Compliance
of Agreement, Loan Documents and Borrowings with Applicable Law. The
execution, delivery and performance by Borrower and its Subsidiaries of the
Loan Documents to which each such Person is a party, the borrowings hereunder
and the transactions contemplated hereby and thereby do not and will not, by
the passage of time, the giving of notice or otherwise, (i) require any
Governmental Approval or violate any Applicable Law relating to Borrower or any
of its Subsidiaries, (ii) conflict with, result in a breach of or
constitute a default under the articles of incorporation, bylaws or other
organizational documents of Borrower or its Subsidiaries or any Material
Contract to which such Person is a party or by which any of its properties may be
bound or any Governmental Approval relating to such Person or (iii) except
as required or permitted under the Loan Documents, result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by such Person.


 


5.5                                 Compliance
with Law; Governmental Approvals. Borrower and its Subsidiaries (i) have,
or have the right to use, all material Governmental Approvals, including the
Franchises and the Licenses, required by any Applicable Law for it to conduct
its business, and (ii) are in material compliance with each Governmental
Approval, including the Franchises and the Licenses, applicable to it and in
compliance with all other Applicable Laws relating to it or any of its
respective properties the violation of which could reasonably be expected to
have a Material Adverse Effect.


 


5.6                                 Tax
Returns and Payments. Borrower and its Subsidiaries have duly filed or
caused to be filed all federal, state, local and other tax returns required by
Applicable Law to be filed, and have paid, or made adequate provision for the
payment of, all federal, state, local and other taxes, assessments and
governmental charges or levies upon it and its property, income, profits and
assets which are due and payable, except where the payment of such tax
is being diligently contested in good faith and adequate reserves therefor have
been established in compliance with GAAP. The charges, accruals and reserves on
the books of Borrower and its Subsidiaries in respect of federal, state, local
and other taxes for all fiscal years and portions thereof are in the judgment
of Borrower adequate, and Borrower and its Subsidiaries do not anticipate any
additional material taxes or assessments for any of such years.


 


35






 












 


5.7                                 Environmental
Matters. Borrower and its Subsidiaries are in compliance in all material
respects with all applicable Environmental Laws, and there is no contamination
at, under or about such properties or such operations which interfere in any
material respect with the continued operation of such properties or impair in
any material respect the fair saleable value thereof or with such operations,
except for any such violations or contamination as could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


 


5.8                                 Financial
Statements.


 


(A) All financial statements concerning Borrower
and its Subsidiaries which have been furnished to Administrative Agent and
Lenders pursuant to this Agreement have been prepared in accordance with GAAP
consistently applied (except as disclosed therein) and present fairly in all
material respects the financial condition of the Persons covered thereby as of
the date thereof and the results of their operations for the periods covered thereby
and do and will disclose all material liabilities and Contingent Obligations of
any of Borrower or its Subsidiaries as at the dates thereof.


 


(B)                                All
Budgets concerning Borrower and its Subsidiaries which have been furnished to
Administrative Agent or Lenders were prepared in good faith by or on behalf of
Borrower and such Subsidiaries. No fact is known to Borrower which materially
and adversely affects or is reasonably expected to have a Material Adverse
Effect which has not been set forth in the financial statements referred to in
Subsection 5.8(A) or in such information, reports, papers and data or
otherwise disclosed in writing to Administrative Agent or Lenders prior to the
Closing Date.


 


5.9                                 Intellectual
Property. Borrower and its Subsidiaries own, or possess through valid
licensing arrangements, the right to use all patents, copyrights, trademarks,
trade names, service marks, technology know-how and processes necessary for the
conduct of its business as currently or anticipated to be conducted (collectively,
the “Intellectual Property Rights”)
without infringing upon any validly asserted rights of others, except for any
Intellectual Property Rights to absence of which could not reasonably be
expected to have a Material Adverse Effect. No event has occurred which
permits, or after notice or lapse of time or both would permit, the revocation
or termination of any such rights. Neither Borrower nor its Subsidiaries have
been threatened in writing with any litigation regarding Intellectual Property
Rights that would present a material impediment to the business of any such
Person.


 


5.10                           Litigation,
Investigations, Audits, Etc. Except as set forth on Schedule 5.10,
there is no action, suit, proceeding or investigation pending against, or, to
the knowledge of Borrower, threatened against Borrower or its Subsidiaries or
any of their respective properties, including the Licenses, in any court or
before any arbitrator of any kind or before or by any Governmental Authority
(including the FCC), except such as (i) affect the telecommunications
industry generally, (ii) do not call into question the validity or
enforceability of this Agreement or any other Loan Document or any lien or
security interest created hereunder, or (iii) individually or collectively
would not reasonably be expected to have a Material Adverse Effect. Except as
set forth on Schedule 5.10, to Borrower’s knowledge, none of
Borrower and its Subsidiaries are the subject of any review or audit by the
Internal Revenue Service or any investigation by any Governmental Authority
concerning the violation or possible violation of any law (other than routine
IRS audits).


 


36

















 


5.11                           Employee
Labor Matters. Except as set forth on Schedule 5.11, (i) neither
of Borrower nor its Subsidiaries nor any of their respective employees is
subject to any collective bargaining agreement, (ii) no petition for
certification or union election is pending with respect to the employees of any
such Person and no union or collective bargaining unit has sought such
certification or recognition with respect to the employees of any such Person
and (iii) there are no strikes, slowdowns, unfair labor practice
complaints, work stoppages or controversies pending or, to the best
knowledge of Borrower after due inquiry, threatened between any such Person and
its respective employees, other than employee grievances arising in the
ordinary course of business which could not reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.


 


5.12                           ERISA
Compliance.


 


(A)                              Each
Plan is in compliance in all material respects with the applicable provisions
of ERISA, the IRC and other federal or state law. Each Plan which is intended
to qualify under Section 401(a) of the IRC has received a favorable
determination letter from the Internal Revenue Service and to the best
knowledge of Borrower, nothing has occurred that would cause the loss of such
qualification. Borrower and each ERISA Affiliate has made all required contributions
to any Plan subject to Section 412 of the IRC, and no application for a
funding waiver or an extension of any amortization period pursuant to Section 412
of the IRC has been made with respect to any Plan.


 


(B)                                There
are no pending or, to the best knowledge of Borrower, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to
any Plan which has resulted or could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted
or could reasonably be expected to have a Material Adverse Effect.


 


(C)                                (i) No
ERISA Event has occurred or is reasonably expected to occur; (ii) no
Pension Plan has any unfunded liability; (iii) no Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums due and
not delinquent under Section 4007 of ERISA); (iv) neither Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multi-employer Plan; and (v) neither Borrower nor
any ERISA Affiliate has engaged in a transaction that could subject any Person
to Section 4069 or 4212(c) of ERISA.


 


5.13                           Communications
Regulatory Matters.


 


(A)                              Schedule 5.13(A) sets
forth a true and complete list of the following information for each Franchise
and License issued to or utilized by Borrower and its Subsidiaries:  the name of the licensee, the type of
service, the expiration date and the geographic area covered by such License.


 


37

















 


(B)                                Other
than as set forth on Schedule 5.13(B), the Franchises and the
Licenses are valid and in full force and effect without conditions except for
such conditions as are generally applicable to holders of such Franchise and
such Licenses. No event has occurred and is continuing which could reasonably
be expected to (i) result in the imposition of a material forfeiture or
the revocation, termination or adverse modification of any such Franchise and
such License or (ii) materially and adversely affect any rights of
Borrower or its Subsidiaries thereunder. Borrower has no reason to believe and
has no knowledge that any Franchise or any License will not be renewed in the
ordinary course. Neither Borrower nor any of its Subsidiaries is a party to any
investigation, notice of violation, order or complaint issued by or before the
FCC or any applicable Governmental Authority, and there are no proceedings
pending by or before the FCC or any applicable Governmental Authority which
could in any manner threaten or adversely affect the validity of any Franchise
or any License.


 


(C)                                All
of the material properties, equipment and systems owned, leased or managed by
Borrower and its Subsidiaries are, and (to the best knowledge of Borrower) all
such property, equipment and systems to be acquired or added in connection with
any contemplated system expansion or construction will be, in good repair,
working order and condition (reasonable wear and tear excepted) and are and
will be in compliance with all terms and conditions of the Franchises and the
Licenses and all standards or rules imposed by any Governmental Authority
or as imposed under any agreements with telecommunications companies and
customers.


 


(D)                               Borrower
and its Subsidiaries have paid all material franchise, license or other fees
and charges which have become due pursuant to any Governmental Approval in
respect of its and their business and has made appropriate provision as is
required by GAAP for any such fees and charges which have accrued.


 


5.14                           Perfection
and Priority. The Security Interest is a valid and perfected first priority
lien, security title or security interest in the Collateral in favor of
Administrative Agent, for the benefit of itself and Lenders, securing, in
accordance with the terms of the Security Documents, the Obligations, and the
Collateral is subject to no Lien other than permitted pursuant to Subsection 3.2.
The Security Interest is enforceable as security for the Obligations in
accordance with its terms.


 


5.15                           Solvency.
Borrower and its Subsidiaries:  (i) own
and will own assets the present fair saleable value of which are (a) greater
than the total amount of liabilities (including contingent liabilities) of
Borrower and its Subsidiaries, and (b) greater than the amount that will
be required to pay the probable liabilities of Borrower’s and its Subsidiaries’
then existing debts and liabilities as they become absolute and matured
considering all financing alternatives and potential asset sales reasonably
available to Borrower and its Subsidiaries; (ii) have capital that is not
unreasonably small in relation to its business as presently conducted or after
giving effect to any contemplated transaction; and (iii) does not intend
to incur and does not believe that it will incur debts and liabilities beyond
its ability to pay such debts and liabilities as they become due.


 


5.16                           Investment
Company Act. Neither Borrower nor any of its Subsidiaries is required to
register under, or is otherwise subject to regulation as an “investment company”
as that term is defined in, the Investment Company Act of 1940, as amended.


 


38

















 


5.17                           Material
Contracts. As of the Amendment Date, Schedule 5.17 sets forth a
complete and accurate list of all Material Contracts of Borrower and its
Subsidiaries. Borrower and its Subsidiaries have performed all of its material
obligations under such Material Contracts and, to the knowledge of Borrower,
each other party thereto is in material compliance with each such Material
Contract.


 


5.18                           Title
to Properties. Borrower and its Subsidiaries have such title or leasehold
interest in and to the real property or interests therein, including easements,
licenses and similar rights in real estate, owned or leased by it as is
necessary to the conduct of its business and valid and legal title or leasehold
interest in and to all of its personal property, including those reflected on
the balance sheets of Borrower and its Subsidiaries delivered as described in
Subsection 5.8, except those which have been disposed of by Borrower
subsequent to such date which dispositions have been in the ordinary course of
business or as otherwise expressly permitted hereunder.


 


5.19                           Subsidiaries.
Schedule 5.19 sets forth a complete and accurate list of all direct or
indirect Subsidiaries of Borrower as of the Amendment Date, including for each
such Subsidiary whether such Subsidiary is wholly owned by Borrower, and if
not, the percentage ownership of Borrower or its Subsidiary in such Subsidiary.


 


5.20                           Transactions
with Affiliates. No Affiliate of Borrower is a party to any agreement,
contract, commitment or transaction with Borrower or has any material interest
in any material property used by Borrower, except as permitted by Subsections
3.8 and 3.9.


 


5.21                           Patriot
Act. Each of Borrower and its Subsidiaries is in compliance, in all
material respects, with the (i) Trading with the Enemy Act, as amended,
and each of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other
enabling legislation or executive order relating thereto, and (ii) Uniting
And Strengthening America By Providing Appropriate Tools Required To Intercept
And Obstruct Terrorism (USA Patriot Act of 2001). No part of the proceeds
of the Loans will be used, directly or indirectly, for any payments to any
governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper
advantage, in violation of the United States Foreign Corrupt Practices Act of
1977, as amended.


 


SECTION 6

EVENTS OF DEFAULT AND RIGHTS AND REMEDIES


 


6.1                                 Event
of Default. “Event of Default”
shall mean the occurrence or existence of any one or more of the following:


 


(A)                              Payment.
(i) Failure to repay any outstanding principal amount of the Loans at the
time required pursuant to this Agreement or to reimburse any Issuing Lender
when due for any payment made by such Issuing Lender under or with respect to
any Letter of Credit (unless the Issuing Lender is otherwise reimbursed by a
Revolver Loan pursuant to Section 1.1(E)(ii)), or (ii) failure to pay
any interest on any Loan or any other amount due under this Agreement or any of
the


 


39

















 


other Loan Documents, and
in the case of this clause (ii) such failure continues for three Business
Days; or


 


(B)                                Default
in Other Agreements. (i) Failure of any Borrower or any of its
Subsidiaries to pay when due or within any applicable grace period any
principal or interest on Indebtedness (other than the Loans) or any Contingent
Obligation; or (ii) any other breach or default of Borrower or any of its
Subsidiaries with respect to any Indebtedness (other than the Loans) or any
Contingent Obligation if, in either case, the effect of such breach or default
is to cause or to permit the holder or holders then to cause such Indebtedness
or Contingent Obligation having an aggregate principal amount for Borrower and
its Subsidiaries in excess of $1,000,000 to become or be declared due prior to
its stated maturity; or


 


(C)                                Breach
of Certain Provisions. Failure of Borrower or any Subsidiary of Borrower to
perform or comply with any term or condition contained in that portion of
Subsection 2.2 relating to Borrower’s and its Subsidiaries’ obligation to
maintain insurance, Subsection 2.5, Section 3 or Section 4
(excluding Subsection 4.6); or


 


(D)                               Breach
of Warranty. Any representation, warranty, certification or other statement
made by Borrower or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time given by Borrower or any of its Subsidiaries
in writing pursuant to any Loan Document is false in any material respect on
the date made or deemed made; or


 


(E)                                 Other
Defaults Under Loan Documents. Borrower or any of its Subsidiaries breaches
or defaults in the performance of or compliance with any term contained in this
Agreement or the other Loan Documents and such default is not remedied or
waived within 45 days after receipt by any Borrower or such other party of
notice from Administrative Agent or Requisite Lenders of such default (other than
occurrences described in other provisions of this Subsection 6.1 for which
a different grace or cure period is specified or which constitute immediate
Events of Default); or


 


(F)                                 Involuntary
Bankruptcy; Appointment of Receiver; Etc. (i) A court enters a decree
or order for relief with respect to Borrower of any of its Subsidiaries in an
involuntary case under the Bankruptcy Code, which decree or order is not stayed
or other similar relief is not granted under any applicable federal or state
law within 60 days; or (ii) the continuance of any of the following events
for 60 days unless dismissed, bonded or discharged:  (a) an involuntary case is commenced
against Borrower or any of its Subsidiaries under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect; or (b) a
decree or order of a court for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over
Borrower or any of its Subsidiaries or over all or a substantial part of
its property, is entered; or (c) an interim receiver, trustee or other
custodian is appointed without the consent of Borrower or any of its
Subsidiaries, for all or a substantial part of the property of Borrower or
any of its Subsidiaries; or


 


(G)                                Voluntary
Bankruptcy; Appointment of Receiver; Etc. Borrower (i) commences a
voluntary case under the Bankruptcy Code, files a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization,
winding up or composition for adjustment of its debts, or consents to, or fails
to contest in a timely and appropriate manner, the entry of an order for relief
in an involuntary case, the conversion of an involuntary case to a 


 


40

















 


voluntary case under any
such law, or the appointment of or taking possession by a receiver, trustee or
other custodian of all or a substantial part of its property; or (ii) makes
any assignment for the benefit of creditors; or (iii) the Board of Directors
of Borrower or any of its Subsidiaries adopts any resolution or otherwise
authorizes action to approve any of the actions referred to in this Subsection 6.1(G);
or


 


(H)                               Governmental
Liens. Any Lien, levy or assessment (other than Permitted Encumbrances) is
filed or recorded with respect to or otherwise imposed upon all or any part of
the Collateral or the other assets of Borrower or any of its Subsidiaries by
the United States or any other country or any department or instrumentality
thereof or by any state, county, municipality or other Governmental Authority
and remains undischarged, unvacated, unbonded or unstayed for a period of 30
days or in any event later than five Business Days prior to the date of any
proposed sale thereunder; or


 


(I)                                    Judgment
and Attachments. Any money judgment, writ or warrant of attachment or
similar process (other than those described in Subsection 6.1(H))
involving an amount in any individual case or in the aggregate for or against
Borrower or any of its Subsidiaries at any time in excess of $1,000,000 (in
either case not adequately covered by insurance as to which the insurance
company has not denied coverage) is entered or filed against Borrower or any of
its Subsidiaries and/or any of its respective assets and remains undischarged,
unvacated, unbonded or unstayed for a period of 60 days or in any event later
than five Business Days prior to the date of any proposed sale thereunder; or


 


(J)                                   Dissolution.
Any order, judgment or decree is entered against Borrower or any of its Subsidiaries
decreeing the dissolution or split up of Borrower or any of its Subsidiaries
and such order remains undischarged or unstayed for a period in excess of 30
days; or


 


(K)                               Solvency.
Borrower or any of its Subsidiaries ceases to be solvent or Borrower admits in
writing its present or prospective inability to pay its debts as they become
due; or


 


(L)                                 Injunction.
Borrower or any of its Subsidiaries is enjoined, restrained or in any way
prevented by the order of any court or any Governmental Authority from
conducting all or any substantial part of its business and such order
continues for more than 15 days; or


 


(M)                            ERISA;
Pension Plans. (i) Borrower or any of its Subsidiaries fails to make
full payment when due of all amounts which, under the provisions of any
employee benefit plans or any applicable provisions of the IRC, any such Person
is required to pay as contributions thereto and such failure results in or
could reasonably be expected to have a Material Adverse Effect; or (ii) an
accumulated funding deficiency occurs or exists, whether or not waived, with
respect to any such employee benefit plans; or (iii) any employee benefit
plan of Borrower or any of its Subsidiaries loses its status as a qualified
plan under the IRC and such loss results in or could reasonably be expected to
have a Material Adverse Effect; or


 


(N)                               Environmental
Matters. Borrower or any of its Subsidiaries fails to: (i) obtain or
maintain any operating licenses or permits required by environmental
authorities; (ii) begin, continue or complete any remediation activities
as required by any environmental authorities;


 


41

















 


(iii) store or
dispose of any hazardous materials in accordance with applicable Environmental
Laws; or (iv) comply with any other Environmental Laws, if in any such
case such failure could reasonably be expected to have a Material Adverse
Effect; or


 


(O)                               Invalidity
of Loan Documents. Any of the Loan Documents for any reason, other than a
partial or full release in accordance with the terms thereof, ceases to be in
full force and effect or is declared to be null and void, or Borrower or any of
its Subsidiaries denies that it has any further liability under any Loan
Documents to which it is party, or gives notice to such effect; or


 


(P)                                 Damage;
Strike; Casualty. Any material damage to, or loss, theft or destruction of,
any material portion of the Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other
casualty which causes, for more than 30 days, the cessation or substantial
curtailment of revenue producing activities at any facility of Borrower or any
of its Subsidiaries if any such event or circumstance results in or could
reasonably be expected to have a Material Adverse Effect; or


 


(Q)                               Franchises,
Licenses, Permits and Contracts. (i) The loss, suspension or
revocation of, or failure to renew, any license or permit now held or hereafter
acquired or utilized by Borrower or any of its Subsidiaries, if such loss,
suspension, revocation or failure to renew could reasonably be expected to have
a Material Adverse Effect; (ii) one or more Franchises or Licenses shall
be terminated, revoked, modified or fail to be renewed at its stated
expiration; or (iii) any breach, default or termination shall have
occurred under any Material Contract by any of the parties thereto, or any
Material Contract shall fail to be renewed or otherwise have ceased to be in
full force and effect, and such breach, default, failure, cessation or
termination could have a Material Adverse Effect, unless such Material Contract
is replaced by a comparable Material Contract (in the judgment of
Administrative Agent) prior to or concurrent with such breach, default,
failure, cessation or termination; or


 


(R)                                Failure
of Security. Administrative Agent, for the benefit of itself, and Lenders,
does not have or ceases to have a valid and perfected first priority security
interest (subject to Permitted Encumbrances) in the Collateral or any substantial
portion thereof; or


 


(S)                                 Change
in Control. A Change of Control occurs, or Borrower, other than as a result
of a transaction not prohibited hereunder, fails to own the percentage
ownership interests in its Subsidiaries that it owns as of the Amendment Date
(or on the date of acquisition or formation of such Subsidiary), taking into
account the consummation of the Acquisition; or


 


(T)                                Expropriation.
Any federal, state or local Government Authority takes any action to
expropriate or condemn all or any substantial portion of the assets of Borrower
or of any of its Subsidiaries.


 


6.2                                 Suspension
of Loan Commitments. Upon the occurrence and during the continuation of any
Default or Event of Default, and without limiting any other right or remedy
hereunder, each Lender, without notice or demand, may immediately cease
making additional Loans and issuing Letters of Credit and cause its obligation
to lend its Pro Rata Share of the Loan Commitments to be suspended; provided
that, in the case of a Default, if the subject condition or event is cured by


 


42

















 


Borrower to the
reasonable satisfaction of Requisite Lenders or waived or removed by Requisite
Lenders within any applicable grace or cure period, any suspended portion of
the Loan Commitments shall be reinstated.


 


6.3                                 Acceleration.
Upon the occurrence of any Event of Default described in the foregoing
Subsections 6.1(F) or 6.1(G), the unpaid principal amount of and accrued
interest and fees on the Loans, all Letter of Credit Liability and all other
Obligations (other than Obligations under any Related Interest Rate Agreement
to which a Lender or an Affiliate of a Lender is a party, which may be
accelerated solely in the discretion of the Lender or Affiliate of a Lender
party thereto) shall automatically become immediately due and payable, without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other requirements of any kind, all of which are hereby
expressly waived by Borrower, and the obligations of Lenders to make Loans and
issue Letters of Credit shall thereupon terminate. Upon the occurrence and
during the continuance of any other Event of Default, Administrative Agent may,
and upon written demand by Requisite Lenders shall, by written notice to
Borrower, declare all or any portion of the Loans, all or some portion of the
Letter of Credit Liability and all or some of the other Obligations (other than
Obligations under any Related Interest Rate Agreement to which a Lender or an
Affiliate of a Lender is a party, which may be accelerated solely in the
discretion of the Lender or Affiliate of a Lender party thereto) to be, and the
same shall forthwith become, immediately due and payable together with accrued
interest thereon, and upon such acceleration the obligations of Administrative
Agent and Lenders to make Loans and issue Letters of Credit shall thereupon
terminate.


 


6.4                                 Rights
of Collection. Upon the occurrence and during the continuation of any Event
of Default and at any time thereafter, unless and until such Event of Default
is cured, or waived or removed by Requisite Lenders, Administrative Agent may exercise
on behalf of Lenders all of their other rights and remedies under this
Agreement, the other Loan Documents and Applicable Law, in order to satisfy all
of the Obligations.


 


6.5                                 Consents.
Borrower acknowledges that certain transactions contemplated by this Agreement
and the other Loan Documents and certain actions which may be taken by
Administrative Agent or Lenders in the exercise of their respective rights
under this Agreement and the other Loan Documents may require the consent
of a Governmental Authority. If Administrative Agent reasonably determines that
the consent of a Governmental Authority is required in connection with the
execution, delivery and performance of any of the aforesaid Loan Documents or
any Loan Documents delivered to Administrative Agent or Lenders in connection
therewith or as a result of any action which may be taken pursuant
thereto, then Borrower, at Borrower’s cost and expense, agrees to use
reasonable best efforts, and to cause its Subsidiaries to use their best
efforts, to secure such consent and to cooperate with Administrative Agent and
Lenders in any action commenced by Administrative Agent or any Lender to secure
such consent.


 


6.6                                 Performance
by Administrative Agent. If Borrower shall fail to perform any
covenant, duty or agreement contained in any of the Loan Documents,
Administrative Agent may perform or attempt to perform such
covenant, duty or agreement on behalf of Borrower after the expiration of any
cure or grace periods set forth herein. In such event, Borrower shall be
obligated, at the request of Administrative Agent, to promptly pay any amount
reasonably expended by Administrative Agent in such performance or attempted
performance to Administrative Agent, together with interest


 


43

















 


thereon at the highest
rate of interest in effect upon the occurrence of an Event of Default as specified
in Subsection 1.2(E) from the date of such expenditure until paid.
Notwithstanding the foregoing, it is expressly agreed that Administrative Agent
shall not have any liability or responsibility for the performance of any
obligation of Borrower under this Agreement or any other Loan Document.


 


6.7                                 Set
Off and Sharing of Payments. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
during the continuance of any Event of Default, each Lender is hereby
authorized by Borrower at any time or from time to time, with reasonably prompt
subsequent notice to Borrower or any of its Subsidiaries (any prior or
contemporaneous notice being hereby expressly waived) to set off and to
appropriate and to apply any and all (A) balances held by such Lender at
any of its offices for the account of Borrower or any of its Subsidiaries
(regardless of whether such balances are then due to Borrower), and (B) except
as provided in Subsection 8.2(J), other property at any time held or owing
by such Lender to or for the credit or for the account of Borrower or any of
its Subsidiaries, against and on account of any of the Obligations; provided,
that no Lender shall exercise any such right without the prior written consent
of Administrative Agent. Any Lender exercising a right to set off shall, to the
extent the amount of any such set off exceeds its Pro Rata Share of the amount
set off, purchase for cash (and the other Lenders shall sell) interests in each
such other Lender’s Pro Rata Share of the Obligations as would be necessary to
cause such Lender to share such excess with each other Lender in accordance
with their respective Pro Rata Shares. Borrower agrees, to the fullest extent
permitted by law, that any Lender may exercise its right to set off with
respect to amounts in excess of its Pro Rata Share of the Obligations and upon
doing so shall deliver such excess to Administrative Agent for the benefit of
all Lenders in accordance with their Pro Rata Shares; provided, that
CoBank may exercise its rights against any equity of CoBank held by
Borrower without complying with this Subsection 6.7.


 


6.8                                 Application
of Payments. Subsequent to the acceleration of the Loans pursuant to Subsection 6.3,
all payments received by Lenders (or Affiliates of Lenders party to Related
Interest Rate Agreements) on the Obligations and on the proceeds from the
enforcement of the Obligations shall be applied among Administrative Agent and
Lenders (and Affiliates of Lenders party to Related Interest Rate Agreements)
as follows:  first, to all Administrative
Agent’s, and Lenders’ (and Affiliates of Lenders party to Related Interest Rate
Agreements) fees and expenses then due and payable; then to all other expenses
then due and payable by Borrower under the Loan Documents; then to all
indemnitee obligations then due and payable by Borrower under the Loan
Documents; then to all commitment and other fees and commissions then due and
payable by Borrower under the Loan Documents; then pro rata to (i) accrued
and unpaid interest on the Loans (pro rata) in accordance with all such amounts
due on the Loans and (ii) any scheduled payments (excluding termination,
unwind and similar payments) due to a Lender or an Affiliate of a Lender on any
Related Interest Rate Agreements (pro rata with all such amounts due); then pro
rata to (a) the principal amount of the Loans (pro rata among all Loans)
and (b) any termination, unwind and similar payments due to a Lender or an
Affiliate of a Lender under Related Interest Rate Agreements (pro rata with all
such amounts due); and then to any remaining amounts due under the Obligations,
in that order (provided, such priority may be changed with the consent of
both the Requisite Lenders and the Lenders (and Affiliates of Lenders) party to
Related Interest Rate Agreements then outstanding). Any remaining monies not
applied as provided in this Subsection 6.8 shall be paid to Borrower or
any Person lawfully entitled thereto.


 


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6.9                                 Adjustments.
If any Lender (a “Benefited Lender”)
shall at any time receive any payment of all or part of its Loans, or
interest thereon in a greater proportion than any such payment received by any
other Lender (other than pursuant to Subsection 1.12(B)), if any, in
respect of such other Lender’s Loans, or interest thereon, such Benefited
Lender shall, to the extent permitted by Applicable Law, purchase for cash from
the other Lenders such portion of each such other Lender’s Loans as shall be
necessary to cause such Benefited Lender to share the excess payment or
benefits ratably with each Lender; provided, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned to the extent of such recovery, but without interest. Borrower agrees
that each Lender so purchasing a portion of another Lender’s Loans may exercise
all rights of payment (including rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such portion. This
Subsection 6.9 shall not apply to any action taken by CoBank with respect
to equity in it held by Borrower.


 


SECTION 7

CONDITIONS TO LOANS


 


The obligations of Lenders to make Loans are subject
to satisfaction of all of the applicable conditions set forth below.


 


7.1                                 Conditions
to Initial Loan. The obligations of Lenders on or after the Closing Date to
make the initial Loan under either of the Facilities are, in addition to the
conditions precedent specified in Subsection 7.2, subject to the
satisfaction of each of the following conditions:


 


(A)                              Executed
Loan Documents. (i) This Agreement, (ii) the Notes, (iii) the
Security Agreements, (iv) the Guarantees and (v) all other documents,
financing statements and instruments contemplated by such agreements
(including, without limitation, landlord waivers and consents), shall have been
duly authorized and executed by Borrower, in form and substance
satisfactory to Administrative Agent, and Borrower shall have delivered
sufficient original counterparts thereof to Administrative Agent for delivery
to Lenders.


 


(B)                                Control
Agreements. Administrative Agent shall have received executed account
control agreements with respect to Borrower’s deposit and securities accounts
as shall have been specified by Administrative Agent, in form and
substance satisfactory to Administrative Agent, from the appropriate depository
institutions or other entities holding such deposit accounts.


 


(C)                                Closing
Certificates; Opinions.


 


(1)                                  Officer’s
Certificate. Administrative Agent shall have received a certificate from
the chief executive officer, chief operating officer or chief financial officer
of Borrower in form and substance reasonably satisfactory to
Administrative Agent, to the effect that, to their knowledge, all
representations and warranties of Borrower contained in this Agreement and the
other Loan Documents are true, correct and complete; that Borrower is not in
violation of any of the covenants contained in this Agreement and the other
Loan Documents; that, after giving effect to the transactions contemplated by
this Agreement, no Default or Event of Default has occurred and is


 


45

















 


continuing; that Borrower has
satisfied each of the closing conditions to be satisfied hereby; and that
Borrower has filed all required tax returns and owes no delinquent taxes.


 


(2)                                  Certificates
of Secretary. Administrative Agent shall have received a certificate of the
secretary or assistant secretary of each of Borrower and Commnet certifying
that attached thereto is a true and complete copy of the articles of
incorporation of such Person and all amendments thereto, certified as of a
recent date by the appropriate Governmental Authority in its jurisdiction of
organization; that attached thereto is a true and complete copy of the bylaws
or operating agreement of such Person as in effect on the date of such
certification; that attached thereto is a true and complete copy of resolutions
or consents of members duly adopted by the Board of Directors of such Person
authorizing the borrowings, pledges or guaranties contemplated hereunder, the
execution, delivery and performance of this Agreement and the other Loan
Documents, and the granting of the Security Interest; and as to the incumbency
and genuineness of the signature of each officer of such Person executing Loan
Documents.


 


(3)                                  Certificate
as to Acquisition. Administrative Agent shall have received a certificate
of the chief executive officer, chief operating officer or chief financial
officer of Borrower in form and substance reasonably satisfactory to
Administrative Agent, to the effect that (i) the Acquisition has been
consummated in accordance with the terms and conditions set forth in the
Purchase Agreement and (ii) Borrower has delivered to Administrative Agent
true and complete copies of the Purchase Agreement and all other documentation
related to the Acquisition as Administrative Agent shall reasonably have requested, including, to the extent reasonably
requested, reliance letters for any opinion of counsel.


 


(4)                                  Certificates
of Good Standing. Administrative Agent shall have received certificates as
of a recent date of the good standing of Borrower and its Subsidiaries under
the laws of their respective jurisdictions of organization and such other
jurisdictions as are requested by Administrative Agent.


 


(5)                                  Opinions
of Counsel. Administrative Agent shall have received favorable opinions of
counsel to Borrower addressed to Administrative Agent and Lenders with respect
to Borrower covering such matters as may be reasonably requested by
Administrative Agent, including, without limitation, the Loan Documents, the
Security Interest, due authorization and other corporate matters and regulatory
matters (including the Licenses) and which are reasonably satisfactory in form and
substance to Administrative Agent.


 


(D)                               Collateral.


 


(1)                                  Collateral
Pledge. Borrower and Commnet shall have effectively and validly pledged and
perfected the Collateral contemplated by the Security Documents, including the
pledge of all of the capital stock of Borrower in Commnet, Guyana Telephone &
Telegraph Company Limited and Choice Communications, LLC.


 


(2)                                  Filings
and Recordings. All filings and recordings (including, without limitation,
all mortgages, fixture filings and transmitting utility filings) that are
necessary to perfect the Security Interest in the Collateral described in the
Security Documents shall have been filed or


 


46

















 


recorded in all appropriate
locations and Administrative Agent shall have received evidence satisfactory to
Administrative Agent that such Security Interest constitutes a valid and
perfected first priority Lien therein.


 


(3)                                  Lien
Searches. Borrower shall have delivered to Administrative Agent the results
of a Lien search of all filings made against Borrower and its Subsidiaries
under the Uniform Commercial Code (and local tax and judgment filing
offices) as in effect in any jurisdiction in which any of its respective assets
are located, indicating, among other things, that each Borrower’s assets and
the ownership interests of Borrower are free and clear of any Lien, except for
Permitted Encumbrances.


 


(4)                                  Insurance.
Administrative Agent shall have received certificates of insurance and
certified copies of insurance policies in the form required under Subsection 2.2
and the Security Documents and otherwise in form and substance reasonably
satisfactory to Administrative Agent.


 


(E)                                 Consents.


 


(1)                                  Governmental
and Third Party Approvals. Borrower shall have delivered to Administrative
Agent all material and necessary approvals, authorizations and consents, if
any, of all Persons, Governmental Authorities, including the FCC and all
applicable PUCs, and courts having jurisdiction with respect to the execution
and delivery of the Acquisition, this Agreement, the other Loan Documents, the
granting of the Security Interest, and all such approvals shall be in form and
substance reasonably satisfactory to Administrative Agent.


 


(2)                                  Permits
and Licenses. Administrative Agent shall have received copies of all
material permits and licenses, including the Licenses, required under
Applicable Laws for the conduct of Borrower’s and its Subsidiaries’ businesses.


 


(3)                                  No
Injunction, Etc. No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before, nor any
adverse ruling received from, any Governmental Authority to enjoin, restrain or
prohibit, or to obtain substantial damages in respect of, or which is related
to or arises out of this Agreement or the other Loan Documents or the
consummation of the transactions contemplated hereby or thereby, or which, as
determined by Administrative Agent in its reasonable discretion, would make it
inadvisable to consummate the transactions contemplated by this Agreement and
such other Loan Documents.


 


(F)                                 Financial
Matters.


 


(1)                                  Fees,
Expenses, Taxes, Etc. There shall have been paid by Borrower to Administrative
Agent the fees set forth or referenced in Subsection 1.4 and any other
accrued and unpaid fees or commissions due hereunder (including legal fees and
expenses), and to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all taxes, fees
and other charges in connection with the execution, delivery, recording, filing
and registration of any of the Loan Documents.


 


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(2)                                  Equity
Contribution to Borrower. Administrative Agent shall have received
evidence, in form and substance reasonably satisfactory to Administrative
Agent, that Borrower has contributed $10,000,000 in cash to fund the
Acquisition.


 


(G)                                Miscellaneous.


 


(1)                                  Proceedings
and Documents. All opinions, certificates and other instruments and all
proceedings in connection with the transactions contemplated by this Agreement
shall be reasonably satisfactory in form and substance to Administrative
Agent. Administrative Agent shall have received copies of all other instruments
and other evidence as Administrative Agent may request, in form and
substance reasonably satisfactory to Administrative Agent, with respect to the
transactions contemplated by this Agreement and the taking of all actions in
connection therewith.


 


(2)                                  Litigation,
Investigations, Audits, Etc. There shall be no action, suit, proceeding or
investigation pending against, or, to the knowledge of Borrower, threatened
against Borrower or any of its properties, including the Franchises and the
Licenses, in any court or before any arbitrator of any kind or before or by any
Governmental Authority (including the FCC), except such as affect the
telecommunications industry generally, that could reasonably be expected to
have a Material Adverse Effect.


 


7.2                                 Conditions
to All Loans. The several obligations of Lenders to make Loans, including
the initial Loan, and of any Issuing Lender to issue Letters of Credit, on any
date (each such date, a “Funding Date”)
are subject to the further conditions precedent set forth below:


 


(A)                              Administrative
Agent shall have received, in accordance with the provisions of Subsection 1.3,
a Notice of Borrowing requesting an advance of a Loan, or, in accordance with
the provisions of Section 1.1(F)(iv),a notice requesting the
issuance of a Letter of Credit.


 


(B)                                The
representations and warranties contained in Section 5 of this Agreement
and elsewhere herein and in the Loan Documents shall be (and each request by
Borrower for a Loan or the issuance of a Letter of Credit shall constitute a
representation and warranty by Borrower that such representations and
warranties are) true, correct and complete in all material respects on and as
of such Funding Date to the same extent as though made on and as of that date,
except for any representation or warranty limited by its terms to a specific
date and taking into account any amendments to the Schedules or Exhibits as a
result of any disclosures made in writing by Borrower to Administrative Agent
after the Amendment Date which disclosures are reasonably acceptable to
Administrative Agent.


 


(C)                                No
event shall have occurred and be continuing or would result from the
consummation of the borrowing contemplated that would constitute an Event of
Default or a Default.


 


(D)                               No
order, judgment or decree of any court, arbitrator or Governmental Authority
shall purport to enjoin or restrain any Lender from making any Loan or an
Issuing Lender from Issuing any Letter of Credit.


 


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(E)                                 Since
Closing Date, there shall not have occurred any event or condition that has had
or could reasonably be expected to have a Material Adverse Effect.


 


(F)                                 All
Loan Documents shall be in full force and effect.


 


SECTION 8

ASSIGNMENT AND PARTICIPATION


 


8.1                                 Assignments
and Participations in Loans and Notes. Each Lender (including CoBank) may assign,
subject to the terms of a Lender Addition Agreement, its rights and delegate
its obligations under this Agreement to one or more Persons, provided
that (a) such Lender shall first obtain the written consent of
Administrative Agent and, if no Default or Event of Default shall have occurred
and be continuing, Borrower, which consents shall not be unreasonably withheld
or delayed; (b) the Pro Rata Share of any of the Loan Commitments being
assigned shall in no event be less than of (i) $5,000,000 and (ii) the
entire amount of the Pro Rata Share of a Loan Commitment of the assigning
Lender; and (c) upon the consummation of each such assignment, the
assigning Lender shall pay Administrative Agent a non-refundable administrative
fee of $3,500; provided, that in connection with an assignment from a
Lender to an Affiliate of such Lender or to another Lender, written consent of
Administrative Agent and Borrower shall not be required and that in connection
with an assignment from a Lender to an Affiliate of such Lender or to another
Lender, no administrative fee shall be payable, and assignments by CoBank to
institutions chartered under the Farm Credit System shall not require consent
of Borrower. From and after the effective date specified in a duly executed,
delivered and accepted Lender Addition Agreement, which effective date shall be
at least five Business Days after the execution thereof (unless Administrative
Agent shall otherwise agree), (A) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Lender Addition Agreement, shall have the
rights and obligations of the assigning Lender hereunder with respect thereto
and (B) the assigning Lender shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Lender Addition
Agreement, relinquish its rights (other than rights under the provisions of
this Agreement and the other Loan Documents relating to indemnification or
payment of fees, costs and expenses, to the extent such rights relate to the
time prior to the effective date of such Lender Addition Agreement) and be
released from its obligations under this Agreement other than obligations to
the extent relating to the time prior to the effective date of such Lender
Addition Agreement (and, in the case of a Lender Addition Agreement covering
all or the remaining portion of such assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto). The terms
and provisions of each Lender Addition Agreement shall, upon the effectiveness
thereof be incorporated into and made a part of this Agreement, and the
covenants, agreements and obligations of each Lender set forth therein shall be
deemed made to and for the benefit of Administrative Agent and the other
parties hereto as if set forth at length herein. Upon its receipt of a duly
completed Lender Addition Agreement executed by an assigning Lender and an
assignee, and Administrative Agent and Borrower (if required), together with
any Note subject to such assignment and the processing fee referred to above
(if required), Administrative Agent will accept such Lender Addition Agreement
and give notice thereof to Borrower and the other Lenders. In the event of an
assignment pursuant to this Subsection 8.1, Borrower shall issue a new
Revolver Note(s) or Term Note(s), as applicable, to reflect the interests


 


49

















 


of the assigning Lender
and the Person to which interests are to be assigned and, upon issuance and
delivery by Borrower of such new Note or Notes, the assigning Lender shall
surrender its Revolver Note or Term Note, as applicable.


 


Each Lender (including
Administrative Agent) may sell participations in all or any part of
its Pro Rata Share of each Loan Commitment and any Loans to one or more
Persons; provided that such Lender shall first obtain the prior written
consent of Administrative Agent which consent shall not be unreasonably
withheld or delayed; and provided, further, that such Lender’s
obligations under this Agreement shall remain unchanged; Borrower,
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement; all amounts payable by Borrower hereunder
shall be determined as if that Lender had not sold such participation; and the
holder of any such participation shall not be entitled to require such Lender
to take or omit to take any action hereunder except action directly affecting (i) any
reduction, modification or forgiveness in the principal amount of, or rate of
interest on or fees payable with respect to any Loan; (ii) any extension
of the Revolver Expiration Date or the Term Loan Maturity Date, or any change
of any scheduled dates fixed for any payment of any of the Obligations; (iii) any
consent to the assignment, delegation or other transfer by Borrower of any of
its rights and obligations under any Loan Document and (iv) the release of
all or substantially all of the Collateral (except if the release of such
Collateral is permitted under and effected in accordance with, including any
consents and approvals required under, Subsection 8.2(I) or any other Loan
Document) or any release of any material guaranty of the Obligations (except to
the extent expressly provided thereby). Borrower hereby acknowledges and agrees
that any participation will give rise to a direct obligation of Borrower to the
participant, and the participant shall for purposes of Subsections 1.11, 1.13,
1.14, 6.7 and 9.1 be considered to be a “Lender,” so long as the participant
agrees for the benefit of Borrower to comply with such Subsections and Subsection 1.12
as if were a “Lender.”


 


Except as otherwise provided in this Subsection 8.1,
no Lender shall, as between Borrower and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment, transfer or
negotiation of, or granting of a participation in, all or any part of the
Loans, the Notes or other Obligations owed to such Lender. Each Lender may furnish
any information concerning Borrower and its Subsidiaries in the possession of
that Lender from time to time to assignees and participants (including
prospective assignees and participants), subject to the provisions of Subsection 9.13.


 


Nothing in this Agreement
shall be construed to prohibit any Lender from pledging or assigning all or any
portion of its rights and interest hereunder or under any Note as collateral
security for any loan or financing or in connection with any securitization or
other similar transaction or to any Federal Reserve Bank as security for
borrowings therefrom; provided, that no such pledge or assignment shall
release a Lender from any of its obligations hereunder.


 


Notwithstanding anything contained in this Agreement
to the contrary, (i) so long as there is no Event of Default that has
continued in excess of four (4) months and Requisite Lenders shall remain
capable of making LIBOR Loans, no Person shall become a “Lender” hereunder
unless such Person shall also be capable of making LIBOR Loans and (ii) no
assignment shall be permitted hereunder which would cause any Applicable Law to
be violated (with respect to usury or otherwise).


 


50

















 


CoBank reserves the right to assign or sell
participations in all or any part of its Pro Rata Share of the Loan
Commitment on a non-patronage basis.


 


8.2                                 Agent.


 


(A)                              Appointment.
Each Lender hereby irrevocably appoints and authorizes CoBank, as
Administrative Agent and as Arranger; to act as Administrative Agent or
Arranger  hereunder and under any other
Loan Document with such powers as are specifically delegated to Administrative
Agent by the terms of this Agreement and any other Loan Document, together with
such other powers as are reasonably incidental thereto. Administrative Agent is
authorized and empowered to amend, modify or waive any provisions of this
Agreement or the other Loan Documents on behalf of Lenders, subject to the
requirement that the consent of certain Lenders or all Lenders, as appropriate,
be obtained in certain instances as provided in Subsections 8.3 and 9.2. CoBank
hereby agrees to act as Administrative Agent on the express conditions
contained in this Subsection 8.2. The provisions of this Subsection 8.2
are solely for the benefit of Administrative Agent and Lenders, and Borrower
shall have no rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement,
Administrative Agent shall act solely as Administrative Agent or Arranger, as
applicable, of Lenders and Administrative Agent shall assume or be deemed to
have assumed no obligation toward or relationship of agency or trust with or
for Borrower or its respective Affiliates. Administrative Agent may execute
any of its duties under this Agreement or any other Loan Document by or through
Administrative Agent or attorneys-in-fact and shall not be responsible for the
negligence or misconduct of Administrative Agent or attorneys-in-fact that it
selects with reasonable care.


 


(B)                                Nature
of Duties. The duties of Administrative Agent shall be mechanical and
administrative in nature. Administrative Agent shall not have by reason of this
Agreement a fiduciary relationship in respect of any Lender. Nothing in this
Agreement or any of the Loan Documents, express or implied, is intended to or
shall be construed to impose upon Administrative Agent any obligations in
respect of this Agreement or any of the Loan Documents except as expressly set
forth herein or therein. Each Lender expressly acknowledges that none of
Administrative Agent nor any of their respective officers, directors,
employees, Administrative Agent, attorneys-in-fact or Affiliates have made any
representation or warranty to it and that no act by Administrative Agent or any
such Person hereafter taken, including any review of the affairs of Borrower,
shall be deemed to constitute any representation or warranty by Administrative
Agent to any Lender. Each Lender represents to Administrative Agent that (i) it
has, independently and without reliance upon Administrative Agent or any other
Lender and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
prospects, operations, properties, financial and other condition and
creditworthiness of Borrower and made its own decision to enter into this
Agreement and extend credit to Borrower hereunder, and (ii) it will,
independently and without reliance upon Administrative Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action hereunder and under the other Loan Documents and
to make such investigation as it deems necessary to inform itself as to
the business, prospects, operations, properties, financial and other condition
and creditworthiness of Borrower. Administrative Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any
Lender with any credit or other information with


 


51

















 


respect thereto (other
than as expressly required herein). If Administrative Agent seeks the consent
or approval of any Lenders to the taking or refraining from taking of any
action hereunder, then Administrative Agent shall send notice thereof to each
Lender. Administrative Agent shall promptly notify each Lender any time that
Requisite Lenders have instructed Administrative Agent to act or refrain from
acting pursuant hereto.


 


(C)                                Rights,
Exculpation, Etc. Each of Administrative Agent, their respective Affiliates
and any of their or their Affiliates’ respective officers, directors,
employees, Administrative Agent or attorneys-in-fact shall not be liable to any
Lender for any action taken or omitted by them hereunder or under any of the
Loan Documents, or in connection herewith or therewith, except that each such
entity shall be liable with respect to its own gross negligence, bad faith or
willful misconduct. No Agent shall be liable for any apportionment or distribution
of payments made by it in good faith and if any such apportionment or
distribution is subsequently determined to have been made in error, the sole
recourse of any Lender to whom payment was due but not made shall be to recover
from other Lenders any payment in excess of the amount to which they are
determined to be entitled (and such other Lenders hereby agree to return to
such Lender any such erroneous payments received by them). In performing its
functions and duties hereunder, Administrative 
Agent shall exercise the same care which it would in dealing with loans
for its own account, but Administrative Agent shall not be responsible to any
Lender for any recitals, statements, representations or warranties herein or
for the execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement or any of the Loan Documents or
the transactions contemplated thereby, or for the financial condition of
Borrower. Administrative Agent may at any time request instructions from
Lenders with respect to any actions or approvals which by the terms of this
Agreement or of any of the Loan Documents Administrative Agent is permitted or
required to take or to grant, and if such instructions are promptly requested,
Administrative Agent shall be absolutely entitled to refrain from taking any
action or to withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from any action or withholding any
approval under any of the Loan Documents (i) if such action or omission
would, in the reasonable opinion of Administrative Agent, violate any
Applicable Law or any provision of this Agreement or any other Loan Document,
or (ii) until it shall have received such instructions from Requisite
Lenders or all of Lenders, as applicable. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against Administrative Agent
as a result of Administrative Agent acting or refraining from acting under this
Agreement, the Notes, or any of the other Loan Documents in accordance with the
instructions of Requisite Lenders, except in connection with its own gross
negligence, bad faith or willful misconduct.


 


(D)                               Reliance.
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any written or oral notices, statements, certificates, orders or
other documents or any telephone message or other communication (including any
writing, telex, telecopy or telegram) believed by it in good faith to be
genuine and correct and to have been signed, sent or made by the proper Person,
and with respect to all matters pertaining to this Agreement or any of the Loan
Documents and its duties hereunder or thereunder, upon advice of counsel
selected by it in connection with the preparation, negotiation, execution,
delivery, administration, amendment, modification, waiver or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement or any of
the other Loan Documents.


 


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(E)                                 Indemnification.
Lenders will reimburse and indemnify Administrative Agent and their respective
Affiliates and their and their Affiliates’ officers, directors, employees,
Administrative Agent, and attorneys-in-fact (collectively, “Representatives”), on demand (to the extent
not actually reimbursed under Subsection 9.1, but without limiting the
obligations of Borrower under such Subsection 9.1) for and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including, without limitation, attorneys’ fees and
expenses), advances or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against Administrative Agent or their
respective Representatives (i) in any way relating to or arising out of
this Agreement or any of the Loan Documents or any action taken or omitted by
Administrative Agent or its Representatives under this Agreement or any of the
Loan Documents, and (ii) in connection with the preparation, negotiation,
execution, delivery, administration, amendment, modification, waiver or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement
or any of the other Loan Documents in proportion to each Lender’s Pro Rata
Share; provided, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, advances or disbursements resulting from Administrative
Agent’s or its Representatives’ gross negligence, bad faith or willful
misconduct. If any indemnity furnished to Administrative Agent or their
respective Representatives for any purpose shall, in the opinion of
Administrative Agent, be insufficient or become impaired, Administrative Agent may call
for additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished. The obligations of
Lenders under this Subsection 8.2(E) shall survive the payment in
full of the Obligations and the termination of this Agreement.


 


(F)                                 CoBank,
Syndication Agent and Documentation Agent Individually. With respect to its
obligations under the Loan Commitments, the Loans made by it, and the Notes
issued to it, each of CoBank, Syndication Agent, Documentation Agent shall have
and may exercise the same rights and powers hereunder and is subject to
the same obligations and liabilities as and to the extent set forth herein for
any other Lender. The terms “Lenders”
or “Requisite Lenders” or any
similar terms shall, unless the context clearly otherwise indicates, include
each of CoBank, Syndication Agent and Documentation Agent in its individual
capacity as a Lender or as one of the Requisite Lenders. Each of CoBank,
Syndication Agent and Documentation Agent may lend money to, and generally
engage in any kind of banking, trust or other business with, Borrower as if it
were not acting as an Agent pursuant hereto.


 


(G)                                Notice
of Default. Administrative Agent shall be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement or any of the Loan Documents or the financial
condition of Borrower or any of its Subsidiaries, or the existence or possible
existence of any Default or Event of Default. Administrative Agent shall be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless Administrative Agent shall have received written notice from
Borrower or a Lender referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a “notice of default.”  In the event that an Agent receives such a
notice, Administrative Agent will give notice thereof to Lenders as soon as
reasonably practicable; provided, that if any such notice has also been
furnished to Lenders, Administrative Agent shall have no obligation to notify Lenders
with respect thereto. Administrative Agent 
shall (subject to this Subsection 8.2) take


 


53

















 


such action with respect
to such Default or Event of Default as shall reasonably be directed by
Requisite Lenders; provided, further, that, unless and until
Administrative Agent shall have received such directions, Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as they shall deem
advisable and in the best interests of Lenders.


 


(H)                               Successor
Agent.


 


(1)                                  Resignation.
Administrative Agent may resign from the performance of all its agency
functions and duties hereunder at any time by giving at least 30 Business Days’
prior written notice to Borrower and Lenders. Such resignation shall take
effect upon the acceptance by a successor Agent of appointment pursuant to
clause (2) below or as otherwise provided below.


 


(2)                                  Appointment
of Successor. Upon any such notice of resignation pursuant to clause (1) above,
Requisite Lenders shall (and if no Event of Default or Default shall have
occurred and be continuing, upon receipt of Borrower’s collective prior
consent, which shall not be unreasonably withheld), appoint a successor Agent
from among Lenders or another financial institution. If a successor Agent shall
not have been so appointed within the 30 Business Day period referred to in Subsection 8(H)(1) above,
the retiring Agent, upon notice to Borrower, shall then appoint a successor
Agent from among Lenders who shall serve as Agent until such time, if any, as
Requisite Lenders, upon receipt of Borrower’s collective prior written consent
(if required under the first sentence of this paragraph), which shall not be
unreasonably withheld, appoint a successor Agent as provided above.


 


(3)                                  Successor
Agent. Upon the acceptance of any appointment as Agent under the Loan
Documents by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under the Loan Documents. After any retiring Agent’s resignation as
Agent under the Loan Documents, the provisions of this Subsection 8.2
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under the Loan Documents.


 


(I)                                    Collateral
Matters.


 


(1)                                  Release
of Collateral. Lenders hereby irrevocably authorize Administrative Agent,
at its option and in its discretion, to release any Lien granted to or held by
it upon any property covered by the Security Documents (i) upon
termination of the Loan Commitments and indefeasible payment and satisfaction
of all Obligations (other than contingent indemnification or expense
reimbursement Obligations not then due and payable); (ii) constituting
property being sold or disposed of in compliance with the provisions of this
Agreement if Borrower certifies to Administrative Agent in writing that the
sale or disposition is made in compliance with the provisions of this Agreement
and the other Loan Documents (and Administrative Agent may rely in good
faith conclusively on any such certificate, without further inquiry); or (iii) constituting
property leased to Borrower under a lease which has expired or been terminated
in a transaction permitted under this Agreement or is about to expire and which
has not been, and is not intended by Borrower to be, renewed or extended. In
addition, Administrative Agent, with the consent of


 


54

















 


Requisite Lenders, may release
or compromise any Collateral and the proceeds thereof constituting less than
all or substantially all of the Collateral.


 


(2)                                  Confirmation
of Authority; Execution of Releases. Without in any manner limiting
Administrative Agent’s authority to act without any specific or further
authorization or consent by Lenders (as set forth in Subsection 8.2(I)(1)),
each Lender agrees to confirm in writing, upon request by Administrative Agent
or Borrower, the authority to release any property covered by the Security
Documents conferred upon Administrative Agent under clauses (i) through (iii) of
the first sentence of Subsection 8.2(I)(1). Upon receipt by Administrative
Agent of confirmation from each Lender of its authority to release or
compromise any particular item or types of property covered by the Security
Documents under Subsection 8.2(I)(1), and upon at least ten Business Days’
prior written request by Borrower, Administrative Agent shall (and is hereby
irrevocably authorized by Lenders to) execute such documents as may be
necessary to evidence the release or compromise of the Liens granted to
Administrative Agent, for the benefit of Administrative Agent and Lenders, upon
such Collateral, provided that (i) Administrative Agent shall not
be required to execute any such document on terms which, in Administrative
Agent’s opinion, would expose Administrative Agent to liability or create any
obligation or entail any consequence other than the release or compromise of
such Liens without recourse or warranty, and (ii) such release or
compromise shall not in any manner discharge, affect or impair the Obligations
or any Liens upon (or obligations of Borrower, in respect of) all interests
retained by Borrower in the Collateral, including proceeds of any sale or other
disposition of any Collateral, all of which shall continue to constitute part of
the property covered by the Security Documents.


 


(3)                                  Absence
of Duty. Administrative Agent shall have no obligation whatsoever to any
Lender or any other Person to assure that the property covered by the Security
Documents exists or is owned by Borrower, or is cared for, protected or insured
or has been encumbered or that the Liens granted to it have been properly or
sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise at all or in any particular
manner or under any duty of care, disclosure or fidelity, or to continue
exercising, any of the rights, authorities and powers granted or available to
it in this Agreement or in any other Loan Document, it being understood and
agreed that in respect of the property covered by the Security Documents or any
act, omission or event related thereto, Administrative Agent may act in
any manner it may deem appropriate, in its discretion, given
Administrative Agent’s own interest in property covered by the Security
Documents, as one of Lenders and as Administrative Agent, provided that
Administrative Agent shall act in conformance with Subsection 8.2 and
exercise the same care which it would in dealing with loans for its own account
and shall be liable for its and its Representatives’ gross negligence, bad
faith or willful misconduct.


 


(J)                                   Agency
for Perfection; Enforcement of Security by Administrative Agent. Administrative
Agent and each Lender hereby appoint each other Lender as agent for the purpose
of perfecting Administrative Agent’s security interest in assets which, in
accordance with Article 9 of the Uniform Commercial Code in any
applicable jurisdiction, can be perfected only by possession. Should any Lender
(other than Administrative Agent) obtain possession of any such Collateral,
such Lender shall notify Administrative Agent thereof, and, promptly upon
Administrative Agent’s request therefor, shall deliver such Collateral to
Administrative Agent or in accordance with Administrative Agent’s instructions
without affecting any Lender’s rights of set-off. Each Lender


 


55

















 


agrees that it will not
have any right individually to enforce or seek to enforce any Security Document
or to realize upon any collateral security for the Loans, it being understood
and agreed that such rights and remedies may be exercised only by
Administrative Agent.


 


(K)                               Dissemination
of Information. Administrative Agent will use its best efforts (except
where otherwise provided herein) to provide Lenders with any information
received by Administrative Agent from Borrower which is required to be provided
to a Lender hereunder or which is otherwise requested by any Lender, provided
that Administrative Agent shall not be liable to Lenders for any failure to do
so, except to the extent that such failure is attributable to Administrative
Agent’s or its Representatives’ gross negligence, bad faith or willful
misconduct.


 


8.3                                 Amendments,
Consents and Waivers for Certain Actions.


 


(A)                              Except
as otherwise provided in this Agreement (including this Subsection 8.3 and
Subsection 9.2), any Lender Addition Agreement or any other Loan Document,
the consent of Requisite Lenders and Borrower will be required to amend,
modify, terminate, or waive any provision of this Agreement or any of the other
Loan Documents (other than any Related Interest Rate Agreement, which may only
be amended, modified or terminated, or any provision thereof waived, in
accordance with the terms thereof and with the consent of Administrative
Agent).


 


(B)                                In
the event Administrative Agent requests the consent of a Lender and does not
receive a written consent or denial thereof within ten Business Days after such
Lender’s receipt of such request, then such Lender will be deemed to have
denied the giving of such consent.


 


8.4                                 Disbursement
of Funds. Administrative Agent shall advise each Lender by telephone or
telecopy of the amount of such Lender’s Pro Rata Share of any Loan requested by
Borrower no later than 11:00 a.m. (Denver, Colorado time) at least two
Business Days immediately preceding the Funding Date applicable thereto (in the
case of LIBOR Loans), otherwise on the Business Day immediately preceding the
Funding Date applicable thereto, and each such Lender shall pay Administrative
Agent such Lender’s Pro Rata Share of such requested Loan, in same day funds,
by wire transfer to Administrative Agent’s account by no later than 1:00 p.m.
(Denver, Colorado time) on such Funding Date. If any Lender fails to pay the
amount of its Pro Rata Share forthwith upon Administrative Agent’s demand,
Administrative Agent shall promptly notify Borrower, and Administrative Agent
shall disburse to Borrower, by wire transfer of immediately available funds,
that portion of such Loan as to which Administrative Agent has received funds. In
such event, Administrative Agent may, on behalf of any Lender not timely paying
Administrative Agent, disburse funds to Borrower for Loans requested, subject
to the provisions of Subsection 8.5(B). Each such Lender shall reimburse
Administrative Agent on demand for all funds disbursed on its behalf by
Administrative Agent. Nothing in this Subsection 8.4 or elsewhere in this
Agreement or the other Loan Documents, including the provisions of Subsection 8.5,
shall be deemed to require Administrative Agent (or any other Lender) to
advance funds on behalf of any Lender or to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights that
Administrative Agent or Borrower may have against any Lender as a result
of any default by such Lender hereunder.


 


56

















 


8.5                                 Disbursements
of Advances; Payments.


 


(A)                              Pro
Rata Treatment; Application. Upon receipt by Administrative Agent of each
payment from Borrower hereunder, other than as described in the succeeding sentence,
Administrative Agent shall promptly credit each Lender’s account with its Pro
Rata Share of such payment in accordance with such Lender’s Pro Rata Share and
shall promptly wire advice of the amount of such credit to each Lender. Each
payment to Administrative Agent of its fees shall be made in like manner, but
for the account of Administrative Agent.


 


(B)                                Availability
of Lender’s Pro Rata Share.


 


(1)                                  Unless
Administrative Agent has been notified by a Lender prior to a Funding Date of
such Lender’s intention not to fund its Pro Rata Share of the Loan amount
requested by Borrower, and Administrative Agent has given notice pursuant to
Subsection 8.4, Administrative Agent may assume that such Lender will
make such amount available to Administrative Agent on the Funding Date. If such
amount is not, in fact, made available to Administrative Agent by such Lender
when due, and Administrative Agent disburses funds to Borrower on behalf of
such Lender, Administrative Agent will be entitled to recover such amount on
demand from Borrower, without set-off, counterclaim or deduction of any kind,
with interest thereon at the rate per annum then applicable to such Loan.


 


(2)                                  Nothing
contained in this Subsection 8.5(B) will be deemed to relieve a
Lender of its obligation to fulfill its commitments or to prejudice any rights
Administrative Agent or Borrower may have against such Lender as a result
of a default by such Lender under this Agreement.


 


(3)                                  Without
limiting the generality of the foregoing, each Lender shall be obligated to
fund its Pro Rata Share of any Revolving Loan made after any Event of Default
or acceleration of the Obligations with respect to any draw on a Letter of
Credit.


 


(C)                                Return
of Payments.


 


(1)                                  If
Administrative Agent pays an amount to a Lender under this Agreement in the
belief or expectation that a related payment has been or will be received by
Administrative Agent from Borrower and such related payment is not received by
Administrative Agent, then Administrative Agent will be entitled to recover
such amount from such Lender without set-off, counterclaim or deduction of any
kind.


 


(2)                                  If
Administrative Agent determines at any time that any amount received by
Administrative Agent under this Agreement must be returned to Borrower or paid
to any other Person pursuant to any solvency law or otherwise, then,
notwithstanding any other term or condition of this Agreement, Administrative
Agent will not be required to distribute any portion thereof to any Lender. In
addition, each
Lender will repay to Administrative Agent on demand any portion of such amount
that Administrative Agent has distributed to such Lender, together with
interest at such rate, if any, as Administrative Agent is required to pay to
Borrower or such other Person, without set-off, counterclaim or deduction of
any kind.


 


57






 












 


SECTION 9

MISCELLANEOUS


 


9.1                                 Indemnities.
Borrower agrees to indemnify, pay, and hold Administrative Agent and each
Lender and their respective Affiliates and the respective officers, directors,
employees, Administrative Agent, and attorneys of Administrative Agent, Lender
and their respective Affiliates (the “Indemnitees”)
harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits and claims of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the
Indemnitee as a result of Administrative Agent and each Lender being a party to
this Agreement or otherwise in connection with this Agreement, any of the other
Loan Documents or any of the transactions contemplated hereby or thereby; provided,
that Borrower shall have no obligation to an Indemnitee hereunder with respect
to liabilities arising from the gross negligence or willful misconduct of that
Indemnitee, in each such case as determined by a final non appealable judgment
of a court of competent jurisdiction. This Subsection 9.1 and all
indemnification provisions contained within any other Loan Document shall
survive the termination of this Agreement.


 


9.2                                 Amendments
and Waivers. Except as otherwise provided herein, no amendment,
modification, termination or waiver of any provision of this Agreement, the
Notes or any of the other Loan Documents (other than any Related Interest Rate
Agreement, which may only be amended, modified or terminated, or any
provision thereof waived, in accordance with the terms thereof), or consent to
any departure by Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by Borrower and Requisite Lenders (or
Administrative Agent, if expressly set forth herein, in any Note or in any
other Loan Document); provided, that, notwithstanding any other
provision of this Agreement to the contrary and except, with respect to an
assignee or assignor hereunder, to the extent permitted by any applicable
Lender Addition Agreement, no amendment, modification, termination or waiver
shall, unless in writing and signed by all Lenders, do any of the following: (i) increase
any Lender’s Pro Rata Share of any Loan Commitment or change a pro rata payment
of any Lender; (ii) reduce the principal of, rate of interest on or fees
payable with respect to any Loan (other than indirectly by reason of an
amendment to a defined terms); (iii) extend the Revolver Expiration Date
or the Term Loan Maturity Date or extend any other scheduled date on which any
Obligation is to be paid (other than the date of any prepayment); (iv) change
the percentage of Lenders which shall be required for Lenders or any of them to
take any action hereunder; (v) release or subordinate Administrative Agent’s
Lien on all or substantially all of the Collateral (except if the release or
subordination of such Collateral is permitted under and effected in accordance
with this Agreement or any other Loan Document) or any material guaranty of the
Obligations (except to the extent expressly contemplated thereby); (vi) amend
or waive this Subsection 9.2 or the definitions of the terms used in this
Subsection 9.2 insofar as the definitions affect the substance of this Subsection 9.2;
or (vii) consent to the assignment, delegation or other transfer by
Borrower of any of its rights and obligations under any Loan Document; and provided,
further, that no amendment, modification, termination or waiver
affecting the rights or duties of Administrative Agent under any Loan Document
shall in any event be effective, unless in writing and signed by Administrative
Agent, in addition to Lenders required hereinabove to take such action. Each
amendment, modification, termination or waiver shall be effective only in the
specific instance and for the specific purpose for which it was given. No
amendment, modification, termination or waiver shall be required for
Administrative Agent to take additional Collateral pursuant to any Loan


 


58

















 


Document. No notice to or
demand on Borrower or any other Person in any case shall entitle Borrower or
such Person to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Subsection 9.2 shall be binding upon each
holder of the Notes at the time outstanding, each future holder of the Notes,
and, if signed by Borrower, upon Borrower.


 


9.3                                 Notices.
Any required notice or other communication shall be in writing addressed to the
respective party as set forth below and may be personally delivered,
telecopied, sent by overnight courier service or U.S. mail and shall be deemed
to have been given: (i) if delivered in person, when delivered; (ii) if
delivered by telecopy, on the date of transmission if transmitted on a Business
Day before 2:00 p.m. (Denver, Colorado time) and otherwise on the Business
Day next succeeding the date of transmission; (c) if delivered by
overnight courier, two Business Days after delivery to the courier properly
addressed; or (d) if delivered by U.S. mail, four Business Days after
deposit with postage prepaid and proper address.


 


Notices shall be addressed as follows:


 


	
  If to Borrower:

  	
   

  	
  Atlantic Tele-Network, Inc.

  
	
   

  	
   

  	
  10 Derby Square

  
	
   

  	
   

  	
  Salem, MA 01970

  
	
   

  	
   

  	
  Attn: Michael Prior

  
	
   

  	
   

  	
  Fax No.: 978-744-3951

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Edwards Angell Palmer &
  Dodge LLP

  
	
   

  	
   

  	
  111 Huntington Avenue

  
	
   

  	
   

  	
  Boston, MA 02199

  
	
   

  	
   

  	
  Attn: Leonard Q. Slap

  
	
   

  	
   

  	
  Fax No.: 617.227.4420

  



 


If to
a Lender or Administrative Agent:  To the
address set forth on the signature page hereto or in the applicable Lender
Addition Agreement


 


9.4                                 Failure
or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on the part of
Administrative Agent or any Lender to exercise, nor any partial exercise of,
any power, right or privilege hereunder or under any other Loan Documents shall
impair such power, right, or privilege or be construed to be a waiver of any
Default or Event of Default. All rights and remedies existing hereunder or under
any other Loan Document are cumulative to and not exclusive of any rights or
remedies otherwise available.


 


9.5                                 Marshaling;
Payments Set Aside. Neither Administrative Agent nor any Lender shall be
under any obligation to marshal any assets in payment of any or all of the
Obligations. To the extent that Borrower or any other Person makes payment(s)
or Administrative Agent enforces its Liens or Administrative Agent or any
Lender exercises its right of set-off, and such payment(s) or the proceeds of
such enforcement or set-off is subsequently invalidated, declared to be
fraudulent or preferential, set aside, or required to be repaid by anyone
(whether by demand, litigation, settlement or otherwise), then to the extent of
such recovery, the Obligations or part thereof originally intended


 


59

















 


to be satisfied, and all
Liens, rights and remedies therefor, shall be revived and continued in full
force and effect as if such payment had not been made or such enforcement or
set-off had not occurred.


 


9.6                                 Severability.
The invalidity, illegality, or unenforceability in any jurisdiction of any
provision under the Loan Documents shall not affect or impair the remaining
provisions in the Loan Documents or any such invalid, unenforceable or illegal
provision in any jurisdiction in which it is not invalid, unenforceable or
illegal.


 


9.7                                 Lenders’
Obligations Several; Independent Nature of Lenders’ Rights. The obligation
of each Lender hereunder is several and not joint and no Lender shall be
responsible for the obligation or commitment of any other Lender hereunder. In
the event that any Lender at any time should fail to make a Loan as herein
provided, Lenders, or any of them, at their sole option, may make the Loan
that was to have been made by the Lender so failing to make such Loan. Nothing
contained in any Loan Document and no action taken by Administrative Agent or
any Lender pursuant hereto or thereto shall be deemed to constitute Lenders to
be a partnership, an association, a joint venture or any other kind of entity.
The amounts payable at any time hereunder to each Lender shall be a separate
and independent debt.


 


9.8                                 Headings.
Section and Subsection headings are included herein for convenience
of reference only and shall not constitute a part of this Agreement for
any other purposes or be given substantive effect.


 


9.9                                 Applicable
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF COLORADO, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES THAT REQUIRE OR PERMIT APPLICATION OF THE
LAWS OF ANY OTHER STATE OR JURISDICTION.


 


9.10                           Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns,
except that Borrower may not assign its rights or obligations hereunder
without the written consent of all Lenders.


 


9.11                           No
Fiduciary Relationship. No provision in the Loan Documents and no course of
dealing between the parties shall be deemed to create any fiduciary duty owing
to Borrower or its Subsidiaries or Affiliates by Administrative Agent or any
Lender.


 


9.12                           Construction.
Administrative Agent, each Lender and Borrower acknowledge that each of them
has had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review the Loan Documents with its legal counsel and that the
Loan Documents shall be constructed as if jointly drafted by Administrative
Agent, each Lender and Borrower.


 


9.13                           Confidentiality.
Administrative Agent and Lenders agree to hold any confidential information
sufficiently identified as being confidential or proprietary that they may receive
from Borrower and its Subsidiaries pursuant to this Agreement in confidence,
except for disclosure: (i) on


 


60

















 


a confidential basis to
directors, officers, employees, Administrative Agent or legal counsel,
independent public accountants and other professional advisors of Administrative
Agent or Lenders or their respective Affiliates; (ii) to regulatory
officials having jurisdiction over Administrative Agent or Lenders or their
Affiliates; (iii) as required by Applicable Law or legal process; or (iv) in
connection with any legal proceeding between or among Administrative Agent or
Lenders or their Affiliates and Borrower or its Subsidiaries or Affiliates (provided
that, in the event Administrative Agent or Lenders or their Affiliates are so
required to disclose such confidential information pursuant to clause (iii) of
this Subsection 9.13, Administrative Agent or Lenders shall promptly
notify Borrower (unless legally prohibited from so doing), so that Borrower or
any of its Subsidiaries may seek, at its sole cost and expense, a protective
order or other appropriate remedy); and (v) to another Person in
connection with a disposition or proposed disposition to that Person of all or part of
that Lender’s interests hereunder or a participation interest in its Pro Rata
Share, provided that such disclosure is made subject to an appropriate
confidentiality agreement on terms substantially similar to this Subsection 9.13.
For purposes of the foregoing, “confidential information” shall mean all
information respecting Borrower or its Affiliates or Subsidiaries, other than (A) information
previously filed by Borrower or its Affiliates or Subsidiaries with any
Governmental Authority and available to the public or otherwise made available
to third parties on a non-confidential basis, (B) information previously
published in any public medium from a source other than, directly or
indirectly, Administrative Agent or Lenders in violation of this Subsection 9.13
and (C) information obtained by Administrative Agent or Lenders from a
source independent of Borrower or its Subsidiaries.


 


9.14                           Consent
to Jurisdiction and Service of Process.


 


(A)  BORROWER, ADMINISTRATIVE AGENT AND LENDERS
HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL COURT OR STATE COURT IN THE STATE OF COLORADO, HAVING SUBJECT
MATTER JURISDICTION OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
ANY LOAN DOCUMENTS. BORROWER, ADMINISTRATIVE AGENT AND LENDERS HEREBY
IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW
OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT, PERSONAL JURISDICTION OF ANY SUCH COURT OR THAT SUCH
COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY
PARTY HERETO TO BRING PROCEEDINGS AGAINST ANY OTHER PARTY HERETO IN THE COURTS
OF ANY OTHER JURISDICTION.


 


(B)  BORROWER, ADMINISTRATIVE AGENT AND LENDERS
HEREBY AGREE THAT SERVICE OF THE SUMMONS AND COMPLAINT AND ALL OTHER PROCESS
WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE
EFFECTED BY MAILING BY REGISTERED MAIL, RETURN RECEIPT REQUESTED, A COPY OF
SUCH PROCESS TO BORROWER, ADMINISTRATIVE AGENT OR LENDERS AT THE ADDRESS TO WHICH
NOTICES TO BORROWER, ADMINISTRATIVE AGENT AND LENDERS ARE THEN TO BE SENT
PURSUANT TO SUBSECTION 9.3 AND THAT PERSONAL SERVICE OF PROCESS SHALL NOT
BE REQUIRED. NOTHING HEREIN


 


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SHALL BE CONSTRUED TO PROHIBIT
SERVICE OF PROCESS BY ANY OTHER METHOD PERMITTED BY LAW.


 


9.15                           Waiver
of Jury Trial. BORROWER, ADMINISTRATIVE AGENT AND LENDERS HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS, OR ANY
DEALINGS BETWEEN OR AMONG THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN
TRANSACTION AND ANY RELATIONSHIP THAT IS BEING ESTABLISHED AMONG ANY OF THEM. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF
THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. BORROWER,
ADMINISTRATIVE AGENT AND LENDERS ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO
RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWER, ADMINISTRATIVE
AGENT AND LENDERS FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THE LOAN DOCUMENTS, OR TO ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING TO THE LOANS. IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. BORROWER,
ADMINISTRATIVE AGENT AND LENDERS ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON
SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF ADMINISTRATIVE AGENT
AND EACH LENDER.


 


9.16                           Survival
of Warranties and Certain Agreements. All agreements, representations and
warranties made herein shall survive the execution and delivery of this
Agreement, the making of the Loans, the issuance of the Letters of Credit and
the execution and delivery of the Notes. Notwithstanding anything in this
Agreement or implied by law to the contrary, the agreements of Borrower set
forth in Subsections 1.4(D), 1.11, 1.14, 9.1, 9.9, 9.14 and 9.15 and the
agreements of Lenders set forth in Subsection 8.2(E) (together with
any other Sections and Subsections stated herein to so survive) shall survive
the payment of the Loans and the Letter of Credit Liabilities and the
termination of this Agreement.


 


9.17                           Entire
Agreement. This Agreement, the Notes and the other Loan Documents referred
to herein embody the final, entire agreement among the parties hereto and
supersede any and all prior commitments, agreements, representations, understandings,
whether oral or written, relating to the subject matter hereof and may not
be contradicted or varied by evidence of prior, contemporaneous or subsequent
oral agreements or discussions of the parties hereto.


 


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9.18                           Counterparts;
Effectiveness. This Agreement and any amendments, waivers, consents or
supplements may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all of which counterparts together shall
constitute but one and the same instrument. This Agreement shall become
effective upon the execution of a counterpart hereof by each of the
parties hereto.


 


9.19                           Effectiveness
of Amendment and Restatement; No Novation The amendment and restatement of
the Existing Credit Agreement pursuant to this Agreement shall be effective as
of the Amendment Date. All obligations and rights of Borrower, Administrative
Agent, Issuing Lender and Lenders arising out of or relating to the period
commencing on the Amendment Date shall be governed by the terms and provisions
of this Agreement; the obligations of and rights of Borrower, Administrative
Agent and Lenders arising out of or relating to the period prior to the
Amendment Date shall continue to be governed by the Existing Credit Agreement
without giving effect to the amendment and restatements provided for herein.
This Agreement shall not constitute a novation or termination of Borrower’s obligations
under the Existing Credit Agreement or any document, note or agreement executed
or delivered in connection therewith, but shall constitute an amendment and
restatement of the obligations and covenants of Borrower under such documents,
notes and agreements, and Borrower hereby reaffirms all such obligations and
covenants, as amended and restated hereby.


 


9.20                           Patriot
Act. The Lenders notify Borrower and its Subsidiaries that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Patriot
Act”), they are required to obtain, verify and record
information that identifies each of Borrower and its Subsidiaries, which
information includes the name and address of such entity and other information
that will allow the Lenders to identify such in accordance with the Patriot Act.
Each of Borrower and its Subsidiaries shall provide to the extent commercially
reasonable, such information and take such other actions as are reasonably
requested by the Lenders in order to assist the Lenders in maintaining compliance with the Patriot
Act.


 


SECTION 10

DEFINITIONS


 


10.1                           Certain
Defined Terms. The terms defined below are used in this Agreement as so
defined. Terms defined in the preamble and recitals to this Agreement are used
in this Agreement as so defined.


 


“Acquisition” means Borrower’s acquisition
of 95% of the membership interests of Commnet, dated as of the Closing Date, as
contemplated in the Asset Purchase Agreement.


 


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


 


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“Adjustment Date” means each date which is
the fifth Business Day after the receipt by Administrative Agent of each
Compliance Certificate and related quarterly financial statements delivered by
Borrower pursuant to Subsection 4.5(C) and, in the case a decrease in
an applicable margin is warranted, a written notice from Borrower to decrease
such margin.


 


“Administrative Agent” means CoBank in its
capacity as Administrative Agent for Lenders under this Agreement and each of
the other Loan Documents and any successor in such capacity appointed pursuant
to Subsection 8.2.


 


“Affiliate” means, (A) with respect to
Borrower or any of its Subsidiaries, any Person: (i) directly or indirectly
controlling, controlled by, or under common control with such Person; (ii) directly
or indirectly owning or holding 10% or more of any equity interest in Borrower
or any Subsidiary of Borrower; or (iii) 10% or more of whose voting stock
or other equity interest is directly or indirectly owned or held by Borrower or
any Subsidiary of Borrower, excluding for purposes of this clause (A) Affiliates
which are also Borrower, (B) with respect to Administrative Agent and
Lenders hereunder, any Person which controls or is controlled by or is under
common control with such Person and (C) with respect to Affiliates of
Administrative Agent, any Person which controls or is controlled by or is under
common control with such Person. For purposes of this definition, “control”
(including with correlative meanings, the terms “controlling,” “controlled by”
and “under common control with”) means the possession directly or indirectly of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or by contract or
otherwise.


 


“Agreement” means this Credit Agreement
(including all schedules and exhibits hereto), as amended, modified,
supplemented, extended and restated from time to time as permitted herein.


 


“Applicable Law”
means, in respect of any Person, all provisions of constitutions, statutes,
rules, regulations and orders of governmental bodies or regulatory agencies
applicable to such Person, including the Licenses, the Communications Act and
all Environmental Laws, and all orders, decisions, judgments and decrees of all
courts and arbitrators in proceedings or actions to which the Person in
question is a party or by which it is bound.


 


“Arranger” means CoBank in its capacity as
Arranger for Lenders under this Agreement and each of the other Loan Documents
and any successor in such capacity appointed pursuant to Subsection 8.2.


 


“Asset Disposition” means the disposition,
whether by sale, lease, transfer, loss, damage, destruction, condemnation or
otherwise, by Borrower or any of its Subsidiaries of any of the following:  (i) any of the capital stock or the
ownership interests of Borrower or any of their Subsidiaries, or (ii) any
or all of Borrower’s or any of its Subsidiaries’ assets, other than (a) bona
fide sales of inventory to customers in the ordinary course of business, (b) dispositions
of obsolete equipment not used or useful in the business of Borrower or any of
its Subsidiaries, (c) sales of Cash Equivalents for fair value and (d) the
sale of Commnet’s 36.625% interest in Commnet Florida, LLC.


 


“Available Revolver Loan Commitment” means,
at any time, the Revolver Loan Commitment, as it may have been reduced
pursuant to this Agreement, minus the sum of (i)


 


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aggregate principal
balance of all Revolver Loans plus (ii) the aggregate Letter of
Credit Liability then outstanding hereunder.


 


“Bankruptcy Code” means Title 11 of the
United States Code entitled “Bankruptcy,” as amended from time to time, or any
applicable bankruptcy, insolvency or other similar federal or state law now or
hereafter in effect and all rules and regulations promulgated thereunder.


 


“Base Rate” means, a variable rate of
interest per annum equal, on any day, to the rate of interest published on such
day in the Eastern Edition of The Wall Street Journal
as the average prime lending rate for 75 percent of the United States’ 30
largest commercial banks, or if the Eastern Edition of The Wall
Street Journal or such rate is not published on such day, such rate
as last published in the Eastern Edition of The Wall Street Journal.
In the event the Eastern Edition of The Wall Street Journal
ceases to publish such rate or an equivalent, the term “Prime Rate” shall be
determined by reference to such other regularly published prime rate based upon
any averaging of such 30 banks, as Administrative Agent shall determine, or if
no such published average prime rate is available, then the term “Prime Rate”
shall mean a variable rate of interest per annum as determined by
Administrative Agent equal to the highest of the “prime rate,” “reference rate,”
“base rate” or other similar rate announced from time to time by any of Bankers
Trust Company and Citibank as selected by Administrative Agent (with the
understanding that any such rate may merely be a reference rate and may not
necessarily represent the lowest or best rate actually charged to any customer
by such bank). Any change in the “Prime Rate” shall be automatic, without the
necessity of notice being provided to Borrower or any other party.


 


“Base Rate Margin” means the applicable
percent per annum determined in accordance with Subsection 1.2(B).


 


“BDC”
means Bermuda Digital Communications, LTD., a Bermuda entity.


 


“Borrower Pledged Cash” means deposits in
the name of Borrower (and not of its Subsidiaries) of the Borrower’s funds
located in commercial banks in the United States and in deposit accounts of
which the Administrative Agent has “control” (as defined in Article 9 of
the Uniform Commercial Code in effect in the State of Colorado, as amended
from time to time).


 


“Business Day” means (i) for all
purposes other than as covered by clause (ii) below, any day excluding
Saturday, Sunday and any day which is a legal holiday under the laws of the
States of Colorado, Georgia or Massachusetts or is a day on which banking
institutions located in such jurisdictions are closed or which the Federal
Reserve Banks are closed, and (ii) with respect to all notices,
determinations, fundings and payments in connection with LIBOR Loans, any day
that is a Business Day described in clause (i) above and that is also a
day for trading by and between banks in U.S. dollar deposits in the applicable
interbank LIBOR market.


 


“Calculation Period” means each period
commencing on each Adjustment Date and ending on the day preceding each
subsequent Adjustment Date.


 


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“Capital Lease” means any lease of real or
personal property which is required to be capitalized under GAAP or which is
treated as an operating lease under regulations applicable to Borrower and its
Subsidiaries but which otherwise would be required to be capitalized under
GAAP.


 


“Cash Equivalents” means:  (i) marketable direct obligations issued
or unconditionally guarantied by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States of
if not so backed, then having a rating of at least A+ from Standard &
Poor’s Rating Service and at least A1 from Moody’s Investors Service, Inc.,
in each case maturing within two years from the date of acquisition thereof; (ii) commercial
paper maturing no more than one  year
from the date issued and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor’s Rating Service or at least P-1 from
Moody’s Investors Service, Inc.; (iii) certificates of deposit or
bankers’ acceptances maturing within one year from the date of issuance thereof
issued by, or overnight reverse repurchase agreements from, any commercial bank
organized under the laws of the United States of America or any state thereof
or the District of Columbia having combined capital and surplus of not less
than $500,000,000; (iv) time deposits maturing no more than 30 days from the
date of creation thereof with commercial banks having membership in the Federal
Deposit Insurance Corporation in amounts at any one such institution not
exceeding the lesser of $100,000 or the maximum amount of insurance applicable
to the aggregate amount of Borrower’s deposits at such institution; and (v) Investments
in CoBank, ACB or other Investments satisfactory to Administrative Agent.


 


“Change of Control” means: (i) a report
on Schedule 13D shall be filed with the Securities and Exchange Commission
pursuant to Section 13(d) of the Act disclosing that any person other
than Borrower or any employee benefit plan sponsored by Borrower, is the
beneficial owner (as the term is defined in Rule 13d-3 under the Act)
directly or indirectly, of 30% or more of the total voting power represented by
Borrower’s then outstanding voting securities (calculated as provided in
paragraph (d) of Rule 13d-3 under the Act in the case of rights to
acquire voting securities); or (ii) any person, other than Borrower or any
employee benefit plan sponsored by Borrower, shall purchase shares pursuant to
a tender offer or exchange offer to acquire any voting securities of Borrower
(or securities convertible into such voting securities) for cash, securities or
any other consideration, provided that after consummation of the offer, the
person in question is the beneficial owner directly or indirectly, of thirty
percent or more of the total voting power represented by Borrower’s then
outstanding voting securities (all as calculated under clause (i)); or (iii) the
occurrence of (A) any consolidation or merger of Borrower in which
Borrower is not the continuing or surviving corporation (other than a merger of
Borrower in which holders of common shares of Borrower immediately prior to the
merger have the same proportionate ownership of common shares of the surviving
corporation immediately after the merger as immediately before or a merger
effected pursuant to Section 251(g) of the Delaware General
Corporation Law), or pursuant to which common Shares of Borrower will be
converted into cash, securities or other property, or (B) any sale, lease
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all the assets of Borrower; or (iv) there
shall have been a change in the composition of the Board of Directors of
Borrower at any time during any consecutive twenty-four month period such that “continuing
directors” cease for any reason to constitute at least a 70% majority of the
Board. For purposes of this clause, “continuing directors” means those members
of the Board who either were directors at the beginning of such consecutive
twenty-four month period or were elected by or on the nomination or
recommendation of at least a 70% majority of the then-existing


 


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“continuing directors.”  Notwithstanding the foregoing, no “Change of
Control” shall have occurred or be deemed to be continuing, during such time as Cornelius B. Prior, Jr., his
spouse or his lineal descendents, directly or in trust for their benefit, shall
have voting control of (a) 50% or more of the outstanding shares entitled
to vote, or (b) 35% or more of the outstanding shares entitled to vote at
a time when no other shareholders described above owns in the aggregate 35% or
more of the outstanding shares entitled to vote.


 


“Closing Date” means September 15,
2005.


 


“Collateral” means, collectively:  (i) all “Collateral” as defined in the
Security Documents; (ii) all real property and interests in real property
mortgaged pursuant to the Security Documents; and (iii) any property or
interest provided in addition to or in substitution for any of the foregoing.


 


“Collateral Contract
Assignments” means, collectively, all collateral assignments of
Material Contracts, in form and content approved by Administrative Agent,
executed by Borrower or any of its Subsidiaries in favor of Administrative
Agent, for the benefit of itself and Lenders, as required pursuant to Subsection 2.8,
as amended, modified, supplemented, extended and restated from time to time.


 


 “Commnet Leverage Ratio” means, as of the
date of calculation derived by dividing (a) the result of (i) Indebtedness
of Borrower (calculated on a consolidated basis for Borrower and its Subsidiaries)
minus (ii) the amount of Borrowers Pledged Cash, each as of the
date of calculation  by (b) EBITDA
for Commnet (calculated on a consolidated basis for Commnet and its
Subsidiaries) for the then most recently completed four fiscal quarters.


 


“Commnet Operating
Agreement” means the Third Amended and Restated Operating Agreement
of Commnet, dated as of the Closing Date, as it may be amended, modified,
supplemented, extended and restated from time to time.


 


“Communications Act” means the
Communications Act of 1934, as amended and any similar or successor federal
statute, and the rules and regulations of the FCC thereunder, all as the
same may be in effect from time to time.


 


“Communications System” means a system or
business providing voice, data or video transport, connection or monitoring
services, through any means or medium, and the provision of management,
technical and financial (including call rating) or other services to companies
providing such transport, connection or monitoring services.


 


“Contingent Obligation,” as applied to any
Person, means any direct or indirect liability of that Person:  (i) 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, performed or discharged, or that the holders of such liability
will be protected (in whole or in part) against loss with respect thereto; (ii) with
respect to any letter of credit issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement of drawings; or (iii) under
any foreign exchange contract, currency swap agreement, interest rate swap
agreement or other


 


67

















 


similar agreement or
arrangement designed to alter the risks of that Person arising from
fluctuations in currency values or interest rates. Contingent Obligations shall
also include (a) the direct or indirect guaranty, endorsement (other than
for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the
obligation of another, (b) the obligation to make take-or-pay or similar
payments if required regardless of nonperformance by any other party or parties
to an agreement, and (c) any liability of such Person for the obligations
of another through any agreement to purchase, repurchase or otherwise acquire
such obligation or any property constituting security therefor, to provide
funds for the payment or discharge of such obligation or to maintain the
solvency, financial condition or any balance sheet item or level of income of
another. The amount of any Contingent Obligation shall be equal to the amount
of the obligation so guaranteed or otherwise supported or, if not a fixed and
determined amount, the maximum amount so guaranteed.


 


“Debt Service” means, for the applicable
period, the sum of:  (a) all principal
payments scheduled to be made on Indebtedness (or scheduled reductions in
commitments on lines of credit to the extent such reductions would cause the
repayment of principal amounts then outstanding under such lines), excluding
reimbursement of draws on Letters of Credit, plus (b) Interest
Expense.


 


“Debt Service Coverage Ratio” means, as of
the date of calculation, the ratio derived by dividing (a) EBITDA by
(b) Debt Service, each for the then most recently completed four fiscal
quarters.


 


“Default” means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default if
that condition or event were not cured or removed within any applicable grace
or cure period.


 


“EBITDA” means (i) 
the result of (1) sum of (a) net income or deficit, as the case may be,
excluding gains or losses on the sale of assets and extraordinary
(non-recurring, one-time) gains and losses, (b) total interest expense
(including non-cash interest), (c) depreciation and amortization expense,
and (d) income taxes, minus (2) to the extent included in
calculating net income or deficit, the sum of (a) interest income, (b) dividends
and patronage income and (c) equity in earnings from unconsolidated
subsidiaries and joint ventures, and (ii) will be measured for the then
most recently completed four fiscal quarters, adjusted to give effect to any
acquisition, sale or other disposition, directly or through a subsidiary, of
any business (or any portion thereof) during the period of calculation as if such
acquisition, sale or other disposition occurred on the first day of such period
of calculation.


 


“Environmental Laws” means all applicable
federal, state or local laws, statutes, rules, regulations or ordinances,
codes, common law, consent agreements, orders, decrees, judgments or
injunctions issued, promulgated, approved or entered thereunder relating to
public health, safety or the pollution or protection of the environment,
including those relating to releases, discharges, emissions, spills, leaching, or
disposals of hazardous substances (including petroleum, crude oil or any
fraction or derivative thereof, or other hydrocarbons) to air, water, land or
ground water, to the withdrawal or use of ground water, to the use, handling or
disposal of polychlorinated biphenyls, asbestos or urea formaldehyde, to the
treatment, storage, disposal or management of hazardous substances (including
petroleum, crude oil or any fraction or derivative thereof, or other


 


68

















 


hydrocarbons), pollutants
or contaminants, to exposure to toxic, hazardous or other controlled,
prohibited, or regulated substances, including, without limitation, any such
provisions under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. § 9601 et  seq.),
and the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. § 6901
et  seq.).


 


“Equity” means the result of consolidated
total assets minus consolidated total liabilities.


 


“Equity to Assets Ratio” means the ratio
derived by dividing (i) Equity by (ii) consolidated
total assets.


 


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


 


“ERISA Affiliate” means any trade or
business (whether or not incorporated) which is a member of a controlled group
or under common control with Borrower within the meaning of Section 414(b) or
(c) of the IRC (and Sections 414(m) and (o) of the IRC for purposes of
provisions relating to Section 412 of the IRC).


 


“ERISA Event” means, with respect to
Borrower, any ERISA Affiliate or any Pension Plan, the occurrence of any of the
following: (a) a Reportable Event; (b) a withdrawal by a substantial
employer (as defined in Section 4001(a)(12) of ERISA) subject to Section 4063
of ERISA; (c) a cessation of operations which is treated as a withdrawal
under Section 4062(e) of ERISA; (d) a complete or partial
withdrawal under Section 4203 or 4205 of ERISA from a Multi-employer Plan;
(e) a notification that a Multi-employer Plan is in reorganization under Section 4242
of ERISA; (f) the filing of a notice of intent to terminate a Pension Plan
under 4041 of ERISA; (g) the treatment of an amendment of a Pension Plan
as a termination under 4041 of ERISA; (h) the termination of a Multi-employer
Plan under Section 4041A of ERISA; (i) the commencement of
proceedings by the PBGC to terminate a Pension Plan under 4042 of ERISA; (j) an
event or condition which could reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, a Pension Plan; or (k) the imposition of any liability
under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007
of ERISA.


 


“Facility” or “Facilities” means one or more of the Revolver Facility and the
Term Loan Facility.


 


“FCC” means the Federal Communications
Commission, or any other similar or successor agency of the federal government
administering the Communications Act.


 


“Franchise” means any franchise or other
authorization, ordinance or regulation permitting the operation of a
Communications System granted by any federal, state  or local Governmental Authority (including in
Guyana).


 


“GAAP” means generally accepted accounting
principles as set forth in statements from Auditing Standards No. 69 as
amended, entitled “The Meaning of ‘Present Fairly in Conformance


 


69

















 


with Generally Accepted
Accounting Principles in the Independent Auditors Reports’” issued by the
Auditing Standards Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board that are applicable to the circumstances as of the date of
determination.


 


 “Governmental
Approvals” means all authorizations, consents, approvals, licenses
and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities, including all Licenses.


 


“Governmental Authority” means any nation
(including Guyana), province, or state or any political subdivision of any of
the foregoing, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity exercising such functions owned
or controlled, through stock or capital ownership or otherwise, by any of the
foregoing, including the FCC and any PUC.


 


“Guaranty”
means a Continuing Guaranty, in form and content approved by
Administrative Agent, made a Subsidiary of Borrower in favor of Administrative
Agent, for the benefit of itself and the Lenders, as amended, modified,
supplemented, extended or restated from time to time.


 


“Indebtedness” as applied to any Person,
means without duplication: (i) all indebtedness for borrowed money; (ii) that
portion of obligations with respect to Capital Leases or other capitalized
agreements that is properly classified as a liability on a balance sheet in
conformity with GAAP; (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed
money; (iv) any obligation owed for all or any part of the deferred
purchase price of property or services, except trade payables arising in the
ordinary course of business and outstanding not more than 90 days after such
obligation is due (unless thereafter contested in good faith); (v) all
obligations created or arising under any conditional sale or other title
retention agreement; (vi) all indebtedness secured by any Lien on any property
or asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
credit of that Person, but only to the extent of the fair value of such
property or asset; (vii) all obligations of such Person under take-or-pay
or similar arrangements or under commodities agreements; (viii) the net
termination obligations of such Person under any Interest Rate Agreement,
calculated as of any date as if such agreement or arrangement were terminated
as of such date; (ix) the maximum amount of all standby letters of credit
issued or bankers’ acceptance facilities created for the account of such Person
and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed); (x) the principal balance outstanding under any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product; (xi) with respect to the Indebtedness
of any partnership or unincorporated joint venture in which such Person is a
general partner or joint venturer, the least of (A) such Indebtedness, (B) such
Person’s actual liability for such Indebtedness or (C) such Person’s
investment in such partnership or joint venture; (xii) obligations with respect
to principal under Contingent Obligations for the repayment of money or the
deferred purchase price of property, whether or not then due and payable
(calculated as the maximum amount of such principal); ); (xiii) obligations
with respect to stated amounts of Letters of Credit; and (xiv) obligations
under partnership, organizational or other agreements to fund capital
contributions or other equity calls


 


70

















 


with respect to any
Person or investment, or to redeem, repurchase or otherwise make payments in
respect to capital stock or other securities of such Person.


 


“Interest Expense” shall mean, for the
applicable period, the aggregate amount of accrued interest on Indebtedness,
and net amounts payable under Interest Rate Agreements, whether paid in cash or
accrued as a liability.


 


“Interest Period” shall mean any of LIBOR
Interest Period or any Quoted Rate Interest Period.


 


“Interest Rate Agreement” means any interest
rate swap, hedge, cap, collar or similar agreement or arrangement designed to
protect Borrower against fluctuations in interest rates and will also include
any arrangement that Lenders, in their sole discretion, may offer to
Borrower to fix the interest rate applicable to any portions of the Loans.


 


“Investment” means (i) any direct or
indirect purchase or other acquisition by Borrower or any of its Subsidiaries
of any beneficial interest in, including stock, partnership interest or other
equity securities of, any other Person; and (ii) any direct or indirect
loan, advance, transfer, guarantee, assumption of liability or other obligation
or liability, or capital contribution by Borrower or any of its Subsidiaries to
any other Person, including all indebtedness and accounts receivable from that
other Person that are not current assets or did not arise from sales to that
other Person in the ordinary course of business. The amount of any Investment
shall be the original cost of such Investment plus the cost of all
additions thereto, without any adjustments for increases or decreases in value,
or write-ups, write-downs or write-offs with respect to such Investment.


 


“IRC” means the Internal Revenue Code of
1986, as amended from time to time, and all rules and regulations
promulgated thereunder.


 


“Issuing
Lender” means each Person so designated in the introductory
paragraph of this Agreement, or any other Lender designated from time to time
by Administrative Agent with the approval of the Borrower, in such Lender’s
capacity as an issuer of Letters of Credit hereunder.


 


“Lender” or “Lenders” means one or more of the banks or other financial
institutions identified as Lenders in the first paragraph of this Agreement and
their successors and permitted assigns pursuant to Subsection 8.1.


 


“Lender Addition Agreement” means an
agreement among Administrative Agent, a Lender and such Lender’s assignee
regarding their respective rights and obligations with respect to assignments
of the Loans, the Loan Commitment and other interests under this Agreement and
the other Loan Documents in the form attached hereto as Exhibit 10.1(A).


 


“Letter
of Credit Liability” means, as to each Letter of Credit, all
reimbursement obligations of Borrower to the issuer of the Letter of Credit
consisting of (a) the amount available to be drawn or which may become
available to be drawn; (b) all amounts which have been paid and made
available by the Issuing Lender to the extent not reimbursed by Borrower,
whether by the making of a Revolver Loan or otherwise; and (c) all accrued
and unpaid interest, fees and


 


71

















 


expenses with respect
thereto. In the case of any Letter of Credit that is issued in a currency other
than United Stated Dollars, the corresponding Letter of Credit Liability shall
be determined in United States Dollars based on the currency exchange rate from
time to time applicable to the issuer of such Letter of Credit.


 


“LIBOR” means for each applicable Interest
Period, a fixed annual rate equal to: (a) the rate of interest determined
by Administrative Agent at which deposits in U.S. dollars for the relevant
Interest Period are offered based on information presented by the Telerate
Service as quoted by the British Bankers Association as of 11:00 a.m.
(London time) on the day which is two Business Days prior to the first day of
such Interest Period, provided, that in the event British Bankers
Association ceases to provide such quotations (as determined by Administrative
Agent), then Administrative Agent will notify Borrower and Administrative Agent
and Borrower will agree upon a substitute basis for obtaining such quotations, divided
by (b) a number equal to 1.0 minus the aggregate (but without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on the day which is two Business Days prior to the
beginning of such Interest Period for Eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of such Board) which are
required to be maintained by a member bank of the Federal Reserve System
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board of Governors of the Federal Reserve
System or other Governmental Authority having jurisdiction with respect
thereto, as now and from time to time in effect); such rate to be rounded
upward to the next whole multiple of 0.01 percent.


 


“LIBOR Loans” means Loans (or portions
thereof as permitted hereunder) accruing interest at rates determined by
reference to the LIBOR.


 


“LIBOR Margin” means the applicable percent
per annum determined in accordance with Subsection 1.2(B).


 


“Licenses” means any material
telecommunications or similar license, authorization, waiver, certificate of
compliance, franchise, approval or permit, whether for the acquisition,
construction or operation of any Telecommunications System, granted or issued
by the FCC or any applicable PUC and held or utilized by Borrower or any
Subsidiary of Borrower, all of which are listed as of the Closing Date on Schedule 5.13(A).


 


“Lien” means any lien, mortgage, pledge,
security interest, charge or encumbrance of any kind, whether voluntary or
involuntary (including any conditional sale or other title retention agreement
and any lease in the nature thereof), and any agreement to give any lien,
mortgage, pledge, security interest, charge or encumbrance.


 


“Loan” or “Loans”
means an advance or advances under any of the Loan Commitments.


 


“Loan Commitment” or “Loan Commitments” means one or more of the
Revolver Loan Commitment and the Term Loan Commitment, as any such commitment
is reduced from time to time as provided in this Agreement.


 


72

















 


“Loan Documents” means, collectively, this
Agreement, the Revolver Notes, the Term Loan Notes, the Security Documents, any
Guaranty, any Related Interest Rate Agreement to which a Lender or an Affiliate
of a Lender is a party and all other instruments, documents and agreements
executed and delivered concurrently herewith or at any time hereafter to or for
the benefit of Administrative Agent or any other Agent or Lender in connection
with the Loans and other transactions contemplated by this Agreement, all as
amended, modified, supplemented, extended or restated from time to time.


 


“Material Adverse Effect” means (i) a
material adverse effect upon the business, operations, properties, assets or
condition (financial or otherwise) or prospects of Borrower and its
Subsidiaries, taken as a whole, or (ii) the impairment of any Liens in
favor of Administrative Agent, of the ability of Borrower and its Subsidiaries,
taken as a whole, to perform their obligations under the Loan Documents or
of Administrative Agent or any Lender to enforce any Loan Document or collect
any of the Obligations. In determining whether any individual event could
reasonably be expected to have a Material Adverse Effect, notwithstanding that
such event does not of itself have such effect, a Material Adverse Effect shall
be deemed to have occurred if the cumulative effect of such event and all other
then existing events could reasonably be expected to have a Material Adverse
Effect.


 


“Material Contracts” means (a) the
Material Contracts listed on Schedule 5.17, (b) any contract
or any other agreement, written or oral, of Borrower or any of its Subsidiaries
involving monetary liability of or to any such Person in an aggregate amount in
excess of $1,000,000  per annum and
(c) any other contract or agreement, written or oral, of Borrower or any
of its Subsidiaries the failure to comply with which could reasonably be
expected to have a Material Adverse Effect.


 


“Multi-employer Plan” means a Multi-employer
plan as defined in Section 4001(a)(3) of ERISA to which Borrower or
any ERISA Affiliate makes, is making, made, or was at any time during the
current year or the immediately preceding six (6) years obligated to make
contributions.


 


“Net Proceeds” means cash proceeds received
by Borrower or any Subsidiary of Borrower from any Asset Disposition, debt or
equity issuance (including insurance proceeds, awards of condemnation, and
payments under notes or other debt securities received in connection with any
Asset Disposition), net of (i) the reasonable costs of such sale, lease,
transfer, issuance or other disposition (including taxes attributable to such
sale, lease, transfer or issuance) and (ii) amounts applied to repayment
of permitted Indebtedness (other than the Obligations) secured by a Lien on the
asset or property disposed and (iii) for Subsidiaries not wholly owned by
Borrower, the percentage equal to the ownership interests of Persons other than
Borrower (by way of example, if Borrower owns a Subsidiary 95%, who in turn
owns another Subsidiary 80%, and an Asset Disposition occurs at the other
Subsidiary, only 76% (95% of 80%) of the proceeds thereof that would otherwise
have constituted Net Proceeds will constitute Net Proceeds.


 


“Note” or “Notes”
means one or more of the Revolver Notes and the Term Notes.


 


“Obligations” means all obligations,
liabilities and indebtedness of every nature of Borrower from time to time owed
to Administrative Agent or any Lender (or any Affiliate of a Lender party to a
Related Interest Rate Agreement) under the Loan Documents, including the
principal amount of all debts, claims and indebtedness, accrued and unpaid
interest and all fees, costs and expenses, whether


 


73

















 


primary, secondary,
direct, contingent, fixed or otherwise, heretofore, now or from time to time
hereafter owing, due or payable, or any combination thereof, whether before or
after the filing of a proceeding under the Bankruptcy Code by or against
Borrower.


 


“PBGC”
means the Pension Benefit Guaranty Corporation or any Person succeeding to the
functions thereof.


 


“Pension Plan” means a pension plan (as
defined in Section 3(2) of ERISA) subject to Title IV of ERISA which
Borrower or an ERISA Affiliate sponsors, maintains, or to which it makes, is
making, or is obligated to make contributions or, in the case of a
Multi-employer Plan, has made contributions at any time during the current year
or the immediately preceding six plan years.


 


“Permitted Encumbrances” means the
following:


 


(1)                                  Liens
for taxes, assessments or other governmental charges not yet due and payable or
Liens for taxes, assessments or other governmental charges due and payable if
the same are being diligently contested in good faith and by appropriate
proceedings and then only if and to the extent that adequate reserves therefor
are maintained on the books of Borrower and its Subsidiaries, as applicable, in
accordance with GAAP;


 


(2)                                  statutory
Liens of landlords, carriers, warehousemen, mechanics, materialmen and other
similar liens imposed by law, which are incurred in the ordinary course of
business for sums not more than 60 days delinquent or which are being
diligently contested in good faith; provided that a reserve or other
appropriate provision shall have been made therefor and in any event the
aggregate amount of liabilities secured by such Liens is less than $100,000;


 


(3)                                  Liens incurred or
deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security (other
than any Lien imposed by the Employee Retirement Income Security Act of 1974 or
any rule or regulation promulgated thereunder), or to secure the
performance of tenders, statutory obligations, surety, stay, customs and appeal
bonds, bids, leases, government contracts, trade contracts, performance and
return of money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money) in the amount and to the extent permitted by
Subsection 3.4;


 


(4)                                  deposits, in an
aggregate amount not to exceed $100,000, made in the ordinary course of
business to secure liability to insurance carriers;


 


(5)                                  any
attachment or judgment Lien which, individually or when aggregated, does not
constitute an Event of Default under Subsection 6.1(I) (whether
individually or when aggregated with other such Liens);


 


(6)                                  easements,
rights of way, restrictions and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the business
of Borrower or any of its Subsidiaries or materially adversely affecting the
value of any Collateral;


 


(7)                                  Liens
in favor of Administrative Agent, for the benefit of itself and Lenders;


 


74

















 


(8)                                  Liens
in favor of CoBank as set forth in Subsection 2.6;


 


(9)                                  Liens
securing purchase money security agreements and Capital Leases permitted under
Subsection 3.1(C), provided that such Liens do not encumber any
property other than the items purchased with the proceeds of such Indebtedness
or leased pursuant to such Indebtedness (and the proceeds of such property) and
such liens do not secure any amounts other than amounts necessary to purchase
or lease such items; and


 


(10)                            Lien
in favor of US Bancorp Equipment Finance, Inc. securing the Airplane
Indebtedness, provided that such Lien does not encumber any property
other than the airplane purchased with such Indebtedness.


 


“Person” means and includes natural persons,
corporations, limited liability companies, limited partnerships, limited
liability partnerships, general partnerships, joint stock companies, joint
ventures, associations, companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal entities, and
governments and agencies and political subdivisions thereof and their
respective permitted successors and assigns (or in the case of a governmental
person, the successor functional equivalent of such Person).


 


“Plan” means an employee benefit plan (as
defined in Section 3(3) of ERISA) which Borrower or an ERISA
Affiliate sponsors or maintains or to which Borrower or an ERISA Affiliate
makes, is making, or is obligated to make contributions and includes any
Pension Plan.


 


“Pro Rata Share” means, the percentage
obtained by dividing (i) such Lender’s commitment to make Loans under the
Loan Commitment, as set forth on the signature page of this Agreement
opposite such Lender’s signature or in the most recent Lender Addition
Agreement, if any, executed by such Lender, by (ii) the sum of all such
commitments of all Lenders to make Loans under the Loan Commitment.


 


“PUC” means any state, provincial or other
local regulatory agency or body, including the Guyanan Public Utilities
Commission, that exercises jurisdiction over the rates or services or the
ownership, construction or operation of any Telecommunications System or over
Persons who own, construct or operate a Telecommunications System, in each case
by reason of the nature or type of the business subject to regulation and not
pursuant to laws and regulations of general applicability to Persons conducting
business in any such jurisdiction.


 


“Purchase Agreement” means that Merger
Agreement by and among Borrower, Commnet and certain other Persons, dated as of
July 26, 2005, pursuant to which Borrower agrees to purchase substantially
all of the assets of Commnet.


 


“Quoted Rate Loan” means Loans accruing
interest at Quoted Rate.


 


“Related Interest Rate Agreement” means any
Interest Rate Agreement, in form and content acceptable to Administrative
Agent, entered into by Borrower to hedge the interest rate exposure applicable
to any portions of the Loans.


 


“Reportable Event” means any of the events
set forth in Section 4043(b) of ERISA or the


 


75

















 


regulations
thereunder, other than any such event for which the 30 day notice requirement
under ERISA has been waived in regulations issued by the PBGC.


 


“Requisite Lenders” means at least two
Lenders (to the extent more than one Lender holds any Loan Commitment) who have
in the aggregate Pro Rata Shares greater than 50%.


 


“Restricted Junior Payment” means:  (i) any dividend or other distribution,
direct or indirect, on account of any equity interest in Borrower or any of its
Subsidiaries, including any ownership interest and any shares of any class of
stock or other equity interest of Borrower or any of its Subsidiaries now or
hereafter outstanding, except a dividend payable solely in shares of a class of
stock or other equity interest to the holders of that class; (ii) any
redemption, repurchase, conversion, exchange, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect,
of any equity interest in Borrower or any of its Subsidiaries, including any
ownership interest and any shares of any class of stock of Borrower or any
of its Subsidiaries now or hereafter outstanding; (iii) any payment or
prepayment of interest on, principal of, premium, if any, redemption,
conversion, exchange, purchase, retirement, defeasance, sinking fund or similar
payment with respect to, any Indebtedness subject to subordination provisions
for the benefit of Administrative Agent and Lenders; and (iv) any payment
made to retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire any equity interest in Borrower or any of
its Subsidiaries, including any ownership interest and shares of any class of
stock of Borrower or any of its Subsidiaries now or hereafter outstanding.


 


“Revolver Expiration Date” means the earlier
of (i) the acceleration of the Obligations pursuant to Subsection 6.3
or (ii) October 31, 2010.


 


“Revolver Facility” means the revolver loan
facility extended to Borrower pursuant to Subsection 1.1(A).


 


“Revolver Loan Commitment” means, initially
$20,000,000, as such amount is reduced from time to time as provided in this
Agreement.


 


“Revolver Loans” means an advance or
advances under the Revolver Loan Commitment.


 


“Revolver Note” or “Revolver Notes” means one or more of the
Notes of Borrower substantially in the form of Exhibit 10.1(B),
or any combination thereof, and any replacements, reinstatements, renewals or
extension of any such notes, in whole or in part.


 


“Security Agreement” means a Pledge and
Security Agreement, in form and content approved by Administrative Agent,
executed by Borrower or any of its Subsidiaries, in favor of Administrative
Agent, for the benefit of itself and Lenders, encumbering personal property of
Borrower or such Subsidiary, wherever situated, as it may be amended,
modified, supplemented, extended or restated from time to time.


 


“Security Documents” means, collectively,
all instruments, documents and agreements executed by or on behalf of Borrower
and its Subsidiaries to provide collateral security with respect to the
Obligations, including, without limitation, any Security Agreement, any
Collateral Contract


 


76

















 


Assignments and all
instruments, documents and agreements executed pursuant to the terms of the
foregoing, in such case, as amended, modified, supplemented, extended and
restated from time to time.


 


“Security Interest” means all Liens in favor
of Administrative Agent, for the benefit of itself, Syndication Agent,
Collateral Agent and Lenders, created hereunder or under any of the Security
Documents to secure the Obligations.


 


“Subsidiary” means, with respect to any
Person, any corporation, partnership, association or other business entity of
which more than 50% of the total voting power of shares of stock (or equivalent
ownership or controlling interest) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.


 


“Term Loan” means the Loan under the Term
Loan Commitment.


 


“Term Loan Commitment” means $50,000,000.


 


“Term Loan Facility” means the term loan
credit facility extended to Borrower pursuant to Subsection 1.1(B).


 


“Term Loan Maturity Date” means the earlier
of (i) the acceleration of the Obligations pursuant to Subsection 6.3
or (ii) October 31, 2010.


 


“Term Loan Note or “Term Loan Notes” means one or more of the
notes of Borrower substantially in the form of Exhibit 10.1(C),
or any combination thereof, and any replacements, restatements, renewals or
extensions of any such notes, in whole or in part.


 


“Total Lender Loan Commitment” means the
aggregate commitments of any Lender with respect to the Loan Commitments.


 


“Total Leverage Ratio” means, as of the date
of calculation, the ratio derived by dividing (a) Indebtedness by
(b) EBITDA for the most recently completed four fiscal quarters.


 


10.2                           Other
Definitional Provisions. References to “Sections,” “Subsections,” “Exhibits”
and “Schedules” shall be to Sections, Subsections, Exhibits and Schedules,
respectively, of this Agreement unless otherwise specifically provided. Any of
the terms defined in Subsection 10.1 may, unless the context otherwise
requires, be used in the singular or the plural depending on the reference. In
this Agreement, “hereof,” “herein,” “hereto,” “hereunder” and the like mean and
refer to this Agreement as a whole and not merely to the specific section,
paragraph or clause in which the respective word appears; words importing any
gender include the other gender; references to “writing” include printing,
typing, lithography and other means of reproducing words in a tangible visible
form; the words “including,” “includes” and “include” shall be deemed to be
followed by the words “without limitation”; references to agreements and other
contractual instruments shall be deemed to include subsequent amendments,
assignments, and other modifications thereto, but only to the extent such
amendments, assignments and other modifications are not prohibited by the terms
of


 


77

















 


this Agreement or any
other Loan Document; references to Persons include their respective permitted
successors and assigns or, in the case of governmental Persons, Persons
succeeding to the relevant functions of such Persons; and all references to
statutes and related regulations shall include any amendments of same and any
successor statutes and regulations. All references in the Loan Documents to a
Lender party to a Related Interest Rate Agreement shall include any Person that
was a Lender (or an Affiliate of a Lender) at the time it entered into such
Related Interest Rate Agreement and subsequently ceased to be a Lender.


 


[Signatures follow on the next page.]


 


78

















 


Witness the due execution
hereof by the respective duly authorized officers of the undersigned as of the
date first written above.


 


	
   

  	
  ATLANTIC TELE-NETWORK, INC.,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


 


[Signatures
continued on following page]


 






 












 


[Signatures
continued from previous page]


 


 


	
  Commitment to make
  Revolver

  Loans: $0

  	
   

  	
  COBANK,
  ACB, as Administrative

  Agent, Arranger, an Issuing Bank and a

  Lender

  
	
   

  	
   

  	
   

  
	
  Pro Rata Share of
  Revolver Loan

  Commitment: 0%

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Commitment to make the
  Term

  	
   

  	
  By:

  	
   

  	
   

  
	
  Loan: $50,000,000

  	
   

  	
   

  	
  John Cole

  Vice President

  
	
   

  	
   

  	
   

  
	
  Pro Rata Share of the
  Term Loan:

  100%

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CoBank,
  ACB

  
	
  Total Lender Loan
  Commitment:

  	
   

  	
  900
  Circle 75 Parkway

  
	
  $50,000,000

  	
   

  	
  Suite 1400

  
	
   

  	
   

  	
  Atlanta,
  Georgia 30339-5946

  
	
  Pro Rata Share of the
  Revolver

  	
   

  	
  Attn:
  Communications and

  
	
  Loan Commitment and
  Term Loan 

  	
   

  	
  Energy
  Banking Group

  
	
  Commitment: 71.43%

  	
   

  	
  Fax
  No.: (770) 618-3202

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CoBank,
  ACB

  
	
   

  	
   

  	
  5500
  S. Quebec Street

  
	
   

  	
   

  	
  Greenwood
  Village, CO 80111

  
	
   

  	
   

  	
  Attn:
  Communications and Energy 

  
	
   

  	
   

  	
  Banking
  Group

  
	
   

  	
   

  	
  Fax
  No.: (303) 224-2718

  



 


[Signatures continued on following page]


 

















 


 [Signatures
continued from previous page]


 


	
  Commitment to make
  Revolver 

  	
   

  	
  BANCO POPULAR DE PUERTO 

  
	
  Loans:  $20,000,000

  	
   

  	
  RICO, as an
  Issuing Lender and a  Lender

  
	
   

  	
   

  	
   

  
	
  Pro Rata Share of
  Revolver Loan

  Commitment:  100%

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Commitment to make the
  Term 

  	
   

  	
   

  	
  Valentino I. McBean

  
	
  Loan:  $0

  	
   

  	
   

  	
  Senior Vice President
  and Regional 

  
	
   

  	
   

  	
   

  	
               Manager

  
	
   

  	
   

  	
   

  
	
  Pro Rata Share of the
  Term Loan:

  0%

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  	
  Banco
  Popular de Puerto Rico

  
	
   

  	
   

  	
   

  	
  P.O. Box
  8580 Charlotte Amalie

  
	
  Total Lender Loan
  Commitment:  

  	
   

  	
   

  	
  St.
  Thomas, U.S. Virgin Islands 

  
	
  $20,000,000

  	
   

  	
   

  	
   

  	
  00801

  
	
   

  	
   

  	
   

  	
  Attn:

  	
  Valentino
  I. McBean

  
	
  Pro Rata Share of the
  Revolver 

  	
   

  	
   

  	
   

  	
  Sr.
  Vice President &

  
	
  Loan Commitment and
  Term Loan 

  	
   

  	
   

  	
   

  	
  Regional
  Manager

  
	
  Commitment:  28.57%

  	
   

  	
   

  	
   

  
								



 

















 


Schedule 3.3(C)


 


Existing
Investments


 


1.                                                              Securities
held in Borrower’s account with Bear, Stearns & Co. in Boston, MA. These
securities include a money market account and various short term (less than one
month maturities) commercial paper contracts.


 


2.                                                              Investments
in Subsidiaries noted on Schedule 5.19.


 


3.                                                              Investments
in Affiliates:


 


	
  Name of Affiliate

  	
   

  	
  Member/Shareholder

  	
   

  	
  Units

  Owned

  	
   

  	
  %

  Owned

  	
   

  
	
  Commnet
  of Delaware, LLC*

  	
   

  	
  Commnet Wireless, LLC

  	
   

  	
   

  	
   

  	
  50.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commnet
  of California, LLC*

  	
   

  	
  Commnet Wireless, LLC

  	
   

  	
   

  	
   

  	
  50.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commnet
  of Florida, LLC

  	
   

  	
  Commnet Wireless, LLC

  	
   

  	
   

  	
   

  	
  49.00

  	
   

  



 






*  The assets of these two entities were sold in
June 2007.


 


4.                                                              Other
Investments in Affiliates:


 


•                  Pursuant
to the Loan Agreement by and between Commnet Wireless, LLC (as assigned by
Commnet Wireless, Inc.) and Commnet of Florida, LLC, dated September 18,
2002, and the related Non-Negotiable Promissory Note, dated September 18,
2002, Commnet of Florida, LLC currently owes Commnet Wireless, LLC $1,177,000
in note principal.


 

















 


Schedule 3.8


 


Transactions
with Affiliates


 


1.                In July 2008,
Bermuda Digital Communications, Ltd. (BDC) has the option to purchase from the
Borrower all of the BDC equity owned by Borrower at a purchase price equal to
the fair market value of such shares.


 


2.                BDC and Borrower’s
Subsidiaries have an obligation to pay management fees to Borrower; which
obligation, in BDC’s case, terminates in 2008.


 


3.                In August 2007,
Borrower’s subsidiaries, ATN Haiti S.A. and Transnet S.A. sold certain assets
held by them to a Haitian company in which the Chairman has made an investment.


 

















 


Schedule 5.3(A)


 


Jurisdiction
of Organization


 


A.                                   Organization
and Powers


 


	
  Name

  	
   

  	
  Jurisdiction

  	
   

  	
  Exceptions to Power and

  Authority

  
	
  Borrower

  	
   

  	
  Delaware,
  U.S. Virgin

  Islands – St. Thomas, U.S.

  Virgin Islands – St. Croix

  	
   

  	
  None.

  
	
  Guyana Telephone &
  Telegraph Co., Ltd.

  	
   

  	
  Guyana

  	
   

  	
  None.

  
	
  Choice Communications,
  LLC

  	
   

  	
  U.S. Virgin
  Islands – St.

  Thomas, U.S. Virgin

  Islands – St. Croix

  	
   

  	
  None.

  
	
  Bermuda Digital
  Communications, Ltd.

  	
   

  	
  Bermuda

  	
   

  	
  None.

  
	
  ATN (Haiti) S.A.*

  	
   

  	
  Haiti

  	
   

  	
  None.

  
	
  Transnet, S.A.*

  	
   

  	
  Haiti

  	
   

  	
  None.

  
	
  Commnet Wireless, LLC

  	
   

  	
  Delaware

  	
   

  	
  None.

  
	
  Commnet of Arizona, LLC

  	
   

  	
  Delaware

  	
   

  	
  None.

  
	
  Commnet Four Corners,
  LLC

  	
   

  	
  Delaware

  	
   

  	
  None.

  
	
  Commnet Illinois, LLC

  	
   

  	
  Delaware

  	
   

  	
  None.

  
	
  Commnet Midwest, LLC

  	
   

  	
  Delaware

  	
   

  	
  None.

  
	
  Excomm, LLC

  	
   

  	
  Delaware

  	
   

  	
  None.

  
	
  Commnet of Florida, LLC

  	
   

  	
  Florida

  	
   

  	
  None.

  
	
  Elbert County Wireless,
  LLC

  	
   

  	
  Colorado

  	
   

  	
  None.

  
	
  Commnet of California,
  LLC*

  	
   

  	
  Delaware

  	
   

  	
  None.

  
	
  Commnet of Delaware,
  LLC*

  	
   

  	
  Delaware

  	
   

  	
  None.

  
	
  MoCelCo, LLC

  	
   

  	
  Delaware

  	
   

  	
  None.

  
	
  Gila County Wireless,
  LLC

  	
   

  	
  Delaware

  	
   

  	
  None.

  
	
  Sovernet Holding
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  None.

  
	
  SoVerNet, Inc.

  	
   

  	
  Vermont

  	
   

  	
  None.

  
	
  National Mobile
  Communications Corporation

  	
   

  	
  Massachusetts

  	
   

  	
  None.

  



 






*  Substantially all of the assets of each of
these entities have been sold, and these entities will be dissolved as soon as
practicable.


 

















 


Schedule 5.3(C)


 


Qualification
to Transact Business


 


C.                                     Qualification


 


	
  Name

  	
   

  	
  Jurisdiction

  
	
  Borrower

  	
   

  	
  California,
  Delaware, Massachusetts, U.S. Virgin Islands –

  St. Thomas, U.S. Virgin Islands – St. Croix

  
	
  Guyana Telephone &
  Telegraph Co., Ltd.

  	
   

  	
  Guyana

  
	
  Choice Communications,
  LLC

  	
   

  	
  U.S. Virgin
  Islands – St. Thomas, U.S. Virgin Islands – St. Croix

  
	
  Bermuda Digital
  Communications, Ltd.

  	
   

  	
  Bermuda

  
	
  ATN (Haiti) S.A.*

  	
   

  	
  Haiti

  
	
  Transnet, S.A.*

  	
   

  	
  Haiti

  
	
  Commnet Wireless, LLC

  	
   

  	
  Delaware

  
	
  Commnet of Arizona, LLC

  	
   

  	
  Delaware

  
	
  Commnet Four Corners,
  LLC

  	
   

  	
  Delaware, New
  Mexico

  
	
  Commnet Illinois, LLC

  	
   

  	
  Delaware,
  Illinois, Missouri

  
	
  Commnet Midwest, LLC

  	
   

  	
  Delaware, Kansas

  
	
  Excomm, LLC

  	
   

  	
  Delaware

  
	
  Commnet of Florida, LLC

  	
   

  	
  Florida

  
	
  Elbert County Wireless,
  LLC

  	
   

  	
  Colorado

  
	
  Commnet of California,
  LLC*

  	
   

  	
  Delaware,
  California

  
	
  Commnet of Delaware,
  LLC*

  	
   

  	
  Delaware

  
	
  MoCelCo, LLC

  	
   

  	
  Delaware, Missouri

  
	
  Gila County Wireless,
  LLC

  	
   

  	
  Delaware,
  Arizona

  
	
  Sovernet Holding
  Corporation

  	
   

  	
  Delaware

  
	
  SoVerNet, Inc.

  	
   

  	
  Vermont, New
  Hampshire

  
	
  National Mobile
  Communications Corporation

  	
   

  	
  Massachusetts,
  Vermont, New Hampshire

  



 






* 
Substantially all of the assets of each of these entities have been
sold, and these entities will be dissolved as soon as practicable.


 

















 


Schedule 5.10


 


Litigation,
Etc.


 


1.               The litigation and
other contingencies, as described with reasonable specificity, in Note 10 to
the Financial Statements included in the Borrower’s Quarterly Report on Form 10-Q
filed with the SEC on August 9, 2007.


 

















 


Schedule 5.11


 


Labor
Matters


 


5.11(i)                                                            Collective
Bargaining Agreements and Union Certification


 


1.               GT&T “Handbook”:  Memorandum of Agreement between GT&T and
the Guyana Postal and Telecommunication Workers Union.


 


2.               Memorandum of
Agreement between GT&T and Guyana Postal and Telecommunication Workers
Union, in Respect of Increases in Salaries for Employees in the Bargaining
Unit, From October 1, 2006 to September 30, 2008.


 


5.11(ii)                                                        Strikes,
Labor Disputes, etc.


 


1.               No significant
disputes in last four years in Guyana or elsewhere. Union contract is
re-negotiated every two years and current contract runs until September 2008.


 

















 


Schedule 5.13(A)


 


License
Information


 


1.               Call Home Telecom
LLC License


 


•                  International
Telecommunications Certificate issued to Call Home Telecom LLC    (ITC-214-20000705-00393).


 


2.               Choice
Communications Licenses


 


•                  Special
Temporary Authorization, May 24, 2005, related to EBS (ITFS formerly) and
BRS (MDS formerly) broadcast rights from sites on St. Thomas and St. Croix.


 


•                  FCC
Memorandum Opinion and Order, June 22, 2005, providing waiver of filing
freeze for new EBS applications.


 


•                  Local
Multipoint Distribution Service License – WPLM395 – US Virgin Islands, expiring
June 17, 2008.


 


•                  International
Telecommunications Certificate (ITC-214-20021219-0064), Global or Limited
Global Facilities – Based and Resale Service on February 7, 2003.


 


3.             GT&T License


 


•                  License
granted to GT&T under Section 7 of the Telecommunications Act of 1990,
December 19, 1990.


 


•                  License
to provide throughout Guyana public telephone, radio telephone, cellular radio
telephone, pay station telephone and national and international voice and data
transmission, a month other services.


 


 


	
  Licensee Name

  	
   

  	
  Radio Service

  	
   

  	
  FCC Author.

  	
   

  	
  Other Govt. Author.

  
	
  Commnet of Arizona, LLC

  	
   

  	
  CL

  	
   

  	
  KNKR208

  	
   

  	
  N/A

  
	
  Commnet of Florida

  	
   

  	
  CL

  	
   

  	
  WPSJ791

  	
   

  	
  N/A

  
	
  Commnet Four Corners, LLC

  	
   

  	
  CW

  CW

  CW

  	
   

  	
  KNLH699

  WPYH715

  WPYH716

  WPQZ728

  	
   

  	
  KNLG838-L1 &

  KNLG840-L1, spectrum

  manager leasehold

  interests in KNLG838 &

  KNLG840, licenses

  owned by subsidiaries of

  T-Mobile

  
	
  Commnet Illinois, LLC

  	
   

  	
  CW

  CW

  CW

  	
   

  	
  WQAE415

  WQAF337

  WQAJ963

  	
   

  	
  On August 1, 2005,

  Commnet Illinois, LLC

  acquired the PCS

  licenses known as call

  signs KNLG216 (BTA

  337D – Ottumwa, Iowa)

  and KNLH449 (BTA

  230F – Kirksville,

  Missouri).

  



 

















 


	
  Gila County Wireless, LLC

  	
   

  	
  CW

  	
   

  	
  WQAE414

  	
   

  	
  N/A

  
	
  Elbert County Wireless, LLC

  	
   

  	
  CL

  	
   

  	
  KNKR202

  	
   

  	
  KNLF244-L1, spectrum

  manager leasehold

  interest in KNLF244, a

  license owned by a

  subsidiary of T-Mobile

  
	
  Excomm, LLC

  	
   

  	
  CL

  CL

  CL

  CL

  CL

  CL

  CL

  CL

  CL

  CL

  CL

  CL

  CL

  CL

  CL

  CL

  CL

  	
   

  	
  WPUC784

  WPUD593

  WPUD594

  WPUH602

  WPUH619

  WPUH805

  WPUJ480

  WPUK842

  WPUP317

  WPUX427

  WPUY963

  WPVI996

  WPZE799

  WPRS845

  WPRS901

  WPRS917

  WPRS922

  	
   

  	
  N/A

  
	
  MoCelCo, LLC

  	
   

  	
  CL

  	
   

  	
  WPTD845

  	
   

  	
  N/A

  



 

















 


Schedule 5.13(B)


 


Valid
Licenses


 


1.               Commnet Illinois,
LLC operates in several counties in the state of Illinois on a day-to-day basis
as a manager under the supervision and control of the licensee of the involved
broadband PCS spectrum, a subsidiary of AT&T Mobility, LLC. Commnet
Illinois, LLC does so pursuant to a management agreement entered into between
itself and the AT&T Mobility, LLC subsidiary (at the time an AT&T
Wireless subsidiary) prior to the advent of the FCC’s spectrum leasing rules. When
the FCC spectrum leasing rules later came into effect, Commnet Illinois,
LLC suggested to AT&T Wireless that the management agreement be modified to
become a spectrum manager lease agreement, and an accompanying FCC filing be
made. However, AT&T Wireless replied that it could not amend or modify any
existing agreements, due to the prospect of a merger with Cingular, LLC. After
that merger was completed, AT&T Mobility, LLC advised Commnet Illinois, LLC
that its personnel were too busy with implementing the merger to focus on
modifying the Commnet Illinois, LLC agreement. Commnet Illinois, LLC has
continued to raise the issue with AT&T Mobility, LLC. In the meantime,
Commnet Illinois, LLC continues to operate in these markets day-to-day,
pursuant to the still-existing agreement.


 


Whether the advent of the
new spectrum leasing set of rules would require the filing of a
notification to the FCC (jointly by Commnet Illinois, LLC and AT&T
Mobility, LLC), is an open question. The matter is beyond Commnet Illinois, LLC’s
control, as such a filing is a joint filing, and would have to be signed by
AT&T Mobility, LLC as well as Commnet Illinois, LLC. The violation would be
a joint violation by both Commnet Illinois, LLC and AT&T Mobility, LLC. Commnet
Wireless, LLC is currently negotiating the sale of these markets to AT&T
Mobility, LLC.


 


2.               Commnet Wireless,
LLC and its “Subsidiaries”, as that term is defined in the Credit Agreement,
are not in compliance with FCC rules and regulations pertaining to “enhanced
911” (“E911”).


 


As
with most rural carriers, Commnet Wireless, LLC and its “Subsidiaries” and “Company
Investments”, as those terms are defined in the Merger Agreement (the “Commnet
Group”), face substantial obstacles to achieving full compliance with FCC rules pertaining
to “enhanced 911” (“E911”). As with other rural carriers, the Commnet Group
filed a request for waiver with the FCC, with respect to implementation of
Phase 2 E911 location capability.


 


In its Order on Reconsideration, 22 FCC Rcd 2571
(2007), the FCC denied the Commnet Group’s request for waiver in its entirety. At
this time, Commnet is therefore in violation of FCC rules with respect to
those five PSAPs (three in the Illinois/Missouri region, one in New Mexico, and
one in Florida) that have requested Phase 2 E911 capability. (Commnet is also
providing basic 911, not Phase 1 E911, in two of the three Illinois/Missouri
jurisdictions and the New Mexico jurisdiction, a separate rule violation.) 
Commnet has been working cooperatively with those particular PSAPs, explaining
the difficulty it faces in meeting the E911 requirements. 


 

















 


Commnet has recently been
authorized to receive reimbursement from the state of Florida for Phase 2 E911
implementation costs. Commnet will be installing Phase 2 E911 infrastructure
equipment in Florida (although, based on current projections, while such
equipment will provide superior location capability to Phase 1 E911, it would
not meet the FCC’s Phase 2 accuracy thresholds, due to the lack of sufficient
triangulation possibilities in the Florida Keys). The current target date for
implementation of service with this E911 infrastructure equipment is the last
week of November, 2007. At this time, none of the involved PSAPs has complained
to the FCC about Commnet’s failure to implement Phase 2 E911, and there is no
enforcement proceeding pending or, to Commnet’s knowledge, threatened.


 

















 


Schedule 5.17


 


Material
Contracts


 


	
  Date

  	
   

  	
  Company

  	
   

  	
  Contract

  
	
  6/20/05

  	
   

  	
  Borrower/John Foster
  Real Estate c/o AT&T

  	
   

  	
  Accepted Offer

  



 


•                  GT&T
has bilateral agreements with a number of international carriers that generate                                               revenues
in excess of $1 million a year, including MCI, IDT, TSTT (Trinidad), BET                       (Barbados),
AT&T and British Telecom.


•                  The
Agreements referenced on Schedule 5.11.


•                  The
GT&T and Choice Licenses referenced on Schedule 5.13(A).


•                  Numerous
outstanding purchase orders issued by GT&T to Nortel Networks and FWA
Airspan                           (approximately
$3.3 million remaining to be paid) upon delivery and/or satisfaction with                           performance
for wireline and wireless (GSM) equipment.


•                  Master
Agreement, dated March 23, 2004, between GT&T and Cerillion
Technologies Limited for purchase of a billing system.


•                  Purchase
Agreement dated June 18, 1990, between the Government of the Cooperative                               Republic
of Guyana and Borrower.


•                  Management
Services Contract, dated July 17, 1998, between Borrower and BDC.


•                  Subscription
and Loan Agreement dated July 17, 1998 among Borrower, BDC and Kurt Eve.


•                  Acquisition
of Membership Interests of Commnet Wireless, LLC by Borrower and its
wholly-owned subsidiary, CW Acquisition, LLC, dated September 15, 2005.


•                  Agreement
and Plan of Merger by and among Borrower, ATN VT Sub, Inc., Sovernet, Inc.
and Certain Shareholders of Sovernet, Inc., dated February 10, 2006.


 


	
  Date

  	
   

  	
  Company

  	
   

  	
  Contract

  
	
  5-12-04

  	
   

  	
  AT&T Wireless
  Services, Inc. / Commnet Wireless, LLC

  	
   

  	
  GSM Build-Out Agreement

  
	
  12-19-03

  	
   

  	
  AT&T Wireless PCS,
  LLC / Commnet Wireless, LLC

  	
   

  	
  Second Amended and
  Restated CS, M and S Agreement

  
	
  2-18-03

  	
   

  	
  AT&T Corp. /
  Commnet Wireless, Inc.

  	
   

  	
  Amended and Restated
  Master Carrier Agreement (LD)

  
	
  4-22-03

  	
   

  	
  AT&T Wireless
  Services, Inc. / Commnet Wireless, LLC

  	
   

  	
  GSM Build-Out Agreement

  
	
  11-30-04

  	
   

  	
  Hawkeye Switching /
  Commnet Wireless, LLC

  	
   

  	
  Cellular Switching
  Agreement (CDMA)

  
	
  4-07-03

  	
   

  	
  Illuminet, Inc. / Commnet
  Wireless, LLC

  	
   

  	
  ISUP Messaging Service
  Agreement

  
	
  11-01-03

  	
   

  	
  Illuminet, Inc. /
  Commnet Wireless, LLC

  	
   

  	
  Amendment One to ISUP
  Messaging Service Agreement

  
	
  11-01-03

  	
   

  	
  Illuminet, Inc. /
  Commnet Wireless, LLC

  	
   

  	
  Amendment One to IS-41
  Transport Service Agreement

  
	
  3-15-04

  	
   

  	
  Qwest Communications
  Corp. / Commnet Wireless, LLC

  	
   

  	
  Wholesale Services
  Agreement (LD)

  



 

















 


	
  5-06-04

  	
   

  	
  Qwest Communications
  Corp. / Commnet Wireless, LLC

  	
   

  	
  Amendment No. 1 to
  Wholesale Services Agreement

  
	
  8-06-04

  	
   

  	
  Qwest Communications
  Corp. / Commnet Wireless, LLC

  	
   

  	
  Amendment No. 2 to
  Wholesale Services Agreement

  
	
  3-08-05

  	
   

  	
  Qwest Communications
  Corp. / Commnet Wireless, LLC

  	
   

  	
  Amendment No. 3 to
  Wholesale Services Agreement

  
	
  4-29-05

  	
   

  	
  Qwest Communications
  Corp. / Commnet Wireless, LLC

  	
   

  	
  Amendment No. 4 to
  Wholesale Services Agreement

  
	
  11-16-03

  	
   

  	
  Syniverse (EDS) /
  Commnet Wireless, LLC

  	
   

  	
  Interoperator Services
  Agreement

  
	
  8-16-03

  	
   

  	
  Syniverse (EDS) /
  Commnet Wireless, LLC

  	
   

  	
  Interoperator Services
  Agreement (FirstSource Exhibit)

  
	
  3-01-05

  	
   

  	
  Syniverse (EDS) / Commnet
  Wireless, LLC

  	
   

  	
  Amendment to the
  Interoperator Services Agreement

  
	
  2-14-06

  	
   

  	
  Syniverse / Commnet
  Wireless, LLC

  	
   

  	
  Master Services
  Agreement (Wholesale/Access/RCA)

  
	
  5-01-06

  	
   

  	
  Syniverse / Commnet
  Wireless, LLC

  	
   

  	
  Inpack Service
  Attachment to MSA

  
	
  4-09-04

  	
   

  	
  Commnet Supply, LLC /
  Commnet Wireless, LLC

  	
   

  	
  Supply Agreement

  
	
  9-14-04

  	
   

  	
  T-Mobile / Elbert
  County Wireless, LLC

  	
   

  	
  Spectrum Manager Lease
  Agreement (Elbert County)

  
	
  6-13-05

  	
   

  	
  T-Mobile / Commnet Four
  Corners, LLC

  	
   

  	
  Spectrum Manager Lease
  Agreement (Pima County)

  
	
  6-13-05

  	
   

  	
  T-Mobile / Commnet Four
  Corners, LLC

  	
   

  	
  Spectrum Manager Lease
  Agreement (Yuma County)

  
	
  11-24-03

  	
   

  	
  United Clearing Plc /
  Commnet Wireless, LLC

  	
   

  	
  Agreement for Financial
  Clearing and Settlement Services

  
	
  4-01-05

  	
   

  	
  United Clearing Plc /
  Commnet Wireless, LLC

  	
   

  	
  Addendum Agreement
  (Data)

  
	
  6-03-00

  	
   

  	
  AT&T Wireless
  Services, Inc.

  	
   

  	
  Intercarrier Roamer
  Service Agreement

  
	
  2-01-03

  	
   

  	
  AT&T Wireless
  Services, Inc.

  	
   

  	
  Amendment to
  Intercarrier Roamer Services Agreement

  
	
  12-19-03

  	
   

  	
  AT&T Wireless
  Services, Inc.

  	
   

  	
  Amendment to Intercarrier
  Roamer Services Agreement

  
	
  2-01-03

  	
   

  	
  AT&T Wireless
  Services, Inc.

  	
   

  	
  GSM/PCS Roaming
  Agreement for GSM

  
	
  5-16-03

  	
   

  	
  Cingular Wireless, LLC

  	
   

  	
  Intercarrier
  Multi-Standard Roaming Agreement

  
	
  7-23-03

  	
   

  	
  Cingular Wireless, LLC

  	
   

  	
  Amendment No. 1 to
  Intercarrier Multi-Standard Roaming Agmnt.

  
	
  8-16-04

  	
   

  	
  Cellco
  Partnership/Verizon Wireless

  	
   

  	
  Intercarrier Roamer
  Service Agreement

  
	
  4-12-04

  	
   

  	
  T-Mobile USA, Inc.

  	
   

  	
  International Roaming
  Agreement for GSM and/or 3GSM

  
	
  10-04-04

  	
   

  	
  T-Mobile USA, Inc.

  	
   

  	
  First Amendment to
  International Roaming Agreement

  
	
  9-01-00

  	
   

  	
  WirelessCO, L.P./Sprint
  Spectrum

  	
   

  	
  Intercarrier Roamer
  Service Agreement

  



 

















 


Schedule 5.19


 


Subsidiaries


 


	
  Name

  	
   

  	
  Member/Shareholder

  	
   

  	
  Units Owned

  	
   

  	
  % Owned

  	
   

  
	
  Guyana
  Telephone & Telegraph Co., Ltd.

  	
   

  	
  Atlantic Tele-Network, Inc.

  	
   

  	
  16,500

  	
   

  	
  80.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Choice
  Communications, LLC

  	
   

  	
  Atlantic Tele-Network, Inc.

  	
   

  	
  n/a

  	
   

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ATN
  (Haiti) S.A.

  	
   

  	
  Atlantic Tele-Network, Inc.

  	
   

  	
  100

  	
   

  	
  80.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transnet,
  S.A.

  	
   

  	
  Atlantic Tele-Network, Inc.

  	
   

  	
  30

  	
   

  	
  80.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commnet
  Wireless, LLC

  	
   

  	
  Atlantic Tele-Network, Inc.

  	
   

  	
  100

  	
   

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commnet
  of Arizona, LLC

  	
   

  	
  Commnet Wireless, LLC

  	
   

  	
  3,000

  	
   

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commnet
  Midwest, LLC

  	
   

  	
  Commnet Wireless, LLC

  	
   

  	
  100

  	
   

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commnet
  Four Corners, LLC

  	
   

  	
  Commnet Wireless, LLC

  	
   

  	
  56

  	
   

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commnet
  Midwest, LLC

  	
   

  	
  Commnet Wireless, LLC

  	
   

  	
  100

  	
   

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Excomm,
  LLC

  	
   

  	
  Commnet Wireless, LLC

  	
   

  	
  100

  	
   

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Elbert
  County Wireless, LLC

  	
   

  	
  Commnet Wireless, LLC

  	
   

  	
  82.75

  	
   

  	
  82.75

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commnet
  Illinois, LLC

  	
   

  	
  Commnet Wireless, LLC

  	
   

  	
  3,000

  	
   

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MoCelCo,
  L.L.C.

  	
   

  	
  Commnet Wireless, LLC

  	
   

  	
  100

  	
   

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sovernet
  Holding Corporation

  	
   

  	
  Atlantic Tele-Network, Inc.

  	
   

  	
  960 common,

  127.33736

  preferred

  	
   

  	
  96.00 of common

  and 100.00 of

  preferred

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SoVerNet, Inc.

  	
   

  	
  Sovernet Holding
  Corporation

  	
   

  	
  100

  	
   

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  National
  Mobile Communications Corporation

  	
   

  	
  SoVerNet, Inc.

  	
   

  	
  200,000

  	
   

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Gila
  County Wireless, LLC

  	
   

  	
  Commnet Wireless, LLC

  	
   

  	
  100

  	
   

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Exhibit 1.3


 


Form of
Notice of Borrowing/Conversion/Continuation


 

















 


Exhibit 4.5(C)


 


Form of
Compliance Certificate


 

















 


Exhibit 10.1(A)


 


Lender
Addition Agreement


 

















 


Exhibit 10.1(B)


 


Form of
Revolver Note


 

















 


Exhibit 10.1(C)


 


Form of
Term Note