Exhibit 10.1


 


EXECUTION COPY


 


	
   

  	
   

  



 


SECOND
AMENDED AND RESTATED CREDIT AGREEMENT


 


DATED AS OF September 30, 2010,


 


among


 


ATLANTIC
TELE-NETWORK, INC.,


 


as Borrower,


 


each of the


 


GUARANTORS


 


referred to herein,


 


COBANK,
ACB,


 


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


 


and


 


the other Lenders referred to herein


 

















 


TABLE OF CONTENTS


 


	
  SECTION 1

  	
  AMOUNTS AND TERMS OF FACILITIES

  	
  2

  
	
   

  	
  1.1

  	
  Facilities

  	
  2

  
	
   

  	
  1.2

  	
  Interest

  	
  10

  
	
   

  	
  1.3

  	
  Notice of Borrowing, Conversion or
  Continuation of Loans

  	
  14

  
	
   

  	
  1.4

  	
  Fees and Expenses

  	
  15

  
	
   

  	
  1.5

  	
  Payments

  	
  16

  
	
   

  	
  1.6

  	
  Repayments of Loans; Reduction of the
  Revolver Loan Commitment

  	
  17

  
	
   

  	
  1.7

  	
  Voluntary Prepayments and Other
  Mandatory Repayments

  	
  20

  
	
   

  	
  1.8

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

  	
  22

  
	
   

  	
  1.9

  	
  Loan Accounts

  	
  22

  
	
   

  	
  1.10

  	
  Changes in LIBOR Rate Availability

  	
  22

  
	
   

  	
  1.11

  	
  Capital Adequacy and Other
  Adjustments

  	
  23

  
	
   

  	
  1.12

  	
  Optional Prepayment/Replacement of
  Lender in Respect of Increased Costs or Defaulted Lenders

  	
  24

  
	
   

  	
  1.13

  	
  Taxes

  	
  25

  
	
   

  	
  1.14

  	
  Changes in Tax Laws

  	
  27

  
	
   

  	
  1.15

  	
  Term of this Agreement

  	
  28

  
	
   

  	
  1.16

  	
  Letter of Credit Liability

  	
  28

  
	
   

  	
  1.17

  	
  Defaulting Lenders

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 2

  	
  AFFIRMATIVE COVENANTS

  	
  32

  
	
   

  	
  2.1

  	
  Compliance With Laws

  	
  32

  
	
   

  	
  2.2

  	
  Maintenance of Books and Records;
  Properties; Insurance

  	
  32

  
	
   

  	
  2.3

  	
  Inspection

  	
  34

  
	
   

  	
  2.4

  	
  Legal Existence, Etc.

  	
  34

  
	
   

  	
  2.5

  	
  Use of Proceeds

  	
  34

  
	
   

  	
  2.6

  	
  Further Assurances; Notices

  	
  34

  
	
   

  	
  2.7

  	
  CoBank Equity

  	
  35

  
	
   

  	
  2.8

  	
  Collateral Assignments of Material
  Contracts

  	
  36

  
	
   

  	
  2.9

  	
  Investment Company Act

  	
  36

  
	
   

  	
  2.10

  	
  Payment of Obligations

  	
  36

  
	
   

  	
  2.11

  	
  Environmental Laws

  	
  36

  
	
   

  	
  2.12

  	
  Creation or Acquisition of
  Subsidiaries

  	
  37

  
	
   

  	
  2.13

  	
  Interest Rate Protection

  	
  39

  
	
   

  	
  2.14

  	
  ERISA

  	
  39

  
	
   

  	
  2.15

  	
  Post-Closing Letter

  	
  39

  
	
   

  	
   

  	
   

  
	
  SECTION 3

  	
  NEGATIVE COVENANTS

  	
  39

  
	
   

  	
  3.1

  	
  Indebtedness

  	
  40

  
	
   

  	
  3.2

  	
  Liens and Related Matters

  	
  42

  
	
   

  	
  3.3

  	
  Investments

  	
  42

  
	
   

  	
  3.4

  	
  Contingent Obligations

  	
  44

  



 

















 


	
   

  	
  3.5

  	
  Restricted Junior Payments

  	
  45

  
	
   

  	
  3.6

  	
  Restriction on Fundamental Changes

  	
  45

  
	
   

  	
  3.7

  	
  Disposal of Assets or Subsidiary
  Stock

  	
  46

  
	
   

  	
  3.8

  	
  Transactions with Affiliates

  	
  47

  
	
   

  	
  3.9

  	
  Management Fees

  	
  47

  
	
   

  	
  3.10

  	
  Conduct of Business

  	
  48

  
	
   

  	
  3.11

  	
  Fiscal Year

  	
  48

  
	
   

  	
  3.12

  	
  Modification of Agreements

  	
  48

  
	
   

  	
  3.13

  	
  Inconsistent Agreements

  	
  48

  
	
   

  	
  3.14

  	
  Hedge Agreements

  	
  48

  
	
   

  	
  3.15

  	
  Ownership of Licenses

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 4

  	
  FINANCIAL COVENANTS AND REPORTING

  	
  49

  
	
   

  	
  4.1

  	
  Total Leverage Ratio

  	
  49

  
	
   

  	
  4.2

  	
  Total Interest Coverage Ratio

  	
  49

  
	
   

  	
  4.3

  	
  Equity to Assets Ratio

  	
  49

  
	
   

  	
  4.4

  	
  Fixed Charge Coverage Ratio

  	
  49

  
	
   

  	
  4.5

  	
  Financial Statements and Other
  Reports

  	
  50

  
	
   

  	
  4.6

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

  	
  53

  
	
   

  	
   

  	
   

  
	
  SECTION 5

  	
  REPRESENTATIONS AND WARRANTIES

  	
  53

  
	
   

  	
  5.1

  	
  Disclosure

  	
  53

  
	
   

  	
  5.2

  	
  No Material Adverse Effect

  	
  54

  
	
   

  	
  5.3

  	
  Organization, Powers, Authorization
  and Good Standing

  	
  54

  
	
   

  	
  5.4

  	
  Compliance of Loan Documents and
  Borrowings

  	
  54

  
	
   

  	
  5.5

  	
  Compliance with Applicable Law; Governmental
  Approvals

  	
  55

  
	
   

  	
  5.6

  	
  Tax Returns and Payments

  	
  55

  
	
   

  	
  5.7

  	
  Environmental Matters

  	
  55

  
	
   

  	
  5.8

  	
  Financial Statements

  	
  55

  
	
   

  	
  5.9

  	
  Intellectual Property

  	
  56

  
	
   

  	
  5.10

  	
  Litigation, Investigations,
  Audits, Etc.

  	
  56

  
	
   

  	
  5.11

  	
  Employee Labor Matters

  	
  56

  
	
   

  	
  5.12

  	
  ERISA Compliance

  	
  57

  
	
   

  	
  5.13

  	
  Communications Regulatory Matters

  	
  57

  
	
   

  	
  5.14

  	
  Perfection

  	
  58

  
	
   

  	
  5.15

  	
  Solvency

  	
  59

  
	
   

  	
  5.16

  	
  Investment Company Act

  	
  59

  
	
   

  	
  5.17

  	
  Intentionally omitted

  	
  59

  
	
   

  	
  5.18

  	
  Title to Properties

  	
  59

  
	
   

  	
  5.19

  	
  Subsidiaries

  	
  59

  
	
   

  	
  5.20

  	
  Transactions with Affiliates

  	
  59

  
	
   

  	
  5.21

  	
  Patriot Act

  	
  59

  
	
   

  	
   

  	
   

  
	
  SECTION 6

  	
  EVENTS OF DEFAULT AND RIGHTS AND
  REMEDIES

  	
  60

  
	
   

  	
  6.1

  	
  Event of Default

  	
  60

  



 

















 


	
   

  	
  6.2

  	
  Termination of Loan Commitments

  	
  63

  
	
   

  	
  6.3

  	
  Acceleration

  	
  63

  
	
   

  	
  6.4

  	
  Rights of Collection

  	
  63

  
	
   

  	
  6.5

  	
  Consents

  	
  63

  
	
   

  	
  6.6

  	
  Intentionally omitted

  	
  64

  
	
   

  	
  6.7

  	
  Set Off and Sharing of Payments

  	
  64

  
	
   

  	
  6.8

  	
  Application of Payments

  	
  64

  
	
   

  	
  6.9

  	
  Adjustments

  	
  65

  
	
   

  	
   

  	
   

  
	
  SECTION 7

  	
  CONDITIONS TO LOANS

  	
  65

  
	
   

  	
  7.1

  	
  Conditions to Effectiveness

  	
  65

  
	
   

  	
  7.2

  	
  Conditions to All Loans

  	
  69

  
	
   

  	
  7.3

  	
  Post-Closing Obligations

  	
  70

  
	
   

  	
   

  	
   

  
	
  SECTION 8

  	
  ASSIGNMENT AND PARTICIPATION

  	
  70

  
	
   

  	
  8.1

  	
  Assignments and Participations in
  Loans and Notes

  	
  70

  
	
   

  	
  8.2

  	
  Administrative Agent

  	
  74

  
	
   

  	
  8.3

  	
  Amendments, Consents and Waivers for
  Certain Actions

  	
  79

  
	
   

  	
  8.4

  	
  Disbursement of Funds

  	
  79

  
	
   

  	
  8.5

  	
  Disbursements of Advances; Payments

  	
  80

  
	
   

  	
   

  	
   

  
	
  SECTION 9

  	
  MISCELLANEOUS

  	
  82

  
	
   

  	
  9.1

  	
  Indemnities

  	
  82

  
	
   

  	
  9.2

  	
  Amendments and Waivers

  	
  82

  
	
   

  	
  9.3

  	
  Notices

  	
  84

  
	
   

  	
  9.4

  	
  Failure or Indulgence Not Waiver;
  Remedies Cumulative

  	
  84

  
	
   

  	
  9.5

  	
  Marshaling; Payments Set Aside

  	
  84

  
	
   

  	
  9.6

  	
  Severability

  	
  85

  
	
   

  	
  9.7

  	
  Lenders’ Obligations Several; Independent
  Nature of Lenders’ Rights

  	
  85

  
	
   

  	
  9.8

  	
  Headings

  	
  85

  
	
   

  	
  9.9

  	
  Applicable Law

  	
  85

  
	
   

  	
  9.10

  	
  Successors and Assigns

  	
  85

  
	
   

  	
  9.11

  	
  No Fiduciary Relationship

  	
  85

  
	
   

  	
  9.12

  	
  Construction

  	
  85

  
	
   

  	
  9.13

  	
  Confidentiality

  	
  85

  
	
   

  	
  9.14

  	
  Consent to Jurisdiction and Service
  of Process

  	
  86

  
	
   

  	
  9.15

  	
  Waiver of Jury Trial

  	
  87

  
	
   

  	
  9.16

  	
  Survival of Warranties and Certain
  Agreements

  	
  87

  
	
   

  	
  9.17

  	
  Entire Agreement

  	
  87

  
	
   

  	
  9.18

  	
  Counterparts; Effectiveness

  	
  88

  
	
   

  	
  9.19

  	
  Patriot Act

  	
  88

  
	
   

  	
  9.20

  	
  Guaranty of Secured Obligations by
  Guarantors

  	
  88

  
	
   

  	
  9.21

  	
  FCC and PUC Compliance

  	
  93

  
	
   

  	
  9.22

  	
  Effectiveness of Amendment and
  Restatement; No Novation

  	
  94

  
	
   

  	
  9.23

  	
  Consent

  	
  94

  
	
   

  	
  9.24

  	
  Waiver

  	
  94

  



 

















 


	
  SECTION 10

  	
  DEFINITIONS

  	
  94

  
	
   

  	
  10.1

  	
  Certain Defined Terms

  	
  94

  
	
   

  	
  10.2

  	
  Other Definitional Provisions

  	
  119

  



 


 

















 


SCHEDULES


 


	
  Schedule 1.1

  	
   

  	
  Commitments

  
	
  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 5.4

  	
   

  	
  Compliance

  
	
  Schedule 5.10

  	
   

  	
  Litigation, Etc.

  
	
  Schedule 5.11

  	
   

  	
  Labor Matters

  
	
  Schedule 5.13(A)

  	
   

  	
  License Information

  
	
  Schedule 5.13(B)

  	
   

  	
  Valid Licenses

  
	
  Schedule 5.19

  	
   

  	
  Subsidiaries

  
	
  Schedule 8.1(D)

  	
   

  	
  Farm Credit Lender Participants

  
	
  Schedule 9.3

  	
   

  	
  Addresses of Lenders and Administrative Agent

  



 


EXHIBITS


 


	
  Exhibit 1.3

  	
   

  	
  Form of Notice of
  Borrowing/Conversion/Continuation

  
	
  Exhibit 2.12

  	
   

  	
  Form of Joinder Agreement

  
	
  Exhibit 4.5(C)

  	
   

  	
  Form of Compliance Certificate

  
	
  Exhibit 10.1(A)

  	
   

  	
  Form of Assignment and Assumption

  
	
  Exhibit 10.1(B)

  	
   

  	
  Form of Revolver Note

  
	
  Exhibit 10.1(C)

  	
   

  	
  Form of Term Loan A Note

  
	
  Exhibit 10.1(D)

  	
   

  	
  Form of Term Loan B Note

  
	
  Exhibit 10.1(E)

  	
   

  	
  Form of Term Loan C Note

  
	
  Exhibit 10.1(F)

  	
   

  	
  Form of Swingline Note

  



 


v
















 


INDEX
OF DEFINED TERMS


 


	
  Defined Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  	
   

  
	
  Accounting Change

  	
   

  	
   

  	
  §4.6

  
	
  Acquired Companies

  	
   

  	
   

  	
  §10.1

  
	
  Acquisition

  	
   

  	
   

  	
  §10.1

  
	
  Act

  	
   

  	
   

  	
  §10.1

  
	
  Adjustment Date

  	
   

  	
   

  	
  §10.1

  
	
  Administrative Agent

  	
   

  	
   

  	
  §10.1

  
	
  Affected Lender

  	
   

  	
   

  	
  §1.12

  
	
  Affiliate

  	
   

  	
   

  	
  §10.1

  
	
  Agreement

  	
   

  	
   

  	
  §10.1

  
	
  Applicable Law

  	
   

  	
   

  	
  §10.1

  
	
  Approved Fund

  	
   

  	
   

  	
  §10.1

  
	
  Arranger

  	
   

  	
   

  	
  §10.1

  
	
  Asset Disposition

  	
   

  	
   

  	
  §10.1

  
	
  Assignment and Assumption

  	
   

  	
   

  	
  §10.1

  
	
  Available Revolver Loan Commitment

  	
   

  	
   

  	
  §10.1

  
	
  Avoidance Provisions

  	
   

  	
   

  	
  §9.20(A)

  
	
  AWCC

  	
   

  	
   

  	
  §10.1

  
	
  Bankruptcy Code

  	
   

  	
   

  	
  §10.1

  
	
  Base Rate

  	
   

  	
   

  	
  §10.1

  
	
  Base Rate Loans

  	
   

  	
   

  	
  §10.1

  
	
  Base Rate Margin

  	
   

  	
   

  	
  §10.1

  
	
  BDC

  	
   

  	
   

  	
  §10.1

  
	
  Benefited Lender

  	
   

  	
   

  	
  §6.9

  
	
  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

  
	
  Cash Management Agreement

  	
   

  	
   

  	
  §10.1

  
	
  Certificate of Exemption

  	
   

  	
   

  	
  §1.13(B)

  
	
  Change of Control

  	
   

  	
   

  	
  §10.1

  
	
  Choice

  	
   

  	
   

  	
  §10.1

  
	
  Closing Date

  	
   

  	
   

  	
  §10.1

  
	
  CoBank

  	
   

  	
   

  	
  Preamble

  
	
  CoBank Cash Management Agreement

  	
   

  	
   

  	
  §10.1

  
	
  Collateral

  	
   

  	
   

  	
  §10.1

  
	
  Collateral Contract Assignments

  	
   

  	
   

  	
  §10.1

  
	
  Communications Act

  	
   

  	
   

  	
  §10.1

  



 


vi

















 


INDEX
OF DEFINED TERMS


(Continued)


 


	
  Communications System

  	
   

  	
   

  	
  §10.1

  
	
  Compliance Certificate

  	
   

  	
   

  	
  §4.5(C)

  
	
  Contingent Obligation

  	
   

  	
   

  	
  §10.1

  
	
  Cure Loans

  	
   

  	
   

  	
  §8.5(A)

  
	
  Default

  	
   

  	
   

  	
  §10.1

  
	
  Defaulting Lender

  	
   

  	
   

  	
  §10.1

  
	
  Domestic Subsidiary

  	
   

  	
   

  	
  §10.1

  
	
  EBITDA

  	
   

  	
   

  	
  §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

  
	
  Excluded Subsidiaries

  	
   

  	
   

  	
  §10.1

  
	
  Excluded Taxes

  	
   

  	
   

  	
  §10.1

  
	
  Existing Credit Agreement

  	
   

  	
   

  	
  Recitals

  
	
  Facility(ies)

  	
   

  	
   

  	
  §10.1

  
	
  Farm Credit Lender

  	
   

  	
   

  	
  §10.1

  
	
  FATCA

  	
   

  	
   

  	
  §10.1

  
	
  FCC

  	
   

  	
   

  	
  §10.1

  
	
  FDPA

  	
   

  	
   

  	
  §2.2

  
	
  Fixed Charge

  	
   

  	
   

  	
  §10.1

  
	
  Fixed Charge Coverage Ratio

  	
   

  	
   

  	
  §10.1

  
	
  Foreign Lender

  	
   

  	
   

  	
  §1.13(B)

  
	
  Foreign Subsidiary

  	
   

  	
   

  	
  §10.1

  
	
  Foreign Subsidiary Holding Company

  	
   

  	
   

  	
  §10.1

  
	
  Fund

  	
   

  	
   

  	
  §10.1

  
	
  Funding Date

  	
   

  	
   

  	
  §7.2

  
	
  Funding Default

  	
   

  	
   

  	
  §10.1

  
	
  GAAP

  	
   

  	
   

  	
  §10.1

  
	
  Governmental Approvals

  	
   

  	
   

  	
  §10.1

  
	
  Governmental Authority

  	
   

  	
   

  	
  §10.1

  
	
  GTT

  	
   

  	
   

  	
  §10.1

  
	
  Guarantor(s)

  	
   

  	
   

  	
  Preamble

  
	
  Hedge Agreements

  	
   

  	
   

  	
  §10.1

  
	
  Incremental Term Loan(s)

  	
   

  	
   

  	
  §1.1(C)

  
	
  Incremental Term Loan Commitment(s)

  	
   

  	
   

  	
  §1.1(C)

  
	
  Incremental Term Loan Facility(ies)

  	
   

  	
   

  	
  §1.1(C)

  
	
  Indebtedness

  	
   

  	
   

  	
  §10.1

  
	
  Indemnitees

  	
   

  	
   

  	
  §9.1

  
	
  Intellectual Property Rights

  	
   

  	
   

  	
  §5.9

  



 


vii

















 


INDEX
OF DEFINED TERMS


(Continued)


 


	
  Interest Period

  	
   

  	
   

  	
  §10.1

  
	
  Investment

  	
   

  	
   

  	
  §10.1

  
	
  ION HoldCo

  	
   

  	
   

  	
  §10.1

  
	
  IRC

  	
   

  	
   

  	
  §10.1

  
	
  ISP

  	
   

  	
   

  	
  §1.1(F)

  
	
  Issuing Lender

  	
   

  	
   

  	
  §10.1

  
	
  Joinder Agreement

  	
   

  	
   

  	
  §10.1

  
	
  Joint Venture

  	
   

  	
   

  	
  §10.1

  
	
  Lender(s)

  	
   

  	
   

  	
  §10.1

  
	
  Lender Insolvency Event

  	
   

  	
   

  	
  §10.1

  
	
  Letter(s) of Credit

  	
   

  	
   

  	
  §1.1(F)

  
	
  Letter of Credit Liability

  	
   

  	
   

  	
  §10.1

  
	
  Letter of Credit Sublimit

  	
   

  	
   

  	
  §10.1

  
	
  Letter of Credit Usage

  	
   

  	
   

  	
  §10.1

  
	
  Letter of Non-Exemption

  	
   

  	
   

  	
  §1.13(B)

  
	
  LIBOR

  	
   

  	
   

  	
  §10.1

  
	
  LIBOR Interest Period

  	
   

  	
   

  	
  §1.2(C)

  
	
  LIBOR Loans

  	
   

  	
   

  	
  §10.1

  
	
  LIBOR Margin

  	
   

  	
   

  	
  §10.1

  
	
  Licenses

  	
   

  	
   

  	
  §10.1

  
	
  Lien

  	
   

  	
   

  	
  §10.1

  
	
  Loan(s)

  	
   

  	
   

  	
  §10.1

  
	
  Loan Commitment(s)

  	
   

  	
   

  	
  §10.1

  
	
  Loan Documents

  	
   

  	
   

  	
  §10.1

  
	
  Loan Party(ies)

  	
   

  	
   

  	
  Preamble

  
	
  Material Adverse Effect

  	
   

  	
   

  	
  §10.1

  
	
  Material Contracts

  	
   

  	
   

  	
  §10.1

  
	
  Material Leased Property

  	
   

  	
   

  	
  §2.6

  
	
  Material Owned Property

  	
   

  	
   

  	
  §2.6

  
	
  Maximum Guarantor Liability

  	
   

  	
   

  	
  §9.20(A)

  
	
  Multi-employer Plan

  	
   

  	
   

  	
  §10.1

  
	
  Net Proceeds

  	
   

  	
   

  	
  §10.1

  
	
  Non-Consenting Lender

  	
   

  	
   

  	
  §9.2

  
	
  Non-Funding Lender

  	
   

  	
   

  	
  §8.5(A)

  
	
  Non Pro Rata Loan

  	
   

  	
   

  	
  §8.5(A)

  
	
  Note(s)

  	
   

  	
   

  	
  §10.1

  
	
  Notice of Borrowing/Conversion/Continuation

  	
   

  	
   

  	
  §1.3

  
	
  NTIA

  	
   

  	
   

  	
  §10.1

  
	
  Obligations

  	
   

  	
   

  	
  §10.1

  
	
  Other Debtor Relief Law

  	
   

  	
   

  	
  §9.20(A)

  
	
  Other Parties

  	
   

  	
   

  	
  §9.20(G)(iii)

  
	
  Parent Company

  	
   

  	
   

  	
  §10.1

  
	
  Participant(s)

  	
   

  	
   

  	
  §8.1(D)

  



 


viii

















 


INDEX
OF DEFINED TERMS


(Continued)


 


	
  Partnerships

  	
   

  	
   

  	
  §10.1

  
	
  Patriot Act

  	
   

  	
   

  	
  §9.19

  
	
  PBGC

  	
   

  	
   

  	
  §10.1

  
	
  Pension Plan

  	
   

  	
   

  	
  §10.1

  
	
  Permitted Acquisition and Investment

  	
   

  	
   

  	
  §10.1

  
	
  Permitted Encumbrances

  	
   

  	
   

  	
  §10.1

  
	
  Permitted RTPark Subsidiary

  	
   

  	
   

  	
  §10.1

  
	
  Permitted Stimulus Indebtedness

  	
   

  	
   

  	
  §10.1

  
	
  Person

  	
   

  	
   

  	
  §10.1

  
	
  Plan

  	
   

  	
   

  	
  §10.1

  
	
  Pledge and Security Agreement

  	
   

  	
   

  	
  §10.1

  
	
  Portfolio Interest Exemption Certificate

  	
   

  	
   

  	
  §1.13(B)

  
	
  Post-Closing Letter

  	
   

  	
   

  	
  §10.1

  
	
  Potential Defaulting Lender

  	
   

  	
   

  	
  §10.1

  
	
  Prime Rate

  	
   

  	
   

  	
  §10.1

  
	
  Prior Credit Agreement

  	
   

  	
   

  	
  Recitals

  
	
  Pro forma Basis

  	
   

  	
   

  	
  §10.1

  
	
  Pro Rata Share

  	
   

  	
   

  	
  §10.1

  
	
  Proposed Change

  	
   

  	
   

  	
  §9.2

  
	
  PUC

  	
   

  	
   

  	
  §10.1

  
	
  PUC Laws

  	
   

  	
   

  	
  §10.1

  
	
  Register

  	
   

  	
   

  	
  §8.1(C)

  
	
  Related Parties

  	
   

  	
   

  	
  §10.1

  
	
  Related Secured Hedge Agreement

  	
   

  	
   

  	
  §10.1

  
	
  Replacement Lender

  	
   

  	
   

  	
  §1.12(A)

  
	
  Representatives

  	
   

  	
   

  	
  §8.2(E)

  
	
  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 Lender

  	
   

  	
   

  	
  §10.1

  
	
  Revolver Loan Commitment

  	
   

  	
   

  	
  §10.1

  
	
  Revolver Loan(s)

  	
   

  	
   

  	
  §10.1

  
	
  Revolver Note(s)

  	
   

  	
   

  	
  §10.1

  
	
  Revolving Credit Obligations

  	
   

  	
   

  	
  §10.1

  
	
  RTPark Preferred Stock

  	
   

  	
   

  	
  §10.1

  
	
  RTPark Program

  	
   

  	
   

  	
  §10.1

  
	
  RUS

  	
   

  	
   

  	
  §10.1

  
	
  SEC

  	
   

  	
   

  	
  §4.5(A)

  
	
  Second Amendment Date

  	
   

  	
   

  	
  Preamble

  
	
  Secured Hedge Agreement

  	
   

  	
   

  	
  §10.1

  



 


ix

















 


INDEX OF
DEFINED TERMS


(Continued)


 


	
  Secured Obligations

  	
   

  	
   

  	
  §10.1

  
	
  Secured Parties

  	
   

  	
   

  	
  §10.1

  
	
  Security Agreement Collateral

  	
   

  	
   

  	
  §5.14

  
	
  Security Documents

  	
   

  	
   

  	
  §10.1

  
	
  Security Interest

  	
   

  	
   

  	
  §10.1

  
	
  Statement

  	
   

  	
   

  	
  §4.5(B)

  
	
  Stimulus Recipient Subsidiary

  	
   

  	
   

  	
  §10.1

  
	
  Stimulus Source Agency

  	
   

  	
   

  	
  §10.1

  
	
  Subordinated Intercompany Lender

  	
   

  	
   

  	
  §9.20(J)

  
	
  Subsidiary

  	
   

  	
   

  	
  §10.1

  
	
  Substitute Lender

  	
   

  	
   

  	
  §9.2

  
	
  Swingline Base Rate Margin

  	
   

  	
   

  	
  §10.1

  
	
  Swingline Lender

  	
   

  	
   

  	
  §10.1

  
	
  Swingline Loan

  	
   

  	
   

  	
  §1.1(G)

  
	
  Swingline Loan Commitment

  	
   

  	
   

  	
  §10.1

  
	
  Swingline Note

  	
   

  	
   

  	
  §10.1

  
	
  Tax Liabilities

  	
   

  	
   

  	
  §1.13(A)

  
	
  Term Loan A

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan A Facility

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan A Lender

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan A Maturity Date

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan A Note(s)

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan B

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan B Facility

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan B Lender

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan B Maturity Date

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan B Note(s)

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan C

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan C Facility

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan C Lender

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan C Maturity Date

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan C Note(s)

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan Facilities

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan Maturity Date

  	
   

  	
   

  	
  §10.1

  
	
  Term Loan Notes

  	
   

  	
   

  	
  §10.1

  
	
  Total Interest Coverage Ratio

  	
   

  	
   

  	
  §10.1

  
	
  Total Lender Loan Commitment

  	
   

  	
   

  	
  §10.1

  
	
  Total Leverage Ratio

  	
   

  	
   

  	
  §10.1

  
	
  UCP

  	
   

  	
   

  	
  §1.1(F)

  
	
  Verizon Acquisition

  	
   

  	
   

  	
  §10.1

  
	
  Verizon Purchase Agreement

  	
   

  	
   

  	
  §10.1

  



 


x

















 


SECOND
AMENDED AND RESTATED CREDIT AGREEMENT


 


This SECOND  AMENDED AND RESTATED CREDIT
AGREEMENT is entered into as of September 30, 2010 (the “Second Amendment Date”), among ATLANTIC TELE-NETWORK, INC., a Delaware corporation (“Borrower”), each of the Subsidiaries of
Borrower which is or hereafter becomes a guarantor of the Secured Obligations
(individually, a “Guarantor” and,
collectively, the “Guarantors”;
and together with Borrower, individually a “Loan Party”
and, collectively, the “Loan Parties”),
COBANK, ACB (individually, “CoBank”), as Administrative Agent,
Arranger, Swingline Lender, an Issuing Lender and a Lender and the
Lenders.  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 10, 2008 (as amended prior to January 20,
2010, the “Prior Credit Agreement”), pursuant
to which Lenders extended certain financial accommodations to Borrower
consisting of the Term Loan A Facility and the Revolver Facility, the proceeds
of which were for working capital, to finance capital expenditures, to finance
certain Permitted Acquisitions and Investments (each as defined therein)
permitted thereunder, to finance certain Restricted Junior Payments (as defined
therein) permitted thereunder, to support the issuance of Letters of Credit, to
repay the then existing debt of Borrower, to finance certain costs associated
with the Revolver Facility and the Term Loan A Facility and other lawful
corporate purposes of Borrower and its Subsidiaries;


 


WHEREAS, Borrower, Administrative Agent and the
Requisite Lenders under the Prior Credit Agreement and the Term Loan B Lenders
entered into an Amended and Restated Credit Agreement, dated as of January 20,
2010 (as amended prior to the date hereof, the “Existing Credit Agreement”) pursuant to which the Prior Credit
Agreement was amended and restated as described therein, including to add an
Incremental Term Loan Facility under the Prior Credit Agreement designated as
the Term Loan B under the Existing Credit Agreement, the proceeds of which Term
Loan B were used to finance the Verizon
Acquisition and certain costs associated with the Existing Credit Agreement; and


 


WHEREAS, the outstanding
principal balance of the Term Loan A and the Term Loan B as of the date hereof
(prior to giving effect to the September 30, 2010 repayments required by
Subsection 1.6(A)(ii) and (iii)) are $72,028,125.00 and $148,125,000.00,
respectively, and such Loans shall remain outstanding under this Agreement;


 


WHEREAS, the outstanding principal balance of the
Revolver Loans as of the date hereof, together with accrued interest and fees,
shall be repaid with a portion of the proceeds of the Term Loan C and the
Revolver Loan Commitment shall be increased pursuant to the terms of this
Agreement from $75,000,000.00 to $100,000,000.00;


 

















 


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


 


WHEREAS, Borrower, Administrative Agent, the Revolver
Lenders under the Existing Credit Agreement, the Requisite Lenders under the
Existing Credit Agreement, and the Term Loan C Lenders have agreed to amend and
restate the Existing Credit Agreement as described herein, including to
increase the Revolver Loan Commitment by $25,000,000.00, to add a $10,000,000
Swingline Loan Commitment as a subfacility to the Revolver Facility, and to add
an Incremental Term Loan Facility under the Existing Credit Agreement designated
as the Term Loan C under this Agreement, substantially all of the proceeds of
which Term Loan C will be used to refinance the outstanding principal balance
of the Revolver Loans as of the date hereof and to fund
capital expenditures; and


 


WHEREAS, the Loan Parties secured all of the Secured
Obligations under the Prior Credit Agreement, the Existing Credit Agreement and
the other Loan Documents (as defined in the Existing Credit Agreement) by
granting to Administrative Agent, for the benefit of the Secured Parties, a
first priority security interest in and lien upon all or substantially all of
its respective then owned or thereafter acquired personal and real property
(subject to the exceptions set forth in the Existing Credit Agreement and the
other Loan Documents (as defined in the Existing Credit Agreement)) and the
Secured Obligations under this Agreement and the other Loan Documents continue
to be secured by virtue of such grant.


 


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 the Loan Parties contained herein
and in the other Loan Documents:


 


(A)          Revolver Facility.  Each Lender, severally and not jointly, has
lent pursuant to the terms and conditions of the Existing Credit Agreement and
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 (other than any Swingline Loan); provided that no Lender
shall be required at any time to lend more than its respective Pro Rata Share
of the Revolver Loan Commitment; and provided, further, that at
any one time the aggregate principal amount of the Revolving Credit Obligations
outstanding may not exceed the Revolver Loan Commitment.  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.


 


2

















 


(B)           Term Loan Facilities.


 


(i)            Term Loan A Facility.  Each Term Loan A Lender, severally and not
jointly, has lent to Borrower its Pro Rata Share of the Term Loan A.  Amounts of the Term Loan A that are repaid or
prepaid may not be reborrowed.


 


(ii)           Term Loan B Facility.  Each Term Loan B Lender, severally and not
jointly, has lent to Borrower its Pro Rata Share of the Term Loan B.  Amounts of the Term Loan B that are repaid or
prepaid may not be reborrowed.


 


(iii)          Term Loan C Facility.  Each Term Loan C Lender, severally and not
jointly, agrees to lend to Borrower, in a single advance on the Second
Amendment Date, its Pro Rata Share of the Term Loan C; 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)(iii) that are repaid or prepaid may
not be reborrowed.


 


(C)           Incremental Term Loan Facilities.  Borrower and any one or more Lenders
(including any Person not previously a Lender hereunder who executes and
delivers a joinder agreement executed by Borrower, Administrative Agent, and
such Lender, in form and substance reasonably acceptable to each of them),
which Lenders are reasonably acceptable to Administrative Agent and to
Borrower, may agree, upon at least 10 days’ prior written notice to
Administrative Agent, that such Lenders shall make one or more additional term
loan facilities available to Borrower under this Subsection 1.1(C) (each,
an “Incremental Term Loan Facility”
and collectively, the “Incremental Term Loan
Facilities”; each commitment thereunder an “Incremental Term Loan Commitment” and collectively,
the “Incremental Term Loan Commitments”;
and the loans thereunder, each, an “Incremental
Term Loan” and collectively, the “Incremental
Term Loans”).  Any Incremental
Term Loan Facility shall be documented by an amendment or supplement to this
Agreement (or restatement hereof) signed by Borrower and the Lenders providing
such Incremental Term Loan Commitments. 
Notwithstanding the foregoing: (i) the aggregate principal amount
of all Incremental Term Loan Commitments shall not exceed $50,000,000; (ii) the
maturity date of any Incremental Term Loan Facility shall be no earlier than
the maturity date of the Term Loan Facilities; (iii) the weighted average
life of any Incremental Term Loan Facility shall be equal to or greater than
the remaining weighted average life of the Term Loan Facilities, determined as
of the initial funding date for such Incremental Term Loan Facility; (iv) to
the extent that the applicable interest rate margins for any Incremental Term
Loan Facility exceed by more than 0.25% the applicable interest rate margins
for the existing Term Loan Facilities, determined as of the initial funding
date for such Incremental Term Loan Facility, the applicable interest rate
margins for the existing Term Loan Facilities shall be increased so that the
interest rate margins on such Incremental Term Loan Facility and the existing
Term Loan Facilities are equal; (v) any covenant or Event of Default
applicable to the Incremental Term Loan Facility that is more restrictive than
the equivalent covenant or Event of Default set forth in this Agreement shall
be deemed to be applicable to the Loans hereunder; and (vi) no Default or
Event of Default shall have occurred and be continuing or result after giving
effect to any Incremental Term Loan Facility and the borrowings contemplated
thereunder, and the Loan Parties shall be in pro forma compliance with the
financial covenants contained in Section 4.  The Lenders shall have no obligation, and
shall have no right, to participate in any Incremental Term Loan Facility.  Any 


 


3

















 


new Lender providing an
Incremental Term Loan Commitment shall for all purposes be a Lender party to
the loan documentation and shall have all rights and obligations of a Lender.


 


(D)          Notes.  Upon any Lender’s request, Borrower shall
execute and deliver to such Lender a Revolver Note, a Term Loan A Note, a Term
Loan B Note, and a Term Loan C Note, as applicable, each dated the Second
Amendment Date, or, if later, the date of such request, in the principal amount
of such Lender’s Pro Rata Share of the Revolver Loan Commitment, the Term Loan
A, the Term Loan B, and the Term Loan C, as applicable.  Upon the request of any applicable Lender,
Borrower shall execute and deliver to such Lender a separate note for each
applicable Incremental Term Loan Facility, each dated the closing date of such
Incremental Term Loan Facility, or, if later, the date of such request, in the
principal amount of such Lender’s Pro Rata Share of such Incremental Term Loan Commitment
or Incremental Term Loan, as applicable. 
Upon Swingline Lender’s request, Borrower shall execute and deliver to
Swingline Lender a Swingline Note dated the Second Amendment Date, or, if
later, the date of such request, in the amount of the Swingline Loan
Commitment.


 


(E)           Advances.  Loans will be made available by wire transfer
of immediately available funds; provided  however, at any time
during which the CoBank Cash Management Agreement is in effect, Swingline Loans
will be made available as provided in the CoBank Cash Management
Agreement.  Wire transfers will be made
to such account or accounts as may be authorized by Borrower.  Advances under the Term Loan C are only
available on the Second Amendment Date.


 


(F)           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 standby or trade letters of credit
(individually, a “Letter of Credit”
and, collectively, the “Letters of Credit”)
by an Issuing Lender for the account of any Loan Party.  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
Usage with respect to all Letters of Credit outstanding at any time for the
account of Borrower or any other Loan Party may not exceed the Letter of Credit
Sublimit; provided, however, that at any one time the aggregate
principal amount of the Revolving Credit Obligations outstanding may not exceed
the Revolver Loan Commitment.  If at any
time the aggregate amount of the Letter of Credit Usage exceeds the Letter of
Credit Sublimit, Borrower shall reduce the aggregate amount of the Letter of
Credit Usage by providing cash collateral for the Letter of Credit Usage in the
manner set forth in Subsection 1.16 to the extent required to eliminate such
excess.


 


4
















 


(ii)           Reimbursement.  Borrower is irrevocably and unconditionally
obligated without presentment, demand, protest or other formalities of any kind
to reimburse 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 any Loan Party.  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. (Denver,
Colorado time) 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 (but not a Swingline Loan) in the amount of the
payment made by such Issuing Lender with respect to such Letter of Credit.  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 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 3.750% per
annum.  Each Lender agrees to fund its
Pro Rata Share of any Revolver Loan made pursuant to this Subsection
1.1(F)(ii).  In the event 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 any Loan Party, Administrative
Agent shall promptly notify each Lender with a Pro Rata Share of the Revolver
Loan Commitment of 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 with a Pro Rata
Share of the Revolver Loan Commitment 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 with a Pro Rata Share of the
Revolver Loan Commitment acknowledges and agrees that its obligations to
acquire participations pursuant to this Subsection 1.1(F)(ii) 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 with a Pro Rata Share of the
Revolver Loan Commitment 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(F)(ii), Administrative Agent may elect to debit the segregated accounts
described in Subsection 1.17(A)(iii) and 1.17(B)(iii) by such amount
and pay such amount to Issuing Lender. 
If  Administrative Agent does not
so elect or if the funds in such account are insufficient, such Issuing Lender
shall be entitled to recover such amount on demand from such Revolver Lender
together with interest at the Base Rate.


 


5

















 


(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 in such
currency, 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 (1) (a) for a standby Letter of Credit, one (1) year
from its date of issuance and (b) for a trade Letter of Credit, 180 days
from its date of issuance or (2) the 30th day before the date set forth in
clause (B) of the definition of the term “Revolver Expiration Date,”
or such later 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 (3) 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, stating whether the Letter of Credit will be a
standby or trade Letter of Credit, 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(F) 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, 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 any Loan Party or any of its Subsidiaries has notice
or knowledge thereof;


 


6

















 


(3)           The existence of any
claim, setoff, defense or other right that any Loan Party or any of 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 any Loan Party or any of its Subsidiaries and
the beneficiary named in any such Letter of Credit);


 


(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, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any Loan Party, any of
its Subsidiaries 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 the Loan
Parties and their Subsidiaries and shall not create or result in any liability
of such Issuing Lender to any Loan Party or any of its Subsidiaries.


 


7

















 


(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,
currency and intended issuance date of such Letter of Credit and Administrative
Agent has returned a written acknowledgment of such notice to Issuing
Lender.  Each of Issuing Lender and
Administrative Agent agrees to provide such notices and acknowledgement
promptly upon Borrower’s request of a Letter of Credit provided such request
satisfies all of the requirements provided herein.  Each Issuing Lender (other than CoBank)
further agrees to provide to Administrative Agent:  (1) a copy of each Letter of Credit
issued by such Issuing Lender promptly after its issuance; (2) 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 (3) 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 and ISP.  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 with respect to trade Letters of Credit and shall be deemed
incorporated by this reference into each trade Letter of Credit issued pursuant
to this Agreement.  The terms and
conditions of the UCP shall be binding with respect to trade Letters of Credit
on the parties to this Agreement and each beneficiary of any trade Letter of
Credit issued pursuant to this Agreement. 
The International Standby Practices as most recently published from time
to time by the International Chamber of Commerce (the “ISP”)
is hereby incorporated in this Agreement with respect to standby Letters of
Credit and shall be deemed incorporated by this reference into each standby
Letter of Credit issued pursuant to this Agreement.  The terms and conditions of the ISP shall be
binding with respect to standby Letters of Credit on the parties to this
Agreement and each beneficiary of any standby Letter of Credit issued pursuant
to this Agreement.


 


(G)           Swingline Loans.  (i)            From time to time during the period commencing on the Second Amendment
Date and ending on the Business Day immediately preceding the Revolver
Expiration Date, Swingline Lender agrees, in reliance upon the agreements of
the other Revolver Lenders set forth herein and subject to the terms and
conditions set forth herein, to make swingline loans to Borrower in an
aggregate principal amount not to exceed the Swingline Loan Commitment (each,
individually, a “Swingline Loan” and, collectively,
the “Swingline Loans”); provided, however,
(x) unless Borrower has complied with Subsection 1.17(B), if at any time
any Revolver Lender is a Defaulting Lender or a Potential Defaulting Lender,
the making of Swingline Loans shall be at the sole discretion of Swingline
Lender, and (y) that at any one time the aggregate principal amount of the
Revolving Credit Obligations outstanding may not exceed the Revolver Loan
Commitment.  Within the limits of and
subject to the Available Revolver Loan Commitment, this Subsection 1.1(G) and
Subsections 1.6, 1.7 and 1.8, amounts borrowed under this Subsection 1.1(G) may
be repaid or prepaid and, at any time up to and including the Business Day
immediately preceding the 


 


8

















 


Revolver Expiration Date,
reborrowed.  If at any time the aggregate
principal balance of the Swingline Loans then outstanding exceeds the Swingline
Loan Commitment, Borrower shall be deemed to have requested Administrative
Agent to make a Revolver Loan in the amount of the difference in the manner and
pursuant to the terms of Subsection 1.1(G)(iv).


 


(ii)           At all times, the following terms shall apply to the Swingline Loan:


 


(1)           Borrower may request
Swingline Loans without regarding to minimum amounts.


 


(2)           Borrower may request
Swingline Loans by email or by such other methods as shall have been approved
in writing in advance by Swingline Lender provided such request is made by an
employee or representative of Borrower designated in writing by Borrower as
authorized to make such a request and is made not later than 1:00 p.m.
(Denver, Colorado time) on the day of the proposed Swingline Loan; provided
that, if such request is made by telephone, fax or email, upon request,
Borrower shall promptly confirm such request in writing to Swingline Lender and
Administrative Agent.  Swingline Loans
may be made automatically on any day as and to the extent provided in the
CoBank Cash Management Agreement, so long as the CoBank Cash Management
Agreement is in effect, and shall be made available in the manner specified in Subsection
1.1(E) at any time that the CoBank Cash Management Agreement is not in
effect.


 


(3)           Borrower shall not use
the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan.


 


(iii)          Borrower and Swingline Lender may enter into the CoBank Cash Management
Agreement providing for the automatic advance by the Swingline Lender of
Swingline Loans under the conditions set forth in such agreement, which
conditions shall be in addition to the conditions set forth herein.


 


(iv)          Any outstanding Swingline Loan shall be payable by Borrower on demand by
Swingline Lender, a copy of which demand also shall be delivered by Swingline
Lender to Administrative Agent.  If
Borrower fails to so reimburse the Swingline Lender on demand, without limiting
Swingline Lender’s remedies with respect to Borrower in the case of any
Revolver Lender’s failure to advance under this Subsection 1.1(G)(iv),  Borrower shall be deemed to have requested
Administrative Agent to make a Revolver Loan in the aggregate amount of the
then outstanding Swingline Loans.  Each
Revolver Lender agrees to fund its Pro Rata Share of any Revolver Loan made
pursuant to this Subsection 1.1(G)(iv). 
Administrative Agent shall promptly notify each Revolver Lender of the
amount of such payment due and each such Revolver 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
Revolver Lender hereby absolutely and unconditionally agrees to pay to
Swingline Lender such Revolver 


 


9

















 


Lender’s Pro Rata Share
of each such payment due.  In addition to
the foregoing, if for any reason any Revolver Lender fails to make payment to
Swingline Lender of any amount due under this Subsection 1.1(G)(iv), such
Revolver Lender shall be deemed, at the option of Swingline Lender, to have
unconditionally and irrevocably purchased from Swingline Lender, without
recourse or warranty, an undivided interest and participation in the applicable
Swingline Loan in the amount of such Revolving Loan, and such interest and
participation may be recovered from such Revolver Lender together with interest
thereon at the Base Rate for each day during the period commencing on the date
of demand and ending on the date such amount is received.  Each Revolver Lender acknowledges and agrees
that its obligations to fund Revolving Loans and/or to acquire participations
pursuant to this Subsection 1.1(G)(iv) in respect of Swingline Loans 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 Revolver
Lender fails to make available to Swingline Lender the amount of such Lender’s
Pro Rata Share of any payments due as provided in this Subsection 1.1(G)(iv),
Administrative Agent may elect to debit the segregated accounts described in
Subsection 1.17(A)(iii) and 1.17(B)(iii) by such amount and pay such
amount to Swingline Lender.  If
Administrative Agent does not so elect or if the funds in such accounts are
insufficient, Swingline Lender shall be entitled to recover such amount on
demand from such Lender together with interest at the Base Rate.  On the Revolver Expiration Date, if not
sooner demanded, Borrower shall repay in full the outstanding principal amount
of the Swingline Loans.


 


(v)           All Swingline Loans shall accrue interest from the date made as a Base
Rate Loan, at the sum of the Base Rate plus either the Base Rate Margin
or,  if the CoBank Cash Management
Agreement is in effect, the Swingline Base Rate Margin, in each case,
applicable from time to time as provided in Subsection 1.2(B).  Until each Revolver Lender funds its Pro Rata
Share of its Revolver Loan or purchase of a participation pursuant to
Subsection 1.1(G)(iv), interest in respect of the Swingline Loans, of the
applicable potion thereof, shall be solely
for the account of Swingline Lender. 
Notwithstanding any other provision of this Agreement, Borrower shall
make all payments of principal and interest in respect of Swingline Loans
directly to Swingline Lender by such method and to such account or place as
Swingline Lender may from time to time designate in writing.


 


1.2           Interest.


 


(A)          Interest Options.  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:


 


(i)            as a Base Rate Loan, at the sum of the Base Rate plus the Base
Rate Margin applicable to such Loan from time to time as provided in Subsection
1.2(B); or


 


10

















 


(ii)           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


 


provided, that
any Incremental Term Loan shall accrue interest as provided in the amendment or
supplement to this Agreement evidencing such Incremental Term Loan Facility; provided
further, that Swingline Loans shall be made as Base Rate Loans with either
the Base Rate Margin or Swingline Base Rate Margin as provided in Subsection
1.1(G)(v).


 


(B)           Applicable Margins.  Initially, and continuing through the day
immediately preceding the first Adjustment Date occurring after the Second
Amendment Date, the applicable Base Rate Margin, LIBOR Margin, Commitment Fee
Margin, and Swingline Base Rate Margin shall be the applicable 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 and calculated on a pro forma basis after giving effect to any
Loans requested by Borrower pursuant to this Agreement on the Second Amendment
Date.  Thereafter, the applicable Base
Rate Margin, LIBOR Margin, Commitment Fee Margin, and Swingline Base Rate
Margin shall be for each Calculation Period the applicable 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, 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 Base Rate
Margin shall be 3.750% per annum, the LIBOR Margin shall be 4.750% per
annum,  the Commitment Fee Margin shall
be 0.750%, and the Swingline Base Rate Margin shall be 3.250% per annum; provided,
further, that effective upon the closing of any acquisition that will
increase the Total Leverage Ratio on a pro forma basis, the Base Rate Margin,
LIBOR Margin,  Commitment Fee Margin, and
Swingline Base Rate Margin will immediately adjust to reflect such higher
ratio.  Notwithstanding anything to the
contrary set forth in this paragraph, initially, and continuing through the day
immediately proceeding the first Adjustment Date occurring on or after September 30,
2010, the LIBOR Margin will be not less than 3.750%, the Base Rate Margin will
be not less than 2.750%, and the Swingline Base Rate Margin will not be less
than 2.250%.


 


PRICING TABLE


 


	
  Total Leverage Ratio

  	
   

  	
  Base Rate Margin

  	
   

  	
  LIBOR Margin

  	
   

  	
  Commitment

  Fee Margin

  	
   

  	
  Swingline Base

  Rate Margin

  	
   

  
	
  > 2.00x

  	
   

  	
  3.750

  	
  %

  	
  4.750

  	
  %

  	
  0.750

  	
  %

  	
  3.250

  	
  %

  
	
  > 1.75x and < 2.00x

  	
   

  	
  3.500

  	
  %

  	
  4.500

  	
  %

  	
  0.750

  	
  %

  	
  3.000

  	
  %

  



 


11

















 


	
  > 1.50x and < 1.75x

  	
   

  	
  3.250

  	
  %

  	
  4.250

  	
  %

  	
  0.750

  	
  %

  	
  2.750

  	
  %

  
	
  > 1.25x and < 1.50x

  	
   

  	
  3.000

  	
  %

  	
  4.000

  	
  %

  	
  0.625

  	
  %

  	
  2.500

  	
  %

  
	
  > 1.00x and < 1.25x

  	
   

  	
  2.750

  	
  %

  	
  3.750

  	
  %

  	
  0.500

  	
  %

  	
  2.250

  	
  %

  
	
  <
  1.00x

  	
   

  	
  2.500

  	
  %

  	
  3.500

  	
  %

  	
  0.500

  	
  %

  	
  2.000

  	
  %

  



 


If, as a result of any restatement of or other
adjustment to any financial statements referred to above (i) the Total
Leverage Ratio as calculated by Borrower as of any applicable date was
inaccurate and (ii) a proper calculation of the Total Leverage Ratio would
have resulted in different pricing for any period, then (1) if the proper
calculation of the Total Leverage Ratio would have resulted in higher pricing
for such period, Borrower shall automatically and retroactively be obligated to
pay to Administrative Agent, promptly on demand by Administrative Agent, an
amount equal to the excess of the amount of interest that should have been paid
for such period over the amount of interest actually paid for such period; and (2) if
the proper calculation of the Total Leverage Ratio would have resulted in lower
pricing for such period, Administrative Agent and the Lenders shall have no
obligation to repay any interest to Borrower; provided that if, as a result of
any restatement or other event a proper calculation of the Total Leverage Ratio
would have resulted in higher pricing for one or more periods and lower pricing
for one or more other periods (due to the shifting of income or expenses from
one period to another period or any similar reason), then the amount payable by
Borrower pursuant to clause (1) above shall be based upon the excess, if
any, of the amount of interest that should have been paid for all applicable
periods over the amount of interest paid for all such periods.


 


(C)           LIBOR Interest Periods.  Each LIBOR Loan may be obtained for a one
(1), two (2), three (3), or six (6) month period or, if available to all
Lenders under the applicable facility, nine (9) 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 any Base Rate Loan is converted
into a LIBOR Loan, or, in the case of immediately successive LIBOR Interest Periods,
each successive LIBOR 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;


 


(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


 


12
















 


(iv)                              no LIBOR Interest Period shall be selected under any Term Loan Facility
if, in order to make scheduled repayments of such Term Loan required pursuant
to Subsection 1.6(A)(ii), (iii) or (iv), repayment of all or any portion
of the LIBOR Loan prior to the expiration of such Interest Period would be
necessary; and


 


(v)                                 no LIBOR Interest Period shall be selected under the Revolver Facility
that extends beyond the date set forth in clause (B) of the definition of
Revolver Expiration Date, and no LIBOR Interest Period shall be selected under
any Term Loan Facility that extends beyond the date set forth in clause (B) of
the definition of applicable Term Loan Maturity Date.


 


(D)                               Calculation and Payment.  Interest on Base Rate Loans shall be
calculated on the basis of a 365-6-day year for the actual number of days
elapsed.  Interest on LIBOR 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 of a LIBOR
Loan to a Base Rate Loan and the first day of a LIBOR 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 a LIBOR 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 (1) day’s interest shall be charged.


 


Interest accruing on Base 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 (including the payment of any
Swingline Loan pursuant to Subsection 1.1(G)(iv)) of such Loan (or portion
thereof), to the extent accrued on the principal prepaid; and (iii) the
applicable Term Loan Maturity Date or the Revolver Expiration Date, as the case
may be, whether by acceleration or otherwise, with respect to the principal to
be repaid.  Interest accruing on each
LIBOR Loan is payable in arrears on each of the following dates or events: (1) the
last day of each applicable LIBOR Interest Period; (2) if the LIBOR
Interest Period is longer than three (3) months, on each three-month
anniversary of the commencement date of such LIBOR Interest Period; (3) the
prepayment of such Loan (or portion thereof), to the extent accrued on the
principal prepaid; and (4) the applicable Term Loan Maturity Date or the
Revolver Expiration Date, as the case may be, whether by acceleration or
otherwise, with respect to the principal to be repaid.


 


(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, rates in
effect pursuant to Subsection 1.2(B), with respect to such Loans and other
Obligations.  Interest accruing pursuant
to this Subsection 1.2(E) is payable on demand.


 


(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, 


 


13

















 


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.  Additionally, should the method used for
calculating interest on LIBOR Loans (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 Availability.  Provided that no Event of
Default has occurred and is then continuing and except as provided in
Subsection 1.1(G), Borrower shall have the option to (i) select all or any
part of a new borrowing to be a Base Rate Loan or a LIBOR 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, (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, (iii) upon the expiration
of its Interest Period, convert all or any part of any LIBOR Loan into a Base
Rate Loan, and (iv) upon the expiration of its Interest Period, continue
any LIBOR 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 for such new Interest
Period(s) as selected by Borrower. 
Each LIBOR Loan shall be made under any one of the Revolver Facility,
the Term Loan A Facility, the Term Loan B Facility, the Term Loan C Facility,
or any Incremental Term Loan Facility, but may not be made under more than one
Facility concurrently.  During any period
in which any Event of Default is continuing, as the Interest Periods for LIBOR
Loans then in effect expire, such Loans shall be converted into a Base Rate
Loan and the LIBOR option will not be available to Borrower until all Events of
Default are cured or waived. In the event Borrower fails to elect a LIBOR 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 (5) LIBOR Loans outstanding at any one time under any
Facility.


 


1.3                               Notice of Borrowing, Conversion or Continuation of Loans.  Whenever Borrower desires to
request a Loan (other than a Swingline Loan) pursuant to Subsection 1.1(A) or
(B) or to convert or continue Loans (other than Swingline 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”)
(A) if requesting a borrowing of a Base Rate Loan (or any portion
thereof), not later than 11:00 a.m. (Denver, Colorado time) one (1) Business
Day before the proposed borrowing, conversion or continuation is to be
effective or, (B) if requesting a borrowing of, or conversion to or
continuation of a 


 


14

















 


LIBOR Loan, not later than
11:00 a.m. (Denver, Colorado time) three (3) 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 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, and (v) the Facility under which such
borrowing, conversion or continuation is to be made.  Administrative Agent shall give each Lender
prompt written notice of any Notice of Borrowing/Conversion/Continuation given
by Borrower.


 


1.4                               Fees and Expenses.


 


(A)                               Unused Commitment Fee.  From the Closing Date, Borrower shall be
obligated to pay Administrative Agent, for the benefit of all Revolver Lenders
that are neither Defaulting Lenders nor Potential Defaulting Lenders with
respect to which any Issuing Lender or Swingline Lender has exercised the right
to require cash collateralization pursuant to Subsection 1.17(A)(i) or
1.17(B)(i) from Borrower or such Potential Defaulting Lender (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 (1) the
average daily outstanding balance of Revolver Loans (other than the Swingline
Loans) plus (2) the average daily outstanding Letter of Credit
Usage, in each case during the preceding calendar quarter multiplied  by
(ii) the applicable
Commitment Fee Margin as provided in Subsection 1.2(B), 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 30, 2010, between Borrower and CoBank and the letter
agreement dated September 9, 2009, between Borrower and CoBank.


 


(C)                               Breakage Fee.  Upon any repayment or payment of a LIBOR 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 on such day.  For purposes of calculating amounts payable
by Borrower to Lenders under this Subsection 1.4(C), each LIBOR 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 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 is in fact so funded.  In
addition, upon any 


 


15

















 


repayment or prepayment of a
LIBOR 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 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 Administrative Agent for its expenses (including reasonable
attorneys’ fees and expenses) incurred in connection with documenting and
closing the transactions contemplated herein. 
In addition to fees due under Subsections 1.4(A) and (B),
Borrower agrees to pay promptly (1) all reasonable fees, costs and
expenses incurred by Administrative Agent in connection with any amendment,
supplement, waiver or modification of any of the Loan Documents and (2) all
reasonable out-of-pocket fees, costs and expenses incurred by each of
Administrative Agent  and Lenders
in connection with any Event of Default and any enforcement of collection
proceeding resulting therefrom or, during the continuance of any Event of
Default, 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 Revolver Lenders that are neither
Defaulting Lenders nor Potential Defaulting Lenders with respect to which any
Issuing Lender has exercised the right to require cash collateralization
pursuant to Subsection 1.17(A)(i) from Borrower or such Potential
Defaulting Lender (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 (i) $1,000 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 (1) 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.  Other than as provided in Subsection
1.1(G)(v), all payments by Borrower of the Obligations shall be made in same
day funds and delivered to Administrative 


 


16

















 


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 in
writing:


 


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.


 


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
or to any other obligee in respect of the Obligations hereunder, 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 or such obligee.


 


Each payment received by Administrative Agent under this
Agreement or any Note for the 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; Reduction of the Revolver Loan Commitment.


 


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


 


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


 


(ii)                                  Scheduled Repayments of the Term Loan A. 
Commencing on September 30, 2010, and on each December 31, March 31,
June 30 and September 30 thereafter, 


 


17

















 


subject
to Subsection 1.8, Borrower shall repay the aggregate principal balance of the
Term Loan A in the amount set forth below opposite such period:


 


TERM LOAN A - REPAYMENT TABLE


 


	
  Period

  	
   

  	
  Quarterly Principal Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2010 to  December 31, 2011

  	
   

  	
  $

  	
  923,437.50

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 31, 2012 to
  June 30, 2014

  	
   

  	
  $

  	
  1,846,875.00

  	
   

  



 


The outstanding principal balance of the Term Loan A not
sooner due and payable will become due and payable on the Term Loan A Maturity
Date.


 


(iii)                               Scheduled Repayments of the Term Loan B. 
Commencing on September 30, 2010, and on each December 31, March 31,
June 30 and September 30 thereafter, subject to Subsection 1.8,
Borrower shall repay the aggregate principal balance of the Term Loan B in the
amount set forth below opposite such period:


 


TERM LOAN B - REPAYMENT TABLE


 


	
  Period

  	
   

  	
  Quarterly Principal Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2010 to
  December 31, 2011

  	
   

  	
  $

  	
  1,875,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 31, 2012  to June 30, 2014

  	
   

  	
  $

  	
  3,750,000.00

  	
   

  



 


The outstanding principal balance of the Term Loan B not
sooner due and payable will become due and payable on the Term Loan B Maturity
Date.


 


(iv)                              Scheduled Repayments of the Term Loan C. 
Commencing on December 31, 2010, and on each March 31, June 30,
September 30, and December 31, thereafter, subject to Subsection 1.8,
Borrower shall repay the aggregate principal balance of the Term Loan C in the
amount set forth below opposite such period:


 


TERM LOAN C - REPAYMENT TABLE


 


	
  Period

  	
   

  	
  Quarterly Principal Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  December 31, 2010 to June 30, 2014

  	
   

  	
  $

  	
  250,000.00

  	
   

  



 


18

















 


The outstanding principal balance of the Term Loan C not
sooner due and payable will become due and payable on the Term Loan C Maturity
Date.


 


(v)                                 Incremental Term Loans.  Borrower
shall repay the aggregate outstanding principal balance of any Incremental Term
Loan as provided in the amendment or supplement to this Agreement documenting
such Incremental Term Loan Facility.


 


All repayments of the Facilities pursuant to this Subsection
1.6(A) shall be applied in accordance with Subsection 1.8, and shall be
accompanied by any applicable Breakage Fees and any other fees required
pursuant to Subsection 1.4.


 


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


 


(C)                               Voluntary Reduction of the Revolver Loan.  (i) Borrower shall have the right, upon
at least three (3) 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 Revolver
Lender based upon its Pro Rata Share. 
Notwithstanding the foregoing, no reduction to the Revolver Loan
Commitment shall be permitted if, after giving effect thereto and to any
prepayment made in connection therewith, the Revolving Credit Obligations would
exceed the Revolver Loan Commitment as so reduced.  All reductions to the Revolver Loan
Commitment 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)(i) and 1.6(B) and, accordingly, may result in the termination
of the Revolver Loan Commitment prior to the date set forth in clause (B) of
the definition of the term Revolver Expiration Date.


 


(ii) 
Borrower shall have the right, upon at least three (3) Business Days’
prior written notice to Administrative Agent and Swingline Lender, to terminate
or permanently reduce the then unused portion of the Swingline Loan Commitment;
provided, however, if the CoBank Cash Management Agreement is in effect,
Borrower may only reduce the Swingline Loan Commitment below $5,000,000.00 with
the prior written consent of Swingline Lender (which consent shall be in the
sole discretion of Swingline Lender).  All
reductions to the Swingline Loan Commitment elected under this Subsection
1.6(C)(ii) shall be in addition to the reductions in the Swingline Loan
Commitment provided for in Subsections 1.6(A)(i), 1.6(B), and 1.6(E) and,
accordingly, may result in the termination of the Swingline Loan Commitment
prior to the date set forth in clause (B) of the definition of the
Revolver Expiration Date. 
Notwithstanding the foregoing, no reduction to the Swingline Loan
Commitment shall be permitted if, after 


 


19

















 


giving effect thereto and to
any prepayment made in connection therewith, the aggregate principal balance of
all Swingline Loans outstanding at such time would exceed the Swingline Loan
Commitment as so reduced or the aggregate principal balance of all Revolving
Credit Obligations at such time would exceed the Revolver Loan Commitment, as
so reduced.


 


(D)                               Mandatory Repayments.  If at any time the aggregate outstanding
amount of the Revolving Credit Obligations exceeds the Revolver Loan
Commitment, Borrower shall promptly repay the Revolver Loans, reduce the Letter
of Credit Usage by providing cash collateral for the Letter of Credit Usage in
the manner set forth in Subsection 1.16, or, if the CoBank Cash Management
Agreement is not in effect, repay the Swingline Loans, in each case, to the
extent required to eliminate such excess, and until such repayment or reduction
is made, Lenders shall not be obligated to make any additional Revolver Loans
and Swingline Lender shall not be obligated to make any additional Swingline
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 and any other fees required pursuant to
Subsection 1.4.


 


(E)                                Application of Reduction of the Revolver Loan.  If a reduction in the Revolver
Loan Commitment pursuant to Subsections 1.6(B) and/or 1.6(C) would
cause the Revolver Loan Commitment to be less than the sum of the Swingline Loan
Commitment and Letter of Credit Sublimit, then the Swingline Loan Commitment
and Letter of Credit Sublimit will simultaneously with such reduction of the
Revolver Loan Commitment be permanently reduced on a pro rata basis such that
the sum of the two does not exceed the reduced Revolver Loan Commitment.


 


1.7                               Voluntary Prepayments and Other Mandatory Repayments.


 


(A)                               Voluntary Prepayment of Loans.  Subject to the provisions of Subsection 1.8,
at any time, Borrower may prepay the Base Rate Loans, in whole or in part,
without penalty.  Subject to the
provisions of Subsection 1.8, payment of the Breakage Fees and any other fees
required pursuant to Subsection 1.4 and the notice requirement in the following
sentence, at any time Borrower may prepay any LIBOR Loan, in whole or in
part.  Notice of any prepayment of (i) a
Base Rate Loan (other than a Swingline Loan, which may be prepaid at any time
and without notice) shall be given not later than 11:00 a.m. (Denver,
Colorado time) on the Business Day that is the date of prepayment, and
(ii) a LIBOR 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 (other
than partial prepayments of Swingline Loans) 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), 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 and
any other fees required pursuant to Subsection 1.4.


 


(B)                               Repayments from Insurance Proceeds.  Immediately upon receipt thereof, Borrower
shall be obligated to repay the Loans (or reduce the Letter of Credit Usage by 


 


20

















 


providing cash collateral for
the Letter of Credit Usage in the manner set forth in 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 Net
Proceeds, together with all other such Net Proceeds covered by this Subsection
1.7(B), exceeds $5,000,000 in the aggregate over the term of this Agreement); provided,
however, that if no 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 (if upon the expiration of
such 180-day period any of such Net Proceeds have not been so applied, Borrower
immediately shall repay the Loans (or reduce the Letter of Credit Usage by
providing cash collateral for the Letter of Credit Usage in the manner set
forth in Subsection 1.16) in an amount equal to such remaining Net
Proceeds).  All prepayments shall be
accompanied by accrued interest on the amount prepaid and any applicable
Breakage Fees and any other fees required pursuant to Subsection 1.4.


 


(C)                               Repayments from Certain Asset Dispositions.  Immediately upon receipt thereof, Borrower
shall be obligated to repay the Loans (or reduce the Letter of Credit Usage by
providing cash collateral for the Letter of Credit Usage in the manner set
forth in Subsection 1.16) in an amount equal to all Net Proceeds received by
Borrower or any Subsidiary of Borrower that are from Asset Dispositions, other
than insurance proceeds or from Asset Dispositions permitted pursuant to
Subsections 3.7(A) through (C), (E), (G), (H) or (I); provided,
however, that if (i) no 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 assets that are used or useful
in the business of Borrower or such Subsidiary within 180 days of receipt by
Borrower or such Subsidiary of such Net Proceeds (if upon the expiration of
such 180-day period any of such Net Proceeds have not been so applied, Borrower
immediately shall repay the Loans (or reduce the Letter of Credit Usage by providing
cash collateral for the Letter of Credit Usage in the manner set forth in
Subsection 1.16) in an amount equal to such remaining 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 and any other fees required pursuant to Subsection
1.4.


 


(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
Indebtedness permitted under Subsection 3.1), Borrower shall be obligated to
repay the Loans (or reduce the Letter of Credit Usage by providing cash
collateral for the Letter of Credit Usage in the manner set forth in 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 and any other fees required
pursuant to Subsection 1.4.


 


21






 












 


1.8           Application of Prepayments and Repayments; Payment of Breakage Fees, Etc.  Subject to the last sentence of
this Subsection 1.8, all prepayments pursuant to Subsection 1.7(A) to be
applied to the Loans shall be applied as Borrower shall direct; provided
however, in the absence of any direction from Borrower, Swingline Lender may
apply any such prepayments to the Swingline Loans.  At any time the CoBank Cash Management
Agreement is not in effect, each repayment made pursuant to Subsection 1.7(B) through
(D) shall be applied first, pro rata to the outstanding principal
balance of the Term Loan Facilities (including pro rata to any Incremental Term
Loan Facility, if and when applicable), and second, to repay the
Swingline Loans and third to repay the Revolver Loans (or reduce the
Letter of Credit Usage by providing cash collateral for the Letter of Credit
Usage in the manner set forth in Subsection 1.16).  At any time the CoBank Cash Management
Agreement is in effect, each repayment made pursuant to Subsection 1.7(B) through
(D) shall be applied first, pro rata to the outstanding principal
balance of the Term Loan Facilities (including pro rata to any Incremental Term
Loan Facility, if and when applicable), and second, to repay the
Revolver Loans (other than the Swingline Loans) (or reduce the Letter of Credit
Usage by providing cash collateral for the Letter of Credit Usage in the manner
set forth in Subsection 1.16) and third to repay the Swingline
Loans.  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 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 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
the amount prepaid or repaid.  All
prepayments and repayments applied to the Term Loan A, the Term Loan B, the
Term Loan C or any Incremental Term Loan shall be applied to principal
installments in the inverse order of maturity; provided that Borrower
may direct in writing that any prepayment made pursuant to Subsection 1.7(A) to
the Term Loan Facilities be applied pro rata first, to up to the next
two (2) scheduled principal payments on each of the Term Loan Facilities
and second, pro rata across the remaining scheduled principal payments
of the Term Loan Facilities.


 


1.9           Loan Accounts.  Administrative Agent will maintain loan
account records for (A) all Loans, interest charges and payments thereof,
(B)  all Letter of Credit Liability, (C) the charging and
payment of all fees, costs and expenses and (D) 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.  After the
occurrence and 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 and the
Lenders shall have the continuing exclusive right to apply and reapply payments
to any of the Obligations in any manner it or they deem 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 


 


22

















 


(and notify Administrative
Agent) that the LIBOR rate applicable pursuant to Subsection 1.2(A)(ii) 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 Loan 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 notify 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.


 


1.11         Capital Adequacy and Other Adjustments.


 


(A)          If after the Closing Date there occurs the introduction, or change in the
interpretation of, any Applicable Law 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 (6) 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 


 


23

















 


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 (6) months prior to the date of such certificate.


 


1.12         Optional Prepayment/Replacement of Lender in Respect of Increased Costs
or Defaulted Lenders.  Within 15 days after receipt by Borrower of
written notice and demand from any 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 any of such
Subsections, or if any Lender is a Defaulting Lender (any such Lender, an “Affected Lender”) 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, or has ceased to be a Defaulting Lender, 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 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 (it being agreed that an assignment at par
(plus accrued interest) or a higher price is deemed to be acceptable), 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 


 


24

















 


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,
any Excluded Taxes.  If Borrower shall be
required by law to deduct any such Tax Liabilities (net of Excluded Taxes) from
or in respect of any sum payable hereunder to any Lender or Administrative
Agent, then, except as provided in Subsection 1.13(B), Subsection 1.13(C) 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 not be considered a
United States Person 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, Form W-8IMY
(including properly executed copies of Forms W-8BEN or W-9 for all beneficial
owners on whose behalf Foreign Lender acts) 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 (and such
other beneficial owners’ entitlement in the case of Form W-8IMY) 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”) and, in the case
of a Foreign Lender claiming exemption under Sections 871(h) or 881(c) of
the IRC, a certificate (and beneficial owner certificates in the case of Form W-8IMY)
in form and substance acceptable to Borrower and Administrative Agent that such
Foreign Lender (and such other beneficial owners’ Forms W-8 BEN or W-9) is not (1) receiving
interest under the Notes as a bank on an extension of credit made pursuant to a
loan agreement entered into in the ordinary course of its trade or business
within the meaning of Section 881(c)(3)(A) of the IRC, (2) a “10
percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of
the IRC and (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the IRC (the “Portfolio Interest Exemption Certificate”)
or (ii) letter from any such Foreign Lender (and such beneficial owner in
the case of Form W-8IMY as described above) stating that it is not
entitled to any such exemption or reduced rate of withholding (a “Letter of Non-Exemption”).  Each Foreign Lender shall deliver 


 


25

















 


to Borrower and to
Administrative Agent, prior to becoming a Lender, at the time or times
prescribed by Applicable Law, or within 15 days after a reasonably request of
Borrower or Administrative Agent, a properly completed and executed Certificate
of Exemption (and a Portfolio Interest Exemption Certificate, if applicable) or
Letter of Non-Exemption and such other reasonably requested information as will
permit Borrower or Administrative Agent, as the case may be, to determine (A) whether
or not payments made hereunder or under any other Loan Document are subject to
any taxes, (B) if applicable, the required rate of withholding or
deduction, and (C) such Lender’s entitlement to any available exemption
from, or reduction of, applicable taxes in respect of all payments to be made
to such Lender by Borrower pursuant to this Agreement or otherwise to establish
such Lender’s status for U.S. withholding tax purposes.  If a Foreign Lender fails to provide the
documentation required under this Subsection 1.13(B), the payments to such
Lender shall be subject to withholding without any gross up pursuant to
Subsection 1.13(A).


 


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 (and a Portfolio Interest Exemption Certificate, if applicable) 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 (and a Portfolio
Interest Exemption Certificate, if applicable) to Borrower and Administrative
Agent.


 


(C)           FATCA Withholding.  If any and all payments made hereunder or
under the Notes would be subject to withholding tax imposed by FATCA if a
Lender (or Participant) fails to comply with the applicable reporting
requirements of FATCA (including those contained in Sections 1471(b) and
1472(b) of the IRC, as applicable), such Lender (or Participant) shall
deliver to Borrower and Administrative Agent (i) a certification signed by
the chief financial officer, principal accounting officer, treasurer,
controller or other authorized officer of such Lender (or Participant), and (ii) other
documentation as reasonably requested by Borrower and Administrative Agent
sufficient for Borrower and Administrative Agent to comply with their
obligations under FATCA and to determine that such Lender (or Participant) has
complied with the applicable reporting requirements of FATCA.  To the extent that the relevant documentation
provided pursuant to this Subsection 1.13(C) is rendered obsolete or
inaccurate in any respect as a result of a change in circumstances with respect
to the status of a Lender (or Participant), such Lender (or Participant) shall
deliver to Borrower and Administrative Agent revised or updated documentation
as reasonably requested by Borrower and Administrative Agent sufficient to confirm
compliance with their reporting requirements under FATCA.  If a Lender (or a Participant) fails to
provide documentation necessary to avoid any withholding tax under FATCA, the
payments to such Lender (or Participant) shall be subject to withholding without
any gross up pursuant to Subsection 1.13(A).


 


(D)          Tax Refund.  If and to the extent that Administrative
Agent or any Lender determines in its good faith discretion that it has
received a refund for or a credit or deduction of any amounts which have been
paid under this Subsection 1.13 or Subsection 1.14, it shall pay to 


 


26

















 


Borrower the portion of such
refund, credit or deduction that it determines in its reasonable discretion
will leave it, after such payment, in no better or worse after-tax financial
position (taking into account any out-of-pocket expenses of Administrative
Agent or such Lender) than if the Tax Liability or cost giving rise to the
payment had not been imposed in the first instance; provided, however, that
Borrower, upon the request of Administrative Agent or such Lender, agrees to
repay the amount paid over to Borrower to Administrative Agent or such Lender
(along with any applicable interest or penalties) in the event Administrative Agent
or such Lender is required to repay such amounts to such Governmental
Authority.  This Subsection 1.13(D) shall
not be construed to require Administrative Agent or any Lender to make
available its tax returns or other confidential tax information to Borrower or
any other Person.


 


(E)           Tax Indemnity.  Each Lender shall and hereby does indemnify
Borrower and Administrative Agent and shall make payment in respect thereof
within ten day of demand therefor, against any and all Taxes and all related
losses, claims, liabilities, penalties, interest and expenses incurred by or
asserted against Borrower or Administrative Agent by any Governmental Authority
as a result of the failure of such Lender to deliver, or as a result of the
inaccuracy, inadequacy or deficiency of, any documentation required to be
delivered by such Lender to Borrower or Administrative Agent pursuant to this
Subsection 1.13.  Each Lender also shall
and hereby does indemnify Administrative Agent and shall make payment in
respect thereof within ten day of demand therefor, against any and all Excluded
Taxes and all related losses, claims, liabilities, penalties, interest and
expenses attributable to such Lender that are paid or payable by Administrative
Agent, whether or not such Excluded Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  Each Lender hereby authorizes Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender
hereunder or under any Note against any amount due to Administrative Agent
under this Subsection 1.13(E).


 


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


 


(i)            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 Excluded Taxes); or


 


(ii)           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 


 


27

















 


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, 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.


 


Notwithstanding the forgoing, Administrative Agent and
any such Lender shall cooperate with Borrower to reduce or eliminate any
additional amounts owed under this Subsection 1.14 and shall provide Borrower
with such certificate or similar document(s) as may reasonably be
requested by Borrower in order to relieve Borrower of any obligation to
pay any portion of the payments owed pursuant to this Subsection 1.14.


 


1.15         Term of this Agreement.  All of the Obligations shall become due and
payable as otherwise set forth herein. 
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 (other than contingent indemnity, expense reimbursement and tax
gross-up payments for which no claim has been asserted) shall have been paid
and satisfied in full in cash.


 


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, or 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(E) 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.


 


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1.17         Defaulting Lenders.


 


(A)          Letters of Credit.


 


(i)            If any Revolving Lender becomes, and during the period it remains, a
Defaulting Lender or a Potential Defaulting Lender, any Issuing Lender (x) if
any Letter of Credit is at the time outstanding, may by notice to Borrower and
such Defaulting Lender or Potential Defaulting Lender through Administrative
Agent, require Borrower, such Defaulting Lender or such Potential Defaulting
Lender to cash collateralize the obligations of Borrower to such Issuing Lender
in respect of such Letter of Credit in an amount equal to the Pro Rata Share of
the Letter of Credit Usage (contingent or otherwise) of such Defaulting Lender
or such Potential Defaulting Lender, as the case may be, in respect thereof,
and (y) will not be required to issue any Letter of Credit or to amend or
extend any outstanding Letter of Credit unless Issuing Lender is reasonably
satisfied that any exposure that would result therefrom is eliminated or fully
covered, whether by cash collateralization or otherwise; provided that,
at Borrower’s option, instead of such cash collateralization, Borrower may, by
notice to Administrative Agent and Issuing Lender, elect to reallocate all or
any part of the Defaulting Lender’s or Potential Defaulting Lender’s Pro Rata
Share of Letter of the Credit Usage with respect to such Letter of Credit among
all Revolver Lenders that are not Defaulting Lenders or Potential Defaulting
Lenders but only to the extent


 


(1) all
conditions set forth in Subsection 7.02 (other than Subsection 7.02(A)) are
satisfied at such time; and


 


(2) the
aggregate Revolver Loan Commitment of all Revolver Lenders that are not
Defaulting Lenders or Potentially Defaulting Lenders exceeds the sum of:


 


(a)           the aggregate principal
balance of all Revolver Loans (excluding Swingline Loans) of all Revolver
Lenders that are not Defaulting Lenders or Potentially Defaulting Lenders, plus


 


(b) the aggregate Pro Rata Share of Letter of
Credit Usage of all Revolver Lenders that are not Defaulting Lenders or
Potentially Defaulting Lenders (taking into account all reallocations pursuant
to this Subsection 1.17(A)), plus


 


(c) the aggregate Pro Rata Share of the outstanding
principal balance of the Swingline Loans (or at any time during which the
CoBank Cash Management Agreement is in effect, for purpose of the determination
in this clause (2), the aggregate principal balance of Swingline Loans shall be
deemed to be the Swingline Loan Commitment) of all Revolver Lenders that are not
Defaulting Lenders or Potentially Defaulting Lenders (taking into account all
reallocations pursuant to Subsection 1.17(B)).


 


If the Borrower elects such option and clauses (1) and
(2) are satisfied,  the Revolver
Loan Commitment of such Defaulting Lender or Potential Defaulting Lender shall
be deemed to be zero (except to the extent cash collateral has been posted by
such Defaulting Lender or Potential Defaulting Lender in respect of any portion
of such Defaulting Lender’s or Potential Defaulting Lender’s Letter of Credit
Usage) for 


 


29

















 


purposes of any determination of the Revolver Lenders’
respective Pro Rata Shares of Letter of Credit Usage (including for purposes of
all fee calculations hereunder)); provided, further, that no such
reallocation by Borrower shall change the status of a Defaulting Lender or
Potential Defaulting Lender as such, or otherwise limit, reduce or qualify the
obligations of such Defaulting Lender or Potential Defaulting Lender with respect
to its obligations under this Agreement and the other Loan Documents.


 


(ii)           No payment by Borrower or delivery or application of cash collateral
pursuant to clause (i) above shall change the status of a Defaulting
Lender or Potential Defaulting Lender as such, or otherwise limit, reduce or
qualify the obligations of such Defaulting Lender or Potential Defaulting
Lender with respect to its obligations under this Agreement and the other Loan
Documents.


 


(iii)          Any amount deposited by Borrower pursuant to clause (i) above will
not be paid or distributed to the relevant Defaulting Lender or Potential
Defaulting Lender, but will instead be retained by Administrative Agent in a
segregated account until the earlier of (i) such Lender is no longer a
Defaulting Lender or Potential Defaulting Lender, at which point such amounts
will be returned to Borrower and (ii) Administrative Agent elects to debit
such account to pay an amount owed to an Issuing Lender or Swingline Lender
pursuant to Subsection 1.1(F)(ii) or 1.1(G)(iv).


 


(B)           Swingline Loans.


 


(i)            If any Revolving Lender becomes, and during the period it remains, a
Defaulting Lender or a Potential Defaulting Lender, Swingline Lender will not
be required to extend any Swingline Loans unless Swingline Lender is reasonably
satisfied that any exposure that would result therefrom or from any Swingline
Loan that is outstanding at such time is eliminated or fully covered, whether
by cash collateralization or otherwise; provided that, at Borrower’s
option, Borrower may, by notice to Administrative Agent and Swingline Lender,
elect to reallocate all or any part of the Defaulting Lender’s or Potential
Defaulting Lender’s Pro Rata Share of the outstanding Swingline Loans among all
Revolver Lenders that are not Defaulting Lenders or Potential Defaulting
Lenders but only to the extent


 


(1) all
conditions set forth in Subsection 7.02 (other than Subsection 7.02(A)) are
satisfied at such time; and


 


(2) the
aggregate Revolver Loan Commitment of all Revolver Lenders that are not Defaulting
Lenders or Potentially Defaulting Lenders exceeds the sum of:


 


(a)           the aggregate principal
balance of all Revolver Loans (excluding Swingline Loans) of all Revolver
Lenders that are not Defaulting Lenders or Potentially Defaulting Lenders, plus


 


(b) the aggregate Pro Rata Share of Letter of
Credit Usage of all Revolver Lenders that are not Defaulting Lenders or
Potentially Defaulting Lenders (taking into account all reallocations pursuant
to Subsection 1.17(A)), plus


 


30

















 


(c) the aggregate Pro Rata Share of the outstanding
principal balance of the Swingline Loans (or at any time during which the
CoBank Cash Management Agreement is in effect, for purpose of the determination
in this clause (2), the aggregate principal balance of Swingline Loans shall be
deemed to be the Swingline Loan Commitment) of all Revolver Lenders that are
not Defaulting Lenders or Potentially Defaulting Lenders (taking into account
all reallocations pursuant to this Subsection 1.17(B)).


 


If the
Borrower elects such option and clauses (1) and (2) are satisfied,
the Revolver Loan Commitment of all Defaulting Lenders or Potential Defaulting
Lender shall be deemed to be zero (except to the extent cash collateral has
been posted by such Defaulting Lender or Potential Defaulting Lender in respect
of any portion of such Defaulting Lender’s or Potential Defaulting Lender’s
Letter of Credit Usage) for purposes of any determination of the Revolver
Lenders’ respective Pro Rata Shares of outstanding Swingline Loans (including
for purposes of all fee calculations hereunder)); provided, further,
that no such reallocation by Borrower shall change the status of a Defaulting
Lender or Potential Defaulting Lender as such, or otherwise limit, reduce or
qualify the obligations of such Defaulting Lender or Potential Defaulting
Lender with respect to its obligations under this Agreement and the other Loan
Documents.


 


(ii)           No payment by Borrower or delivery or application of cash collateral
pursuant to clause (i) above shall change the status of a Defaulting
Lender or Potential Defaulting Lender as such, or otherwise limit, reduce or
qualify the obligations of such Defaulting Lender or Potential Defaulting
Lender with respect to its obligations under this Agreement and the other Loan
Documents.


 


(iii)          Any amount deposited by Borrower pursuant to clause (i) above will
not be paid or distributed to the relevant Defaulting Lender or Potential
Defaulting Lender, but will instead be retained by Administrative Agent in a
segregated account until the earlier of (i) such Lender is no longer a
Defaulting Lender or Potential Defaulting Lender, at which point such amounts
will be returned to Borrower and (ii) Administrative Agent elects to debit
such account to pay an amount owed to an Issuing Lender or Swingline Lender
pursuant to Subsection 1.1(F)(ii) or 1.1(G)(iv).


 


(C)           Cure.  If Borrower, Administrative Agent, and each
Issuing Lender or Swingline Lender, as applicable, agree in writing in their
discretion that a Lender that is a Defaulting Lender or a Potential Defaulting
Lender should no longer be deemed to be a Defaulting Lender or Potential
Defaulting Lender, as the case may be, Administrative Agent will so notify the
Lenders, whereupon as of the effective date specified in such notice (and
agreed to by Borrower) and subject to any conditions set forth therein (and
agreed to by Borrower) such Lender will cease to be a Defaulting Lender or
Potential Defaulting Lender and will be a non-Defaulting Lender; provided
that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of Borrower while such Lender was a Defaulting
Lender; and provided, further, that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender or Potential Defaulting Lender to


 


31
















 


non-Defaulting Lender will constitute a waiver or
release of any claim of any party hereunder arising from such Lender’s having
been a Defaulting or Potential Defaulting Lender.


 


(D)          Remedies.  Except as otherwise expressly provided in
this Agreement, performance by Borrower of its Obligations under this Agreement
and the other Loan Documents shall not be excused or otherwise modified, as a
result of any Funding Default or the operation of this Subsection 1.17.  The rights and remedies against any Defaulting
Lender or Potential Defaulting Lender under this Subsection 1.17 are in
addition to any other rights and remedies that Borrower, Administrative Agent
or any Lender may have against any such Defaulting Lender or Potential
Defaulting Lender, as the case may be.


 


SECTION 2


AFFIRMATIVE
COVENANTS


 


Each Loan Party hereby covenants and agrees that so long
as this Agreement is in effect and until payment in full of all Obligations
(other than contingent indemnity, expense reimbursement and tax gross-up
payment for which no claim has been asserted), unless Requisite Lenders shall
otherwise give their prior written consent, it shall perform and comply, and
shall cause each of its respective Subsidiaries to perform and comply, with all
covenants in this Section 2.


 


2.1           Compliance With Laws.  The Loan Parties will (A) comply with
and will cause their 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 the Loan Parties and their respective Subsidiaries are
now doing or hereafter do business, (B) obtain and maintain and will cause
their respective Subsidiaries to obtain and maintain all licenses,
qualifications and permits (including the Licenses) now held or hereafter
required for the Loan Parties or any of their respective Subsidiaries to
operate, and (C) comply with and will cause their 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 the Loan Parties or any of their
respective Subsidiaries 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.  The Loan Parties will keep and
will cause their respective 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.  The Loan Parties will maintain
or cause to be maintained and will cause their respective Subsidiaries to
maintain or cause to be maintained in good repair, working order and condition
all Collateral used in the business of the Loan Parties and their respective
Subsidiaries, and will make or cause to be made all appropriate repairs,
renewals and replacements thereof, except for (A) dispositions of assets
permitted


 


32

















 


hereunder or (B) as would
not reasonably, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.  The Loan
Parties will and will cause each of their respective 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. 
The Loan Parties will and will cause their respective Subsidiaries to
maintain or cause to be maintained, with financially sound and reputable
insurers, insurance with respect to their business and properties and the
business and properties of their respective 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 companies of established reputation
engaged in similar businesses, and will deliver evidence thereof to
Administrative Agent on or prior to the Closing Date and thereafter prior to or
upon 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 the Lenders
to comply with the FDPA, the Loan Parties shall obtain and maintain such flood
insurance policies as Administrative Agent reasonably requests so that
Administrative Agent and the Lenders shall be deemed in compliance with the
FDPA and shall deliver evidence thereof to Administrative Agent.  The Loan Parties will name Administrative
Agent, pursuant to endorsements and assignments in form and substance
reasonably satisfactory to Administrative Agent, (i) as a lender loss
payee and mortgagee, if applicable, in the case of casualty insurance with
respect to the Collateral, (ii) as an additional insured in the case of
all liability insurance, and (iii) as an additional insured in the case of
all flood insurance.  Unless
Administrative Agent otherwise agrees, all insurance policies required
hereunder shall include effective waivers by the insurer of subrogation.  Unless Administrative Agent otherwise agrees,
Borrower shall use commercially reasonable efforts to obtain for all insurance
policies of the Loan Parties endorsements providing that each such insurance
policy is non-cancelable and not subject to material change as to Administrative
Agent except upon 30 days’ (and 10 days’ for non-payment of premiums) prior
written notice given by the insurer to Administrative Agent.


 


Administrative Agent shall be entitled, upon reasonable
advance notice, to review and/or receive copies of, the insurance policies of
the Loan Parties and their respective Subsidiaries carried and maintained with
respect to the Loan Parties’ 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 the Lenders any duty or obligation to verify the
existence or adequacy of the insurance coverage maintained by the Loan Parties
and their respective Subsidiaries, nor shall Administrative Agent and the
Lenders be responsible for any representations or warranties made by or on
behalf of the Loan Parties and their respective Subsidiaries to any insurance
broker, company or underwriter.  Administrative
Agent, at its sole option, may obtain any insurance required hereunder if not
provided by the Loan Parties and in such event, the Loan Parties shall
reimburse Administrative Agent upon demand for the cost thereof.


 


33

















 


2.3           Inspection.  The Loan Parties will permit, and will cause
each of their respective Subsidiaries to permit, at the expense of the Loan
Parties, any authorized representatives of Administrative Agent (together with
any authorized representatives of any Lender that desires to have its
authorized representatives accompany Administrative Agent’s authorized
representatives) (A) to visit and inspect any of the properties of the
Loan Parties and their respective Subsidiaries, including their financial and
accounting records, and to make copies and take extracts therefrom, and
(B) to discuss their affairs, finances and business with their officers,
employees and certified public accountants, in each case 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 an Event of Default, each visit or inspection by Administrative
Agent in excess of one (1) visit or inspection during a calendar year
shall not be at the Loan Parties’ expense but shall be at the sole expense of
Administrative Agent or Lenders; provided, further, that during the continuance
of an Event of Default, the authorized representatives of Administrative Agent
and any Lender may conduct such visits and inspections and engage in such
discussions without notice and as frequently and at such times as they may
specify.


 


2.4           Legal Existence, Etc.  Except as otherwise permitted by Subsections
3.6 or 3.7 or as contemplated on Schedule 5.19 of this Agreement, the
Loan Parties will, and will cause their respective Subsidiaries to at all times
preserve and keep in full force and effect, their legal existence and good
standing and all rights and franchises (including the Licenses), except as
permitted hereunder and as would not reasonably be expected to have a Material
Adverse Effect.


 


2.5           Use of Proceeds.  The Loan Parties will use the proceeds of the
Revolver Loan, and will cause any of their respective Subsidiaries who receive
(directly or indirectly) proceeds of such Loans to use such proceeds, solely
for working capital, to finance capital expenditures permitted hereunder, to
finance acquisitions and Investments permitted hereunder (including Permitted
Acquisitions and Investments), to finance Restricted Junior Payments permitted
hereunder, to support the issuance of Letters of Credit, to finance certain
transactions costs in connection with all of the foregoing, and other lawful
corporate purposes of Borrower and its Subsidiaries permitted hereunder.  The Loan Parties will use the proceeds of the
Term Loan C, and will cause any of their respective Subsidiaries who receive
(directly or indirectly) proceeds of such Loans to use substantially all of the
proceeds of the Term Loan C to refinance the outstanding principal balance of
the Revolver Loans as of the Second Amendment Date, together with accrued
interest and fees, and for capital expenditures and the remainder thereof (if
any) for other lawful corporate purposes of the Borrower and its Subsidiaries
permitted hereunder.  The proceeds of any
Incremental Term Loan shall be used solely for the purposes described in the
amendment or supplement to this Agreement evidencing such Incremental Term Loan
Facility.  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.  The Loan Parties will, and will cause each of
their respective Subsidiaries to, from time to time, do, execute, authorize and
deliver, as the case may be, all such additional and further acts, documents
and instruments as Administrative Agent reasonably requests to consummate the
transactions contemplated hereby and to vest completely in and assure Administrative
Agent and the other Secured Parties of their respective rights under


 


34

















 


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 Secured Obligations contemplated by the Loan
Documents.  Other than with respect to
the Verizon Acquisition, Borrower will notify Administrative Agent in each
Compliance Certificate delivered pursuant to Subsection 4.5(C) of (A) the
acquisition in fee simple by any Loan Party of any real property with a
purchase price in excess of $1,000,000 or as to which the loss thereof would
have a Material Adverse Effect (a “Material Owned Property”),
(B) the lease or license by any Loan Party after the date hereof of any
real property as to which (i) the annual rentals or equivalent payments
exceed $200,000, (ii) the book value of the assets of the Loan Party
located on the leased or licensed location is in excess of $1,000,000 or (iii) the
loss thereof would have a Material Adverse Effect (a “Material
Leased Property”), (C) the acquisition by any Loan Party of the
ownership of or the license to use any material registered intellectual property
(including any domain name the loss of which would reasonably be expected to
result in a Material Adverse Effect), any commercial tort claim known to a Loan
Party (such that a senior officer of such Loan Party has actual knowledge of
the existence of a tort cause of action and not merely of the existence of the
facts giving rise to such cause of action and known to involve an amount in
controversy in excess of $1,000,000 individually or $5,000,000 in the
aggregate), and (D) the opening or acquisition by any Loan Party of any
new deposit, investment or other accounts. 
Each Loan Party, promptly upon the request of Administrative Agent, will
execute and deliver all such additional documents and instruments as Administrative
Agent may reasonably require with respect to each Material Owned Property and
each Material Leased Property acquired after the date hereof in order to create
a valid and perfected Lien in favor Administrative Agent in such property
(including, upon the request of Administrative Agent, mortgages, leasehold
mortgages, mortgagee waivers, landlord agreements, fixture filings,
environmental audits, completed environmental questionnaires, surveys and title
insurance policies).  Administrative
Agent may elect not to request any documents or instruments as contemplated by
this Subsection 2.6 regarding such Material Owned Property or Material Leased
Property or registered intellectual property under the laws of any country
other than the United States if it determines in its sole discretion that the
costs to the Loan Parties of perfecting a security interest or lien in such
Material Owned Property, Material Leased Property or intellectual property
exceed the relative benefit afforded the Secured Parties.  Each Loan Party, promptly upon the request of
Administrative Agent, also will authenticate or execute and deliver UCC
financing statements (including fixture filings), assignments, security
agreements, control agreements (but only for accounts with an average daily
balance (determined on a trailing six (6) month basis, counting the actual
number of days elapsed) exceeding $1,000,000 for two (2) consecutive
months), and legal opinions as Administrative Agent may reasonably request to
further create or to evidence a valid and perfected Lien in favor of
Administrative Agent in such property.


 


2.7           CoBank Equity.  So long as CoBank is a Lender hereunder,
Borrower will acquire equity 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 equity
that Borrower may be required to purchase in CoBank in connection with the
Loans made by CoBank hereunder may not exceed the maximum amount permitted by
CoBank’s Bylaws as of the date this Agreement is entered into or at the time
such Loans are renewed or refinanced by CoBank. 
The rights and obligations of the parties with respect to such


 


35

















 


equity and any patronage or
other distributions made by CoBank on account thereof, as well as patronage
distributions in the event of a sale of a participation interest in the Loans
made by CoBank, shall be governed by CoBank’s Bylaws and Capital Plan (as each
may be amended from time to time). 
Borrower hereby consents and agrees that the amount of any distributions
with respect to Borrower’s patronage with CoBank that are made in qualified
written notices of allocation (as defined in 26 U.S.C. § 1388) and that are
received by Borrower from CoBank will be taken into account by Borrower at the
stated dollar amounts whether the distribution is evidenced by a stock
certificate or other form of written notice that such distribution has been
made and recorded in the name of Borrower on the records of CoBank.  CoBank’s Pro Rata Share of the Loans and
other Secured Obligations due to CoBank shall be secured by a statutory first
lien on all equity that Borrower may now own or hereafter acquire in
CoBank.  Such equity shall not, however,
constitute security for the Secured Obligations due to any other Secured
Party.  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.  The Loan Parties shall promptly
execute and deliver to Administrative Agent, for the benefit of Administrative
Agent and all Lenders, all such Collateral Contract Assignments with respect to
Material Contracts (excluding the  trademark
license agreement executed in connection with the Verizon Purchase Agreement)
as Administrative Agent may reasonably request from time to time, such
Collateral Contract Assignments to contain, to the extent obtainable through
the use of commercially reasonable 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 the Loan
Parties and their respective Subsidiaries.


 


2.9           Investment Company Act.  None of the Loan Parties nor any of their
respective Subsidiaries shall be or become 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, the Loan Parties will, and will cause each of their respective
Subsidiaries to, (A) 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 (B) 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 the Loan Parties or their respective Subsidiaries if unpaid
unless, in each case, the same is 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.  The Loan Parties will, and will at all times,
cause each of their respective Subsidiaries to:


 


36

















 


(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 is 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, agents, 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 to the operations of any Loan Party or any of its respective
Subsidiaries or their respective properties, or any orders, requirements or
demands of Governmental Authorities related thereto, including, 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
2.11 shall survive repayment of the Obligations and the termination of
this Agreement.


 


2.12         Creation or Acquisition of Subsidiaries.  Promptly upon (and in any event within 30
days after) the creation or acquisition of any new Subsidiary (other than (i) an
Excluded Subsidiary or (ii) a Stimulus Recipient Subsidiary if and for so
long as the terms and conditions of any Permitted Stimulus Indebtedness or any
grant received by such Stimulus Recipient Subsidiary from any Stimulus Source
Agency prohibit, or it is reasonably anticipated that such terms and conditions
will prohibit, such Stimulus Recipient Subsidiary from entering into a Joinder
Agreement) by any Loan Party or any Subsidiary of any Loan Party, each such new
Subsidiary will execute and deliver to Administrative Agent a Joinder
Agreement, pursuant to which such new Subsidiary (i) shall become a party
hereto as a Guarantor and (ii) shall become a party to the Pledge and
Security Agreement and shall deliver to Administrative Agent all such other
Security Documents and such legal opinions as Administrative Agent shall
reasonably request, and shall grant to Administrative Agent a Lien upon and
security interest in its Collateral, to the extent provided in the Security
Documents, for the Secured Obligations (provided that no assets of a Foreign
Subsidiary or a Foreign Subsidiary Holding Company shall be required to secure
the Obligations by pledge or otherwise); and


 


Promptly upon (and in any
event within 30 days after (or such later date as Administrative Agent shall
agree to in writing in its sole discretion)) the creation or acquisition 


 


37

















 


of a new Subsidiary (other than a Stimulus Recipient
Subsidiary if and for so long as the terms and conditions of any Permitted
Stimulus Indebtedness or any grant received by such Stimulus Recipient
Subsidiary from any Stimulus Source Agency prohibit, or it is reasonably
anticipated that such terms and conditions will prohibit, the Equity Interests
in such Stimulus Recipient Subsidiary from being pledged to Administrative
Agent or require or it is reasonably anticipated will require that such Equity
Interests be pledged to the applicable Stimulus Source Agency) by any Loan
Party or any Subsidiary of any Loan Party, all capital stock or other equity
interest in such Subsidiary owned by any Loan Party or any Subsidiary of any
Loan Party will be pledged to Administrative Agent as follows (provided
that any equity interests in any Foreign Subsidiary or Foreign Subsidiary
Holding Company owned by a Loan Party or another Subsidiary (other than a
Foreign Subsidiary or Foreign Subsidiary Holding Company) 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 entitled to vote of such Subsidiary being pledged to Administrative
Agent, shall not be pledged; provided further that no assets of a Foreign
Subsidiary or Foreign Subsidiary Holding Company, or any Subsidiary of either
thereof or any Equity Interest issued by any such Subsidiary of either thereof,
shall be required to secure the Obligations by pledge or otherwise):  (i) if a Loan Party directly owns any of
the capital stock of or other equity interest in such new Subsidiary, such Loan
Party will execute and deliver to Administrative Agent an amendment or
supplement to the Pledge and Security Agreement pursuant to which all such
capital stock or other equity interest shall be pledged to Administrative
Agent, together with the certificates evidencing such capital stock or other
equity interest and undated stock or transfer powers duly executed in blank and
such legal opinions as Administrative Agent may reasonably request; and
(ii) if any of the capital stock of or other equity interest in such new
Subsidiary is owned by another Subsidiary (other than a Foreign Subsidiary or
Foreign Subsidiary Holding Company), to the extent not already covered by the
Pledge and Security Agreement, such other Subsidiary will execute and deliver
to Administrative Agent an appropriate joinder, amendment or supplement to the
Pledge and 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 Administrative Agent, together with the certificates
evidencing such capital stock or other equity interest and undated stock or
transfer powers duly executed in blank and such legal opinions as
Administrative Agent may reasonably request.


 


As promptly as reasonably possible, the Loan Parties and
their respective 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 Administrative Agent, as Administrative
Agent may reasonably request in connection therewith and will take such other
action as Administrative Agent may reasonably request to create in favor of
Administrative Agent a perfected security interest on a first-priority basis in
the Collateral being pledged pursuant to the documents described above.


 


Administrative Agent may elect by written notice to
Borrower to exempt (i) any new Subsidiary which is not wholly-owned
directly or indirectly by the Loan Parties and/or (ii) any Loan Party that
owns capital stock or other equity interest in such Subsidiary from the
requirements of all or any portion of this Subsection 2.12 if it determines in
its sole discretion that the costs to the Loan Parties of complying with all or
such portion of this Subsection 2.12 


 


38

















 


exceed the relative benefit afforded the Secured
Parties.  Notwithstanding the above, so
long as any Partnership is not wholly-owned directly or indirectly by the Loan
Parties, such Partnership shall not be required to execute and deliver to
Administrative Agent a Joinder Agreement.


 


2.13         Interest Rate Protection.  (i) Borrower will maintain in full force
and effect, Hedge Agreements in form and substance reasonably satisfactory to
Administrative Agent, the effect of which shall be to fix or limit interest
rates payable by Borrower as to at least 33% of the aggregate principal balance
of the Term Loan A outstanding on such date for a period of not less than two (2) years
after January 20, 2010 (adjusted to take into account amortization of the
Term Loan A).  (ii) Borrower will
maintain in full force and effect, Hedge Agreements in form and substance
reasonably satisfactory to Administrative Agent, the effect of which shall be
to fix or limit interest rates payable by Borrower as to at least 33% of the
aggregate principal balance of the Term Loan B outstanding on such date for a
period of not less than two (2) years after April 26, 2010 (adjusted
to take into account amortization of the Term Loan B).  (iii) Within 90 Days of the Second
Amendment Date, Borrower shall have entered into or obtained, and Borrower will
thereafter maintain in full force and effect, Hedge Agreements in form and
substance reasonably satisfactory to Administrative Agent, the effect of which
shall be to fix or limit interest rates payable by Borrower as to at least 33%
of the aggregate principal balance of the Term Loan C outstanding on such date
for a period of not less than two (2) years after the Second Amendment
Date (adjusted to take into account amortization of the Term Loan C).  In each case, Borrower will deliver to
Administrative Agent, promptly upon receipt thereof, copies of such Hedge
Agreements (and any supplements or amendments thereto), and promptly upon
request therefor, any other information reasonably requested by Administrative
Agent to evidence its compliance with the provisions of this Subsection 2.13.


 


2.14         ERISA.  With respect to any Plan, other than a
Multi-employer Plan, that is intended to qualify under Section 401(a) of
the IRC, the Loan Parties will apply for and obtain a favorable determination
letter within the period provided by Applicable Law, unless the Plan was
adopted by means of a master or prototype plan that has received a favorable
opinion letter from the Internal Revenue Service upon which the Loan Parties
are entitled to rely.


 


2.15         Post-Closing Letter.  The Loan Parties shall take each of the
actions specified in the Post-Closing Letter within the time periods specified
therein.


 


SECTION 3


NEGATIVE
COVENANTS


 


Each of the Loan Parties hereby covenants and agrees
that so long as this Agreement is in effect and until payment in full of all
Obligations (other than contingent indemnity, expense reimbursement and tax
gross-up payments for which no claim has been asserted), unless Requisite
Lenders shall otherwise give their prior written consent, such Loan Party shall
perform and comply, and shall cause each of its respective Subsidiaries to
perform and comply, with all covenants in this Section 3.


 


39

















 


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


 


(A)          the Loans and the other Obligations;


 


(B)           the Contingent Obligations permitted by Subsection 3.4;


 


(C)           Indebtedness incurred in connection with any Hedge Agreement permitted
pursuant to Subsection 3.14;


 


(D)          So long as no Event of Default exists before or will result after giving
effect to such Indebtedness, Indebtedness incurred by GTT in an aggregate
outstanding amount not to exceed $25,000,000 at any time and Indebtedness
incurred by BDC in an aggregate outstanding amount not to exceed the sum of
$31,000,000 and the amount of interest capitalized pursuant to the terms of the
documents governing such Indebtedness, to the extent consistent with the terms
hereof) (no more than $20,000,000 of which at any time may be held by a Person
other than Borrower or another Loan Party) at any time upon terms and
conditions (including as to any proposed limitation on distributions or
dividends to be made by GTT or BDC) reasonably acceptable to Administrative
Agent;


 


(E)           Indebtedness in respect of Investments permitted pursuant to Subsections
3.3(D) (excluding Indebtedness of a Person or Indebtedness attaching to
the assets of a Person that, in either case, becomes a Subsidiary (or is a
Subsidiary that survives a merger with such Person) or Indebtedness attaching
to assets that are acquired by Borrower or any Subsidiary, in each case after
the Second Amendment Date as the result of a Permitted Acquisition and
Investment ), (F) or (O);


 


(F)           (i) Indebtedness of a Person or Indebtedness attaching to the assets
of a Person that, in either case, becomes a Subsidiary (or is a Subsidiary that
survives a merger with such Person) or Indebtedness attaching to assets that
are acquired by Borrower or any Subsidiary, in each case after the Second
Amendment Date as the result of a Permitted Acquisition and Investment; provided
that


 


(1)           such Indebtedness existed
at the time such Person became a Subsidiary or at the time such assets were
acquired and, in each case, was not created in anticipation thereof, and


 


(2)           such Indebtedness is not
guaranteed in any respect by Borrower or any Subsidiary (other than by any such
Person that so becomes a Subsidiary or is the survivor of a merger with such
Person, or any of its Subsidiaries), and


 


(3)           (a) the equity
interests of such Person are pledged to secure the Secured Obligations to the
extent required hereunder, and (b) such Person otherwise complies with
Subsection 2.12, and


 


40

















 


(4)           (a) after giving pro
forma effect to the incurrence of such Indebtedness and the application of
proceeds thereof, Borrower is in compliance with the covenants set forth in
Subsections 4.1 through 4.4 for the most recently ended test period and (b) except
for Indebtedness consisting of capital lease obligations, purchase money
Indebtedness or mortgages or other Liens on specific assets (x) no portion
of such Indebtedness matures prior to the latest maturity date of any of the
Loans, and (y) no portion of such Indebtedness is issued or guaranteed by
a Person that is, or as a result of such acquisition becomes, a Subsidiary that
is not a Guarantor; and


 


(ii)           any modification, replacement, refinancing, refunding, renewal or
extension of any Indebtedness specified in subclause (i) above, provided
that, except to the extent otherwise expressly permitted hereunder, (1) the
principal amount of any such Indebtedness does not exceed the principal amount
thereof outstanding immediately prior to such modification, replacement,
refinancing, refunding, renewal or extension except by an amount equal to the
unpaid accrued interest and premium thereon plus other reasonable
amounts paid and fees and expenses incurred in connection with such
modification, replacement, refinancing, refunding, renewal or extension, (2) the
direct and contingent obligors with respect to such Indebtedness are not
changed and (3) if the Indebtedness being refinanced, or any guarantee
thereof, constitutes subordinated indebtedness, then such replacement or
refinancing Indebtedness, or such guarantee, respectively, shall be
subordinated to the Secured Obligations to substantially the same extent;


 


(G)           Indebtedness with respect to cash management and similar arrangements in
the ordinary course of business;


 


(H)          Indebtedness arising from agreements of Borrower or any Subsidiary
providing for indemnification, adjustment of purchase price or similar
obligations, in each case entered into in connection with the disposition of
any business, assets or stock permitted hereunder, other than Contingent Obligations
incurred by any Person acquiring all or any portion of such business, assets or
equity interests for the purpose of financing such acquisition, provided that
such amount is not Indebtedness required to be reflected on the balance sheet
of Borrower or any Subsidiary in accordance with GAAP (contingent obligations
referred to in a footnote to financial statements and not otherwise reflected
on the balance sheet will not be deemed to be reflected on such balance sheet
for purposes of this proviso);


 


(I)            Indebtedness representing deferred compensation to employees of Borrower
and its Subsidiaries incurred in the ordinary course of business;


 


(J)            Indebtedness in respect of (i) the RTPark Preferred Stock (provided
that any such Indebtedness together with any Investment permitted under
Subsection 3.3(M) shall not exceed $500,000 in the aggregate), and (ii) in
respect of Permitted Stimulus Indebtedness; and


 


41
















 


(K)          Indebtedness
under purchase money security agreements, Capital Leases, and other
Indebtedness, the aggregate principal amount of which shall not exceed
$7,500,000 at any time.


 


3.2           Liens
and Related Matters.


 


(A)          No
Liens.  The Loan
Parties will not, and will not permit any of their respective 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 the Loan Parties or their
respective Subsidiaries, whether now owned or hereafter acquired, or any income
or profits therefrom, except Permitted Encumbrances.


 


(B)           No Negative Pledges.  The Loan Parties will not and
will not permit their respective Subsidiaries directly or indirectly to enter
into or assume any agreement (other than the Loan Documents) prohibiting the
creation or assumption of any Lien upon its or their properties or assets,
whether now owned or hereafter acquired, except (i) operating leases,
Licenses and Capital Leases and agreements evidencing purchase money
Indebtedness permitted pursuant to Subsection 3.1(F) or (K), in each case
which only prohibit Liens upon the assets that are subject thereto and proceeds
thereof, (ii) loan and security documentation evidencing Permitted
Stimulus Indebtedness in each case which only prohibit Liens upon the assets of
the applicable Stimulus Recipient Subsidiary, (iii) loan and security
documentation evidencing Indebtedness (x) in favor of a Loan Party or (y) permitted
pursuant to Subsection 3.1(D), (iv) customary non-assignment clauses in
agreements entered into in the ordinary course of business, (v) contracts
for the sale of assets permitted by Subsection 3.7, and (vi) restrictions
imposed by Applicable Law.


 


3.3           Investments.  The Loan Parties will not, and
will not permit any of their respective Subsidiaries to, directly or
indirectly, make or own any Investment in any Person except:


 


(A)          Investments
in Cash Equivalents;


 


(B)           obligations
of or equities in CoBank, as set forth in Subsection 2.7;


 


(C)           existing
Investments set forth on Schedule 3.3(C) and any extensions,
renewals or reinvestments thereof, so long as the amount of any such Investment
pursuant to this clause (C) is not increased at any time above the amount
of such Investment existing on the date hereof (other than because of
capitalization of interest pursuant to the terms thereof on the date hereof or
as amended with the consent of Administrative Agent);


 


(D)          Permitted
Acquisitions and Investments and the Verizon Acquisition;


 


(E)           Hedge
Agreements permitted pursuant to Subsection 3.14;


 


(F)           Investments
in Loan Parties or permitted under Subsection 3.1(D);


 


42

















 


(G)           loans
and advances to officers, directors and employees of Borrower or any of its
Subsidiaries (i) for reasonable and customary business-related travel,
entertainment, relocation and analogous ordinary business purposes (including
employee payroll advances), (ii) in connection with such Person’s purchase
of equity interests of Borrower to the extent that the cash proceeds of such
loans and advances are directly or indirectly contributed to Borrower in cash
and (iii) for purposes not described in the foregoing subclauses (i) and
(ii), in an aggregate principal amount outstanding pursuant to this subclause
(iii) not to exceed $500,000;


 


(H)          Investments
received in connection with the bankruptcy or reorganization of suppliers or
customers and in settlement of delinquent obligations of, and other disputes
with, customers arising in the ordinary course of business or upon foreclosure
with respect to any secured Investment or other transfer of title with respect
to any secured Investment;


 


(I)            Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors and other credits to
suppliers in the ordinary course of business;


 


(J)            Investments
in the ordinary course of business consisting of endorsements for collection or
deposit and customary trade arrangements with customers consistent with past
practices;


 


(K)          advances
of payroll payments to employees in the ordinary course of business;


 


(L)           guarantee
obligations of any Loan Party of leases (other than Capital Leases) or of other
obligations that do not constitute Indebtedness, in each case entered into in
the ordinary course of business;


 


(M)         Investments
in the Permitted RTPark Subsidiary (i) in connection with its formation
and (ii) in connection with funding any obligations with respect of the
RTPark Preferred Stock or (iii) in connection with the purchase by Choice
of the RTPark Preferred Stock, the aggregate amount of which together with any
Indebtedness permitted under Subsection 3.1(J)(i) shall not exceed
$500,000 in the aggregate;


 


(N)          Investments
held by a Person acquired, or Investments constituting part of the assets
acquired (including, in each case, by way of merger or consolidation), after
the Second Amendment Date and otherwise in accordance with this Subsection 3.3
to the extent that such Investments were not made in contemplation of or in
connection with such acquisition, merger or consolidation and were in existence
on the date of such acquisition, merger or consolidation; and


 


(O)          Investments
in a Stimulus Recipient Subsidiary upon terms and conditions (including as to
any proposed limitation on distributions or dividends to be made by such
Stimulus Recipient Subsidiary) reasonably acceptable to Administrative Agent; provided
that (y) the aggregate outstanding amount of Investments in Stimulus
Recipient Subsidiaries and the amount of Contingent Obligations entered into by
Borrower or any of its Subsidiaries (other than Stimulus Recipient
Subsidiaries) in respect of Permitted Stimulus Indebtedness shall not exceed 


 


43

















 


$25,000,000 at any time, and (z) the aggregate
outstanding amount of Investments in Stimulus Recipient Subsidiaries, the
amount of Contingent Obligations entered into by Borrower or any of its
Subsidiaries (other than Stimulus Recipient Subsidiaries) in respect of
Permitted Stimulus Indebtedness and the aggregate consideration of all
Permitted Acquisitions and Investments (calculated as provided in the
definition of Permitted Acquisitions and Investments) shall not exceed at any
time the sum of (i) $140,000,000 plus (ii) the Net Proceeds of
equity issuances by Borrower made after April 26, 2010, in the amount of
up to but not to exceed $100,000,000, which Net Proceeds have not been used to
cure a Default or Event of Default under Subsection 4.1.


 


3.4           Contingent
Obligations.  The Loan Parties will not, and will not
permit any of their respective 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 Administrative 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 Investments and permitted dispositions of
assets (provided that such obligations shall in no event exceed the
amount of proceeds received in connection therewith, subject to carve outs from
such limitation on such obligations for fraud and for other customary reasons);


 


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


 


(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 $2,000,000 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);


 


(G)           constituting
Investments permitted pursuant to Subsection 3.3 (including commitments to make
Permitted Acquisitions and Investments);


 


(H)          Contingent
Obligations arising with respect to the RTPark Preferred Stock;


 


(I)            Contingent
Obligations arising under the Loan Documents and under Hedge Agreements;


 


44

















 


(J)            Contingent
Obligations arising with respect to Permitted Stimulus Indebtedness upon terms
and conditions (including as to any proposed limitation on distributions or
dividends to be made by any Loan Party or Subsidiary providing such Contingent
Obligation) reasonably acceptable to Administrative Agent; provided that
(y) the aggregate outstanding amount of Investments in Stimulus Recipient
Subsidiaries and the amount of Contingent Obligations entered into by Borrower
or any of its Subsidiaries (other than Stimulus Recipient Subsidiaries) in
respect of Permitted Stimulus Indebtedness shall not exceed $25,000,000 at any
time, and (z) the aggregate outstanding amount of Investments in Stimulus
Recipient Subsidiaries, the amount of Contingent Obligations entered into by
Borrower or any of its Subsidiaries (other than Stimulus Recipient
Subsidiaries) in respect of Permitted Stimulus Indebtedness and the aggregate
consideration of all Permitted Acquisitions and Investments (calculated as
provided in the definition of Permitted Acquisitions and Investments) shall not
exceed at any time the sum of (i) 140,000,000 plus (ii) the
Net Proceeds of equity issuances by Borrower made after April 26, 2010, in
the amount of up to but not to exceed $100,000,000, which Net Proceeds have not
been used to cure a Default or Event of Default under Subsection 4.1; and


 


(K)          Contingent
Obligations with respect to cash management of any Loan Party or any domestic
Subsidiary of any Loan Party.


 


3.5           Restricted
Junior Payments.  The Loan Parties will not, and will not
permit their respective Subsidiaries to, directly or indirectly, declare,
order, pay, make or set apart any sum for any Restricted Junior Payment; provided,
however, that (A) any Loan Party or Subsidiary may make, declare or
pay lawful cash dividends or distributions to, or redeem capital stock held by,
any Loan Party, (B) any Subsidiary may make, declare or pay lawful, pro
rata cash dividends or distributions and the Permitted RTPark Subsidiary may
make distributions and dividends with respect to the RTPark Preferred Stock, (C) so
long as no Default under Subsections 6.1(A) or (F) or any Event of
Default exists before or will result after giving effect to such distribution
on a pro forma basis, Borrower and its Subsidiaries may make, declare or pay
lawful cash dividends or distributions to their respective shareholders and
redeem capital stock in an aggregate amount which when added to any such
dividends or distributions and redemptions of capital stock made, declared or
paid from and after January 1, 2009, is not more than 50% of Borrower’s
consolidated net income (excluding non-cash extraordinary items, such as the
writedown or writeup of assets) from January 1, 2009, to the date of any
such dividend, distribution or redemption, and (D) so long as no Default
under Subsections 6.1(A) or (F) or any Event of Default exists before
or will result after giving effect to such distribution on a pro forma basis,
Borrower or any of its Subsidiaries may redeem or repurchase capital stock in
connection with the termination of an employee or pursuant to any Board
approved plan, in an aggregate amount during each fiscal year not to exceed
$500,000.


 


3.6           Restriction
on Fundamental Changes.  The Loan Parties will not, and will not
permit their respective Subsidiaries to, directly or indirectly:  (A) 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 their respective
articles of organization, operating agreements, management agreements, articles
of incorporation, certificates of designations pertaining to preferred stock,
by-laws, articles of formation or partnership 


 


45

















 


agreement (provided that 10 days prior written notice
will be delivered to Administrative Agent of any modification that results in a
Loan Party, any Subsidiary of a Loan Party or any entity whose equity interest
is pledged by a Loan Party pursuant to the Pledge and Security Agreement opting
into Article 8 of the UCC); (B) enter into any transaction of merger
or consolidation, except that (i) any Subsidiary of Borrower may be
merged with or into Borrower (provided that Borrower is the surviving
entity), (ii) any Loan Party other than Borrower may merge or consolidate
with any other Loan Party other than Borrower, (iii) any Subsidiary that
is not a Loan Party may merge, dissolve, liquidate, consolidate with or into
any Loan Party, provided that such Loan Party shall be the continuing or
surviving corporation, (iv) any Subsidiary which is not a Loan Party may
merge, dissolve, liquidate, consolidate with or into any other Subsidiary which
is not a Loan Party, (v) any Permitted Acquisition and Investment or any
other permitted Investment or any permitted asset disposition may be structured
as merger, consolidation or amalgamation; (C) liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), except in
connection with another transaction permitted under clause (B) above or
any Asset Disposition permitted under Subsection 3.7; or (D) acquire by
purchase or otherwise all or any substantial part of the business, assets or
equity interests of or in any Person (whether by stock purchase or otherwise)
other than pursuant to a Permitted Acquisition and Investment, the Verizon
Acquisition or any other Investment permitted hereunder; provided that
10 days prior to the effective date of such merger, consolidation, dissolution,
liquidation, or amalgamation in the case of clause (B) or clause (C), or
such acquisition in the case of clause (D), and promptly following such
amendment, modification or waiver in the case of clause (A), Borrower shall
provide written notice and a copy thereof or the documentation relating thereto
to Administrative Agent.


 


3.7           Disposal
of Assets or Subsidiary Stock.  The Loan Parties will not, and will not
permit their respective Subsidiaries to, directly or indirectly, convey, sell
(including, pursuant to a sale and leaseback transaction, except those that
would be permitted under Subsection 3.1(K) deeming any such sale-leaseback
to be Indebtedness, subject to documentation reasonably satisfactory to
Administrative Agent), lease (including, pursuant to a lease or sale and
leaseback transaction), sublease, transfer or otherwise dispose of, or grant
any Person an option to acquire (including in the case of any Subsidiary, the
issuance by such Subsidiary of its capital stock or other equity interest), in
one transaction or a series of transactions, any of their respective property,
business or assets, or the capital stock of or other equity interests in any
such Subsidiary, whether now owned or hereafter acquired, except for (A) 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
Loan Party or its Subsidiaries to any Loan Party; (B) fair market value
sales of Cash Equivalents; (C) leasing or subleasing of their respective
property in the ordinary course of business; (D) to the extent required by
law; (E) any Asset Disposition of non-core assets of any Person acquired
pursuant to a Permitted Acquisition and Investment or the Verizon Acquisition
provided that such Asset Disposition occurs within 18 months of such Permitted
Acquisition and Investment or the Verizon Acquisition, as applicable; (F) asset
swaps of domestic wireless assets within 18 months of April 26, 2010, in
an aggregate amount not to exceed $30,000,000 if (i) after giving effect
to such asset swap, Borrower, on a combined and consolidated basis with its
Subsidiaries as set forth in Section 4, is 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 


 


46

















 


information is available, and (ii) no Default or
Event of Default then exists or shall result from such asset swap; (G) all
other Asset Dispositions if all of the following conditions are met: (i) the
aggregate market value of such assets sold in any fiscal year of Borrower does
not exceed $7,500,000 in the aggregate for the Loan Parties and their
respective Subsidiaries; (ii) the consideration received by the Loan Party
or such Subsidiary is at least equal to the fair market value of such assets;
(iii) the sole consideration received is cash or equipment of comparable
value to that disposed of and that is to be used in the business of the Loan
Party or such Subsidiary; (iv) after giving effect to the Asset
Disposition, Borrower, on a combined and consolidated basis with its Subsidiaries
as set forth in Section 4, is 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 (v) no Default or
Event of Default then exists or shall result from the Asset Disposition; (H) the
issuance of the RTPark Preferred Stock and the issuance of (x) up to 10%
of the common stock (or preferred stock, subordinated to the existing preferred
stock of AWCC, convertible into such common stock) of AWCC and (y) up to
10% of any issuance of preferred stock, subordinated to the existing preferred
stock of AWCC (the balance of which is issued to Loan Parties), in each case,
issued to the officers or employees of AWCC or its Subsidiaries (to the extent
such issuances of AWCC stock are subject to drag along, rights of first
refusal, restrictions on transfer and other terms and conditions reasonably
satisfactory to Administrative Agent); and (I) the issuance or other
disposition by a Subsidiary of its own capital stock or other equity interests (x) if
such issuance or other disposition is by a Loan Party to a Loan Party, (y) in
connection with any Permitted Acquisition and Investment, or (z) so long
as such issuing or disposing Subsidiary is not a wholly owned Subsidiary
immediately prior to such issuance or other disposition and such Subsidiary
remains a Subsidiary after taking into account such issuance or other
disposition.


 


3.8           Transactions
with Affiliates.  The Loan Parties will not, and will not
permit their respective 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 or officer of the Loan Parties or any Affiliate, except (A) as
set forth on Schedule 3.8; (B) as permitted pursuant to Subsections
3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 and 3.9; (C) transactions upon fair and
reasonable terms which (in the case of transactions requiring payments by any
Loan Party 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 such
Loan Party or such Subsidiary than would be obtained in a comparable arm’s
length transaction with a Person that is not an Affiliate; (D) transactions
among the Loan Parties; or (E) 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.


 


3.9           Management
Fees.  The Loan
Parties will not, and will not permit their respective Subsidiaries to, directly
or indirectly, pay any management or other similar fees to any Person; except
management fees paid (A) to any Loan Party, or (B) other management
or similar fees reasonably satisfactory to Requisite Lenders.


 


47

















 


3.10         Conduct of Business.  The Loan Parties will not, and will not
permit their respective 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 or incidental thereto.


 


3.11         Fiscal Year.  The Loan Parties will not, and will not
permit their respective Subsidiaries to, change their fiscal year from a fiscal
year ending on December 31 of each year.


 


3.12         Modification of Agreements.  The Loan Parties will not amend, modify or
change, or consent or agree to any amendment, modification, change or consent
to or regarding, 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.  The Loan
Parties will not, and will not permit their respective 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 the
Loan Parties or their respective Subsidiaries of any of their obligations
hereunder or under any other Loan Document (other than permitted Capital Leases
and purchase money security agreements) or (B) create or permit to exist
or become effective any consensual encumbrance or restriction on the ability of
such Loan Party or 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; in each case, other than (x) restrictions
contained in loan and security
documentation evidencing Permitted Stimulus Indebtedness or Indebtedness
permitted pursuant to Subsection 3.1(D), or (y) restrictions
affecting non-wholly-owned Subsidiaries.


 


3.14         Hedge Agreements.  The Loan Parties will not, and will not
permit their respective Subsidiaries to, engage in any speculative transactions
or in any transaction involving a Hedge Agreement except as required by
Subsection 2.13 or for the sole purpose of hedging in the normal course of
business.


 


3.15         Ownership of
Licenses.  Except as noted on Schedule 5.13(A) or
pursuant to a permitted Asset Disposition, the Loan Parties will not permit any
License issued by the United States of America, or state or any political
subdivision thereof, including any agency or commission of any thereof, and
utilized in the business of such Loan Party to be issued, assigned or
transferred to any Subsidiary or Affiliate of a Loan Party who is not a Loan
Party or is not a wholly-owned, domestic Subsidiary of a Loan Party whose
ownership interests are subject to a valid and perfected first priority Lien in
favor of the Secured Parties pursuant to the Pledge and Security Agreement.


 


48

















 


SECTION 4


FINANCIAL
COVENANTS AND REPORTING


 


The Loan Parties hereby covenant and agree that so long
as this Agreement is in effect and until payment in full of all Obligations
(other than contingent indemnity, expense reimbursement and tax gross-up
payment for which no claim has been asserted), unless Requisite Lenders shall
otherwise give their prior written consent, the Loan Parties shall perform and
comply with, and shall cause each of their respective Subsidiaries to perform
and comply with, all covenants in this Section 4. For the purposes of this
Section 4, 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 Second Amendment Date,
Borrower shall maintain at all times, measured at each fiscal quarter end, a
Total Leverage Ratio of less than or equal to 2.5:1.0; provided, however,
Borrower will have 30 days after the applicable reporting date to cure any
default under this Subsection 4.1 by reducing the Indebtedness of Borrower on a
consolidated basis solely through an equity issuance.


 


4.2           Total
Interest Coverage Ratio.  Commencing on the Second Amendment Date,
Borrower shall maintain at all times, measured at each fiscal quarter end, a
Total Interest Coverage Ratio greater than 3.5:1.0.


 


4.3           Equity
to Assets Ratio.  Commencing on the Second Amendment Date,
Borrower shall maintain at all times, measured at each fiscal quarter end, an
Equity to Assets Ratio greater than 0.35:1.0.


 


4.4           Fixed
Charge Coverage Ratio.  Commencing on the Second Amendment Date,
Borrower shall maintain at all times, measured at each fiscal quarter end, a
Fixed Charge Coverage Ratio greater than the ratio set forth below opposite
such date:


 


	
  Date

  	
   

  	
  Ratio

  	
   

  
	
  Second
  Amendment Date through December 30, 2010

  	
   

  	
  1.05:1.00

  	
   

  
	
  December 31,
  2010 through March 30, 2011

  	
   

  	
  0.80:1.00

  	
   

  
	
  March 31,
  2011 through September 29, 2011

  	
   

  	
  0.70:1.00

  	
   

  
	
  September 30,
  2011 through December 30, 2011

  	
   

  	
  0.80:1.00

  	
   

  
	
  December 31,
  2011 and thereafter

  	
   

  	
  1.05:1.00

  	
   

  



 


49

















 


4.5           Financial
Statements and Other Reports.  The Loan Parties will maintain, and will
cause their respective 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)).


 


(A)          Quarterly
Financials; Other Quarterly Reports.  As soon as available and in any event no
later than the earlier to occur of (i) 10 days after the date that
Borrower is or would be required to file Borrower’s quarterly report with the
Securities and Exchange Commission (the “SEC”)
as part of Borrower’s periodic reporting (whether or not Borrower is subject to
such reporting requirements) and (ii) 55 days after the end of the first
three fiscal quarters of each fiscal year of Borrower, Borrower will deliver
consolidated and consolidating balance sheets of Borrower and its Subsidiaries,
as at the end of such fiscal quarter and the then elapsed portion of the
applicable fiscal year, and the related consolidated and consolidating
statements of income, shareholders’ 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 (which requirement shall be deemed
satisfied by the delivery of Borrower’s quarterly report on Form 10-Q (or
any successor form) for such quarter).


 


(B)           Year-End
Financials.  As soon as available and in any event no
later than the earlier to occur of (i) 10 days after the date that Borrower
is or would be required to file Borrower’s annual report with the SEC as part
of Borrower’s periodic reporting (whether or not Borrower is subject to such
reporting requirements), and (ii) 100 days after the end of each fiscal
year of Borrower, Borrower will deliver (a) 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,
shareholders’ equity and cash flows for such fiscal year (which requirement
shall be deemed satisfied by the delivery of Borrower’s Annual Report on Form 10-K
(or any successor form) for such year) and (b) a report with respect to
the financial statements received pursuant to this Subsection from
PricewaterhouseCoopers LLP or another firm of independent certified public
accountants of recognized national standing 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 without any material
qualification or exception as to the scope of such audit or any “going concern”
qualification.


 


(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.


 


50

















 


(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 accountants identifying Lenders as parties that
Borrower intends to rely on the 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 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 Borrower is no longer subject to reporting
requirements of the 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 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 any
Loan Party or any of their respective Subsidiaries to any of their security
holders generally, (ii) all regular and periodic reports and all
registration statements and prospectuses, if any, filed by any Loan Party or
any of their respective Subsidiaries with any securities exchange or with the
SEC or any governmental or private regulatory authority, and (iii) all
material press releases and other statements made available by any Loan Party
or any of their respective Subsidiaries to the public concerning developments
in the business of any such Person.


 


(I)            Events
of Default, Etc.  Promptly upon any executive officer of any
Loan Party obtaining knowledge of any of the following events or conditions,
Borrower shall deliver copies of all notices given or received by any Loan
Party or any of their respective Subsidiaries with respect to any such event or
condition and a certificate of Borrower’s chief executive officer or chief
operating officer specifying the nature and period of existence of such event
or condition


 


51
















 


and what action, if any, such Loan Party or such
Subsidiary has taken, is taking and proposes to take with respect thereto:  (i) any Event of Default or Default; or
(ii) any notice that any Person has given to any Loan Party or any of
their respective Subsidiaries 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).


 


(J)            Litigation.  Promptly upon any officer of any
Loan Party obtaining knowledge of (i) the institution of any action, suit,
proceeding, governmental investigation or arbitration against or affecting any
Loan Party or any of its respective Subsidiaries 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 any Loan Party or any of its respective
Subsidiaries 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 any Loan Party to enable
Administrative Agent and its counsel to evaluate such matter.


 


(K)          Regulatory
and Other Notices.  Promptly after filing, receiving 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, any Loan Party or any of its respective Subsidiaries from any Governmental
Authority, including the FCC, any applicable PUC and the SEC, relating to any
noncompliance by any Loan Party or any of its respective Subsidiaries with any
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 any Loan Party
or any of their respective Subsidiaries 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 material violation by any Loan Party or any of its
respective Subsidiaries of Environmental Laws or promptly upon receipt of any
notice that a Governmental Authority has asserted that any Loan Party or any of
its respective Subsidiaries is not in compliance with Environmental Laws or
that its compliance is being investigated, and, in either case, the same 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 any Loan Party or any of its
respective Subsidiaries 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 any Loan Party’s or any of its respective Subsidiaries’ receipt of any
notice concerning the institution of proceedings by the PBGC pursuant to Section
4042 of ERISA to involuntarily terminate any Pension Plan or to appoint a
trustee to administer any Pension Plan; immediately upon the establishment of
any Pension Plan not existing at the Closing Date or the


 


52

















 


commencement of contributions by any Loan Party or any
of its respective Subsidiaries to any Pension Plan to which any Loan Party or
any of its respective Subsidiaries was not contributing at the Closing Date;
and immediately upon becoming aware of any other event or condition regarding a
Plan or any Loan Party’s or any of its respective 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 any Loan Party or any such Subsidiary 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 any Loan Party or any
of its respective Subsidiaries as from time to time may be reasonably requested
by Administrative 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.  In the event of an
Accounting Change (as defined below) that results in a change in any
calculations required by Section 4 of this Agreement that would not have
resulted had such Accounting Change not occurred, the parties hereto agree to
enter into negotiations in good faith in order to amend such provisions so as
to equitably reflect such Accounting Change such that the criteria for
evaluating compliance with such covenants shall be the same after such
Accounting Change as if such Accounting Change had not been made; provided,
however, that no change in GAAP that would affect a calculation that measures
compliance with Section 4 of this Agreement shall be given effect until such
provisions are amended to reflect such change in GAAP.  “Accounting
Change” means any change in accounting principles that is required
or permitted hereafter by the rules, regulations, pronouncements and opinions
of the Financial Accounting Standards Board or the American Institute of
Certified Public Accountants (or successors thereto) and such change is adopted
by Borrower and the other Loan Parties with the agreement of their accountants.


 


SECTION
5

REPRESENTATIONS AND WARRANTIES


 


In order to induce Administrative Agent, the Revolver
Lenders, and the Requisite Lenders under the Existing Credit Agreement and the
Term Loan C Lenders to enter into this Agreement and to make Loans, each of the
Loan Parties hereby represents and warrants to Administrative Agent and each
Lender on the Second 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:


 


5.1           Disclosure.  The written information
furnished by or on behalf of the Loan Parties or any of their respective
Subsidiaries contained in this Agreement, the financial statements


 


53

















 


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 was made. 
Any projections provided by or on behalf of the Loan Parties or any of
their respective 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.


 


5.2           No
Material Adverse Effect.  Since December 31, 2008, there has been no
event or change in facts or circumstances affecting the Loan Parties or any of
their respective 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, in Borrower’s prior SEC filings made prior to the
date hereof, or in the attached Schedules.


 


5.3           Organization,
Powers, Authorization and Good Standing.


 


(A)          Organization
and Powers.  Each of the Loan Parties and their respective
Subsidiaries is a limited liability company, corporation or partnership 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), each of the Loan Parties and their
respective Subsidiaries has 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.  Each of the Loan Parties and their respective
Subsidiaries has taken all necessary limited liability company, partnership,
corporate and other action to authorize the 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.  Each of the Loan Parties and
their respective Subsidiaries is 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 Loan Party is qualified and authorized to do
business are set forth on Schedule 5.3(C).


 


5.4           Compliance
of Loan Documents and Borrowings.  Except as set forth on Schedule 5.4,
the execution, delivery and performance by the Loan Parties and their
respective


 


54

















 


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, (A) require any Governmental Approval or violate any
Applicable Law relating to the Loan Parties or any of their respective
Subsidiaries, (B) conflict with, result in a breach of or constitute a default
under the articles of incorporation, bylaws or other organizational documents
of the Loan Parties or any of their respective 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 (C) 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 Applicable Law; Governmental Approvals.  Each of the Loan Parties and their respective
Subsidiaries (A) has, or has the right to use, all material Governmental
Approvals, including the Licenses, required by any Applicable Law for it to
conduct its business, and (B) is in material compliance with each Governmental
Approval, including 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.  Each of the Loan Parties and their respective
Subsidiaries have duly filed or caused to be filed all federal and all material
state, local and other tax returns required by Applicable Law to be filed, and
has paid, or made adequate provision for the payment of, all federal and all
material 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 the Loan Parties and their respective
Subsidiaries in respect of federal, state, local and other taxes for all fiscal
years and portions thereof are, in the judgment of the Loan Parties, adequate,
and neither the Loan Parties nor any of their respective Subsidiaries
anticipate any additional material taxes or assessments for any of such years.


 


5.7           Environmental
Matters.  Each of
the Loan Parties and their respective Subsidiaries is in compliance in all
material respects with all applicable Environmental Laws, and there is no
contamination or material violation of applicable Environmental Laws at, under
or about such properties or such operations of the Loan Parties and their
respective Subsidiaries which would 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 the Loan Parties and their respective
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


 


55

















 


disclosed therein and, in the case of unaudited
financial statements, except for the absence of notes and for year-end
adjustments) 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 the Loan Parties
or their respective Subsidiaries as at the dates thereof.


 


(B)           All
Budgets concerning the Loan Parties and their respective Subsidiaries which
have been furnished to Administrative Agent or Lenders were prepared in good
faith by or on behalf of such Loan Party and such Subsidiaries.


 


5.9           Intellectual
Property.  Each of the Loan Parties and their respective
Subsidiaries owns, or possesses 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 the 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 except to the extent the same would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.  Neither the Loan Parties nor any of their
respective 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 the Loan Parties, threatened against the Loan Parties or any
of their respective 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 or any PUC), except
such as (A) affect the telecommunications industry generally, (B) 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 (C)
individually or collectively would not reasonably be expected to have a
Material Adverse Effect.  Except as set
forth on Schedule 5.10, to the Loan Parties’ knowledge, none of the Loan
Parties or any of their respective 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).


 


5.11         Employee Labor Matters.  Except as set forth on Schedule 5.11,
(A) none of the Loan Parties, their respective Subsidiaries or their respective
employees are subject to any collective bargaining agreement, (B) 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 (C) there are no strikes, slowdowns, unfair labor practice complaints, work
stoppages or controversies pending or, to the best knowledge of the Loan
Parties after due inquiry, threatened between any such Person and its
respective employees, other than employee grievances arising in the ordinary
course of business that would not (in the case of each of clauses (A), (B) or
(C)


 


56

















 


above) 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 except for any noncompliance
that would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect. 
Each Plan, other than a Multi-employer Plan, which is intended to
qualify under Section 401(a) of the IRC has received a favorable determination
letter from the Internal Revenue Service or is adopted by means of a master or
prototype plan that has received a favorable opinion letter upon which the Loan
Parties are entitled to rely and to the best knowledge of the Loan Parties,
nothing has occurred that would cause the loss of such qualification.  The Loan Parties and each ERISA Affiliate
have 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 the Loan Parties, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan which has resulted in 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 in 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) neither the Loan Parties 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 the Loan Parties 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 the Loan Parties
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 License issued to or utilized by the Loan
Parties or their respective Subsidiaries: 
the name of the licensee, the type of service, the expiration date and
the geographic area covered by such License. 
Other than as set forth in Schedule 5.13(A), each License is held
by a Loan Party or a wholly-owned, domestic Subsidiary of a Loan Party whose
equity interests are subject to a valid and perfected first priority Lien in
favor of the Secured Parties pursuant to the Pledge and Security Agreement.


 


(B)           Other
than as set forth on Schedule 5.13(B), the Licenses are valid and in
full force and effect without conditions except for such conditions as are
generally applicable to


 


57

















 


holders of such Licenses.  Other than as set forth on Schedule
5.13(B), each Loan Party or Subsidiary of a Loan Party has all requisite
power and authority required under the Communications Act and PUC Laws to hold
the Licenses and to own and operate the Communications Systems.  Other than as set forth on Schedule
5.13(B), the Licenses constitute in all material respects all of the
Licenses necessary for the operation of the Communications Systems in the same
manner as it is presently conducted.  Other
than as set forth on Schedule 5.13(B), no event has occurred and is
continuing which could reasonably be expected to (i) result in the imposition
of a material forfeiture or the suspension, revocation, termination or adverse
modification of any such License or (ii) materially and adversely affect
any rights of the Loan Parties or their respective Subsidiaries
thereunder.  Except as otherwise set
forth on Schedule 5.13(B), neither the Loan Parties nor any of their
Subsidiaries have reason to believe or have knowledge that any License will not
be renewed in the ordinary course.  Other
than as set forth on Schedule 5.13(B), neither the Loan Parties nor any
of their respective Subsidiaries are a party to any investigation, notice of
apparent liability, notice of violation, order or complaint issued by or before
the FCC, PUC or any applicable Governmental Authority, and there are no
proceedings pending by or before the FCC, PUC or any applicable Governmental
Authority which could in any manner threaten or adversely affect the validity
of any License.


 


(C)           All of
the material properties, equipment and systems owned, leased or managed by the
Loan Parties or their respective Subsidiaries are, and (to the best knowledge
of the Loan Parties and their Subsidiaries) 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 Licenses and all standards or rules imposed by any
Governmental Authority or as imposed under any agreements with
telecommunications companies and customers.


 


(D)          Each
of the Loan Parties and their respective Subsidiaries has made all material
filings which are required to be filed by it, paid all material franchise,
license or other fees and charges related to the Licenses or which have become
due pursuant to any Governmental Approval in respect of its business and has
made appropriate provision as is required by GAAP for any such fees and charges
which have accrued.


 


5.14         Perfection.  The Pledge and Security Agreement is
effective to create in favor of Administrative Agent for the benefit of the
Secured Parties, a legal, valid and enforceable security interest in and Lien
on the Collateral covered thereby (the “Security Agreement
Collateral”) and, when (A) financing statements and other filings in
appropriate form are filed in the appropriate offices and (B) upon the taking
of possession or control by Administrative Agent of the Security Agreement
Collateral with respect to which a security interest may be perfected only by
possession or control (which possession or control shall be given to
Administrative Agent to the extent possession or control by Administrative
Agent is required by each Security Document), the Lien created by the Pledge
and Security Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in the
Security Agreement Collateral (other than such Security Agreement Collateral in
which a security interest cannot be perfected under the UCC as in effect at the
relevant time in the relevant jurisdiction or as to which the steps to effect
such perfection are not required to be taken


 


58

















 


under the Pledge and Security Agreement), in each case
subject to no Liens other than Liens permitted hereunder.


 


5.15         Solvency.  After taking into account the rights of each
Loan Party under the third paragraph of Subsection 9.20(A), each of the Loan
Parties:  (A) owns and will own assets
the present fair saleable value of which are (i) greater than the total amount
of liabilities (including contingent liabilities) of such Loan Party, and (ii)
greater than the amount that will be required to pay the probable liabilities
of its then existing debts and liabilities as they become absolute and matured
considering all financing alternatives and potential asset sales reasonably
available to such Loan Party; (B) has capital that is not unreasonably small in
relation to its business as presently conducted or after giving effect to any
contemplated transaction; and (C) 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.  None of the Loan Parties or any of their
respective Subsidiaries is an “investment company” as that term is defined in
the Investment Company Act of 1940, as amended.


 


5.17         Intentionally omitted.


 


5.18         Title to Properties.  The Loan Parties and their respective
Subsidiaries have such title or leasehold interest in and to the real property
or interests therein, and easements, licenses and similar rights in real
estate, owned or leased by them as is necessary to the conduct of their
business and valid and legal title or leasehold interest in and to all of their
personal property, including those reflected on the balance sheets of the Loan
Parties delivered as described in Subsection 5.8, except those which have
been disposed of by the Loan Parties subsequent to such date pursuant to
transactions permitted hereunder.


 


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


 


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


 


5.21         Patriot Act.  Each of the Loan Parties and their respective
Subsidiaries is in compliance, in all material respects, with the
(A) 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 (B) 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


 


59

















 


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 any Letter of Credit Liability, or (ii) failure to
pay any interest on any Loan, any other amount due under this Agreement or any
of the other Loan Documents, or any other Secured Obligation, and in the case
of this clause (ii) such failure continues for three (3) Business Days; or


 


(B)           Default
in Other Agreements.  (i) Failure of any Loan Party or any of its
respective 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 any Loan Party or
any of its respective Subsidiaries with respect to any Indebtedness (other than
the Loans), the effect of such breach or default (either individually or in the
aggregate with any other breaches or defaults under this clause (ii)) is to
cause or to permit the holder or holders then to cause any Indebtedness or
Contingent Obligation having an aggregate principal amount for one or more of
the Loan Parties in excess of $2,500,000 or an aggregate principal amount for
one or more of the Loan Parties and their respective Subsidiaries in excess of
$7,500,000 to become or be declared due prior to its stated maturity; or


 


(C)           Breach
of Certain Provisions.  Failure of any Loan Party or any of its
respective Subsidiaries to perform or comply with any term or condition
contained in that portion of Subsection 2.2 relating to such Loan Party’s or
its respective Subsidiaries’ obligation to maintain insurance, Subsection 2.5,
Section 3 or Section 4 (excluding Subsection 4.5); or


 


(D)          Breach
of Warranty.  Any representation, warranty, certification
or other statement made by any Loan Party or any of its respective Subsidiaries
in any Loan Document or in any statement or certificate at any time given by
any Loan Party or any of its respective 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.  Any Loan Party or any of its respective
Subsidiaries breaches or defaults in the performance of or compliance with any
term contained in this Agreement or the other Loan Documents not specifically
covered in Subsections 6.1(A), (B), (C) or (D) and such default is not remedied
or waived within 45 days after receipt by any Loan Party 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


 


60

















 


(F)           Involuntary
Bankruptcy; Appointment of Receiver; Etc.  (i) A court enters a decree or order for
relief with respect to any Loan Party or any of its respective 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:  (1) an involuntary case is commenced against
any Loan Party or any of its respective Subsidiaries under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect; or (2)
a decree or order of a court for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over
any Loan Party or any of its respective Subsidiaries or over all or a
substantial part of its property, is entered; or (3) an interim receiver, trustee
or other custodian is appointed without the consent of any Loan Party or any of
its respective Subsidiaries, for all or a substantial part of the property of
any Loan Party or any of its respective Subsidiaries; or


 


(G)           Voluntary
Bankruptcy; Appointment of Receiver; Etc.  Any Loan Party or any of its respective
Subsidiaries (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 debts
of any Loan Party or any of its respective Subsidiaries, 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
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 the
property; or (ii) makes any assignment for the benefit of creditors; or (iii)
the Board of Directors of any Loan Party or any of its respective 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 any Loan Party or any of its respective
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 (5) 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
one or more of the Loan Parties in excess of $2,500,000 or for or against one
or more of the Loan Parties and their respective Subsidiaries in excess of
$7,500,000 (in either case not adequately covered by insurance as to which the
insurance company has not denied coverage) is entered or filed against any Loan
Party or any of its respective 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 (5) Business Days prior to the date of any
proposed sale thereunder; or


 


(J)            Dissolution.  Any order, judgment or decree is
entered against any Loan Party or any of its respective Subsidiaries decreeing
the dissolution or split up of any Loan Party


 


61
















 


or any of its respective
Subsidiaries and such order remains undischarged or unstayed for a period in
excess of 30 days; or


 


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


 


(L)           Injunction.  Any Loan Party or any of its respective
Subsidiaries are 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 the business of the Loan Parties and their Subsidiaries, taken as a
whole, and such order continues for more than 15 days; or


 


(M)         ERISA; Pension Plans.  (i) Any Loan Party or any of its
respective Subsidiaries fails to make full payment when due of all amounts
which, under the provisions of any 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 Plans; or (iii) any Plan
of any Loan Party or any of its respective 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.  Any Loan Party or any of its respective
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; (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 any Loan
Party or any of its respective 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)           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 all of
the Collateral or any substantial portion thereof, or any Loan Party denies the
validity, perfection or first priority of such security interest or gives
notice to such effect; or


 


(Q)          Intentionally omitted.


 


(R)           Intentionally omitted.


 


(S)           Change in Control.  A Change of Control occurs; or


 


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(T)           Expropriation.  Any federal, state or local Governmental
Authority takes any action to expropriate or condemn all or any substantial
portion of the assets of (i) Borrower, (ii) GTT, or (iii) BDC,
any Loan Party, or any other Subsidiaries of Borrower, if the assets of BDC,
any such Loan Party or any such Subsidiary, individually or in the aggregate,
account for 25% or more of Borrower’s consolidated EBITDA; or


 


(U)          FCC and PUC Matters.  Any License necessary for the ownership or
operation of the Communications Systems shall be cancelled, expired, revoked,
terminated, rescinded, annulled, suspended, or modified or shall no longer be
in full force and effect and the result of such action has, or would reasonably
be expected to have, a Material Adverse Effect.


 


6.2           Termination of Loan Commitments.  Upon the occurrence and during the
continuation of any Event of Default, and without limiting any other right or
remedy hereunder, Administrative Agent, upon the request of the Requisite
Lenders (subject to the first sentence of Subsection 6.3 below), shall declare
that all or any portion of the Commitments be terminated, whereupon the obligations
of each Lender to make any Loan, each Issuing Lender to issue any Letter of
Credit, and Swingline Lender to make any Swingline Loan shall immediately
terminate.


 


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 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, with the
consent of Requisite Lenders, 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 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 any Loan, each
Issuing Lender to issue any Letter of Credit, and Swingline Lender to make any
Swingline Loan 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 the Secured Parties all
of their other rights and remedies under this Agreement, the other Loan
Documents and Applicable Law, in order to satisfy all of the Secured
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


 


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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           Intentionally omitted.


 


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 each Loan Party at any time or from time to time, with reasonably
prompt subsequent notice to such Loan Party (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 such Loan Party or any of its Subsidiaries (regardless of
whether such balances are then due to such Loan Party), 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 such Loan Party 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.  Each Loan Party 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 the Secured Parties on the
Secured Obligations and on the proceeds from the enforcement of the Secured
Obligations shall be applied among Administrative Agent and the other Secured
Parties as follows:  first, pro
rata to all Administrative Agent’s, and the other Secured Parties’ fees and
expenses then due and payable; second pro rata to all other expenses
then due and payable by the Loan Parties under the Loan Documents; third
pro rata to all indemnitee obligations then due and payable by the Loan Parties
under the Loan Documents; fourth to all commitment and other fees and
commissions then due and payable by the Loan Parties under the Loan Documents; fifth
pro rata to (A) accrued and unpaid interest on the Loans (pro rata) in
accordance with all such amounts due on the Loans and (B) any scheduled
payments (excluding termination, unwind and similar payments) due to a Secured
Party on any Related Secured Hedge Agreement (pro rata with all such amounts
due); sixth pro rata to (i) the principal amount of the Loans (pro
rata among all Loans) and (ii) any termination, unwind and similar
payments due to a Secured Party under a Related Secured Hedge Agreement (pro
rata with all such amounts due); seventh pro rata to any scheduled
payments (excluding termination, unwind and similar payments) due to a Secured
Party on any


 


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Secured Hedge Agreement other
than a Related Secured Hedge Agreement (pro rata with all such amounts due); eighth
pro rata to any termination, unwind and similar payments due to a Secured Party
under a Secured Hedge Agreement other than a Related Secured Hedge Agreement
(pro rata with all such amounts due); and ninth to any remaining amounts
due under the Secured Obligations, in that order.  Any remaining monies not applied as provided
in this Subsection 6.8 shall be paid to Borrower or any Person lawfully
entitled thereto.


 


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.  Each Loan Party 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 effectiveness of this Agreement (in the case of
Subsection 7.1) and the obligations of Lenders to make Loans (in the case of
Subsections 7.2) are subject to satisfaction of all of the applicable
conditions set forth below.


 


7.1           Conditions to Effectiveness.  The effectiveness hereof is subject to the
satisfaction of each of the following conditions:


 


(A)          Executed Loan Documents.  (i) This Agreement, (ii) to the
extent requested, Revolver Notes reflecting the increase in the Revolver Loan
Commitment, (iii) to the extent requested, the Term Loan C Notes, (iv) to
the extent requested, the Swingline Note, (v) that certain Amendment and
Confirmation Agreement, dated as of the Second Amendment Date, by and among the
Loan Parties and Administrative Agent, (vi) the Post-Closing Letter, and (vii) all
other documents, financing statements and instruments required by such
agreements to be executed and delivered on or prior to such date (including, to
the extent required by the Loan Documents, landlord waivers and consents and
reaffirmations), shall have been duly authorized and executed by the Loan
Parties or other Persons party thereto, as applicable, in form and substance
satisfactory to Administrative Agent, and the Loan Parties or such other Persons,
as applicable, shall have delivered sufficient original counterparts thereof to
Administrative Agent for delivery to Lenders.


 


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(B)           Control Agreements.  Administrative Agent shall have received
executed account control agreements with respect to the Loan Parties’ 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.


 


(i)            Officer’s Certificate.  Administrative Agent shall have received a
certificate from the chief executive officer, chief operating officer or chief
financial officer of Borrower on behalf of Borrower and in form and substance
reasonably satisfactory to Administrative Agent, to the effect that, to their
knowledge, all representations and warranties of the Loan Parties and their
respective Subsidiaries contained in this Agreement and the other Loan
Documents are true, correct and complete in all material respects; that no Loan
Party nor any Subsidiary of any Loan Party is in violation of any of the
covenants contained in this Agreement or in the other Loan Documents; that, after
giving effect to this Agreement, no Default or Event of Default has occurred
and is continuing; that the Loan Parties and their respective Subsidiaries have
satisfied each of the closing conditions to be satisfied by them hereby; and
calculating the Total Leverage Ratio as of the Second Amendment Date.


 


(ii)           Certificates of Secretaries of the Loan Parties.  Administrative Agent shall have
received a certificate of the secretary or assistant secretary of each Loan
Party, dated as of the Second Amendment Date, on behalf of such Loan Party and
in form and substance reasonably satisfactory to Administrative Agent,
certifying that attached thereto is a true and complete copy of the articles of
incorporation or organization, as the case may be, of such Person and all
amendments thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation or organization
(unless such certification is waived by Administrative Agent in its sole
discretion); that attached thereto is a true and complete copy of the bylaws,
partnership agreement or operating agreement, as the case may be, 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 duly adopted by the board
of directors, members or managers of such Person, as applicable, authorizing
the borrowings, pledges or guarantees contemplated hereunder, the execution,
delivery and performance of this Agreement, the amendment of the Pledge and Security
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.


 


(iii)          Certificates of Good Standing.  Administrative Agent shall have received
certificates as of a recent date (or such other date as Administrative Agent
may agree to in its sole discretion) of the good standing of each Loan Party
under the laws of its respective jurisdiction of incorporation or organization,
and, to the extent requested by Administrative Agent, such other jurisdictions
where such Loan Party has material assets or where the failure of such Loan
Party to be in good standing could reasonably be expected to have a Material
Adverse Effect.


 


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(iv)          Opinions of Counsel.  Administrative Agent shall have received
favorable opinions of counsel to the Loan Parties addressed to Administrative
Agent and Lenders, dated as of the Second Amendment Date, with respect to the
Loan Parties, covering such matters as may be reasonably requested by
Administrative Agent, including, the Loan Documents, the Security Interest, due
authorization and other corporate matters and which are reasonably satisfactory
in form and substance to Administrative Agent.


 


(D)          Collateral.


 


(i)            Collateral Pledge.  To the extent required by the Loan Documents,
the Loan Parties shall have effectively and validly pledged and perfected the
Collateral contemplated by the Security Documents.


 


(ii)           Filings and Recordings.  To the extent required by the Loan Documents,
all filings and recordings (including, 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 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 to the
extent required herein.


 


(iii)          Lien Searches Against Loan Parties.  The Loan Parties shall have delivered to
Administrative Agent the results of (1) central filing Lien searches
against each of the Loan Parties in the jurisdiction in which such Loan Party
is organized or in the District of Columbia, as applicable pursuant to Section 9-307(c) of
the Uniform Commercial Code, and (2) federal and state tax, fixture,
pending suit and judgment Lien searches against each of the Loan Parties in any
jurisdiction in which such Loan Party has assets and (a) (x) the
aggregate value of such assets in such jurisdiction is in excess of $500,000
(or such higher threshold as Administrative Agent may agree to in its sole
discretion), or (y) the loss of the assets in such jurisdiction could
reasonably be expected to have a Material Adverse Effect or (z) such Loan
Party has its chief executive office or principle place of business in such
jurisdiction, and (b) results for such Lien searches in such jurisdiction
for such Loan Party have not been obtained and delivered to Administrative
Agent within the twelve months proceeding the Second Amendment Date,
indicating, among other things, that the Loan Parties’ assets and the ownership
interests of the Loan Parties are free and clear of any Lien, except for
Permitted Encumbrances.


 


(iv)          Lien Searches Against Subsidiaries of Loan Parties.  The Loan Parties shall have
delivered to Administrative Agent the results of central filing Lien searches
in the jurisdiction in which such Subsidiary is organized or in the District of
Columbia, as applicable pursuant to Section 9-307(c) of the Uniform
Commercial Code, against each of (x) GTT, (y) ION Holdco, and (z) any
other Subsidiary of any Loan Party that is not a Loan Party or a Partnership
unless results for such Lien search against such other Subsidiary have been
obtained and delivered to Administrative Agent within the


 


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twelve months
proceeding the Second Amendment Date. 
The Loan Parties shall have delivered to Administrative Agent the
results of federal and state tax, fixture, pending suit and judgment Lien
searches against each of the domestic Subsidiaries of any Loan Party in any
jurisdiction in which such Subsidiary has assets and (1) (a) the
aggregate value of such assets in such jurisdiction is in excess of $500,000
(or such higher threshold as Administrative Agent may agree to in its sole
discretion), or (b) the loss of the assets in such jurisdiction could reasonably
be expected to have a Material Adverse Effect or (c) such Subsidiary has
its chief executive office or principle place of business in such jurisdiction,
and (2) results for such Lien searches in such jurisdiction for such
Subsidiary have not been obtained and delivered to Administrative Agent within
the twelve months proceeding the Second Amendment Date, indicating, among other
things, that the Subsidiaries’ assets and the ownership interests of the
Subsidiaries owned by any Loan Party are free and clear of any Lien, except for
Permitted Encumbrances.


 


(v)           Insurance.  Administrative Agent shall have received
certificates of insurance 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.


 


(i)            Governmental Approvals.  The Loan Parties shall have delivered to
Administrative Agent evidence that all required material permits, and
authorizations, if any, of all Governmental Authorities, including the FCC and
all applicable PUCs, necessary to consummate the transactions contemplated by
this Agreement and such other Loan Documents shall have been obtained and shall
be in full force and effect.


 


(ii)           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 the Loan Parties’ and their
respective Subsidiaries’ businesses as conducted on such date.


 


(iii)          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, and 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)           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 invoiced and unpaid fees or commissions due hereunder (including
reasonable 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


 


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execution, delivery,
recording, filing and registration of any of the Loan Documents to the extent
effected on or prior to such date.


 


(G)           Miscellaneous.


 


(i)            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.


 


(ii)           Litigation, Investigations, Audits, Etc.  There shall be no action, suit,
proceeding or investigation pending against, or, to the knowledge of any Loan
Party, threatened against any Loan Party, any of its respective Subsidiaries or
any of its 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 and any applicable PUC), except such as affect the telecommunications
industry generally, that could reasonably be expected to have a Material
Adverse Effect.


 


(iii)          No Material Adverse Effect.  Since December 31, 2009, there shall not
have occurred any event or condition affecting the Loan Parties, which individually
or in the aggregate has had or 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 Term Loan C and any Revolver Loan, of any Issuing Lender
to issue Letters of Credit, and of Swingline Lender to make Swingline Loans, 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 Subsection 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 the Loan Parties 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 Second Amendment Date which
disclosures are reasonably acceptable to Administrative Agent.


 


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(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.


 


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


 


Notwithstanding the above, at
any time that the CoBank Cash Management Agreement is in effect, Swingline
Lender may waive, in its sole discretion, any one or more of the conditions
precedent in this Subsection 7.2 with respect to the making of any Swingline
Loan.


 


7.3           Post-Closing Obligations.  Notwithstanding anything to the contrary set
forth herein or in any other Loan Document, it shall not be a condition
precedent to the funding of any Loan hereunder or the effectiveness hereof that
the Loan Parties complete prior to the later date set forth in the Post Closing
Letter any action, or execute and deliver (or cause to be executed and
delivered) any document, set forth in the Post-Closing Letter.


 


SECTION 8

ASSIGNMENT AND PARTICIPATION


 


8.1           Assignments and Participations in Loans and Notes.


 


(A)          General.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither
Borrower nor any other Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of Subsection 8.1(B), (ii) by
way of participation in accordance with the provisions of Subsection 8.1(D), or
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of Subsection 8.1(E) (and any other attempted assignment or
transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in Subsection 8.1(D) and, to the extent expressly
contemplated hereby, the Related Parties of each of Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement.  In the event of an
assignment pursuant to this Subsection 8.1, if a new Note is requested by the
Person to which interests are to be assigned, Borrower shall, upon surrender of
the assigning Lender’s Note, issue a new Note to reflect the interests of the
assigning Lender and the Person to which interests are to be assigned.  Notwithstanding anything contained in this
Agreement to the contrary, so long as


 


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the 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.


 


(B)           Assignments by the Lenders.  Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Loan Commitments and the Loans at
the time owing to it); provided that any such assignment shall be subject to
the following conditions:


 


(i)            Minimum Amounts.


 


(1)           in the case of an
assignment of the entire remaining amount of the assigning Lender’s Loan
Commitment and the Loans at the time owing to it or in the case of an
assignment to another Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and


 


(2)           in any case not described
in Subsection 8.1(B)(i)(1), the aggregate amount of the Loan Commitment (which
for this purpose includes Loans outstanding thereunder) or, if the applicable
Loan Commitment is not then in effect, the principal outstanding balance of the
Loans of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to Administrative Agent or, if an “Effective Date” is specified in
the Assignment and Assumption, as of the Effective Date) shall not be less than
$5,000,000 unless each of Administrative Agent and, so long as no Event of
Default has occurred and is continuing, Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed).


 


(ii)           Proportionate Amounts.  Each partial assignment shall be made as an
assignment of a proportionate part of all of the assigning Lender’s rights and
obligations under this Agreement with respect to the Loan or the Loan
Commitment assigned, except that this clause (ii) shall not prohibit any
Lender from assigning all or a portion of its rights and obligations among
separate Facilities on a non-pro rata basis.


 


(iii)          Required Consents.  No consent shall be required for any
assignment except to the extent required by Subsection 8.1(B)(i)(2) and,
in addition:


 


(1)           the consent of Borrower
(such consent not to be unreasonably withheld or delayed) shall be required
unless (a) an Event of Default has occurred and is continuing at the time
of such assignment or (b) such assignment is to a Lender, an Affiliate of
a Lender or an Approved Fund; and


 


(2)           the consent of
Administrative Agent (such consent not to be unreasonably withheld or delayed)
shall be required for assignments in respect of a Facility if such assignment
is to a Person that is not a Lender


 


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with a Loan Commitment or a Loan in respect of
such Facility, an Affiliate of such Lender or an Approved Fund with respect to
such Lender.


 


(iv)          Assignment and Assumption.  The parties to each assignment shall execute
and deliver to Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500, and the assignee, if it is not a
Lender, shall deliver to Administrative Agent an Administrative Questionnaire.


 


(v)           No Assignment to Borrower.  No such assignment shall be made to Borrower
or any of Borrower’s Affiliates or Subsidiaries.


 


(vi)          No Assignment to Natural Persons.  No such assignment shall be made to a natural
person.


 


Subject
to acceptance and recording thereof by Administrative Agent pursuant to
Subsection 8.1(C), from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Subsections 1.4(D), 1.11, 1.13, 1.14, 9.1, 9.14 and 9.15 with
respect to facts and circumstances occurring prior to the effective date of
such assignment.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Subsection 8.1(B) shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Subsection 8.1(D).


 


(C)           Register.  Administrative Agent, acting solely for this
purpose as an agent of Borrower, shall maintain at one of its offices in
Denver, Colorado a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Loan Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive absent manifest error, and Borrower, Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this Agreement
absent manifest error, notwithstanding notice to the contrary.  The Register shall be available for
inspection by Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.


 


(D)          Participations.  Any Lender may at any time, without the
consent of, or notice to, Borrower or Administrative Agent, sell participations
to any Person (other than a natural person or Borrower or any of Borrower’s
Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this


 


72

















 


Agreement (including all or a
portion of its Loan Commitment and/or the Loans owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) Borrower,
Administrative Agent and the Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under
this Agreement.  CoBank reserves the
right to assign or sell participations in all or any part of its Pro Rata Share
of each Loan Commitment and/or Loans on a non-patronage basis.


 


Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in Subsection 9.2
relating to amendments requiring unanimous consent of the Lenders that affects
such Participant.  Subject to the last
sentence of this paragraph, Borrower agrees that each Participant shall be
entitled to the benefits of Subsections 1.11 and 1.13 to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to
Subsection 8.1(B).  To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Subsection 6.7 as though it were a Lender, provided such Participant agrees to
be subject to Subsection 6.7 as though it were a Lender.  A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Subsection 1.13
unless Borrower and Administrative Agent are each notified of the participation
sold to such Participant and such Participant agrees to comply with Subsection
1.13(B) as though it were a Lender.


 


Any
Participant that is Farm Credit Lender and that (i) has purchased a
participation in a minimum amount of $2,500,000, (ii) if Administrative
Agent is other than CoBank, has been designated by written notice from the
selling Lender to Administrative Agent as being entitled to be accorded the
right of a voting Participant, and (iii) receives the prior written
consent of Administrative Agent (such consent being required only if
Administrative Agent is other than CoBank) and of Borrower (such consent being
required only if an Event of Default then exists and is continuing and only as
to Farm Credit Lenders not disclosed to Borrower on Schedule 8.1(D) as
being a Participant as of the Second Amendment Date) to become a voting
Participant, shall be entitled to vote, and the voting rights of the selling
Lender shall be correspondingly reduced, on a dollar-for-dollar basis, as if
such Participant were a Lender, on any matter requiring or allowing a Lender to
provide or withhold its consent, or to otherwise vote on any proposed action to
which the Lender selling such participation is entitled to vote.


 


(E)           Certain Pledges.  Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.


 


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8.2           Administrative 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 such Person 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.  Other than the applicable provisions of
Subsections 8.2(E) and 8.2(H), the provisions of this Subsection 8.2
are solely for the benefit of Administrative Agent and Lenders, and neither the
Loan Parties nor any other Person shall have 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 any Loan Party or its respective Affiliates or any other Person.  Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents or
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any agents 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, its Affiliates, or Administrative Agent’s or its
Affiliates’  respective officers,
directors, employees, agents or attorneys-in-fact 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 the Loan Parties or any
other Person, 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 conditions and creditworthiness of the Loan
Parties 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 conditions and creditworthiness of
the Loan Parties.  Administrative Agent
shall have no duty or responsibility, either initially or on a continuing


 


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basis, to provide any Lender
with any credit or other information with 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, its respective
Affiliates and any of its or its Affiliates’ respective officers, directors,
employees, agents 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.  Administrative Agent shall
not 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 the Loan Parties or any other Person.  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, electronic mail, 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


 


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negotiations, legal
proceedings or otherwise) of, or legal advice with respect to rights or
responsibilities under, this Agreement or any of the other Loan Documents.


 


(E)           Indemnification.  Lenders will reimburse and indemnify
Administrative Agent and its Affiliates and its and its Affiliates’ officers,
directors, employees, agents, and attorneys-in-fact (collectively, “Representatives”), on demand (to the extent
not actually reimbursed by the Loan Parties, but without limiting the
obligations of the Loan Parties under this Agreement) for and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including, reasonable 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 its
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 its 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)           Administrative Agent, 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
Administrative Agent, any syndication agent, and any 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 Administrative Agent, any
syndication agent and any documentation agent in its individual capacity as a
Lender or as one of the Requisite Lenders. 
Each of Administrative Agent, any syndication agent and any
documentation agent may lend money to, and generally engage in any kind of
banking, trust or other business with, Loan Parties or any other Person as if
it were not acting as Administrative Agent, syndication agent or documentation
agent pursuant hereto.


 


(G)           Notice of Default.  Administrative Agent shall not 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 the Loan Parties or any of their respective
Subsidiaries or any other Person, or the existence or possible existence of any
Default or Event of Default. 
Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default unless


 


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Administrative Agent shall
have received written notice from a Loan Party 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 Administrative Agent receives such a notice, Administrative Agent
will give prompt notice thereof to Lenders; 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 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 it shall deem advisable and in the best interests of
Lenders.


 


(H)          Successor Administrative Agent.


 


(i)            Resignation.  Administrative Agent may resign from the
performance of all of 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 Administrative Agent of appointment
pursuant to clause (ii) below or as otherwise provided below.


 


(ii)           Appointment of Successor.  Upon any such notice of resignation pursuant
to clause (i) above, Requisite Lenders shall (and if no Event of Default
shall have occurred and be continuing, upon receipt of Borrower’s prior
consent, which shall not be unreasonably withheld), appoint a successor Administrative
Agent from among Lenders or another financial institution.  If a successor Administrative Agent shall not
have been so appointed within the 30 Business Day period referred to in
Subsection 8.2(H)(i) above, the retiring Administrative Agent, upon notice
to (and, so long as no Event of Default then exists and is continuing, the
consent of) Borrower, shall then appoint a successor Administrative Agent from
among Lenders who shall serve as Administrative Agent until such time, if any,
as Requisite Lenders, upon receipt of Borrower’s prior written consent (if
required under the first sentence of this paragraph), which shall not be
unreasonably withheld, appoint a successor Administrative Agent as provided
above.


 


(iii)          Successor Administrative Agent.  Upon the acceptance of any appointment as
Administrative Agent under the Loan Documents by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents.  After any retiring Administrative Agent’s
resignation as Administrative 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 Administrative Agent under the Loan
Documents.


 


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(I)            Collateral Matters.


 


(i)            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 Administrative Agent upon any property covered by the
Security Documents (1) upon termination of the Loan Commitments and
payment in cash and satisfaction of all Obligations (other than indemnification
or expense reimbursement Obligations not then due and payable);
(2) 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); (3) constituting property leased to a Loan Party 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
such Loan Party to be, renewed or extended; or (4) owned by a Guarantor
upon release of such Guarantor from its obligations under any Loan Document if
such Person ceases to be a Guarantor as a result of a transaction permitted
hereunder.  In addition, Administrative
Agent, with the consent of Requisite Lenders, may release or compromise any
Collateral and the proceeds thereof constituting less than all or substantially
all of the Collateral.


 


(ii)           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)(i)),
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 (2) through (4) of
the first sentence of Subsection 8.2(I)(i). 
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)(i), and upon at least
10 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 (1) 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 (2) such release or
compromise shall not in any manner discharge, affect or impair the Secured
Obligations or any Liens upon (or obligations of the Loan Parties, in respect
of) all interests retained by the Loan Parties 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.


 


(iii)          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


 


78

















 


Security Documents
exists or is owned by the Loan Parties, or is cared for, protected or insured
or has been encumbered or that the Liens granted to Administrative Agent 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 Administrative Agent in this Agreement or in any other Loan
Document, it being understood and agreed that with respect to 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 or control.  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 (or control thereof) to Administrative Agent or in accordance with
Administrative Agent’s instructions without affecting any Lender’s rights of
set-off.  Each Lender 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 the Loan Parties 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.  Except as otherwise provided in
this Agreement (including this Subsection 8.3 and Subsection 9.2) or in
the Post-Closing Letter, any Assignment and Assumption 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 Secured Hedge Agreement or any Cash
Management Agreement, which, in each case, may only be amended, modified or
terminated, or any provision thereof waived, in accordance with the terms
thereof).


 


8.4           Disbursement of Funds.  Excluding Swingline Loans until such time as
Borrower has failed to reimburse Swingline Lender upon demand pursuant to
Subsection 1.1(G)(iv),


 


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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 (2) Business Days immediately
preceding the Funding Date applicable thereto (in the case of LIBOR Loans),
otherwise no later than 2:00 p.m. (Denver, Colorado time) 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 11:00 a.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.


 


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 any Person
(including Administrative Agent) of fees under or in connection with any Loan
Document shall be made in like manner, but for the account of such Person
(including Administrative Agent).


 


Notwithstanding anything in
this Agreement to the contrary, in the event that any Lender fails to fund its
Pro Rata Share of any Loan in accordance with this Agreement (each such failing
Lender, a “Non-Funding Lender”; the portion
of such Loan funded by other Lenders, a “Non Pro Rata Loan”),
until such Non-Funding Lender’s cure of such failure the proceeds of all
amounts thereafter repaid or prepaid to Administrative Agent by or on behalf of
Borrower and otherwise required to be applied to such Non-Funding Lender’s
share of any of the Obligations pursuant to the terms of this Agreement shall
be advanced to Borrower by Administrative Agent on behalf of such Non-Funding
Lender to cure, in full or in part, such failure by such Non-Funding Lender,
but shall nevertheless be deemed to have been paid to such Non-Funding Lender
in satisfaction of such other Obligations; provided, however,
that (i) the foregoing shall apply only with respect to the proceeds of
payments of Obligations and shall not affect the conversion or continuation of
Loans pursuant to Subsections 1.2(G) and 1.3; (ii) any such
Non-Funding Lender shall be deemed to have cured its failure to fund its Pro
Rata Share of any Loan at such time as an amount equal to such Non-Funding
Lender’s original Pro Rata Share of the


 


80
















 


requested principal portion of such Loan is fully funded
to Borrower, whether made by such Non-Funding Lender itself or by operation of
the terms of the foregoing, and whether or not the Non Pro Rata Loan with
respect thereto has been repaid; (iii) amounts advanced to Borrower to
cure, in full or in part, any such Non-Funding Lender’s failure to fund its Pro
Rata Share of any Loan (“Cure Loans”)
shall bear interest at the rate applicable to Base Rate Loans in effect from
time to time, and for all other purposes of this Agreement shall be treated as
if they were Base Rate Loans; and (iv) regardless of whether or not a
Default has occurred or is continuing, and notwithstanding the instructions of
Borrower as to its desired application, all repayments or prepayments of
principal which, in accordance with the other terms of this Agreement, would be
applied to the outstanding Base Rate Loans shall be applied first,
ratably to all Base Rate Loans constituting Non Pro Rata Loans, second,
ratably to Base Rate Loans other than those constituting Non Pro Rata Loans or
Cure Loans and, third, ratably to Base Rate Loans constituting Cure
Loans.


 


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


 


(i)            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.


 


(ii)           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.


 


(iii)          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.


 


(i)            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.


 


(ii)           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,


 


81

















 


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.


 


SECTION 9

MISCELLANEOUS


 


9.1           Indemnities.  Each Loan Party agrees to indemnify, pay, and
hold Administrative Agent and each Lender and their respective Affiliates and
the respective partners, officers, directors, employees, agents, and attorneys
of Administrative Agent, each Lender and their respective Affiliates (the “Indemnitees”) harmless from and against any
and all liabilities, obligations, losses (including reasonable fees of
attorneys and consultants), 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 (A) in the absence
of a conflict of interest, the Loan Parties shall only be required to pay the
fees and expenses of one law firm for Administrative Agent and the Lenders (in
addition to the expenses of local and special counsel for Administrative Agent
and the Lenders) and (B) the Loan Parties shall have no obligation to an
Indemnitee hereunder with respect to liabilities arising from the gross
negligence, willful misconduct of, or breach of any Loan Document by, 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 or
therein, no amendment, modification, termination or waiver of any provision of
this Agreement, the Notes or any of the other Loan Documents, 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
Assignment and Assumption, no amendment, modification, termination or waiver
shall, unless in writing and signed by all Lenders affected thereby (which in
the cases of clauses (D), (E), (F), (G) and (H) shall be all
Lenders), do any of the following: (A) increase any Loan Commitment of any
Lender, increase any Lender’s Pro Rata Share of any Loan Commitment, change a
pro rata payment of any Lender, or modify Subsections 6.7, 6.9 or 8.5; (B) 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 term); (C) 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, voluntary or mandatory); (D) change the definition of “Requisite
Lenders” or change the percentage of Lenders which shall be required for
Lenders or any of them to take any action hereunder; (E) release or
subordinate Administrative Agent’s Lien


 


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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); (F) 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; (G) amend or
waive Subsection 6.2 or the priority of payments set forth in Subsection 6.8;
or (H) consent to the assignment, delegation or other transfer by any Loan
Party 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 Document.  No notice to or demand on any Loan Party or
any other Person in any case shall entitle such Loan Party 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 all the Loan Parties.


 


In connection with any proposed amendment, modification,
waiver or termination (a “Proposed Change”)
requiring the consent of all Lenders or each affected Lender, if the consent of
Requisite Lenders is obtained, but the consent of other Lenders whose consent
is required is not obtained (any such Lender whose consent is required but not
obtained being referred to as a “Non-Consenting Lender”),
then so long as Administrative Agent is not a Non-Consenting Lender, at
Borrower’s request (and at Borrower’s sole cost and expense) Administrative
Agent, or a Person reasonably acceptable to Administrative Agent (the “Substitute Lender”), shall have the right with
Administrative Agent’s consent (but shall have no obligation) to purchase from
such Non-Consenting Lenders, and such Non-Consenting Lenders agree that they
shall, upon Administrative Agent’s request, sell and assign to Administrative
Agent or such Person, all of the Loan Commitments and/or Loans of such
Non-Consenting Lenders for an amount equal to the principal balance of all
Loans held by the Non-Consenting Lenders and all accrued interest and fees and
other amounts due or outstanding to such Non-Consenting Lender through the date
of sale, such purchase and sale to be consummated pursuant to an executed
Assignment and Assumption; provided, that, such Substitute Lender
must agree in writing to consent to the proposed amendment, modification,
waiver or termination to which the Non-Consenting Lender did not consent.  Upon execution of any Assignment and
Assumption Agreement pursuant to this Subsection 9.2, the Substitute Lender
shall be entitled to vote on any pending waiver, amendment or consent in lieu
of the Non-Consenting Lender replaced by such Substitute Lender.


 


Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Loan Commitment of such Lender may
not be increased or extended without the consent of such Lender (it being
understood that any Loan Commitments or Loans held or deemed held by any
Defaulting Lender shall be excluded from a vote of the Lenders hereunder
requiring any consent of the Lenders).


 


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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, or sent by overnight courier service
and shall be deemed to have been given: (A) if delivered in person, when
delivered; (B) 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 (2) Business Days after delivery to
the courier properly addressed.


 


Notices shall be addressed as follows or to such other
address as a party shall designate in a written notice in accordance with this
Subsection 9.3:


 


	
  If to Borrower or

  	
   

  
	
  any other Loan Party:

  	
   

  
	
   

  	
   

  
	
   

  	
  Atlantic Tele-Network, Inc.

  
	
   

  	
  600 Cummings Center, Suite 268Z

  
	
   

  	
  Beverly, MA 01915

  
	
   

  	
  Attn: Michael Prior

  
	
   

  	
  Fax No.: 978.922.0079

  
	
   

  	
   

  
	
  With a copy to:

  	
  Edwards Angell Palmer & Dodge LLP

  
	
   

  	
  111 Huntington Avenue

  
	
   

  	
  Boston, MA 02199

  
	
   

  	
  Attn: John D. Casais

  
	
   

  	
  Fax No.: 617.227.4420

  



 


If to a Lender or
Administrative Agent:  To the address set
forth on Schedule 9.3 or in the applicable Assignment and Assumption.


 


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 Secured 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 Secured
Obligations or part thereof originally intended 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.


 


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9.6           Severability.  The invalidity, illegality, or
unenforceability of any provision under the Loan Documents in any jurisdiction
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 none of the Loan Parties may assign their
respective 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 the Loan Parties or their respective 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 or on behalf of the Loan Parties or
any of their respective Subsidiaries pursuant to this Agreement in confidence,
except for disclosure: (A) on 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; (B) to regulatory officials having
jurisdiction over Administrative Agent or Lenders or their Affiliates; (C) as
required by Applicable Law or legal process; or (D) in connection with any
legal


 


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proceeding between or among
Administrative Agent or Lenders or their Affiliates and the Loan Parties, their
respective Subsidiaries or their respective Affiliates (provided that,
in the event Administrative Agent or Lenders or their Affiliates are so
required to disclose such confidential information pursuant to clause (C) 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 (E) 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 the Loan Parties, their respective
Subsidiaries or their respective Affiliates, other than (i) 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, (ii) 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 (iii) 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.  EACH OF THE LOAN PARTIES,
ADMINISTRATIVE AGENT AND LENDERS HEREBY IRREVOCABLY SUBMITS 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.  EACH OF THE LOAN PARTIES, ADMINISTRATIVE
AGENT AND LENDERS HEREBY IRREVOCABLY AGREES 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.


 


(A)          EACH OF THE LOAN PARTIES, ADMINISTRATIVE AGENT AND LENDERS HEREBY AGREES
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 A LOAN
PARTY, ADMINISTRATIVE AGENT OR A LENDER AT THE ADDRESS TO WHICH NOTICES TO SUCH
LOAN PARTY, ADMINISTRATIVE AGENT OR SUCH LENDERS ARE THEN TO BE SENT PURSUANT
TO SUBSECTION 9.3 AND THAT PERSONAL SERVICE OF PROCESS SHALL NOT BE
REQUIRED.  NOTHING HEREIN SHALL BE
CONSTRUED TO PROHIBIT SERVICE OF PROCESS BY ANY OTHER METHOD PERMITTED BY LAW.


 


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9.15         Waiver of Jury Trial.  EACH OF THE LOAN PARTIES, 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,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS.  EACH OF THE LOAN
PARTIES, 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.  EACH OF THE LOAN PARTIES, 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.  EACH OF THE LOAN PARTIES, 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 the Loan Parties 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         Patriot Act.  The Lenders notify the Loan Parties and their
respective 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
the Loan Parties and their respective 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.


 


9.20         Guaranty of Secured Obligations by Guarantors.


 


(A)          The Guaranty.  In order to induce the Lenders to enter into
this Agreement and to extend credit hereunder and in recognition of the direct
benefits to be received by Guarantors from the extensions of credit hereunder,
each Guarantor hereby agrees with Administrative Agent and the Secured Parties
as follows:  each Guarantor hereby
unconditionally and irrevocably jointly and severally guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, by acceleration or otherwise, to Administrative Agent and the
other Secured Parties of any and all Secured Obligations.  If any or all of the Secured Obligations
become due and payable hereunder, each Guarantor unconditionally promises to
pay such indebtedness to Administrative Agent and the other Secured Parties, on
order, or demand, together with any and all reasonable expenses which may be
incurred by Administrative Agent and the other Secured Parties in collecting
any of the Secured Obligations.  Each
Guarantor hereby agrees that this is a guaranty of payment and performance and
not of collection only.


 


Notwithstanding any provision to the contrary contained
herein or in any other of the Loan Documents, to the extent the obligations of
a Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
Applicable Law (whether federal or state and including, the Bankruptcy
Code).  Any analysis of the provisions
hereof for purposes of laws relating to fraudulent conveyances or transfers
shall take into account the contribution agreement established in this
Subsection 9.20(A).


 


To the extent that any Guarantor shall be required
hereunder to pay any portion of any Secured Obligation exceeding the greater of
(i) the amount of the value actually received by such Guarantor and its
Subsidiaries from the Loans and other Secured Obligations and (ii) the
amount such Guarantor would otherwise have paid if such Guarantor had paid the
aggregate amount of


 


88

















 


the Secured Obligations (excluding the amount thereof
repaid by Borrower) in the same proportion as such Guarantor’s net worth on the
date enforcement is sought hereunder bears to the aggregate net worth of all
the Guarantors on such date, then such Guarantor shall be reimbursed by such
other Guarantors for the amount of such excess, pro rata, based on the
respective net worth of such other Guarantors on such date of enforcement.  The contribution agreement in this paragraph
is intended only to define the relative rights of the Guarantors and nothing
set forth in this paragraph is intended to or shall impair the obligations of
the Guarantors, jointly and severally, to pay any amounts as and when the same
shall become due and payable in accordance with the terms hereof.


 


Each Guarantor’s maximum obligations hereunder (the “Maximum Guarantor Liability”) in any case
or proceeding referred to below (but only in such a case or proceeding) shall
not be in excess of:


 


(i)            in a case or proceeding commenced by or against such Guarantor under the
Bankruptcy Code on or within two (2) years from the date on which any of
the Secured Obligations are incurred, the maximum amount that would not
otherwise cause the obligations of such Guarantor under this Subsection 9.20 (or any other
obligations of such Guarantor to Administrative Agent, the Lenders and any
other Person holding any of the Secured Obligations) to be avoidable or
unenforceable against such Guarantor under (A) Section 548 of the
Bankruptcy Code or (B) any state fraudulent transfer or fraudulent
conveyance act or statute applied in such case or proceeding by virtue of Section 544
of the Bankruptcy Code; or


 


(ii)           in a case or proceeding commenced by or against such Guarantor under the
Bankruptcy Code subsequent to two (2) years from the date on which any of
the Secured Obligations of such Guarantor are incurred, the maximum amount that
would not otherwise cause the obligations of such Guarantor under this Subsection 9.20 (or any other
obligations of such Guarantor to Administrative Agent, Lenders and any other
Person holding any of the Secured Obligations) to be avoidable or unenforceable
against such Guarantor under any state fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or proceeding by virtue of Section 544
of the Bankruptcy Code;


 


(iii)          in a case or proceeding commenced by or against such Guarantor under any
law, statute or regulation other than the Bankruptcy Code relating to
dissolution, liquidation, conservatorship, bankruptcy, moratorium, readjustment
of debt, compromise, rearrangement, receivership, insolvency, reorganization or
similar debtor relief from time to time in effect affecting the rights of
creditors generally (collectively, “Other
Debtor Relief Law”), the maximum amount that would not otherwise
cause the obligations of such Guarantor under this Subsection 9.20 (or any other obligations of such Guarantor to
Administrative Agent, the Lenders and any other Person holding any of the
Secured Obligations) to be avoidable or unenforceable against such Guarantor
under such Other Debtor Relief Law, including, any state fraudulent transfer or
fraudulent conveyance act or statute applied in any such case or
proceeding.  (The substantive state or
federal laws under which the possible avoidance or unenforceability of the
obligations of such Guarantor under this Subsection 9.20 (or any other obligations


 


89

















 


of Guarantor to
Administrative Agent, the Lenders and any other Person holding any of the
Secured Obligations) shall be determined in any such case or proceeding shall
hereinafter be referred to as the “Avoidance
Provisions”.)


 


To the extent set forth above, but only to the extent
that the obligations of such Guarantor under this Subsection 9.20, or the transfers made by such Guarantor under the
Security Documents to which it is a party, would otherwise be subject to
avoidance under any Avoidance Provisions if such Guarantor is not deemed to
have received valuable consideration, fair value, fair consideration or
reasonably equivalent value for such transfers or obligations, or if such
transfers or obligations of such Guarantor under this Subsection 9.20 would render such Guarantor insolvent, or leave
such Guarantor with an unreasonably small capital or unreasonably small assets
to conduct its business, or cause such Guarantor to have incurred debts (or to
have intended to have incurred debts) beyond its ability to pay such debts as
they mature, in each case as of the time any of the obligations of such
Guarantor are deemed to have been incurred and transfers made under such
Avoidance Provisions, then such obligations shall be reduced to that amount
which, after giving effect thereto, would not cause the obligations of such
Guarantor under this Subsection 9.20 (or any other obligations of such
Guarantor to Administrative Agent, the Lenders or any other Person holding any
of the Secured Obligations), as so reduced, to be subject to avoidance under
such Avoidance Provisions.  This
paragraph is intended solely to preserve the rights hereunder of Administrative
Agent, the Lenders and any other Person holding any of the Secured Obligations
to the maximum extent that would not cause the obligations of such Guarantor
under this Subsection 9.20 to be
subject to avoidance under any Avoidance Provisions, and neither such Guarantor
nor any other Person shall have any right, defense, offset, or claim under this
paragraph as against Administrative Agent, the Lenders or any other Person
holding any of the Secured Obligations that would not otherwise be available to
such Person under the Avoidance Provisions.


 


Each Guarantor agrees that the obligations of such
Guarantor under this Subsection 9.20
may at any time and from time to time exceed the Maximum Guarantor Liability,
without impairing the guaranty or any provision contained herein or affecting
the rights and remedies of Administrative Agent and the Lenders hereunder.


 


(B)           Bankruptcy.  Additionally, each of Guarantors
unconditionally and irrevocably guarantees jointly and severally the payment of
any and all Secured Obligations whether or not due or payable upon the
occurrence of any of the events specified in Subsections 6.1(F) or (G) and
unconditionally promises to pay such Secured Obligations on demand.  Each of the Guarantors further agrees that to
the extent that Borrower or any Guarantor shall make a payment or a transfer of
an interest in any property to Administrative Agent or any Lender, which
payment or transfer or any part thereof is subsequently invalidated, declared
to be fraudulent or preferential, or otherwise is avoided, and/or required to
be repaid to Borrower or any Guarantor, the estate of Borrower or any
Guarantor, a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of such
avoidance or repayment, the obligation or part thereof intended to be satisfied
shall be revived and continued in full force and effect as if said payment had not
been made.


 


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(C)           Nature of Liability.  The liability of each Guarantor hereunder is
exclusive and independent of any security for or other guaranty of the Secured
Obligations whether executed by any such Guarantor, any other guarantor or by
any other party, and no Guarantor’s liability hereunder shall be affected or
impaired by (i) any direction as to application of payment by Borrower or
by any other party, or (ii) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the
Secured Obligations, or (iii) any payment on or reduction of any such
other guaranty or undertaking, or (iv) any dissolution, termination or
increase, decrease or change in personnel by Borrower or other guarantor, or
(v) any payment made to a Secured Party on the Secured Obligations which
such Secured Party repays Borrower or another guarantor pursuant to court order
in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and each of Guarantors waives, to the fullest extent
permitted by Applicable Law, any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding.


 


(D)          Independent Obligation.  The obligations of each Guarantor hereunder
are independent of the obligations of any other guarantor or Borrower, and a
separate action or actions may be brought and prosecuted against each Guarantor
whether or not action is brought against any other guarantor or Borrower and
whether or not any other Guarantor or Borrower is joined in any such action or
actions.


 


(E)           Authorization.  Each of Guarantors authorizes each Secured
Party without notice or demand (except as shall be required by applicable
statute and cannot be waived), and without affecting or impairing its liability
hereunder, from time to time to (i)  change the terms of the Secured
Obligations or any part thereof, with the consent of Borrower, (ii) take
and hold security from any other guarantor or any other party for the payment
of this guaranty or the Secured Obligations and exchange, enforce, waive and
release any such security, and apply such security and direct the order or
manner of sale thereof as Administrative Agent and Lenders in their discretion
may determine and (iii) release or substitute any one or more endorsers,
guarantors, Borrower or other obligors.


 


(F)           Reliance.  It is not necessary for Administrative Agent
or the Lenders to inquire into the capacity or powers of Borrower or any
Guarantor or the officers, directors, members, partners or agents acting or
purporting to act on its behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.


 


(G)           Waiver.


 


(i)            Each of the Guarantors waives any right (except as shall be required by
applicable statute and cannot be waived) to require any Secured Party to
(1) proceed against Borrower, any other guarantor or any other party,
(2) proceed against or exhaust any security held from Borrower, any other
guarantor or any other party, or (3) pursue any other remedy in such
Secured Party’s power whatsoever.  Each
of the Guarantors waives any defense based on or arising out of any defense,
other than payment in full of the Secured Obligations, based on or arising out
of the disability of Borrower, any other guarantor or any other party, or the
unenforceability of the indebtedness or any part thereof from any cause, or the
cessation from any cause of the


 


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liability of Borrower
other than payment in full of the indebtedness. 
Any Secured Party may, at its election, foreclose on any security held
by it by one or more judicial or nonjudicial sales, whether or not every aspect
of any such sale is commercially reasonable (to the extent such sale is permitted
by and conducted in accordance with Applicable Law), or exercise any other
right or remedy any Secured Party may have against Borrower or any other party,
or any security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the indebtedness has been paid.  Each of the Guarantors waives any defense
arising out of any such election by any Secured Party, even though such
election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of the Guarantors against Borrower or any
other party or any security.


 


(ii)           Each of the Guarantors waives, to the fullest extent permitted by
Applicable Law, all presentments, demands for performance, protests and
notices, including, notices of nonperformance, notice of protest, notices of
dishonor, notices of acceptance of this guaranty, and notices of the existence,
creation or incurring of new or additional indebtedness.  Each of the Guarantors assumes all
responsibility for being and keeping itself informed of Borrower’s financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the obligations and the nature, scope and extent of the risks
which such Guarantor assumes and incurs hereunder, and agrees that none of the
Secured Parties shall have any duty to advise such Guarantor of information
known to it regarding such circumstances or risks.


 


(iii)          Until the Secured Obligations (other than contingent indemnity, expense
reimbursement and tax gross-up payment for which no claim has been asserted)
have been indefeasibly and irrevocably paid in full in cash, each of the
Guarantors hereby waives any claim, right or remedy, direct or indirect, that
such Guarantor now has or may hereafter have against Borrower, any other
Guarantor, any other guarantor of the Secured Obligations (collectively, the “Other Parties”), or any of its assets in connection with
this Guaranty or the performance by such Guarantor of its obligations hereunder
or the performance by such Other Party of its obligations under its guaranty,
in each case, whether such claim, right or remedy arises under this Guaranty,
in equity, under contract, by statute, under common law or otherwise and
including (i) any right of subrogation, reimbursement or indemnification
that such Guarantor now has or may hereafter have against Borrower with respect
to the Secured Obligations, (ii) any right to enforce, or to participate
in, any claim, right or remedy that any Secured Party now has or may hereafter
have against Borrower, and (iii) any benefit of, and any right to
participate in, any collateral or security now or hereafter held by any Secured
Party.  In addition, until the Secured
Obligations (other than contingent indemnity, expense reimbursement and tax
gross-up payment for which no claim has been asserted) shall have been
indefeasibly and irrevocably paid in full in cash and no commitments of
Administrative Agent or any Lender which would give rise to any Obligations are
outstanding each Guarantor shall withhold exercise of any right of contribution
such Guarantor may have against any other Guaranty or any Other Party,
including any such right of contribution as contemplated by this Subsection
9.20.  Each Guarantor further agrees
that, to the extent the waiver or agreement to withhold the exercise of its
rights of subrogation, reimbursement,


 


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indemnification and
contribution as set forth herein is found by a court of competent jurisdiction to
be void or voidable for any reason, any rights of subrogation, reimbursement or
indemnification such Guarantor may have against Borrower or against any
collateral or security, and any rights of contribution such Guarantor may have
against any such other Guarantor or Other Party, shall be junior and
subordinate to any rights any Secured Party may have against Borrower, to all
right, title and interest any Secured Party may have in any such collateral or
security, and to any right any Secured Party may have against such other
Guarantor or Other Party.  If any amount
shall be paid to any Guarantor on account of any such subrogation,
reimbursement, indemnification or contribution rights at any time when all
Secured Obligations (other than contingent indemnity, expense reimbursement and
tax gross-up payment for which no claim has been asserted) shall not have been
indefeasibly and irrevocably paid in full in cash and no commitments of
Administrative Agent or any Lender which would give rise to any Obligations are
outstanding, such amount shall be held in trust for Administrative Agent on
behalf of Secured Parties and shall forthwith be paid over to Administrative
Agent for the benefit of Secured Parties to be credited and applied against the
Secured Obligations, whether matured or unmatured, in accordance with the terms
hereof.


 


(H)          Limitation on Enforcement.  Administrative Agent and the other Secured
Parties agree that the guaranties provided in this Subsection 9.20 may be enforced only by the action of Administrative
Agent acting upon the instructions of the Requisite Lenders and that no Secured
Party shall have any right individually to seek to enforce or to enforce any
such guaranty, it being understood and agreed that such rights and remedies may
be exercised by Administrative Agent for the benefit of the Secured Parties
under the terms of this Agreement.


 


(I)            Confirmation of Payment.  Administrative Agent and the Lenders will,
upon request after payment of the indebtedness and obligations which are the
subject of the guaranties provided in this Subsection 9.20 and termination of the Loan Commitments, confirm
to Borrower, any Guarantor or any other Person that the such Secured
Obligations have been paid and the commitments relating thereto terminated,
subject to the provisions of Subsection
9.20(B).


 


(J)            Subordination of Intercompany Debt.  Any Indebtedness of Borrower or any Guarantor
now or hereafter held by any Guarantor (a “Subordinated Intercompany
Lender”) is hereby subordinated in right of payment to the Secured
Obligations, and any such Indebtedness collected or received by a Subordinated
Intercompany Lender following the occurrence of any Event of Default shall be
held in trust for Administrative Agent on behalf of Secured Parties and shall
forthwith be paid over to Administrative Agent for the benefit of Secured
Parties to be credited and applied against the Secured Obligations but without
affecting, impairing or limiting in any manner the liability of the
Subordinated Intercompany Lender under any other provision hereof.


 


9.21         FCC and PUC Compliance.  Notwithstanding anything to the contrary in
this Agreement and the other Loan Documents, no party hereto or thereto shall
take any action under this Agreement or the other Loan Documents that would
constitute or result in an assignment of any License, or a change of control of
any Loan Party or Subsidiary directly or indirectly holding


 


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a License, to the extent that
such assignment or change of control would require the prior approval by the
FCC under the Communications Act and/or any applicable PUC under the PUC Laws
without first obtaining such required approval.


 


9.22         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 Second Amendment Date (subject to satisfaction of all of the conditions
set forth in Subsection 7.1 except as provided in Subsection 7.3).  All obligations and rights of the Loan
Parties, Administrative Agent, Issuing Lender, Swingline Lender and
Lenders arising out of or relating to the period commencing on the Second
Amendment Date shall be governed by the terms and provisions of this Agreement;
the obligations of and rights of the Loan Parties, Administrative Agent and
Lenders arising out of or relating to the period prior to the Second 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 Loan Parties’ 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 the Loan Parties under such documents, notes and
agreements, and the Loan Parties hereby reaffirm all such obligations and
covenants, as amended and restated hereby.


 


9.23         Consent.  The Lenders party to this Agreement hereby
consent to modifications to the Pledge and Security Agreement set forth in that
certain Amendment and Confirmation Agreement, dated as of the Second Amendment
Date, by and among the Loan Parties and Administrative Agent.


 


9.24         Waiver.  The Lenders hereby waive any Default or Event
of Default arising under the Existing Credit Agreement and relating to BDC’s
Investments in BDB Ltd., a Bermuda company, and the affiliate transactions
relating thereto, as disclosed, in Schedules 3.3(c) and 3.8, respectively.


 


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.


 


“Acquired Companies”
means the 6 Delaware limited liability companies whose ownership interests were
acquired by AWCC pursuant to the Verizon Acquisition.


 


“Acquisition”
means the acquisition, in a single transaction or in a series of related
transactions, of all or any substantial portion of the assets of another
Person, or at least a majority of the equity interests of another person, in
each case whether involving a merger or consolidation with such other Person
and whether for cash, property, services, assumption of Indebtedness,
securities or otherwise.


 


“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 Second Amended and Restated 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, PUC
Laws 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.


 


“Approved Fund”
means any Fund that is administered or managed by (A) a Lender, (B) an
Affiliate of a Lender or (C) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


“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 Subsidiary of
Borrower of any of the following:  (A) any
of the capital stock or the ownership interests of any of its Subsidiaries, or (B) any
or all of its assets, other than (i) bona fide sales of inventory to
customers for fair value in the ordinary course of business, (ii) dispositions
of obsolete equipment not used or


 


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useful in the business of Borrower or any of its
Subsidiaries, and (iii) sales of Cash Equivalents for fair value.


 


“Assignment and Assumption”
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 Commitments, the Facilities and other interests under
this Agreement and the other Loan Documents in the form attached hereto as Exhibit 10.1(A).


 


“Available Revolver
Loan Commitment” means, at any time, the Revolver Loan Commitment,
as it may have been reduced pursuant to this Agreement minus the
Revolving Credit Obligations.


 


“AWCC” means Allied Wireless Communications Corporation, a Delaware corporation.


 


“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
established by CoBank on the first Business Day of each week as the higher of
(A) 1.50% plus the higher of (i) one-week LIBOR and (ii) one-month
LIBOR; and (B) the Prime Rate.  For
the purpose of this definition of “Base Rate”, “LIBOR” shall mean the one week
and/or one (1) month rate (rounded upward to the nearest thousandth), as
quoted by the British Bankers Association at 11:00 a.m. London time and
published by Bloomberg, on the first Business Day of the week applicable to
Borrower’s election of the Base Rate.


 


“Base Rate Loans”
means Loans (or portions thereof as permitted hereunder) accruing interest at a
rate determined by reference to the Base Rate.


 


“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.


 


“Business Day”
means (A) for all purposes other than as covered by clause (B) below,
any day excluding Saturday, Sunday and any day which is a legal holiday under
the laws of the States of Colorado 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 (B) with respect to all notices,
determinations, fundings and payments in connection with LIBOR Loans, any day
that is a Business Day described in clause (A) 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:  (A) 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 or 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 (2) years
from the date of acquisition thereof; (B) with the written consent of the
Requisite Lenders which is hereby given, until such time as such consent is
revoked, commercial paper maturing no more than 270 days 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.;
(C) certificates of deposit or bankers’ acceptances maturing within one (1) 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; (D) 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 $250,000 or
the maximum amount of insurance applicable to the aggregate amount of the Loan
Party’s deposits at such institution; and (E) Investments in CoBank or
other Investments satisfactory to Administrative Agent.


 


“Cash Management Agreement”
means any agreement or arrangement to provide treasury, depository, overdraft,
credit or debit card, purchase card, electronic funds transfer (including ACH
funds transfer services) and other cash management services that is between a
Loan Party and a Lender or an Affiliate of a Lender.  On the Second Restatement Date, the CoBank
Cash Management Agreement is a Cash Management Agreement.


 


“Change of Control”
means: (A) 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 (B) 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 30% or more of the total voting power represented by
Borrower’s then outstanding voting securities (all as calculated under clause
(A)); or (C) the occurrence of (i) 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 more than 51% of the
outstanding common shares of Borrower immediately prior to the merger have the
same proportionate ownership of common shares of the


 


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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 (ii) 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 (D) there
shall have been a change in the composition of the Board of Directors of
Borrower at any time during any consecutive 24 month period such that “continuing
directors” cease for any reason to constitute at least a 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 24 month period or were elected by or on the
nomination or recommendation of at least a majority of the then-existing “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 (1) 50% or more of the outstanding shares entitled to vote, or (2) 35%
or more of the outstanding shares entitled to vote at a time when no other
shareholders described in (A) or (B) above owns in the aggregate 35%
or more of the outstanding shares entitled to vote.


 


“Choice” means Choice Communications, LLC, a United States Virgin Islands limited
liability company.


 


“Closing Date”
means September 10, 2008.


 


“CoBank Cash Management
Agreement” means the Electronic Commerce Master Service Agreement,
between CoBank and Borrower, including all exhibits, schedules and annexes
thereto and including all related forms delivered by Borrower to CoBank related
thereto, including the CoBank Cash Manager Initial Rules Sets and similar
documents; provided that,  Borrower has
elected pursuant to its rule set instructions or similar document to have
its accounts that are subject to the CoBank Cash Management Agreement settle
against the Swingline Loan and such election has not been modified.


 


“Collateral”
means, collectively:  (A) all “Collateral”
as defined in the Security Documents; (B) all real property and interests
in real property mortgaged pursuant to the Security Documents; and (C) 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 a Loan Party 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.


 


“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


 


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marketing, management, technical and financial
(including call rating) or other services to companies providing such
transport, connection or monitoring services or constructing, creating,
developing or marketing communications-related network equipment, software and
other devices for use in the business described above.


 


“Contingent Obligation,”
as applied to any Person, means any direct or indirect liability of that
Person:  (A) 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; (B) 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 (C) under any foreign exchange contract,
currency swap agreement, interest rate swap agreement or other 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 (i) 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, (ii) 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 (iii) any
liability of such Person (including pursuant to a right of contribution) 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.


 


“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.


 


“Defaulting Lender”
means, at any time, (A) a Lender that has failed to fund any portion of
the Loans required to be funded by it hereunder within one (1) Business
Day of the date required to be funded by it hereunder, has failed to make a
payment to Issuing Lender in respect of a drawing under a Letter of Credit
within one (1) Business Day of the date such payment is required to be
made by it hereunder, has failed to make a payment to Swingline Lender pursuant
to Subsection 1.1(G) within one (1) Business Day of the date such
payment is required to be made by it hereunder, or has otherwise failed to
pay over to Administrative Agent or any other Lender any other amount (other
than a de minimis amount) required to be paid by it hereunder within one (1) Business
Day of the date when due, unless the subject of a good faith dispute (each a “funding
obligation”), or (B) a Lender that has notified Administrative Agent in
writing, or has stated publicly, that it will not comply with any such funding
obligation hereunder or has defaulted on its funding obligations under any
other loan agreement, credit agreement or other financing agreement (in each
case, unless the subject of a good faith dispute), (C) upon the agreement
of Administrative Agent and Borrower, each made in its sole discretion, a
Lender that has, for a period of three (3) or more Business Days
commencing on the date on which


 


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Administrative Agent confirms that such Lender has
received a written request from Administrative Agent, failed to confirm in
writing to Administrative Agent that it will comply with its funding
obligations hereunder unless the subject of a good faith dispute (it being
agreed that such written request from Administrative Agent shall include the
name and date of this Agreement, the names of Borrower and Administrative
Agent, the reply deadline, and the contact details (including phone number) for
the Person to whom the reply must be sent), or (D) a Lender with respect
to which a Lender Insolvency Event has occurred and is continuing.


 


“Domestic Subsidiary”
means any Subsidiary that is organized and existing under the laws of the
United States or any state, commonwealth or territory thereof or
under the laws of the District of Columbia.


 


“EBITDA” means (A) 
the result of (i) the sum without duplication of (1) 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, (2) total
interest expense (including non-cash interest), (3) depreciation and amortization
expense, (4) income taxes, (5) certain one time items and/or
adjustments associated with any acquisition to be agreed upon by Administrative
Agent in its reasonable discretion, (6) losses from the disposal or
impairment of property and equipment and other long-term assets, including,
goodwill, intangibles and spectrum, (7) cash dividends from unconsolidated
subsidiaries and joint ventures, (8) any other non-cash expenses, charges,
losses, or infrequent, unusual or extraordinary items reducing net income for
such period to the extent such non-cash items do not represent a cash item in
any future period, and (9) any transaction costs and similar amounts that
would be required to be expensed as a result of the application of FAS No. 141(R) (whether
or not applicable thereto), minus (ii) to the extent included in
calculating net income or deficit, the sum of (1) interest income, (2) non-cash
dividends and patronage income, (3) equity in earnings from unconsolidated
subsidiaries and joint ventures, and (4) any aggregate net gains arising
from the sale, exchange, or other disposition of fixed assets, investments,
securities, intangibles, and spectrum, and (B) will be measured for the
then most recently completed four (4) 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. 
For the purposes of calculating EBITDA for any period in connection with
any determination of the Total Leverage Ratio or any other financial ratio, if
at any time during such period Borrower or any Subsidiary shall have made any
Material Acquisition or Material Disposition, the EBITDA for such period shall
be calculated on a Pro forma Basis to give effect to such Material Acquisition
or Material Disposition.  As used in this
definition, “Material Acquisition” means any acquisition of property or series
of related acquisitions of property that (a) constitutes assets comprising
all or substantially all of an operating unit of a business or constitutes all
or substantially all of the common stock of a Person and (b) involves the
payment of consideration by Borrower and its Subsidiaries in excess of
$1,000,000; and “Material Disposition” means any disposition of property or
series of related dispositions of property that yields gross proceeds to
Borrower and its Subsidiaries in excess of $1,000,000.


 


“Environmental Laws”
means all applicable federal, state or local laws, statutes, rules, regulations
or ordinances, codes, common law, consent agreements, orders, decrees,
judgments


 


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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 hydrocarbons), pollutants or contaminants, to exposure to
toxic, hazardous or other controlled, prohibited, or regulated substances,
including, 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 (A) Equity by
(B) 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 any Loan Party within the
meaning of Sections 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 any Loan Party, 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.


 


“Excluded Subsidiary”
means (A) any Subsidiary that does not have total assets (including
Investments) or annual revenues (on a consolidated basis) in excess of
$10,000,000 individually or in the aggregate with all other Subsidiaries
excluded pursuant to this clause (A) (provided that for purposes of this
clause (A), the total assets and annual revenues of any Subsidiary that is not
a wholly owned Subsidiary shall be deemed to be the percentage of such


 


101

















 


assets or annual revenues, as the case may be,
corresponding to the economic ownership of the Loan Parties, directly or
indirectly, in such Subsidiary), (B) any other Subsidiary with respect to
which Administrative Agent, in its sole discretion, in consultation with
Borrower, determines the burden or cost or other tax consequences (including
any material adverse tax consequences) of becoming a Guarantor shall be
excessive in view of the benefits obtained by the Lenders therefrom, (C) any
Foreign Subsidiary, (D) any Foreign Subsidiary Holding Company, (E) and
Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, and (F) any
Permitted RTPark Subsidiary.


 


“Excluded Taxes”
means (A) any taxes imposed on (or measured by) net income (including
branch profits taxes) of a Lender or Administrative Agent, or any franchise or
similar taxes imposed in lieu thereof, by any Governmental Authority or taxing
authority by the jurisdiction under the laws of which such Lender or
Administrative Agent is organized or any jurisdiction in which such Lender or
Administrative Agent is a resident, has an office, conducts business or has
another connection and (B) in the case of a Foreign Lender, any
withholding tax that is imposed on amounts payable to such Foreign Lender (i) under
law in effect at the time such Foreign Lender becomes a party to this Agreement
(or designates a new office), except to the extent that such Foreign Lender (or
its assignor, if any) was entitled, at the time of designation of a new office
(or assignment), to receive additional amounts from Borrower with respect to
such withholding tax pursuant to Subsection 1.13(A) or (ii) that is
attributable to such Foreign Lender’s failure to comply with Subsection 1.13(B) or
(C).


 


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


 


“Farm Credit Lender” means a federally chartered Farm Credit System lending institution
organized under the Farm Credit Act of 1971.


 


“FATCA” means
Sections 1471 through 1474 of the IRC and any regulations or official
interpretations thereof.


 


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


 


“Fixed Charges”
means the sum of (A) cash interest expense, (B) scheduled principal
payments to be made on Indebtedness, (C) capital expenditures (excluding (i) capital
expenditures acquired pursuant to any Capital Lease, (ii) capital
expenditures funded through any cash equity investment made in Borrower, (iii) Permitted
Acquisitions and Investments that are classified as capital expenditures, (iv) capital
expenditures constituting any reinvestment of the Net Proceeds of any Asset
Disposition to the extent such reinvestment is permitted under Subsections 1.7(B) and
(C), and (v) capital expenditures constituting the purchase price of
equipment that is purchased substantially contemporaneously with the trade in
of existing equipment to the extent that the gross amount of such purchase
price is reduced by a credit granted by the seller of such equipment for the
equipment being traded in at or about such time), (D) cash income taxes,
and (E) any cash dividends and distributions, in each case, measured for
the then most recently completed four fiscal quarters.


 


102

















 


“Fixed Charge Coverage
Ratio” means, as of the date of calculation, the ratio derived by dividing
(A) EBITDA by (B) Fixed Charges.


 


“Foreign Subsidiary” means any Subsidiary of Borrower that is a “controlled foreign
corporation” under Section 956 of the IRC.


 


“Foreign Subsidiary Holding
Company” means any direct or indirect
Domestic Subsidiary that is treated as a disregarded entity for federal income
tax purposes and substantially all of the assets of which include the Equity
Interests of one or more Foreign Subsidiaries.


 


“Fund”
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course.


 


“Funding Default”
means a failure by a Lender to comply with its obligations under this Agreement
to make a Loan or make a payment to Issuing Lender in respect of a drawing
under a Letter of Credit.


 


“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 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 and Bermuda),
province, or state or any political subdivision of any of the foregoing, and
any government or any Person exercising executive, legislative, judicial,
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.


 


“GTT” means
Guyana Telephone and Telegraph Company Limited, a Guyana entity.


 


“Hedge Agreements”
means interest rate, currency or cross-currency rate swap agreements, and other
similar agreements entered into by Borrower or any other Loan Party in the
ordinary course of business (and not for speculative purposes) for the
principal purpose of protecting Borrower or any other Loan Party against
fluctuations in interest rates or currency exchange rates.


 


“Indebtedness”
as applied to any Person, means without duplication:  (A) all indebtedness for borrowed money;
(B) that portion of obligations with respect to Capital Leases


 


103

















 


or other capitalized agreements that is properly
classified as a liability on a balance sheet in conformity with GAAP;
(C) notes payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money; (D) 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); (E) all obligations created or
arising under any conditional sale or other title retention agreement; (F) 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; (G) all
obligations of such Person under take-or-pay or similar arrangements or under
commodities agreements; (H) the net termination obligations of such Person
under any Hedge Agreement, calculated as of any date as if such agreement or
arrangement were terminated as of such date; (I) 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); (J) the principal balance
outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product;
(K) 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 (i) such Indebtedness, (ii) such Person’s actual liability
for such Indebtedness or (iii) such Person’s investment in such
partnership or joint venture; (L) 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); (M) obligations with respect to
stated amounts of Letters of Credit; and (N) obligations under
partnership, organizational or other agreements to fund capital contributions
or other equity calls 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 Period” shall mean any LIBOR Interest Period.


 


“Investment” means (A) any direct or
indirect purchase or other acquisition by any Loan Party or any of their
respective Subsidiaries of any beneficial interest in, including stock,
partnership interest or other equity securities of, any other Person; and (B) any
direct or indirect loan, advance, transfer, guarantee, assumption of liability
or other obligation or liability, or capital contribution by any Loan Party or
any of their respective 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.


 


“ION HoldCo”
means ION HoldCo, LLC, a Delaware limited liability company.


 


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


 


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“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 Borrower, in such Lender’s capacity as an issuer of Letters of
Credit hereunder.


 


“Joinder Agreement” means a Joinder Agreement substantially in
the form of Exhibit 2.12 and delivered by an additional Subsidiary
of any Loan Party in accordance with the provisions of Subsection 2.12.


 


“Joint Venture” means a Person in which any Loan Party owns an
Equity Interest, provided that such Person is not wholly owned, directly or
indirectly, by a Loan Party.


 


“Lender” or “Lenders” means one or more of the banks or other financial
institutions party hereto from time to time and their successors and permitted
assigns pursuant to Subsection 8.1.


 


“Lender Insolvency Event”  means
that (A) a Lender or its Parent Company is insolvent, or is generally
unable to pay its debts as they become due, or admits in writing its inability
to pay its debts as they become due, or makes a general assignment for the
benefit of its creditors, or (B) such Lender or its Parent Company is the
subject of a bankruptcy, insolvency, reorganization, liquidation or similar
proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or
the like has been appointed for such Lender or its Parent Company, or such
Lender or its Parent Company has taken any action in furtherance of or
indicating its consent to or acquiescence in any such proceeding or
appointment.  A Lender Insolvency Event
shall not be deemed to have occurred solely by virtue of the ownership or
acquisition of any Equity Interest in any Lender or any Parent Company by a
Governmental Authority or any instrumentality thereof.


 


“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 Letter of
Credit Usage; and (B) all accrued and unpaid interest, fees and expenses
with respect thereto.


 


“Letter of Credit Sublimit”
means $10,000,000.00, as such amount may be adjusted in accordance with the
terms of this Agreement.


 


“Letter of Credit Usage”
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; and (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.  In the case of any Letter of
Credit that is issued in a currency other than United Stated Dollars, the
corresponding Letter of Credit Usage 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 LIBOR Interest Period are offered based on information
presented by the Reuters Screen LIBOR01 page as quoted by the British Bankers
Association as of 11:00 a.m. (London


 


105

















 


time) on the day which is two (2) 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 (2) 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, 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 (other than Swingline 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 cable television franchise or any landline telephone, cellular
telephone, microwave, personal communications or other telecommunications or
similar license, authorization, registration, certificate, waiver, certificate
of compliance, franchise, approval, material filing, exemption, order, or
permit, whether for the acquisition, construction or operation of any
Communications System, or to otherwise provide the services related to any
Communications System, granted or issued by the FCC or any applicable PUC or
other Governmental Authority (including, in Guyana and Bermuda).


 


“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 Facilities.


 


“Loan Commitment”
or “Loan Commitments” means one or
more of the Revolver Loan Commitment and the Incremental Term Loan Commitments,
if and when applicable, as any such commitment is reduced from time to time as
provided in this Agreement, and, in the case of any Incremental Term Loan
Commitment, as provided in the amendment or supplement to this Agreement
establishing such Incremental Term Loan Facility.


 


“Loan Documents”
means, collectively, this Agreement, the Revolver Notes, the Term Loan Notes,
the Swingline Note, the Security Documents, the Post-Closing Letter, any
guaranty 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 the Lenders in connection with the Loans and other
transactions contemplated by this Agreement, all as amended, modified,
supplemented, extended or restated from time to time.


 


106

















 


“Material Adverse
Effect” means (A) a material adverse effect upon the business,
result of operations, or financial condition of the Loan Parties or their
respective Subsidiaries, taken as a whole, or (B) the impairment of any
Liens in favor of Administrative Agent, of the ability of the Loan Parties,
taken as a whole, to perform their obligations under the Loan Documents or of
Administrative Agent or any Lender to enforce any material provision of 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) any contract or any other agreement, written or oral, of any
Loan Party or any of their respective Subsidiaries involving monetary liability
of or to any such Person in an aggregate amount in excess of $1,000,000  per annum and (B) any other contract
or agreement, written or oral, of any Loan Party or any of its respective
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 any Loan Party 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 (A) the
reasonable costs of such sale, lease, transfer, issuance or other disposition
(including taxes attributable to such sale, lease, transfer or issuance) and (B) amounts
applied to repayment of permitted Indebtedness (other than the Obligations)
secured by a Lien on the asset or property disposed and (C) for
Subsidiaries not wholly-owned by a Loan Party, the percentage equal to the
ownership interests of Persons other than such Loan Party (by way of example,
if a Loan Party 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, the Term Loan Notes, the Swingline Note and any notes evidencing any
Incremental Term Loan Facility as provided in the amendment or supplement to
this Agreement establishing such Incremental Term Loan Facility.


 


“NTIA” means the
National Telecommunications and Information Administration or other agency of
the United Stated of America succeeding to it powers.


 


“Obligations”
means all obligations, liabilities and indebtedness of every nature of Borrower
and all other Loan Parties under the Loan Documents from time to time owed to
Administrative Agent, any Lender or any Indemnitee, including the principal
amount of all debts, claims and indebtedness, accrued and unpaid interest and
all indemnities, fees, costs and


 


107

















 


expenses, whether 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 or any Other Debtor Relief Law
(whether or not allowed in such proceeding) by or against any Loan Party or any
of its respective Subsidiaries.


 


“Parent Company”
means, with respect to a Lender, the bank holding company (as defined in
Regulation Y of the Board of Governors of the Federal Reserve System, as in
effect from time to time), if any, of such Lender, and/or any Person owning,
beneficially or of record, directly or indirectly, a majority of the shares of
such Lender.


 


“Partnerships”
means, collectively, Ohio RSA 2 Limited Partnership, Ohio RSA #3 Limited
Partnership, Ohio RSA 5 Limited Partnership, Ohio RSA 6 Limited Partnership,
and Georgia RSA #8 Partnership.


 


“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 any Loan Party 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 (6) plan
years.


 


“Permitted Acquisition and
Investment” means any Investment (or commitment to make any
Investment), other than the Verizon Acquisition, including by means of an
Acquisition, by any Loan Party or any Subsidiary of a Loan Party in another
Person (but excluding any Investment (i) by BDC or any of its Subsidiaries
in GTT, any of GTT’s Subsidiaries or any Stimulus Recipient Subsidiary and (ii) by
GTT or any of its Subsidiaries in BDC, any of BDC’s Subsidiaries or any
Stimulus Recipient Subsidiary), provided, that:


 


(A) if such Investment constitutes the extension of
Indebtedness by a Loan Party, such Investment is evidenced by a written
promissory note in form and substance reasonably acceptable to Administrative
Agent, and such note is collaterally assigned and delivered to Administrative
Agent, provided, however, that such collateral assignment and
delivery shall only be required if the aggregate amount of all such unassigned
and undelivered notes together with the other instruments described in Section 4.5
of the Pledge and Security Agreement exceeds $1,500,000 in the aggregate at any
one time;


 


(B) such Investment and all transactions related
thereto shall be consummated in accordance with Applicable Law in all material
respects;


 


(C) after giving effect to such Investment, no
Default or Event of Default shall have occurred and be continuing;


 


(D) the Investment is related to the
telecommunications industry;


 


108

















 


(E) the aggregate consideration (including in the
calculation thereof the amount of any assumed Indebtedness) of all Permitted
Acquisitions and Investments after January 20, 2010 (other than
Investments by Subsidiaries that are not Loan Parties in Borrower or any of its
Subsidiaries other than Stimulus Recipient Subsidiaries), shall not exceed the
sum of (i) $140,000,000 plus (ii) the Net Proceeds of equity
issuances by Borrower made after April 26, 2010, in the amount of up to
but not to exceed $100,000,000, which Net Proceeds have not been used to cure a
Default or Event of Default under Subsection 4.1 (for purposes of this
calculation, the costs for Investments in any Person organized or principally
operated outside of the United States of America or any territory of the United
States of America will be multiplied by two (2), unless such Investment
is made with the Net Proceeds of equity issuances of Borrower pursuant to the
preceding clause (ii)); provided  however, in case of any
Permitted Acquisition and Investment made with the Net Proceeds of an equity
issuance of Borrower pursuant to the preceding clause (ii), the cost (including
in the calculation thereof the amount of any assumed Indebtedness) of such
Permitted Acquisition and Investment does not exceed five (5) multiplied
by the EBITDA (determined in accordance with the definition of Pro forma Basis)
of the Person in which such Investment is being made (or, if only a portion of
the equity of the Person is being acquired, five (5) multiplied by
the EBITDA of such Person multiplied by the percentage acquired); and


 


(F) Borrower shall be in compliance on a Pro forma
Basis after giving effect to such Permitted Acquisition and Investment
(including any Indebtedness assumed or permitted to exist or incurred pursuant
to Subsection 3.1(F)) with the covenants set forth in Subsections 4.1, 4.2, 4.3
and 4.4 for the most recently ended test period under such Subsections as if
such Permitted Acquisition and Investment had occurred on the first day of such
test period.


 


“Permitted
Encumbrances” means the following:


 


(A)          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 the Loan Parties and their respective
Subsidiaries, as applicable, in accordance with GAAP;


 


(B)           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;


 


(C)           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


 


109

















 


of obligations for the payment of borrowed money) in the
amount and to the extent permitted by Subsection 3.4;


 


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


 


(E)           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);


 


(F)           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 any Loan Party or any of their respective Subsidiaries or materially
adversely affecting the value of any Collateral;


 


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


 


(H)          Liens
in favor of CoBank as set forth in Subsection 2.7;


 


(I)            Liens
securing purchase money security agreements and Capital Leases permitted under
Subsection 3.1(K), 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), such Liens
do not secure any amounts other than amounts necessary to purchase or lease
such items;


 


(J)            Liens
(i) existing on the assets of any Person that becomes a Subsidiary (or is
a Subsidiary that survives a merger with such Person), or existing on assets
acquired, pursuant to the Verizon Acquisition or a Permitted Acquisition and
Investment to the extent the Liens on such assets secure Indebtedness permitted
by Subsection 3.1(F) or other obligations permitted by this Agreement, or (ii) existing
on the assets acquired in the Verizon Acquisition to the extent such Liens are
immaterial, are permitted under the Verizon Purchase Agreement and are removed
within 180 days of the consummation of the Verizon Acquisition; provided
that, in the case of Liens under either clause (i) or (ii), such Liens
attach at all times only to the same assets to which such Liens attached (and
after-acquired property that is affixed or incorporated into the property
covered by such Lien), and secure only the same Indebtedness or obligations
that such Liens secured, immediately prior to the Verizon Acquisition or such
Permitted Acquisition and Investment and any modification, replacement,
refinancing, refunding, renewal or extension thereof permitted by Subsection
3.1(F);


 


(K)          Liens (i) of
a collecting bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection, (ii) attaching to commodity
trading accounts or other commodities brokerage accounts incurred in the
ordinary course of business, and (iii) in favor of a banking institution
arising as a matter of law encumbering deposits (including the right of
set-off);


 


110
















 


(L)           Liens (i) on cash advances in
favor of the seller of any property to be acquired in an Investment permitted
hereunder to be applied against the purchase price for such Investment, and
(ii) consisting of an agreement to sell, transfer, lease or otherwise dispose
of any property in a transaction permitted hereunder, in each case, solely to
the extent such Investment or sale, disposition, transfer or lease, as the case
may be, would have been permitted on the date of the creation of such Lien;


 


(M)         Liens arising out of
conditional sale, title retention, consignment or similar arrangements for sale
or purchase of goods entered into by Borrower or any of its Subsidiaries in the
ordinary course of business permitted by this Agreement;


 


(N)          Liens that are contractual
rights of set-off (i) relating to the establishment of depository relations
with banks not given in connection with the issuance of Indebtedness or (ii)
relating to purchase orders and other agreements entered into with customers of
Borrower or any Subsidiary in the ordinary course of business;


 


(O)          Liens solely on any cash
earnest money deposits made by Borrower or any of its Subsidiaries in
connection with any letter of intent or purchase agreement arising in
connection with a transaction which if consummated would constitute a Permitted
Acquisition and Investment;


 


(P)           Liens securing Indebtedness
incurred in reliance on Subsection 3.1(D) and subclause (ii) of Subsection
3.1(J) and Liens securing Indebtedness in favor of a Loan Party or a Subsidiary
of a Loan Party;


 


(Q)          The security interest of
Borrower in the ownership interest of Sovernet Holding Company in ION HoldCo by
and through that certain Membership Pledge Agreement given by RLEC Holding
Company LLC and Sovernet Holding Company in favor of Borrower, dated as of
August 14, 2008, securing that certain Limited Recourse Guaranty, given by RLEC
Holding Company LLC and Sovernet Holding Company in favor of Borrower, dated as
of August 14, 2008;


 


(R)           The security interest of
Borrower in the personal property of ION HoldCo by and through that certain
Amended and Restated Mortgage and Security Agreement given by ION HoldCo in
favor of Borrower, dated as of August 14, 2008, securing that certain Amended
and Restated Loan Agreement, between ION HoldCo and Borrower, dated as of
August 14, 2008; and


 


(S)           customary restrictions in
governance and similar documents relating to Joint Ventures, provided such
restrictions relate solely to such Joint Venture or the Equity Interests of
such Joint Venture.


 


“Permitted RTPark
Subsidiary” means a Subsidiary of Choice to be established for the
purpose of participating in the RTPark Program and issuing the RTPark Preferred
Stock.


 


“Permitted Stimulus
Indebtedness” means any Indebtedness incurred by a Stimulus
Recipient Subsidiary to or guaranteed by a Stimulus Source Agency, so long as
(A) neither


 


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Borrower nor any of its Subsidiaries (other than such
Stimulus Recipient Subsidiary) is liable for the obligations of such Stimulus
Recipient Subsidiary in respect thereof, except to the extent of any guarantee
required by such Stimulus Source Agency as a term or condition to such
Indebtedness, (B) no Lien upon any assets of Borrower or any of it Subsidiaries
(other than such Stimulus Recipient Subsidiary) secures any such Indebtedness,
except to the extent of any pledge of the Equity Interests in such Stimulus
Recipient Subsidiary required by such Stimulus Source Agency as a term or
condition to such Indebtedness, and (C) such Indebtedness is extended to a
Stimulus Recipient Subsidiary under the Rural Broadband Access Loan and Loan
Guarantee Program of the Rural Utilities Service, or a substantially similar
program.


 


“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 any Loan Party or any of their ERISA Affiliates sponsor or
maintain or to which any Loan Party or any of their ERISA Affiliates make, is
making, or is obligated to make contributions and includes any Pension Plan.


 


“Pledge and Security Agreement” means that
certain Amended and Restated Pledge and Security Agreement, dated as of January
20, 2010, executed by the Loan Parties in favor of Administrative Agent, for
the benefit of itself and Lenders, in form and content approved by
Administrative Agent, pursuant to which Loan Parties have pledged, as security
for the Secured Obligations, on a first priority basis, substantially all
personal property of the Loan Parties including, stock in their respective
Subsidiaries, that they now own or may hereafter acquire, as amended by that
certain Amendment and Confirmation Agreement, dated as of the Second Amendment
Date, by and among the Loan Parties and Administrative Agent.


 


“Post-Closing
Letter” means that certain letter agreement, dated as of even date
herewith, executed by Borrower and addressed to Administrative Agent, in form
and content approved by Administrative Agent.


 


“Potential
Defaulting Lender” shall mean, at any time, a Lender (A) as to which
an event of the kind referred to in the definition of “Lender Insolvency Event”
has occurred and is continuing in respect of any financial institution
affiliate of such Lender, (B) that has (or its Parent Company or a financial
institution affiliate thereof has) notified Administrative Agent, or has stated
publicly, that it will not comply with its funding obligations under any other
loan agreement or credit agreement or other similar/other financing agreement
or (C) that has, or whose Parent Company has, a non-investment grade rating
from Moody’s Investors Services, Inc. or Standard & Poor’s Rating Service
or another nationally recognized rating agency.


 


“Prime 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


 


112

















 


prime lending rate for 75% 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
on a regular basis, the term “Prime Rate” shall be determined by reference to
such other regularly published prime rate based upon any averaging of such 30
commercial banks, as Administrative Agent shall determine in its reasonable
discretion.  Any change in Prime
Rate shall be automatic, without the necessity of notice provided to Borrower
or any other Loan Party.


 


“Pro forma Basis”
means, for purposes of calculating compliance with any test or financial
covenant under this Agreement for
any period, that the Verizon Acquisition or the applicable Permitted
Acquisition and Investment or Asset Disposition (and all other Permitted
Acquisitions and Investments or Asset Dispositions that have been consummated
during the applicable period), or the applicable Material Acquisition or
Material Disposition, and the following transactions in connection therewith
shall be deemed to have occurred as of the first day of the applicable period
of measurement in such test or covenant: 
(A) income statement items (whether positive or negative)
attributable to the property or Person subject to the Verizon Acquisition or
such Permitted Acquisition and Investment, Asset Disposition, Material
Acquisition or Material Disposition, (i) in the case of an Asset Disposition or
Material Disposition shall be excluded, and (ii) in the case of the
Verizon Acquisition, a Permitted Acquisition and Investment or a Material
Acquisition, shall be included, (B) any retirement of Indebtedness, and
(C) any Indebtedness incurred or assumed by Borrower or any of its
Subsidiaries in connection therewith and if such Indebtedness has a floating or
formula rate, shall have an implied rate of interest for the applicable period
for purposes of this definition determined by utilizing the rate which is or
would be in effect with respect to such Indebtedness as at the relevant date of
determination; provided that the foregoing pro forma adjustments may be
applied to any such test or financial covenant solely to the extent that such
adjustments are consistent with the definition of EBITDA and give effect to
events (including operating expense reductions) that are (x) attributable
to such transaction, (y) expected to have a continuing impact on Borrower
and its Subsidiaries and (z) factually supportable in a manner reasonably
satisfactory to Administrative Agent (provided, further, that pro forma
effect shall only be given to operating expense reductions or similar
anticipated benefits from the Verizon Acquisition or any Permitted Acquisition
and Investment, Asset Disposition, Material Acquisition or Material Disposition
to the extent that such adjustments and the bases therefor are set forth in
reasonable detail in a certificate of the chief financial officer of Borrower
delivered to Administrative Agent and dated the relevant date of determination
and which certifies that all necessary steps for the realization thereof have
been taken or Borrower reasonably anticipates that all necessary steps for the
realization thereof will be taken within one (1) year following such date of
determination).


 


“Pro Rata Share”
means (A) with respect to matters relating to a particular Loan
Commitment, the percentage obtained by dividing (i) the commitment of a
Lender under such Loan Commitment by (ii)  such Loan Commitment and
(B) with respect to all other matters, the percentage obtained by dividing
(i) the Total Lender Loan Commitments of Lender by (ii) the aggregate
Total Lender Loan Commitments of Lender, in either case as such percentage may
be adjusted by assignments permitted pursuant to Subsection 8.1; provided,
however, if any Loan


 


113

















 


Commitment is terminated pursuant to the terms hereof,
in lieu of commitments, the calculation of clauses (A) and (B) above, as
they relate to or include such Loan Commitment, shall be based on the aggregate
amount of Lender’s outstanding loans related to such Loan Commitment
and the aggregate amount of all outstanding loans related to such Loan
Commitment; and, provided, further, however, that for
purposes of the reallocations pursuant to Subsections 1.17(A)(i) and (B)(i)
only, and subject to such reallocations as provided in Subsection 1.17, each
Revolver Lender’s Pro Rata Share of any Letter of Credit Usage and of any
Swingline Loans shall be determined by reference to such Revolver Lender’s Pro
Rata Share of the Revolver Commitment.


 


“PUC” means
any state, provincial or other local public utility commission or similar
regulatory agency or body that exercises jurisdiction over the rates or
services or the ownership, construction or operation of any Communications
System (and its related facilities) or over Persons who own, construct or
operate a Communications 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.


 


“PUC Laws” means
all relevant rules, regulations, and published policies of, and all laws
administered by, any PUC asserting jurisdiction over any Loan Party or its
Subsidiaries.


 


“Related
Parties” means with respect to any Person, such Person’s Affiliates
and the partners, directors, officers, employees, agents and advisors of such
Person and of such Person’s Affiliates.


 


“Related
Secured Hedge Agreement” means a Secured Hedge Agreement entered
into by any Loan Party 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 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 (2) Lenders (to the extent more than one (1) Lender holds
any Loan Commitment or Loan and that at least one (1) such Lender is not a
voting Participant) who are not Defaulting Lenders and who have in the
aggregate Pro Rata Shares greater than 50%.


 


“Restricted Junior
Payment” means:  (A) any
dividend or other distribution, direct or indirect, on account of any equity
interest in any Loan Party or any of its respective Subsidiaries, including any
ownership interest and any shares of any class of stock or other equity
interest of any Loan Party or any of its respective Subsidiaries now or
hereafter outstanding; (B) 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 any Loan Party or any of
its respective Subsidiaries, including any ownership interest and any shares of
any class of stock of any Loan Party or any of its respective Subsidiaries now
or hereafter outstanding; (C) 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


 


114

















 


Lenders; and (D) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights to
acquire any equity interest in any Loan Party or any of its respective
Subsidiaries, including any ownership interest and shares of any class of stock
of any Loan Party or any of its respective Subsidiaries now or hereafter
outstanding, except, in each case, to the extent payable solely in capital
stock.


 


“Revolver Expiration Date” means the earlier of (A) the
acceleration of the Obligations pursuant to Subsection 6.3 or (B) September 10,
2014.


 


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


 


“Revolver Lender”
means any Lender that has a portion of the Revolver Loan Commitment in
accordance with the terms hereof.


 


“Revolver Loan
Commitment” means, when used as to each Revolver Lender, its
obligation to (A) make Revolver Loans to Borrower pursuant to Subsection 1.1(A)
and (B) purchase participations in
the Letters of Credit or in the Swingline Loans, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite
such Lender’s name on Schedule 1.1 or in the Assignment and Assumption
pursuant to which such Lender became a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement and,
otherwise, the aggregate of such commitments of all Revolver Lenders.  The Revolver Loan Commitment of all Revolver
Lenders as of the Second Amendment Date is $100,000,000.


 


“Revolver Loans”
means an advance or advances under the Revolver Loan Commitment, including any
advance or advances under the Swingline 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.


 


“Revolving Credit
Obligations” means, at any particular time, the sum of (A) aggregate
principal balance of all Revolver Loans (other than the Swingline Loans), plus
(B) the aggregate Letter of Credit Usage, plus (C) the aggregate
principal balance of all Swingline Loans; provided  however, at
any time during which the CoBank Cash Management Agreement is in effect, the
aggregate principal balance of all Swingline Loans shall be deemed to be the
amount of the Swingline Loan Commitment.


 


“RTPark Preferred Stock”
means the preferred stock of the Permitted RTPark Subsidiary which will be
issued to an indirect, wholly-owned Subsidiary of the government of the United
States Virgin Islands, will be valued at $200,000, will pay a dividend of 6%
per annum (the payment of which will be guaranteed by Choice), and will be
subject to a put right by the holder to Choice in 2012 with a purchase price of
not more than $200,000.


 


115

















 


“RTPark Program”
means the partnership of the University of the Virgin Islands, the Government
of the Virgin Islands and certain privately held businesses, and all
agreements, documents, rules and guidelines relating to any investment or
membership therein.


 


“RUS” means the
Rural Utilities Service or other agency of the United Stated of America
succeeding to it powers.


 


“Secured Hedge Agreement”
means any Hedge Agreement between Borrower or any other Loan Party and any
Lender or Affiliate of any Lender (or Person that was a Lender or Affiliate of
any Lender at the time such Hedge Agreement was entered into).


 


“Secured Obligation”
means (A) the Obligations, (B) all obligations of Borrower or any other Loan
Party under any Secured Hedge Agreement, and (C) all obligations of Borrower or
any other Loan Party under any Cash Management Agreement.


 


“Secured Party”
means (A) Administrative Agent, (B) any Lender, (C) any Affiliate of a Lender
that is a party to a Secured Hedge Agreement that executes and delivers to
Administrative Agent a letter agreement in form and substance acceptable to
Administrative Agent pursuant to which such Affiliate appoints Administrative
Agent as its agent under the applicable Security Documents, (D) any Person that
was a Lender or Affiliate of any Lender at the time it entered into a Secured
Hedge Agreement provided that such Affiliate has executed and delivered to
Administrative Agent a letter agreement in form and substance acceptable to
Administrative Agent pursuant to which such Affiliate appoints Administrative
Agent as its agent under the applicable Security Documents, (E) any Affiliate
of a Lender that is a party to any Cash Management Agreement that executes and
delivers to Administrative Agent a letter agreement in form and substance
acceptable to Administrative Agent pursuant to which such Affiliate appoints
Administrative Agent as its agent under the applicable Security Documents, and
(F) any Indemnitee.


 


“Security Documents”
means, collectively, all instruments, documents and agreements executed by or
on behalf of the Loan Parties to provide collateral security with respect to
the Secured Obligations, including, the Pledge and Security Agreement, any
Collateral Contract Assignments, mortgages, account control agreements, 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,
and the other Secured Parties, created hereunder or under any of the Security
Documents to secure the Secured Obligations.


 


“Stimulus Recipient
Subsidiary” means a Subsidiary of Borrower formed for the purpose of
incurring Permitted Stimulus Indebtedness or obtaining a grant from a Stimulus
Source Agency and conducting the business contemplated in its application to
such Stimulus Source Agency for such Permitted Stimulus Indebtedness or grant.


 


“Stimulus Source Agency”
means the RUS or the NTIA.


 


116

















 


“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.


 


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


 


“Swingline Lender” means
CoBank or any other Lender as a successor Swingline Lender pursuant to the terms hereof.


 


“Swingline Loan Commitment” means, as
of the Second Amendment Date, $10,000,000.


 


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


 


“Swingline Note” means
a Note of Borrower
substantially in the form of Exhibit 10.1(F), and any replacements,
reinstatements, renewals or extension of any such note, in whole or in part.


 


“Term Loan A” means the Loan made pursuant to Subsection
1.1(B)(i).


 


“Term Loan A Facility” means the term loan credit facility
extended to Borrower under the Prior Credit Agreement and described in
Subsection 1.1(B)(i).


 


“Term Loan A
Lender” means any Lender that has funded a portion of the Term Loan
A and/or purchased a portion of the Term Loan A in accordance with the terms
hereof in the principal amount set forth opposite such Lender’s Name on Schedule
1.1 or in the Assignment and Assumption pursuant to which such Lender
became a party hereto, as applicable.


 


“Term Loan A Maturity Date” means the earlier of (A) the
acceleration of the Obligations pursuant to Subsection 6.3 or (B) September 30,
2014.


 


“Term Loan A Note”
or “Term Loan A 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.


 


“Term Loan B” means the Loan made pursuant to Subsection
1.1(B)(ii).


 


 “Term Loan B
Facility” means the term loan credit facility extended to Borrower
under the Existing Credit Agreement and described in Subsection 1.1(B)(ii).


 


“Term Loan B
Lender” means any Lender that has funded a portion of the Term Loan
B and/or purchased a portion of the Term Loan B in accordance with the terms
hereof in the


 


117

















 


principal amount set forth opposite such Lender’s
Name on Schedule 1.1 or in the Assignment and Assumption pursuant to
which such Lender became a party hereto, as applicable.


 


“Term Loan B Maturity Date” means the earlier of (A) the
acceleration of the Obligations pursuant to Subsection 6.3 or (B) September 30,
2014.


 


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


 


“Term Loan C” means the Loan made pursuant to Subsection
1.1(B)(iii) in an initial outstanding principal amount of $50,000,000.


 


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


 


“Term Loan C
Lender” means any Lender that has funded a portion of the Term Loan
C and/or purchased a portion of the Term Loan C in accordance with the terms
hereof in the principal amount set forth opposite such Lender’s Name on Schedule
1.1 or in the Assignment and Assumption pursuant to which such Lender
became a party hereto, as applicable.


 


“Term Loan C Maturity Date” means the earlier of (A) the
acceleration of the Obligations pursuant to Subsection 6.3 or (B) September 30,
2014.


 


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


 


“Term Loan Facilities”
means the Term Loan A Facility, the Term Loan B Facility, the Term Loan C
Facility and, if and when applicable, any Incremental Term Loan Facility.


 


“Term Loan Maturity Date”
means the Term Loan A Maturity Date, when used with reference to the Term Loan
A, the Term Loan B Maturity Date, when used with reference to the Term Loan B,
and the Term Loan C Maturity Date, when used with reference to the Term Loan C
and, if applicable, the maturity date of any Incremental Term Loan Facility,
when used with reference to any such Incremental Term Loan.


 


“Term Loan Notes”
means the Term Loan A Notes, the Term Loan B Notes, and the Term Loan C Notes.


 


“Total Interest
Coverage Ratio” means, as of the date of calculation, the ratio
derived by dividing (A) EBITDA by (B) cash interest expense for
the then most recently completed four fiscal quarters.


 


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


 


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“Total Leverage Ratio”
means, as of the date of calculation, the ratio derived by dividing
(A) Indebtedness (other than as described in clause (H) of the definition
of Indebtedness and, to the extent related to or supporting the Indebtedness
described in clause (H) of such definition, as described in clauses (K), (L),
(M), and (N) of the definition of Indebtedness) by (B) EBITDA.


 


 “Verizon Acquisition” means the acquisition of the assets
subject to the Verizon Purchase Agreement by the Acquired Companies and the
acquisition of the ownership interest of the Acquired Companies by AWCC.


 


 “Verizon Purchase Agreement” means that certain Purchase
Agreement by and between Borrower and Cellco Partnership d/b/a Verizon
Wireless, dated as of June 9, 2009, together with any schedules, exhibits or
other attachments thereto, in each case, as modified to the extent such
modifications are permitted by this Agreement.


 


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, extensions, renewals and other modifications thereto, but only to
the extent such amendments, assignments, extensions, renewals and other
modifications are not prohibited by the terms of 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.


 


[Signatures follow on the next page.]


 


119
















 


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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Justin D. Benincasa

  
	
   

  	
   

  	
  Justin D. Benincasa

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COMMNET WIRELESS, LLC

  
	
   

  	
   

  	
  COMMNET FOUR CORNERS, LLC

  
	
   

  	
   

  	
  COMMNET MIDWEST, LLC

  
	
   

  	
   

  	
  COMMNET OF ARIZONA, L.L.C.

  
	
   

  	
   

  	
  GILA COUNTY WIRELESS, LLC

  
	
   

  	
   

  	
  EXCOMM, L.L.C.

  
	
   

  	
   

  	
  SOVERNET HOLDING CORPORATION

  
	
   

  	
   

  	
  COMMNET OF NEVADA, LLC

  
	
   

  	
   

  	
  TISDALE TELEPHONE COMPANY, LLC

  
	
   

  	
   

  	
  COMMNET OF TEXAS, LLC

  
	
   

  	
   

  	
  ALLIED WIRELESS COMMUNICATIONS CORPORATION

  
	
   

  	
   

  	
  CHOICE COMMUNICATIONS, LLC

  
	
   

  	
   

  	
  ALLIED WIRELESS COMMUNICATIONS (GA), LLC

  
	
   

  	
   

  	
  ALLIED WIRELESS COMMUNICATIONS (ID), LLC

  
	
   

  	
   

  	
  ALLIED WIRELESS COMMUNICATIONS (IL), LLC

  
	
   

  	
   

  	
  ALLIED WIRELESS COMMUNICATIONS (NC), LLC

  
	
   

  	
   

  	
  ALLIED WIRELESS COMMUNICATIONS (OH), LLC

  
	
   

  	
   

  	
  ALLIED WIRELESS COMMUNICATIONS (SC), LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Justin D. Benincasa

  
	
   

  	
   

  	
  Justin D. Benincasa

  
	
   

  	
   

  	
  Treasurer

  



 


 


[Signatures continued on following page]


 

















 


[Signatures continued from previous page]


 


 


	
   

  	
   

  	
  SOVERNET, INC.

  
	
   

  	
   

  	
  NATIONAL MOBILE COMMUNICATIONS
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Justin D. Benincasa

  
	
   

  	
   

  	
  Justin D. Benincasa

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SAL SPECTRUM LLC

  
	
   

  	
   

  	
  By: Atlantic Tele-Network, Inc., its Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Justin D. Benincasa

  
	
   

  	
   

  	
  Justin D. Benincasa

  
	
   

  	
   

  	
  Chief Financial Officer

  



 


 


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  COBANK, ACB, as Administrative
  Agent, Arranger, Swingline Lender, an Issuing Lender and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John Cole

  
	
   

  	
   

  	
   

  	
  John Cole

  
	
   

  	
   

  	
   

  	
  Vice President

  



 


 


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  BANCO
  POPULAR DE PUERTO RICO, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian S. Smith

  
	
   

  	
   

  	
  Ian S. Smith

  
	
   

  	
   

  	
  Senior Vice President & Region

  
	
   

  	
   

  	
  Manager, Loans and Credit

  
	
   

  	
   

  	
  Administration

  



 

















 


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  BANK OF AMERICA, N.A., as
  Co-Syndication Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John B. Desmond

  
	
   

  	
   

  	
  John B. Desmond

  
	
   

  	
   

  	
  Senior Vice President

  



 

















 


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  BROWN BROTHERS HARRIMAN & CO., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott Meves

  
	
   

  	
   

  	
  Scott Meves

  
	
   

  	
   

  	
  Senior Vice President

  



 

















 


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  DEUTSCHE BANK TRUST COMPANY AMERICAS, as
  Co-Documentation Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Enrique Landaeta

  
	
   

  	
   

  	
  Enrique Landaeta

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marguerite Sutton

  
	
   

  	
   

  	
  Marguerite Sutton

  
	
   

  	
   

  	
  Director

  



 

















 


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  FIFTH THIRD BANK, as
  a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Valerie Schanzer

  
	
   

  	
   

  	
  Valerie Schanzer

  
	
   

  	
   

  	
  Vice President

  



 

















 


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  RAYMOND JAMES BANK, FSB, as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph A. Ciccolini

  
	
   

  	
   

  	
  Joseph A. Ciccolini

  
	
   

  	
   

  	
  Vice President – Senior Corporate

  
	
   

  	
   

  	
  Banker

  



 

















 


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  TD BANK, N.A., as Co-Syndication
  Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marla Willner

  
	
   

  	
   

  	
  Name: 

  	
  Marla Willner

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 
















 


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  UNION BANK, N.A., as
  Co-Documentation Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Hill

  
	
   

  	
   

  	
  David Hill

  
	
   

  	
   

  	
  Vice President

  



 

















 


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  AGCHOICE FARM CREDIT, FLCA, as
  a voting participant

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Kerstetter

  
	
   

  	
   

  	
  Mark Kerstetter

  
	
   

  	
   

  	
  Vice President

  



 

















 


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  AGFIRST FARM CREDIT BANK as
  a voting participant

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce Fortner

  
	
   

  	
   

  	
  Bruce Fortner

  
	
   

  	
   

  	
  Vice President

  



 

















 


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  AGSTAR FINANCIAL SERVICES, FLCA as
  a voting participant

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy Mostaert

  
	
   

  	
   

  	
  Troy Mostaert

  
	
   

  	
   

  	
  Vice President

  



 

















 


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  FARM CREDIT BANK OF TEXAS, as
  a voting participant

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Horace R. Harrod

  
	
   

  	
   

  	
  Horace R. Harrod

  
	
   

  	
   

  	
  Vice President

  



 

















 


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  UNITED FCS, FLCA DBA FCS COMMERCIAL FINANCE GROUP as a voting participant

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeremy Voigts

  
	
   

  	
   

  	
  Jeremy Voigts

  
	
   

  	
   

  	
  Assistant Vice President

  



 

















 


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  FARM CREDIT SERVICES OF AMERICA, FLCA as
  a voting participant

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Zhang

  
	
   

  	
   

  	
  John Zhang

  
	
   

  	
   

  	
  Vice President

  



 

















 


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  GREENSTONE FARM CREDIT SERVICES, FLCA as
  a voting participant

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeff Pavlik

  
	
   

  	
   

  	
  Jeff Pavlik

  
	
   

  	
   

  	
  Vice President

  



 

















 


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  U.S. AGBANK, FCB as a
  voting participant

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Burdick

  
	
   

  	
   

  	
  Paul Burdick

  
	
   

  	
   

  	
  Assistant Vice President