exv10w1






Exhibit 10.1




EXECUTION VERSION




CREDIT AGREEMENT




by and among



ZAYO GROUP, LLC



and



ZAYO CAPITAL, INC.,



as Borrowers,



THE PERSONS PARTY HERETO FROM TIME TO TIME AS GUARANTORS,



THE FINANCIAL INSTITUTIONS PARTY
HERETO

FROM TIME TO TIME AS LENDERS,



SUNTRUST BANK, 

as Issuing Bank,



MORGAN STANLEY & CO. INCORPORATED AND RBC CAPITAL MARKETS

CORPORATION, 

as
Co-Syndication Agents,



SUNTRUST BANK,

 as Collateral Agent,



SUNTRUST BANK, 

as Administrative Agent,



and



SUNTRUST ROBINSON HUMPHREY, INC., 

as Sole Lead Arranger



March 12, 2010



 









 





INDEX




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1. DEFINITIONS, ACCOUNTING PRINCIPLES AND OTHER
INTERPRETIVE MATTERS
	 	 	1	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Accounting Principles
	 	 	33	 
	Section 1.3 Other Interpretive Matters
	 	 	33	 
	ARTICLE 2. THE LOANS AND THE LETTERS OF CREDIT
	 	 	34	 
	Section 2.1 Extension of Credit
	 	 	34	 
	Section 2.2 Manner of Borrowing and Disbursement of Loans
	 	 	36	 
	Section 2.3 Interest
	 	 	41	 
	Section 2.4 Fees
	 	 	42	 
	Section 2.5 Prepayment/Reduction of Commitment
	 	 	43	 
	Section 2.6 Repayment
	 	 	45	 
	Section 2.7 Notes; Loan Accounts
	 	 	45	 
	Section 2.8 Manner of Payment
	 	 	46	 
	Section 2.9 Reimbursement
	 	 	49	 
	Section 2.10 Pro Rata Treatment
	 	 	49	 
	Section 2.11 Application of Payments
	 	 	50	 
	Section 2.12 Use of Proceeds
	 	 	51	 
	Section 2.13 All Obligations to Constitute One Obligation
	 	 	52	 
	Section 2.14 Maximum Rate of Interest
	 	 	52	 
	Section 2.15 Letters of Credit
	 	 	53	 
	Section 2.16 Bank Products
	 	 	57	 
	Section 2.17 Additional Increase of Commitments; Additional
Lenders
	 	 	57	 
	Section 2.18 Defaulting Lenders
	 	 	59	 
	ARTICLE 3. GUARANTY
	 	 	62	 
	Section 3.1 Guaranty
	 	 	62	 
	Section 3.2 Special Provisions Applicable to Subsidiary Guarantors
	 	 	66	 
	ARTICLE 4. CONDITIONS PRECEDENT
	 	 	66	 






 









 






	 	 	 	 	 
	 	 	Page	 
	Section 4.1 Conditions Precedent to Initial Advance
	 	 	66	 
	Section 4.2 Conditions Precedent to Each Advance
	 	 	70	 
	Section 4.3 Conditions Precedent to Each Letter of Credit
	 	 	71	 
	ARTICLE 5. REPRESENTATIONS AND WARRANTIES
	 	 	72	 
	Section 5.1 General Representations and Warranties
	 	 	72	 
	Section 5.2 Survival of Representations and Warranties, etc
	 	 	82	 
	ARTICLE 6. GENERAL COVENANTS
	 	 	82	 
	Section 6.1 Preservation of Existence and Similar Matters
	 	 	82	 
	Section 6.2 Compliance with Applicable Law
	 	 	83	 
	Section 6.3 Maintenance of Properties
	 	 	83	 
	Section 6.4 Accounting Methods and Financial Records
	 	 	83	 
	Section 6.5 Insurance
	 	 	83	 
	Section 6.6 Payment of Taxes and Claims
	 	 	84	 
	Section 6.7 Visits and Inspections
	 	 	84	 
	Section 6.8 Intentionally Omitted
	 	 	85	 
	Section 6.9 ERISA
	 	 	85	 
	Section 6.10 Lien Perfection
	 	 	85	 
	Section 6.11 Intentionally Omitted
	 	 	85	 
	Section 6.12 Intentionally Omitted
	 	 	85	 
	Section 6.13 Blocked Account Agreements
	 	 	85	 
	Section 6.14 Further Assurances
	 	 	86	 
	Section 6.15 Broker’s Claims
	 	 	86	 
	Section 6.16 Indemnity
	 	 	87	 
	Section 6.17 Environmental Matters
	 	 	87	 
	Section 6.18 Formation of Subsidiaries
	 	 	88	 
	Section 6.19 Required PUC Consents
	 	 	88	 
	Section 6.20 Post-Closing Matters
	 	 	88	 
	ARTICLE 7. INFORMATION COVENANTS
	 	 	89	 
	Section 7.1 Quarterly Financial Statements and Information
	 	 	89	 
	Section 7.2 Annual Financial Statements and Information;
Certificate of No Default
	 	 	89	 






-2-









 






	 	 	 	 	 
	 	 	Page	 
	Section 7.3 Compliance Certificates
	 	 	90	 
	Section 7.4 Access to Accountants
	 	 	90	 
	Section 7.5 Additional Reports
	 	 	90	 
	Section 7.6 Notice of Litigation and Other Matters
	 	 	91	 
	ARTICLE 8. NEGATIVE COVENANTS
	 	 	93	 
	Section 8.1 Funded Debt
	 	 	93	 
	Section 8.2 Guaranties
	 	 	95	 
	Section 8.3 Liens
	 	 	95	 
	Section 8.4 Restricted Payments and Purchases
	 	 	95	 
	Section 8.5 Investments
	 	 	96	 
	Section 8.6 Affiliate Transactions
	 	 	97	 
	Section 8.7 Liquidation; Change in Ownership, Name, or Year;
Disposition or Acquisition of Assets; Etc
	 	 	98	 
	Section 8.8 Financial Covenants
	 	 	100	 
	Section 8.9 Additional Fiber Optic
	 	 	100	 
	Section 8.10 Conduct of Business
	 	 	100	 
	Section 8.11 Sales and Leasebacks
	 	 	100	 
	Section 8.12 Amendment and Waiver
	 	 	101	 
	Section 8.13 ERISA Liability
	 	 	101	 
	Section 8.14 Prepayments
	 	 	101	 
	Section 8.15 Negative Pledge
	 	 	101	 
	Section 8.16 Inconsistent Agreements
	 	 	102	 
	Section 8.17 Senior Note Documents
	 	 	102	 
	ARTICLE 9. DEFAULT
	 	 	102	 
	Section 9.1 Events of Default
	 	 	102	 
	Section 9.2 Remedies
	 	 	105	 
	ARTICLE 10. THE ADMINISTRATIVE AGENT
	 	 	107	 
	Section 10.1 Appointment and Authorization
	 	 	107	 
	Section 10.2 Interest Holders
	 	 	107	 
	Section 10.3 Consultation with Counsel
	 	 	107	 
	Section 10.4 Documents
	 	 	107	 






-3-









 






	 	 	 	 	 
	 	 	Page	 
	Section 10.5 Administrative Agent and Affiliates
	 	 	108	 
	Section 10.6 Responsibility of the Administrative Agent
	 	 	108	 
	Section 10.7 Action by Administrative Agent
	 	 	108	 
	Section 10.8 Notice of Default
	 	 	109	 
	Section 10.9 Responsibility Disclaimed
	 	 	109	 
	Section 10.10 Indemnification
	 	 	109	 
	Section 10.11 Credit Decision
	 	 	110	 
	Section 10.12 Successor Administrative Agent
	 	 	110	 
	Section 10.13 Administrative Agent May File Proofs of Claim
	 	 	111	 
	Section 10.14 Collateral
	 	 	111	 
	Section 10.15 Release of Collateral
	 	 	112	 
	Section 10.16 Additional Agents
	 	 	113	 
	ARTICLE 11. MISCELLANEOUS
	 	 	113	 
	Section 11.1 Notices
	 	 	113	 
	Section 11.2 Expenses
	 	 	115	 
	Section 11.3 Waivers
	 	 	116	 
	Section 11.4 Set-Off
	 	 	116	 
	Section 11.5 Assignment
	 	 	117	 
	Section 11.6 Counterparts
	 	 	119	 
	Section 11.7 Under Seal; Governing Law
	 	 	119	 
	Section 11.8 Severability
	 	 	119	 
	Section 11.9 Headings
	 	 	120	 
	Section 11.10 Source of Funds
	 	 	120	 
	Section 11.11 Entire Agreement
	 	 	120	 
	Section 11.12 Amendments and Waivers
	 	 	120	 
	Section 11.13 Other Relationships; No Advisory or Fiduciary
Responsibility
	 	 	122	 
	Section 11.14 Pronouns
	 	 	122	 
	Section 11.15 Disclosure
	 	 	122	 
	Section 11.16 Replacement of Lender
	 	 	123	 
	Section 11.17 Confidentiality
	 	 	123	 






-4-









 






	 	 	 	 	 
	 	 	Page	 
	Section 11.18 Revival and Reinstatement of Obligations
	 	 	124	 
	Section 11.19 Electronic Transmissions
	 	 	124	 
	ARTICLE 12. YIELD PROTECTION
	 	 	125	 
	Section 12.1 Eurodollar Rate Basis Determination
	 	 	125	 
	Section 12.2 Illegality
	 	 	125	 
	Section 12.3 Increased Costs
	 	 	126	 
	Section 12.4 Effect On Other Advances
	 	 	128	 
	Section 12.5 Capital Adequacy
	 	 	128	 
	ARTICLE 13. JURISDICTION, VENUE AND WAIVER OF JURY TRIAL
	 	 	129	 
	Section 13.1 Jurisdiction and Service of Process
	 	 	129	 
	Section 13.2 Consent to Venue
	 	 	130	 
	Section 13.3 Waiver of Jury Trial
	 	 	130	 
	Section 13.4 All Obligations to Constitute Joint and Several
Obligations
	 	 	130	 







EXHIBITS




	 	 	 	 	 

	Exhibit A

	 	—
	 	Form of Assignment and Acceptance
	Exhibit C

	 	—
	 	Form of Compliance Certificate
	Exhibit D

	 	—
	 	Form of Notice of Conversion/Continuation
	Exhibit E

	 	—
	 	Form of Request for Advance
	Exhibit F

	 	—
	 	Form of Request for Issuance of Letter of Credit
	Exhibit G

	 	—
	 	Form of Revolving Loan Note
	Exhibit H

	 	—
	 	Form of Guaranty Supplement
	Exhibit I

	 	—
	 	Form of Notice of Requested Commitment Increase






-5-









 






SCHEDULES




	 	 	 	 	 

	Schedule 1.1(a)

	 	—
	 	Commitment Ratios
	Schedule 1.1(b)

	 	—
	 	Equity Group
	Schedule 1.1(c)

	 	—
	 	Liens
	Schedule 4.1(h)

	 	—
	 	Required PUC Consent Applications
	Schedule 5.1(c)-1

	 	—
	 	Subsidiaries
	Schedule 5.1(c)-2

	 	—
	 	Partnerships/Joint Ventures
	Schedule 5.1(d)

	 	—
	 	Outstanding Capital Stock Ownership
	Schedule 5.1(i)

	 	—
	 	Labor Matters
	Schedule 5.1(j)

	 	—
	 	Taxes
	Schedule 5.1(m)

	 	—
	 	Investments/Guaranties as of the Agreement Date
	Schedule 5.1(n)

	 	—
	 	Litigation
	Schedule 5.1(o)

	 	 	 	ERISA
	Schedule 5.1(p)

	 	—
	 	Intellectual Property; Licenses and Certifications
	Schedule 5.1(u)

	 	—
	 	Insurance
	Schedule 5.1(w)-1

	 	—
	 	Leased Real Property
	Schedule 5.1(w)-2

	 	—
	 	Owned Real Property
	Schedule 5.1(x)

	 	—
	 	Environmental Matters
	Schedule 6.13

	 	—
	 	Bank and Investment Accounts
	Schedule 6.19

	 	—
	 	Required PUC Consents
	Schedule 6.20

	 	—
	 	Post Closing Matters
	Schedule 8.1

	 	—
	 	Outstanding Indebtedness as of the Agreement Date
	Schedule 8.5

	 	—
	 	Existing Investments
	Schedule 8.6

	 	—
	 	Affiliate Transactions







-6-











 





CREDIT AGREEMENT




     THIS CREDIT AGREEMENT, dated as of March 12, 2010 (as amended, restated, supplemented or otherwise
modified from time to time, this “Agreement”), is by and among ZAYO GROUP, LLC, a Delaware
limited liability company (“Zayo”), ZAYO CAPITAL, INC., a Delaware corporation (“Zayo
Capital”; and together with Zayo, each, individually as a “Borrower” and, collectively,
as the “Borrowers”), the Persons party hereto from time to time as Guarantors, the
financial institutions party hereto from time to time as Lenders, SUNTRUST BANK, as the Issuing
Bank, SUNTRUST BANK, as the Collateral Agent, and SUNTRUST BANK, as the Administrative Agent.



W I T N E S S E T H:




     WHEREAS, the Borrowers have requested that the Administrative Agent, the Issuing Bank and the
Lenders make available to it the Revolving Loan Commitment, on the terms and conditions set forth
herein, to, among other things, refinance existing Funded Debt and to fund permitted acquisitions,
transaction costs and working capital needs of the Borrowers and to use borrowings thereunder for
other general corporate purposes of the Borrowers and their Subsidiaries;



     WHEREAS, the Administrative Agent, the Issuing Bank and the Lenders are willing to make the
Revolving Loan Commitment available to the Borrowers upon the terms and conditions set forth
herein; and



     WHEREAS, the Borrowers and the Guarantors have agreed to provide Liens on substantially all of
their assets under the Security Documents, to secure both the Obligations and the Senior Note
Indebtedness, and SunTrust, as Collateral Agent, has agreed to serve as collateral agent and
secured party pursuant to the Security Documents for the benefit of the Lenders hereunder as well
as the holders of the Senior Note Indebtedness;



     NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:



ARTICLE 1.




DEFINITIONS, ACCOUNTING PRINCIPLES AND

OTHER INTERPRETIVE MATTERS



     Section 1.1 Definitions. For the purposes of this Agreement:













 





     “Account Debtor” shall mean any Person who is obligated to make payments in respect of an
Account.



     “ACH Transactions” shall mean any cash management or related services including the
automated clearinghouse transfer of funds by the Administrative Agent (or any Affiliate of the
Administrative Agent) for the account of the Borrower Parties pursuant to agreement or overdrafts.



     “Activation Notice” shall have the meaning specified in Section 6.13.



     “additional amounts” shall have the meaning specified in Section 2.8(b)(i).



     “Administrative Agent” shall mean SunTrust Bank, acting as administrative agent for the
Lender Group, and any successor Administrative Agent appointed pursuant to Section 10.12.



     “Administrative Agent Indemnified Person” shall have the meaning specified in Section
10.10.



     “Administrative Agent’s Office” shall mean the office of the Administrative Agent located
at 303 Peachtree Street, Twenty-Fifth Floor, Atlanta, Georgia 30308, Attention: Doug Weltz, or such
other office as may be designated by the Administrative Agent pursuant to the provisions of
Section 11.1.



     “Administrative Borrower” shall have the meaning specified in Section 13.5.



     “Administrative Questionnaire” shall mean a questionnaire in form and substance
satisfactory to the Administrative Agent.



     “Advance” or “Advances” shall mean amounts of the Loans advanced by the Lenders to,
or on behalf of, the Borrowers pursuant to Section 2.1 on the occasion of any borrowing and
shall include, without limitation, all Agent Advances and Swing Loans.



     “Affiliate” shall mean, with respect to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with such Person, or
that is a director, officer, manager or partner of such Person. For purposes of this definition,
“control”, when used with respect to any Person, includes the direct or indirect beneficial
ownership of ten percent (10%) or more of the outstanding Equity Interests of such Person.



     “Agent Advances” shall have the meaning specified in Section 2.1(e).



     “Aggregate Commitment Ratio” shall mean, with respect to any Lender, the ratio, expressed
as a percentage, of (a) the unutilized portion of the Revolving Loan Commitment plus Loans (other
than Swing Loans and Agent Advances) outstanding plus



2









 







participation interests in Letter of Credit
Obligations, Swing Loans and Agent Advances outstanding of such Lender, divided by (b) the sum of
the aggregate unutilized Revolving Loan Commitment plus Loans (other than Swing Loans and Agent
Advances) outstanding plus participation interests in Letter of Credit Obligations, Swing Loans and
Agent Advances of all Lenders, which, as of the Agreement Date, are set forth (together with Dollar
amounts thereof) on Schedule 1.1(a).



     “Aggregate Revolving Credit Obligations” shall mean, as of any particular time, the sum of
(a) the aggregate principal amount of all Revolving Loans then outstanding, plus (b) the aggregate
principal amount of all Swing Loans then outstanding, plus (c) the aggregate principal amount of
all Agent Advances then outstanding, plus (d) the aggregate principal amount of all Letter of
Credit Obligations then outstanding.



     “Agreement” has the meaning specified in the preamble, together with all Exhibits and
Schedules hereto.



     “Agreement Date” shall mean the date as of which this Agreement is dated.



     “Annualized EBITDA” shall mean, with respect to the Borrowers and their Subsidiaries for
any period, EBITDA for the two (2) most recent fiscal quarters then ended, multiplied by 2.



     “Applicable Law” shall mean, in respect of any Person, all provisions of constitutions,
statutes, rules, regulations, and orders of governmental bodies or regulatory agencies applicable,
whether by law or by virtue of contract, to such Person, and all orders 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.



     “Applicable Margin” shall mean a per annum rate of interest determined as follows: with
respect to each Advance (except Swing Loans and Agent Advances) and issuance of Letters of Credit,
the applicable margin shall be (a) from the Agreement Date through (and including) the date five
(5) Business Days after the date on which the Compliance Certificate is delivered to Administrative
Agent for the fiscal quarter ending on or about March 31, 2010, 4.00% per annum, and (b)
thereafter, the applicable margin determined by the Administrative Agent based upon the Leverage
Ratio for the fiscal quarter most recently ended, effective as of the fifth Business Day after the
day the Compliance Certificate is delivered to Administrative Agent for such fiscal quarter most
recently ended, expressed as a per annum rate of interest as set forth in the table below:



3









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Applicable Margin	 
	 	 	 	 	Applicable Margin	 	 	for Base Rate	 
	Level	 	Leverage Ratio	 	for LIBOR Advances	 	 	Advances	 
	I
	 	Greater than or equal to 3.25 to 1.00	 	 	4.50	%	 	 	3.50	%
	II
	 	Greater than or equal to 2.50 to 1.00 but less than 3.25 to 1.00	 	 	4.00	%	 	 	3.00	%
	III
	 	Greater than or equal to 1.75 to 1.00 but less than 2.50 to 1.00	 	 	3.75	%	 	 	2.75	%
	IV
	 	Less than 1.75 to 1.00	 	 	3.50	%	 	 	2.50	%






     “Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity that administers or manages a Lender.



     “Assignment and Acceptance” shall mean that certain form of Assignment and Acceptance
attached hereto as Exhibit A, pursuant to which each Lender may, as further provided in
Section 11.5, sell a portion of its Loans or a portion of the Revolving Loan Commitment.



     “Authorized Signatory” shall mean, with respect to any Borrower Party, such senior
personnel of such Borrower Party as may be duly authorized and designated in writing to the
Administrative Agent by such Borrower Party to execute documents, agreements, and instruments on
behalf of such Borrower Party.



     “Availability” shall mean, as of any date of determination, the amount (if any) by which
(a) the Revolving Loan Commitment, exceeds (b) the Aggregate Revolving Credit Obligations on such
date of determination.



     “Available Amount” shall mean, as of any date of determination, the amount of Equity
Proceeds received by the Borrowers on or after the Agreement Date and on or prior to such date.



     “Available Amount Utilization” shall mean, as of any date of determination, the sum,
without duplication, of (a) the amount of Funded Debt prepaid or repurchased in compliance with
Section 8.14(b), in each case, on or prior to such date of determination,
(b) the amount of Investments made pursuant to Section 8.5(n), in each case, on or prior to
such date of determination and (c) an amount equal to the fair market value of any acquisition
pursuant to sub-clause (y) of the second proviso of Section 8.7(c), in each case, on or
prior to such date of determination.



     “Available Letter of Credit Amount” shall mean, as of any particular time, an amount equal
to the lesser of (a) the Letter of Credit Commitment at such time less the aggregate amount of all
Letter of Credit Obligations then outstanding and (b) Availability at such time.



     “Bank Products” shall mean any one or more of the following types of services or facilities
extended to the Borrower Parties by a Person who at the time such services or



4









 







facilities were
extended was a Lender (or any Affiliate of a Lender): (a) credit cards; (b) ACH Transactions; (c)
cash management, including controlled disbursement services; and (d) the Lender Hedge Agreements.



     “Bank Products Documents” shall mean all agreements entered into from time to time by the
Borrower Parties in connection with any of the Bank Products and shall include the Lender Hedge
Agreements.



     “Bankruptcy Code” shall mean the United States Bankruptcy Code (11 U.S.C. Section 101 et
seq.), as now or hereafter amended, and any successor statute.



     “Base Rate” shall mean the higher of (i) the rate which the Administrative Agent announces
from time to time as its prime lending rate, as in effect from time to time, (ii) the Federal Funds
Rate, as in effect from time to time, plus one-half of one percent (1/2%) per annum or (iii) the
Eurodollar Rate determined on a daily basis for a period of one (1) month (any changes in such
rates to be effective as of the date of any change in such rate). The Administrative Agent’s prime
lending rate is a reference rate and does not necessarily represent the lowest or best rate of
interest actually charged to any customer of the Administrative Agent. The Administrative Agent may
make commercial loans or other loans at rates of interest at, above, or below the Administrative
Agent’s prime lending rate.



     “Base Rate Advance” shall mean an Advance which the Administrative Borrower requests to be
made as a Base Rate Advance or which is converted to a Base Rate Advance, in accordance with the
provisions of Section 2.2.



     “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to
have beneficial ownership of all securities that such “person” has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” will have correlative meanings.



     “Blocked Account” shall mean a deposit account or securities account with SunTrust and any
other account subject to a Blocked Account Agreement.



     “Blocked Account Agreement” shall mean any agreement executed by a depository bank and the
Collateral Agent, for the benefit of the Secured Parties, and acknowledged and agreed to by the
applicable Borrower Party, in form and substance satisfactory to the Collateral Agent.



     “Borrower” and “Borrowers” shall have the meanings specified in the preamble.



5









 





     “Borrower Parties” shall mean, collectively, the Borrowers and the Guarantors; and
“Borrower Party” shall mean any one of the foregoing Borrower Parties.



     “Borrower Payments” shall have the meaning specified in Section 2.8(b)(i).



     “Business Day” shall mean any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are closed; provided, however, that when used with reference to a
Eurodollar Advance (including the making, continuing, prepaying or repaying of any Eurodollar
Advance), the term “Business Day” shall also exclude any day in which banks are not open
for dealings in deposits of Dollars on the London interbank market.



     “Capital Expenditures” shall mean, for any period, on a consolidated basis for the Borrower
Parties, the aggregate of all expenditures made by the Borrower Parties during such period that, in
conformity with GAAP, are required to be included in or reflected on the consolidated balance sheet
as a capital asset of the Borrower Parties, including, without limitation, Capitalized Lease
Obligations of the Borrower Parties.



     “Capitalized Lease Obligation” shall mean that portion of any obligation of a Person as
lessee under a lease which at the time would be required to be capitalized on the balance sheet of
such lessee in accordance with GAAP.



     “Cash Equivalents” shall mean, collectively, (a) securities issued or directly and fully
guaranteed or insured by the US and its agencies and instrumentalities (provided that the full
faith and credit of the US is pledged in support thereof) maturing within three hundred sixty-five
(365) days of the date of purchase, (b) commercial paper and variable or fixed rate notes issued or
guaranteed by banks of the type described in the succeeding clause (c) (or by the parent company
thereof), or by domestic corporations, each of which domestic corporations shall have a
consolidated net worth of at least $500,000,000 and conduct substantially all of its business in
the United States, which commercial paper will mature within one hundred eighty (180) days from the
date of the original issue thereof and is rated “P-1” or better by Moody’s or “A-1” or better by
S&P, (c) certificates of deposit and time deposits maturing within three hundred sixty-five (365)
days of the date of purchase and issued by (i) any Lender, (ii) any US national or state bank
having capital and surplus totaling more than $500,000,000, or (iii) any bank whose short-term
commercial paper is rated “P-1” or better by Moody’s or “A-1” or better by S&P, (d) up to $100,000
per institution and up to $1,000,000 in the aggregate in (i) short-term obligations issued by any
local commercial bank or trust company located in those areas where the Borrowers conduct their
business, whose deposits are insured by the Federal Deposit Insurance Corporation, or (ii)
commercial bank-insured money market funds, or any combination of the types of investments
described in this clause (d), (e) repurchase agreements entered into by any Person with a bank or
trust company (including any of the Lenders) or recognized securities dealer having capital and
surplus in excess of



6









 







$500,000,000 for direct obligations issued by or fully guaranteed by the US in
which such Person shall have a perfected first priority security interest (subject to no other
Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the
amount of the repurchase obligations and (f) Investments, classified in accordance with GAAP as
current assets, in money market investment programs registered under the Investment Company Act of
1940, which are administered by reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the character described in
the foregoing subdivisions (a) through (e).



     “Cash Management Bank” shall have the meaning specified in Section 6.13.



     “Change in Control” shall mean (a) the direct or indirect sale, transfer, conveyance or
other disposition, in one or a series of related transactions, of all or substantially all of the
properties or assets of the Borrower Parties, taken as a whole, to any “person” (as that term is
used in Section 13(d)(3) of the Exchange Act) other than the Equity Group or an entity of which the
Equity Group are the Beneficial Owners, directly or indirectly, of a majority in the aggregate of
the voting power of the Equity Interests, on a fully diluted basis, (b) the adoption of a plan
relating to the liquidation or dissolution of any Borrower, (c) prior to the first public offering
of common stock of any Borrower, (i) the Equity Group cease to be the Beneficial Owners, directly
or indirectly, of a majority in the aggregate of the total voting power of the Equity Interests of
each Borrower, on a fully diluted basis, whether as a result of issuance of securities of such
Borrower, any merger, consolidation, liquidation or dissolution of such Borrower, or any direct or
indirect transfer of securities by such Borrower or (ii) a majority of the members of the Board of
Directors of such Borrower are not Continuing Directors, (d) on and following the first public
offering of common stock of any Borrower, (i) any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than the Equity Group, becomes the Beneficial
Owner, directly or indirectly, of 30% or more of the voting power of the Equity Interests of such
Borrower and (ii) either (A) the Equity Group are not the Beneficial Owners of a larger percentage
of the voting power of such Equity Interests than such person or group, or (B) the majority of the
members of the Board of Directors of such Borrower are not Continuing Directors or (e) any Borrower
consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges
with or into any Borrower, in any such event pursuant to a transaction in which any of the
outstanding Equity Interests of such Borrower is converted into or exchanged for cash, securities
or other property, other than any such transaction where (i) the Equity Interests of such Borrower
outstanding immediately prior to such transaction is converted into or exchanged for Equity
Interests of the surviving or transferee Person constituting a majority of the voting power of the
outstanding shares of such Equity Interests of such surviving or transferee Person (immediately
after giving effect to such issuance) and (ii)
(A) prior to the first public offering of common stock of such Borrower, immediately after such
transaction, the Equity Group are the Beneficial Owners, directly or indirectly, of a majority of
the aggregate of the total voting power of the Equity Interests of
such surviving or transferee
Person and (B) on and following the first public offering of



7









 







common stock of such Borrower,
immediately after such transaction, no “person” or “group” (as such terms are used in Section 13(d)
and 14(d) of the Exchange Act), other than the Equity Group, becomes, directly or indirectly, the
Beneficial Owner of 30% or more of the voting power of the Equity Interests of the surviving or
transferee Person.



     “CII” shall mean Communications Infrastructure Investments, LLC, a Delaware limited
liability company.



     “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.



     “Collateral” shall mean all property pledged as collateral security for the Obligations
pursuant to the Security Documents or otherwise, and all other property of any Borrower Party that
is now or hereafter in the possession or control of any member of the Lender Group, or on which any
member of the Lender Group has been granted a Lien.



     “Collateral Access Agreement” shall mean any agreement of any lessor, warehouseman,
processor, consignee or other Person in possession of, having a Lien upon or having rights or
interests in, any of the Collateral in favor of the Collateral Agent, for the benefit of the
Secured Parties, in form and substance satisfactory to the Collateral Agent in its Permitted
Discretion, waiving or subordinating Liens or certain other rights or interests such Person may
hold in regard to the property of any of the Borrower Parties and providing the Collateral Agent
access to its Collateral.



     “Collateral Agent” shall mean SunTrust Bank, acting as collateral agent for the Secured
Parties.



     “Commercial Letter of Credit” shall mean a documentary Letter of Credit issued by the
Issuing Bank in respect of the purchase of goods or services by a Borrower in the ordinary course
of its business.



     “Commitment Increase” shall have the meaning specified in Section 2.17(a).



     “Commitment Increase Cap” shall have the meaning specified in Section 2.17(a).



     “Communications Act” shall mean, collectively, the Communications Act of 1934, as amended
by the Telecommunications Act of 1996, and as further amended, and the rules and regulations
promulgated thereunder, including, without limitation, CFR Title 47 and the rules, regulations and
decisions of the FCC, in each case, as from time to time in effect.



     “Compliance Certificate” shall mean a certificate executed by an Authorized Signatory of
the Administrative Borrower substantially in the form of Exhibit C.



8









 





     “Confidential Information” shall have the meaning specified in Section 11.17.



     “Continuing Directors” means as of any date of determination, any member of the Board of
Directors of any Borrower who (a) was a member of such Board of Directors on the Agreement Date or
(b) was nominated for election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board of Directors at the time of
such nomination or election.



     “Contributing Borrower Party” shall have the meaning specified in Section 13.4(b).



     “Copyright Security Agreements” shall mean, collectively, the Copyright Security Agreements
made in favor of the Collateral Agent, on behalf of the Secured Parties, from time to time.



     “Co-Syndication Agents” shall mean Morgan Stanley & Co. Incorporated and RBC Capital
Markets Corporation.



     “Date of Issue” shall mean the date on which the Issuing Bank issues a Letter of Credit
pursuant to Section 2.15.



     “Default” shall mean any Event of Default, and any of the events specified in Section
9.1 regardless of whether there shall have occurred any passage of time or giving of notice (or
both) that would be necessary in order to constitute such event an Event of Default.



     “Default Rate” shall mean a simple per annum interest rate equal to, (a) with respect to
all outstanding principal, the sum of (i) the applicable Interest Rate Basis, plus
(ii) the highest Applicable Margin, plus (iii) two percent (2.00%), and (b) with respect to all
other Obligations (other than Obligations from Bank Products), the sum of (i) the Base Rate, plus
(ii) the highest Applicable Margin with respect to Base Rate Advances, plus
(iii) two percent (2.00%); provided, however, that (y) as to any Eurodollar Advance
outstanding on the date that the Default Rate becomes applicable, the Default Rate shall be based
on the then applicable Eurodollar Basis until the end of the current Eurodollar Advance Period and
thereafter the Default Rate shall be based on the Base Rate as in effect from time to time and (z)
as to any Base Rate Advance outstanding on the date that the Default Rate becomes applicable, the
Default Rate shall be based on the Base Rate as in effect from time to time.



     “Defaulting Lender” shall mean any Lender, as determined by the Administrative Agent, that
(a) has failed to fund any portion of its Loans or participations in Letters of Credit or Swing
Loans required to be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has notified the Administrative Agent, the Issuing Bank, the Swing
Bank, any Lender and/or the Borrowers in writing that it does not intend to comply with any of its
funding obligations under this Agreement or



9









 







has made a public statement to the effect that it does
not intend to comply with its funding obligations under this Agreement or under other agreements in
which it commits to extend credit, (c) has failed, within three Business Days after request by the
Administrative Agent prompted by any evidence of facts described in clause (b) with respect to such
Lender, to confirm in writing that it will comply with the terms of this Agreement relating to its
obligations to fund prospective Loans and participations in then outstanding Letters of Credit and
Swing Loans, (d) has otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within three Business Days of the date when
due, unless the subject of a good faith dispute, or (e) in the case of a Lender that has a
Revolving Loan Commitment or obligations with respect to outstanding Letters of Credit or Swing
Loans outstanding at such time, shall take, or is the Subsidiary of any Person that has taken, any
action or be (or is) the subject of any action or proceeding of a type described in Section 9.1
(g) or (h) (or any comparable proceeding initiated by a regulatory authority having
jurisdiction over such Lender or such Person).



     “Disbursement Account” shall mean account number 2000031004646 maintained at Wachovia Bank,
National Association, 1445 Ross Avenue, Third Floor, Dallas, Texas 75202, or as otherwise
designated to the Administrative Agent by the Administrative Borrower.



     “Dividends” shall mean any direct or indirect distribution, dividend, or payment to any
Person on account of any Equity Interests of any Borrower Party.



     “Dollars” or “$” shall mean the lawful currency of the United States.



     “Domestic Subsidiary” shall mean any Subsidiary of a Borrower that is not a Foreign
Subsidiary.



     “E-Fax” shall mean any system used to receive or transmit faxes electronically.



     “EBITDA” shall mean, with respect to the Borrowers and their Subsidiaries for any period,
determined on a consolidated basis in accordance with GAAP, the Net Income for such period,
plus, without duplication and to the extent deducted in determining Net Income for such
period, (i) income taxes, (ii) Interest Expense, (iii) depreciation and amortization expense, (iv) non-cash charges or reserves, (v) restructuring
charges and severance costs in an aggregate amount not to exceed $15,000,000 and (vi) charges or
expenses attributed to the Recapitalization Transaction and any actual or proposed acquisitions or
joint ventures, equity offerings, issuances and retirement of debt and divestitures of assets;
provided, however, that if any such calculation includes any period in which an
acquisition or sale of a Person or all or substantially all of the assets of a Person occurred,
then such calculation shall be made on a Pro Forma Basis.



10









 





     “Electronic Transmission” shall mean each document, instruction, authorization, file,
information and any other communication transmitted, posted or otherwise made or communicated by
e-mail or E-Fax, or otherwise to or from an E-System or any other equivalent service.



     “Eligible Assignee” shall mean (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; or (d) any other Person with a combined capital and surplus in excess of $500,000,000, in the
case of a bank, or a net worth of at least $500,000,000, in each case, that is engaged in the
business of making, purchasing, holding or otherwise investing in revolving bank loans and similar
extensions of credit in the ordinary course of its business and that is approved by (i) the
Administrative Agent, (ii) with respect to any proposed assignee of the Revolving Loan Commitment,
the Issuing Bank and, (iii) unless an Event of Default exists, the Administrative Borrower, such
approvals not to be unreasonably withheld or delayed.



     “Environmental Laws” shall mean, collectively, any and all applicable federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or requirements
of any Governmental Authority regulating, relating to or imposing liability or standards of conduct
concerning environmental protection matters, including without limitation, Hazardous Materials or
human health, as now or may at any time during the term of this Agreement be in effect.



     “Equity Group” shall mean those holders of Class A Preferred Units of CII as of the
Agreement Date set forth on Schedule 1.1(b) and their Affiliates (including related funds
that are Affiliates under common management with such holders, whether by contract or otherwise).



     “Equity Interests” shall mean, as applied to any Person, any capital stock, membership
interests, partnership interests or other equity interests of such Person, regardless of class or
designation, and all warrants, options, purchase rights, conversion or exchange rights, voting
rights, calls or claims of any character with respect thereto.



     “Equity Proceeds” shall mean any net cash proceeds received by any Borrower as a
contribution to its common equity capital or from the issue or sale of Equity Interests of such
Borrower and the amount of reduction of Funded Debt of the Borrower Parties that has been converted
into or exchanged for such Equity Interests (other than Equity Interests sold to, or Funded Debt
held by, a Subsidiary of any Borrower).



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as in effect on the
Agreement Date and as such Act may be amended thereafter from time to time.



     “ERISA Affiliate” shall mean, with respect to any Borrower Party, any trade or business
(whether or not incorporated) that together with such Borrower Party, are treated as a single
employer under Section 414 of the Code.



11









 





     “ERISA Event” shall mean, with respect to any Borrower Party or any ERISA Affiliate, (a)
any “reportable event” within the meaning of Section 4043 of ERISA with respect to a Title IV Plan
for which the thirty (30) day notice period has not been waived;
(b) the withdrawal of any Borrower Party or ERISA Affiliate from a Title IV Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (c) the complete or partial withdrawal of any Borrower Party or any ERISA
Affiliate from any Multiemployer Plan; (d) the filing of a notice of intent to terminate a Title IV
Plan or the treatment of a plan amendment as a termination under Section 4041 of ERISA; (e) the
institution or threatened institution of proceedings to terminate a Title IV Plan or Multiemployer
Plan by the PBGC; (f) the reorganization or insolvency of a Multiemployer Plan under Section 4241
or 4245 of ERISA; (g) the failure by any Borrower Party or ERISA Affiliate to make when due
required contributions to a Multiemployer Plan or Title IV Plan unless such failure is cured within
thirty (30) days; (h) any other event or condition that would reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer Plan or for the imposition of liability under
Section 4069 or 4212(c) of ERISA, or (i) the revocation or any action reasonably likely to result
in revocation of a Plan’s tax-qualified status under Code Section 401(a).



     “E-System” shall mean any electronic system, including Intralinks®, SyndTrak
Online and any other internet or extranet-based site, whether such electronic system is owned,
operated or hosted by the Administrative Agent, any of its Affiliates or any other Person,
providing for access to data protected by passcodes or other security system.



     “Eurodollar Advance” shall mean an Advance which the Administrative Borrower requests to be
made as a Eurodollar Advance or which is continued as or converted to a Eurodollar Advance, in
accordance with the provisions of Section 2.2.



     “Eurodollar Advance Period” shall mean, for each Eurodollar Advance, the each one (1), two
(2), three (3) or six (6) month period, as selected by the Administrative Borrower pursuant to
Section 2.2, during which the applicable Eurodollar Rate (but not the Applicable Margin)
shall remain unchanged. Notwithstanding the foregoing, however: (a) any applicable Eurodollar
Advance Period which would otherwise end on a day which is not a Business Day shall be extended to
the next succeeding Business Day, unless such Business Day falls in another calendar month, in
which case such Eurodollar Advance Period shall end on the next preceding Business Day; (b) any
applicable Eurodollar Advance Period which begins on a day for which there is no numerically
corresponding day in the calendar month during which such Eurodollar Advance Period is to end shall
(subject to clause (a) above) end on the last day of such calendar month; and (c) no Eurodollar
Advance Period shall extend beyond the Maturity Date or such earlier date as would interfere with
the repayment obligations of the Borrowers under Section 2.6.



12









 





     “Eurodollar Basis” shall mean, with respect to each Eurodollar Advance Period, a simple per
annum interest rate equal to the quotient of (a) the Eurodollar Rate divided by
(b) one minus the Eurodollar Reserve Percentage, stated as a decimal. The Eurodollar Basis shall
remain unchanged during the applicable Eurodollar Advance Period, except for changes to reflect
adjustments in the Eurodollar Reserve Percentage.



     “Eurodollar Rate” shall mean, for any Eurodollar Advance Period, the rate per annum quoted
on the display designated on that page of the Bloomberg reporting service, or similar service as
determined by the Administrative Agent, that displays British Banker’s Association Interest
Settlement Rates for Dollar deposits as of 11:00 a.m. (London, England time) two (2) Business Days
prior to the applicable date of determination; provided, however, that if no such
quoted rate appears on such page, the rate used for such Eurodollar Advance Rate shall be the per
annum rate of interest determined by the Administrative Agent to be the rate at which Dollar
deposits for such Eurodollar Advance Period are offered to the Administrative Agent as of 11:00
a.m. (London, England time) two (2) business days prior to such date of determination.



     “Eurodollar Reserve Percentage” shall mean the aggregate of the maximum reserve percentages
(including, without limitation, any emergency, supplemental, special or other marginal reserves)
expressed as a decimal (rounded upwards to the next one one-hundredth of one percent (1/100th of
1%)) in effect on any day to which the Administrative Agent is subject with respect to the
Eurodollar Basis pursuant to regulations issued by the Board of Governors of the Federal Reserve
System (or any Governmental Authority succeeding to any of its principal functions) (“Regulation
D”) with respect to Eurocurrency Liabilities (as that term is defined in Regulation D). Eurodollar
Advances shall be deemed to constitute Eurocurrency Liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to the Administrative Agent under Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of any change in any
reserve percentage. The Eurodollar Basis for any Eurodollar Advance shall be adjusted as of the
effective date of any changes in the Eurodollar Reserve Percentage.



     “Event of Default” shall mean any of the events specified in Section 9.1,
provided  that any requirement for notice or lapse of time, or both, has been satisfied.



     “Excluded Deposit Accounts” shall mean, collectively, (i) each disbursement account that
has a balance no greater than the amount necessary to cover outstanding checks drawn on such
account, (ii) petty cash deposit accounts for Borrower Parties that have an aggregate balance no
greater than $10,000, (iii) employee benefit trust accounts, so long as the balance therein does
not exceed as of any date of determination the Administrative Borrower’s estimate of employee
benefit claims to be paid in the remaining portion of such fiscal year (or, with respect to any
date of determination in the last fiscal month of any fiscal year, the Administrative Borrower’s
estimate of employee



13









 







benefit claims to be paid in the remaining portion of such fiscal year and
during the next succeeding fiscal year) from such date of determination (provided, that at any time
that a Default exists, Borrower Parties shall not deposit additional funds into such account except
to the extent necessary to pay accrued and unpaid employee benefit claims that are then due and
payable) and (iv) other deposit accounts with balances not to exceed $500,000 in the aggregate.



     “Executive Order No. 13224” shall mean Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended,
amended or replaced.



     “Existing Credit Agreement” shall mean that certain Amended and Restated Credit and
Guaranty Agreement, dated as of February 15, 2008, by and among Zayo, Zayo Bandwidth Northeast,
LLC, Zayo Bandwidth Tennessee, LLC, Zayo Bandwidth Indiana, LLC, Onvoy, Inc., Voicepipe
Communications, LLC, and City Fiber Networks, LLC, as borrowers, the guarantors party thereto, the
lenders party thereto from time to time, CIT Lending Services Corporation, as administrative agent,
and the other agents party thereto.



     “FCC” shall mean the Federal Communications Commission, or any governmental agency
succeeding to the functions thereof.



     “FCC Licenses” shall mean the licenses, authorizations, consents, waivers and permits
required under the Communications Act necessary for the Borrower Parties to own and operate their
properties and their businesses.



     “Federal Funds Rate” shall mean, for any day, the rate set forth in the weekly statistical
release designated as H.15(519), or any successor publication, published by the Federal Reserve
Bank of New York (including any such successor, “H.15(519)”) on the preceding Business Day opposite
the caption “Federal Funds (Effective)”; or, if for any relevant day such rate is not so published
on any such preceding Business Day, the rate for such day will be the arithmetic mean as determined
by the Administrative Agent of the rates for the last transaction in overnight Federal funds
arranged prior to 12:00 noon (New York, New York time) on that day by each of three (3) leading
brokers of Federal funds transactions in New York, New York selected by the Administrative Agent.



     “Fee Letter” shall mean that certain fee letter dated as of the Agreement Date, executed by
the Borrowers and addressed to SunTrust Bank.



     “Fiber-to-Tower Builds” shall mean the construction of a fiber lateral or multiple fiber
laterals that connects the Borrower Parties’ existing fiber optic network to one cellular tower or
multiple cellular towers.



     “Fiber-to-Tower Capex” shall mean Capital Expenditures made by the Borrower Parties and
their Subsidiaries for the purposes of conducting Fiber-to-Tower Builds.



14









 





     “Financial Covenants” shall mean the financial covenants applicable to the Borrower Parties
from time to time pursuant to Section 8.8.



     “Fixed Charge Coverage Ratio” shall mean, with respect to the Borrowers and their
Subsidiaries on a consolidated basis for any calendar quarter ended, for the twelve-month period
then ended, the ratio of (a) Annualized EBITDA for such period then ended minus Capital
Expenditures (excluding Capital Expenditures for the twelve-month period then ended (i) that
constitute Specified Fiber-to-Tower Capex, (ii) to the extent financed with Funded Debt for
Borrowed Money (other than Funded Debt incurred hereunder),
(iii) made with the proceeds of a disposition permitted hereunder and (iv) made with the proceeds
of an equity issuance permitted hereunder), to (b) Interest Expense for the twelve-month period
then ended.



     “Foreign Lender” shall have the meaning specified in Section 2.8(b).



     “Foreign Subsidiary” shall mean any Subsidiary of a Borrower Party that is (a) a Person
formed under the laws of a jurisdiction other than the United States or any state or territory of
the United States or District of Columbia, (b) a Person that is, or that has no material assets
other than Equity Interests in, a “controlled foreign corporation” (or several thereof) as defined
in Section 957(a) of the Code or (c) any Subsidiary of any of the foregoing.



     “Fund” shall mean any 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 of
its business.



     “Funded Debt” shall mean, with respect to the Borrowers and their Subsidiaries on a
consolidated basis and without duplication, as of any calculation date, (a) any obligation of such
Person for borrowed money, including, without limitation, all of the Obligations, (b) any
obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, (c)
any obligation of such Person to pay the deferred purchase price of property or for services (other
than such obligations incurred in the ordinary course of business), (d) any Capitalized Lease
Obligation, (e) any obligation or liability of others secured by a Lien on property owned by such
Person, whether or not such obligation or liability is assumed, (f) any debt, liability or
obligation of such Person arising from or in connection with any Hedge Agreements and, without
double counting, any other debt, liability or obligation arising from or in connection with any
Bank Products, (g) any reimbursement obligations (contingent or otherwise) of such Person with
respect to letters of credit, bankers acceptances and similar instruments issued for the account of
such Person, (h) any Guaranty (except items of shareholders’ equity or Equity Interests or surplus
or general contingency or deferred tax reserves), (i) any financial obligation of such Person under
purchase money mortgages, (j) any financial obligation of such Person under asset securitization
vehicles, (k) any obligations of such Person under conditional sales contracts and similar title
retention instruments with respect to property acquired, and (l) any financial obligation of such
Person as issuer of



15









 







Equity Interests redeemable in whole or in part at the option of a Person other
than such issuer, at a fixed and determinable date or upon the occurrence of an event not solely
within the control of such issuer; provided, however, that notwithstanding anything
in GAAP to the contrary, the amount of all obligations shall be the full face amount of such
obligations.



     “Funded Debt for Borrowed Money” shall mean, with respect to the Borrowers and their
Subsidiaries on a consolidated basis and, without duplication, as of any date of determination, all
items that, in accordance with GAAP, would be classified as indebtedness on the consolidated
balance sheet of the Borrowers and their Subsidiaries as of such date of calculation, including
Funded Debt described in subsections (a), (b), (d), (e), (f), (g) and (i) of the definition of
Funded Debt.



     “Funding Borrower Party” shall have the meaning specified in Section 13.4(b).



     “Funding Losses” shall mean expenses incurred by any Lender or any participant of such
Lender permitted hereunder in connection with the re-employment of funds prepaid, repaid, not
borrowed, or paid, as the case may be, and any lost profit of such Lender or any participant of
such Lender over the remainder of the Eurodollar Advance Period for such prepaid Advance. For
purposes of calculating amounts payable to a Lender hereunder with respect to Funding Losses, each
Lender shall be deemed to have actually funded its relevant Eurodollar Advance through the purchase
of a deposit bearing interest at the Eurodollar Rate in an amount equal to the amount of that
Eurodollar Advance and having a maturity and repricing characteristics comparable to the relevant
Eurodollar Advance Period; provided, however, that each Lender may fund each of its
Eurodollar Advances in any manner it sees fit, and the foregoing assumption shall be utilized only
for the calculation of amounts payable hereunder.



     “GAAP” shall mean generally accepted accounting principles and practices set forth from
time to time in the opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable stature and authority
within the US accounting profession); provided, that all calculations relative to
liabilities shall be made without giving effect to Statement of Financial Accounting Standards No.
159.



     “Governmental Authority” shall mean any nation or government, any state or other political
subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any government.



     “Guarantors” shall mean, collectively, the Subsidiary Guarantors and any other Person that
has executed a Guaranty Supplement or other document guaranteeing the Obligations; and “Guarantor”
shall mean any one of the foregoing Guarantors.



16









 





     “Guaranty” or “guaranteed,” as applied to an obligation (each a “primary
obligation”), shall mean and include (a) any guaranty, direct or indirect, in any manner, of any
part or all of such primary obligation, and (b) any agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or performance (or
payment of damages in the event of non-performance) of any part or all of such primary obligation,
including, without limiting the foregoing, any reimbursement obligations as to amounts drawn down
by beneficiaries of outstanding letters of credit, and any obligation of any Person, whether or not
contingent, (i) to purchase any such primary obligation or any property or asset constituting
direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or
payment of such primary obligation or (B) to maintain working capital, equity capital or the net
worth, cash flow, solvency or other balance sheet or income statement condition of any other
Person, (iii) to purchase property, assets, securities or services primarily for the purpose of
assuring the owner or holder of any primary obligation of the ability of the primary obligor with
respect to such primary obligation to make payment thereof or (iv) otherwise to assure or hold
harmless the owner or holder of such primary obligation against loss in respect thereof. All
references in this Agreement to “this Guaranty” shall be to the Guaranty provided for pursuant to
the terms of Article 3.



     “Guaranty Supplement” shall have the meaning specified in Section 6.18.



     “Hazardous Materials” shall mean any hazardous materials, hazardous wastes, hazardous
constituents, hazardous or toxic substances, petroleum products (including crude oil or any
fraction thereof), friable asbestos containing materials defined or regulated as such in or under
any Environmental Law.



     “Hedge Agreement” shall mean any and all transactions, agreements or documents now existing
or hereafter entered into between or among any Borrower Party, on the one hand, and a third party,
on the other hand, which provides for an interest rate, credit or equity swap, cap, floor, collar,
forward foreign exchange transaction, currency swap, cross currency rate swap, currency option, or
any combination of, or option with respect to, these or similar transactions, for the purpose of
hedging such Borrower Party’s exposure to fluctuations in interest or exchange rates, loan, credit
exchange, security or currency valuations.



     “Holdings” shall mean Zayo Group Holdings, Inc., a Delaware corporation.



     “Holdings Pledge Agreement” shall mean that certain Holdings Pledge Agreement dated as of
the Agreement Date among Holdings and the Collateral Agent, on behalf of and for the benefit of,
the Secured Parties, in form and substance satisfactory to Collateral Agent.



     “Indemnified Person” shall mean each member of the Lender Group, each Affiliate thereof and
each of their respective employees, representatives, officers, agents and directors.



17









 





     “Indenture” shall mean that certain Indenture of Trust of even date, among the Borrowers,
the Guarantors and the Trustee, pursuant to which the Senior Note Indebtedness is issued.



     “Insolvency Proceeding” shall mean any proceeding commenced by or against any Person under
any provision of the Bankruptcy Code or under any other state, federal or non-US bankruptcy or
insolvency law, assignments for the benefit of creditors, formal or informal moratoria,
compositions, extensions generally with creditors, or proceedings seeking reorganization,
arrangement, or other similar relief.



     “Intercreditor Agreement” shall mean that certain Collateral Agency and Intercreditor
Agreement, dated as of the Agreement Date, by and between the Administrative Agent, the Collateral
Agent and the Trustee, and acknowledged by the Borrowers and the Guarantors, in form and substance
satisfactory to the parties thereto, as the same may be amended, supplemented or otherwise modified
from time to time and any annexes, exhibits, schedules to any of the foregoing.



     “Interest Expense” shall mean, for the Borrowers and their Subsidiaries, for any period
determined on a consolidated basis in accordance with GAAP, the sum of (i) interest expense and
loan fees, including capitalized and non-capitalized interest and the interest component of
Capitalized Lease Obligations (whether or not actually paid during such period) and (ii) the net
amount payable (or minus the net amount receivable) under any Hedge Agreement during such period
(whether or not actually paid or received during such period).



     “Interest Rate Basis” shall mean the Base Rate or the Eurodollar Basis, as applicable.



     “Investment” shall mean, with respect to any Person, any loan, advance or extension of
credit by such Person to, or any Guaranty with respect to the Equity Interests, Funded Debt or
other obligations of, or any contributions to the capital of, any other Person, or any ownership,
purchase or other acquisition by such Person of any Equity Interests of any other Person, other
than any acquisition of all or substantially all of the Equity Interests of a Person or all or
substantially all of the assets, property or business of a Person.



     “Issuing Bank” shall mean SunTrust Bank, or any other Person who hereafter may be
designated as the Issuing Bank pursuant to an Assignment and Acceptance or otherwise.



     “Lender Agreement” shall mean a lender joinder agreement, in form and substance
satisfactory to the Administrative Agent.



     “Lender Group” shall mean, collectively, the Administrative Agent, the Issuing Bank and the
Lenders. In addition, if SunTrust Bank ceases to be the Administrative



18









 







Agent, then for any Lender
Hedge Agreement entered into by any Borrower Party with SunTrust Bank while it was the
Administrative Agent, SunTrust Bank shall be a deemed to be a member of the Lender Group for
purposes of determining the secured parties under any Security Documents.



     “Lender Hedge Agreement” shall mean any and all Hedge Agreements now existing or hereafter
entered into between or among any Borrower Party, on the one hand, and any Person that is a Lender
(or an Affiliate of a Lender) at the time such Hedge Agreement was entered into, on the other hand.



     “Lenders” shall mean those lenders whose names are set forth on the signature pages to this
Agreement under the heading “Lenders” and any assignees of the Lenders who hereafter become parties
hereto pursuant to and in accordance with Section 11.5; and “Lender” shall mean any one of
the foregoing Lenders.



     “Letter of Credit Commitment” shall mean the obligation of the Issuing Bank to issue
Letters of Credit in an aggregate face amount from time to time not to exceed $15,000,000 pursuant
to the terms of this Agreement.



     “Letter of Credit Obligations” shall mean, at any time, the sum of (a) an amount equal to
one hundred percent (100%) of the aggregate undrawn and unexpired stated amount (including the
amount to which any such Letter of Credit can be reinstated pursuant to its terms) of the then
outstanding Letters of Credit, plus (b) an amount equal to one hundred percent (100%) of the
aggregate drawn, but unreimbursed drawings of any Letters of Credit (excluding, for the avoidance
of doubt, such drawings that have been reimbursed with Advances made pursuant to Section
2.15).



     “Letter of Credit Reserve Account” shall mean any account maintained by the Administrative
Agent for the benefit of the Issuing Bank, the proceeds of which shall be applied as provided in
Section 9.2(d).



     “Letters of Credit” shall mean either Standby Letters of Credit or Commercial Letters of
Credit issued by the Issuing Bank on behalf of one or more of the Borrower Parties from time to
time in accordance with Section 2.15.



     “Leverage Ratio” shall mean, with respect to the Borrowers and their Subsidiaries on a
consolidated basis for any period, the ratio of (a) Funded Debt for Borrowed Money to (b)
Annualized EBITDA for such period.



     “Lien” shall mean, with respect to any property, any mortgage, lien, pledge, negative
pledge agreement, assignment for security purposes, charge, option, security interest, title
retention agreement, levy, execution, seizure, attachment, garnishment, any documents, notice,
instruments or other filings under the Federal Assignment of Claims Act of 1940 or other
encumbrance of any kind in respect of such property, whether or not choate, vested, or perfected.



19









 





     “Loan Account” shall have the meaning specified in Section 2.7.



     “Loan Documents” shall mean this Agreement, any Revolving Loan Notes, the Security
Documents, the Blocked Account Agreements, the Fee Letter, the Guaranty Supplements, all
reimbursement agreements relating to Letters of Credit issued hereunder, all Collateral Access
Agreements, all Compliance Certificates, all Requests for Advance, all Requests for Issuance of
Letters of Credit, all Notices of Conversion/Continuation, all documents executed by a Borrower
Party in connection with the Federal Assignment of Claims Act of 1940 (if any), and all other
documents, lockbox agreements, instruments, certificates, and agreements executed or delivered by a
Borrower Party in connection with or contemplated by this Agreement, including, without limitation,
any security agreements or guaranty agreements from the Borrowers’ Subsidiaries to the Lender
Group, or any of them; provided, however, that, notwithstanding the foregoing, none
of the Bank Product Documents shall constitute Loan Documents.



     “Loans” shall mean, collectively, the Revolving Loans, the Swing Loans and the Agent
Advances.



     “Majority Lenders” shall mean, as of any date of calculation, Lenders the sum of whose
unutilized portions of the Revolving Loan Commitment plus Loans (other than Swing Loans and Agent
Advances) outstanding plus participation interests in Letter of Credit Obligations, Swing Loans and
Agent Advances outstanding on such date of calculation exceeds fifty percent (50%) of the sum of
the aggregate unutilized Revolving Loan Commitment plus Loans (other than Swing Loans and Agent
Advances) outstanding plus participation interests in Letter of Credit Obligations, Swing Loans and
Agent Advances outstanding of all of the Lenders as of such date of calculation; provided,
however, that so long as there are two or fewer Lenders party to this Agreement, Majority
Lenders shall include all Lenders; provided, further, Defaulting Lenders and their
portion of the Revolving Loan Commitment, Loans and participation interests in Letter of Credit
Obligations, Swing Loans and Agent Advances shall be excluded for purposes of determining “Majority
Lenders” hereunder.



     “Margin Stock” shall have the meaning specified in Section 5.1(s).



     “Materially Adverse Effect” shall mean, with respect to any event, act, condition or
occurrence of whatever nature (including any adverse determination in any litigation, arbitration
or governmental investigation or proceeding), a material adverse change in, or a material adverse
effect on: (a) the business, operations, prospects, properties or condition (financial or
otherwise) of the Borrower Parties, taken as a whole; (b) the ability of a Borrower Party to
perform its material obligations under this Agreement and the other Loan Documents to which it is a
party; or (c) (i) the validity, binding effect or enforceability of any Loan Document, (ii) the
rights or remedies available to the Administrative Agent, the Issuing Bank or any Lender under the
Loan Documents, taken as a whole, or (iii) the attachment, perfection or priority of any Lien of
the Administrative



20









 







Agent under the Security Documents on a material portion of the Collateral,
except as a result of the action or inaction of a member of the Lender Group. In determining
whether any individual event, act, condition or occurrence of the foregoing types would result in a
Materially Adverse Effect, notwithstanding that a particular event, act, condition or occurrence
does not itself have such effect, a Materially Adverse Effect shall be deemed to have occurred if
the cumulative effect of such event, act, condition or occurrence and all other events, acts,
conditions or occurrences of the foregoing types which have occurred would result in a Materially
Adverse Effect.



     “Maturity Date” shall mean March 1, 2014, or such earlier date as payment of the Loans
shall be due (whether by acceleration or otherwise).



     “Maximum Guaranteed Amount” shall have the meaning specified in Section 3.1(g).



     “Moody’s” shall mean Moody’s Investor Service, Inc., or any successor thereto.



     “Mortgage” shall mean, collectively, any mortgage, deed of trust or deed to secure debt
entered into by a Borrower Party in favor of the Collateral Agent, for the benefit of the Secured
Parties.



     “Multiemployer Plan” shall mean a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA, and to which any Borrower Party or ERISA Affiliate is making, is obligated to make or has
made or been obligated to make at any time within the past five
(5) years, contributions on behalf of participants who are or were employed by any of them.



     “Necessary Authorizations” shall mean all material authorizations, consents, permits,
approvals, waivers, licenses, and exemptions from, and all filings and registrations with, and all
reports to, any Governmental Authority whether federal, state, local, and all agencies thereof,
which are required for the transactions contemplated by the Loan Documents and necessary to the
conduct of the businesses and the ownership (or lease) of the properties and assets of the Borrower
Parties.



     “Net Income” shall mean, for any period, the consolidated net income (or loss) of the
Borrowers and their Subsidiaries for such period determined in accordance with GAAP, but excluding
therefrom (to the extent otherwise included therein) (a) any extraordinary or non-recurring gains
or losses, (b) any gains attributable to write-ups of assets, (c) any non-cash losses attributable
to write-downs of assets, (d) any Equity Interest of the Borrowers or any Subsidiary of any
Borrower in the unremitted earnings of any Person that is not a Subsidiary, and (e) any income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary, or is merged into or
consolidated with any Borrower, or any Subsidiary on the date that such Person’s assets are
acquired by any Borrower or such Subsidiary.



21









 





     “New Lender” shall have the meaning specified in Section 2.17(a).



     “Notice of Conversion/Continuation” shall mean a notice in substantially the form of
Exhibit D.



     “Notice of Requested Commitment Increase” shall mean a notice substantially in the form of
Exhibit I.



     “Obligations” shall mean (a) all payment and performance obligations as existing from time
to time of the Borrower Parties to the Lender Group, or any of them, under this Agreement and the
other Loan Documents (including all Letter of Credit Obligations and including any interest, fees
and expenses that, but for the provisions of the Bankruptcy Code, would have accrued), or as a
result of making the Loans or issuing the Letters of Credit and (b) any debts, liabilities and
obligations as existing from time to time of any Borrower Party to any Lender (or an Affiliate of
any Lender) arising from or in connection with any Bank Products and, if such Lender ceases to be a
Lender, any debts, liabilities and obligations as existing from time to time of any Borrower Party
to such Lender (or an Affiliate of such Lender) arising from or in connection with any Bank
Products Documents entered into at a time when such Lender was a Lender.



     “OFAC” shall mean the Office of Foreign Assets Control of the United States Department of
the Treasury.



     “Other Taxes” shall have the meaning specified in Section 2.8(b)(ii).



     “Overadvance” shall have the meaning specified in Section 2.1(d).



     “Parent” shall mean Holdings.



     “Pari Passu Debt” shall mean any Funded Debt of a Borrower Party that ranks equally in
right of payment with the Obligations.



     “Participant” shall have the meaning specified in Section 11.5(d).



     “Patent Security Agreements” shall mean, collectively, the Patent Security Agreements made
in favor of the Collateral Agent, on behalf of the Secured Parties, from time to time.



     “Payment Date” shall mean the last day of each Eurodollar Advance Period for a Eurodollar
Advance.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.



     “Permitted Asset Swap” shall mean one or more contemporaneous sales, by a Borrower Party
with an un-Affiliated third party of non-current assets in exchange for (a)



22









 







non-current assets that
will be used or useful in a Permitted Business, (b) substantially all the assets of a Permitted
Business or (c) a majority of Equity Interests of any Person engaged in a Permitted Business that
will become on the date of the acquisition thereof a Subsidiary and comply with the provisions of
Section 6.18.



     “Permitted Business” shall mean the lines of business conducted by the Borrower Parties and
their Subsidiaries on the Agreement Date and any lines of business reasonably related,
complementary, ancillary or incidental thereto.



     “Permitted Discretion” shall mean a determination made in the exercise of reasonable
commercial discretion (from the perspective of a secured asset-based lender) in accordance with the
Administrative Agent’s customary or generally applicable credit policies.



     “Permitted Liens” shall mean, as applied to any Person:



     (a) Any Lien in favor of the Collateral Agent or any other member of the Lender Group given to
secure the Secured Obligations;



     (b) (i) Liens on real estate for real estate taxes not yet delinquent and (ii) Liens for taxes,
assessments, judgments, governmental charges or levies, or claims not yet delinquent or the
non-payment of which is being diligently contested in good faith by appropriate proceedings
and for which adequate reserves have been set aside on such Person’s books;



     (c) Liens of carriers, warehousemen, mechanics, laborers, suppliers, workers and materialmen
incurred in the ordinary course of business for sums not yet due or being diligently
contested in good faith, if such reserve or appropriate provision, if any, as shall be
required by GAAP shall have been made therefor;



     (d) Liens incurred in the ordinary course of business in connection with worker’s compensation
and unemployment insurance or other types of social security benefits;



     (e) easements, rights-of-way, restrictions (including zoning or deed restrictions), and other
similar encumbrances on the use of real property which in the reasonable opinion of the
Administrative Agent do not interfere with the ordinary conduct of the business of such
Person;



     (f) purchase money security interests and Liens securing Capitalized Lease Obligations provided
that such Lien attaches only to the asset so purchased or leased by such Person and secures
only Funded Debt incurred by such Person in order to purchase or lease such asset, but only
to the extent permitted by Section 8.1(d);



23









 





     (g) deposits to secure the performance of bids, trade contracts, tenders, sales, licenses,
leases, statutory obligations, surety and appeal bonds, performance bonds, letters of credit
permitted by this Agreement and other obligations of a like nature incurred in the ordinary
course of business;



     (h) Liens on assets of the Borrower Parties existing as of the Agreement Date which are set forth
on Schedule 1.1(c);



     (i) with respect to Collateral consisting of real property, Liens that are exceptions to the
commitments for title insurance issued in connection with the Mortgage, as accepted by the
Administrative Agent in its sole and absolute discretion;



     (j) statutory Liens in favor of landlords with respect to assets at leased premises in a state
that provides for statutory Liens in favor of landlords or Liens arising under leases entered
into by a Borrower Party in the ordinary course of business or other Liens imposed by law;



     (k)
normal and customary rights of setoff upon deposits of cash in favor of banks or other
depository institutions holding such deposits;



     (l) leases, licenses (including licenses of IP Rights) or subleases granted to others in
accordance with the terms of the applicable Security Documents, not interfering in any
material respect with the ordinary conduct of business of any Borrower Party or any
Subsidiary thereof and not resulting in any material diminution in the Collateral as security
for the Obligations;



     (m) any interest of title of a lessor under, and Liens arising from UCC financing statements (or
equivalent filings, registrations or agreements in foreign jurisdictions) solely evidencing
such lessor’s interest under, leases permitted by this Agreement;



     (n) deposits in anticipation of any acquisition of any property or assets permitted by this
Agreement, in an amount not to exceed ten percent (10%) of the purchase price for such
acquisition;



     (o) Liens securing judgments for the payment of money not constituting an Event of Default;




     (p)
Liens securing Permitted Secured Acquisition Indebtedness;



     (q) Liens on property of a Person in an amount not to exceed $15,000,000 outstanding at any time,
in each case, existing at the time (i) such Person is merged with or into or consolidated
with a Borrower Party, or (ii) such property is acquired by a Borrower Party;
provided, that such Liens were in existence prior to the contemplation of such merger
or consolidation or acquisition and do not extend to any assets other than



24









 







those of the
Person merged into or consolidated with, or the property acquired by, such Borrower Party;



     (r) Liens securing additional obligations in a principal amount not to exceed $10,000,000
outstanding at any time; and



     (s) Liens securing Permitted Refinancing Indebtedness, but only to the extent the Lien securing
the Funded Debt being refinanced is permitted by Section 8.3.



     “Permitted Refinancing Indebtedness” shall mean any Funded Debt of the Borrower Parties or
their Subsidiaries issued in exchange for, or the net cash proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Funded Debt of the Borrower Parties or their
Subsidiaries (other than Funded Debt owed to the Borrower Parties or their Subsidiaries);
provided, that (a) the amount of such Permitted Refinancing Indebtedness shall not exceed
the amount of the Funded Debt so extended, refinanced, renewed, replaced, defeased or refunded
(plus all accrued and unpaid interest thereon and the amount of any reasonably determined premium
necessary to accomplish such refinancing and such reasonable expenses incurred in connection
therewith), (b) such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Funded Debt being extended, refinanced, renewed,
replaced, defeased or refunded, (c) if the Funded Debt being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the Obligations, such
Permitted Refinancing Indebtedness is subordinated in right of payment to the Obligations, on terms
at least as favorable, taken as a whole, to the Lender Group, in the reasonable judgment of the
Administrative Agent, as those contained in the documentation governing such Funded Debt being
extended, refinanced, renewed, replaced, defeased or refunded, (d) if the Funded Debt being
extended, refinanced, renewed, replaced, defeased or refunded is Pari Passu Debt, such Permitted
Refinancing Indebtedness ranks equally in right of payment with, or is subordinated in right of
payment to, the Obligations and (e) such Funded Debt is incurred by either (i) the Borrower Party,
or Subsidiary thereof, that is the obligor on the Funded Debt being extended, refinanced, renewed,
replaced, defeased or refunded or (ii) a Borrower Party.



     “Permitted Secured Acquisition Indebtedness” shall mean Funded Debt permitted by
Section 8.1, the proceeds of which are used to consummate an acquisition or merger
permitted by Section 8.7(c) or Section 8.7(d), which Funded Debt may be secured
equally and ratably on a first-lien basis which the Obligations by Liens on the Collateral.



     “Person” shall mean an individual, corporation, partnership, trust, joint stock company,
limited liability company, unincorporated organization, other legal entity or joint venture or a
government or any agency or political subdivision thereof.



     “Plan” shall mean an employee benefit plan within the meaning of Section 3(3) of ERISA that
any Borrower Party (or, with respect to any Title IV Plan, any ERISA



25









 







Affiliate) maintains,
contributes to or has an obligation to contribute to or has maintained, contributed to or had an
obligation to contribute to at any time within the past six (6) years on behalf of participants who
were employed by any Borrower Party (or, with respect to any Title IV Plan, any ERISA Affiliate).



     “Pro Forma Basis” shall mean for purposes of determining compliance with the Financial
Covenants and the defined terms relating thereto, giving pro forma effect to any acquisition or
sale of a Person, all or substantially all of the business or assets of a Person, and any related
incurrence, repayment or refinancing of Funded Debt, Capital Expenditures or other related
transactions, including pro forma adjustments arising out of events that are directly attributable
to such transaction, are factually supportable and are expected to have a continuing impact, as
certified by the chief financial officer of the Administrative Borrower and reasonably satisfactory
to the Administrative Agent, in each case, as if such acquisition or sale and related transactions
were realized on the first day of the relevant period.



     “Property” shall mean any real property or personal property, plant, building, facility,
structure, underground storage tank or unit, equipment, inventory or other asset owned, leased or
operated by the Borrower Parties, their Subsidiaries or any of them (including, without limitation,
any surface water thereon or adjacent thereto, and soil and groundwater thereunder).



     “PUC” shall mean any state regulatory agency or body that exercises jurisdiction over the
interstate rates or services or the ownership, construction or operation of any long distance
network facility or telecommunications system or over Persons who own, construct or operate a
network facility or telecommunications system used to provide interstate services, 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 Person conducting business in such state.



     “Register” shall have the meaning specified in Section 11.5(c).



     “Recapitalization Transaction” shall mean the entry by the Borrower Parties into this
Agreement and the Senior Note Documents, the incurrence of the Obligations and the Senior Note
Indebtedness, the concurrent repayment and termination of the Existing Credit Agreement, certain
corporate structure reorganizations of the Borrower Parties occurred prior to, on and, to the
extent permitted by this Agreement, after the Agreement Date, and certain transactions, agreements
and other actions relating thereto.



     “Reimbursement Obligations” shall mean the payment obligations of the Borrowers under
Section 2.15(d).



     “Replacement Event” shall have the meaning specified in Section 11.16.



     “Replacement Lender” shall have the meaning specified in Section 11.16.



26









 





     “Request for Advance” shall mean any certificate signed by an Authorized Signatory of the
Administrative Borrower requesting a new Advance hereunder, which certificate shall be denominated
a “Request for Advance,” and shall be in substantially the form of Exhibit E. Each
Request for Advance shall, among other things, specify the date of the Advance, which shall be a
Business Day, the amount of the Advance, and the type of Advance.



     “Request for Issuance of Letter of Credit” shall mean any certificate signed by an
Authorized Signatory of the Administrative Borrower requesting that the Issuing Bank issue a Letter
of Credit hereunder, which certificate shall be in substantially the form of Exhibit F, and
shall, among other things, (a) specify that the requested Letter of Credit is either a Commercial
Letter of Credit or a Standby Letter of Credit, (b) the stated amount of the Letter of Credit
(which shall be in Dollars), (c) the effective date (which shall be a Business Day) for the
issuance of such Letter of Credit, (d) the date on which such Letter of Credit is to expire (which
shall be a Business Day and which shall be subject to Section 2.15(a)), (e) the Person for
whose benefit such Letter of Credit is to be issued, (f) other relevant terms of such Letter of
Credit, and (g) the Available Letter of Credit Amount as of the scheduled date of issuance of such
Letter of Credit.



     “Required PUC Consent Applications” shall mean all applications or petitions to be filed by
the Borrower Parties with respect to the applicable PUC seeking the Required PUC Consents, which
applications shall be in proper form for filing with the applicable PUC and shall otherwise be in
form and substance reasonably satisfactory to the Administrative Agent.



     “Required PUC Consents” shall mean all consents, orders and approvals of the applicable PUC
required in connection with the consummation of the transactions contemplated by this Agreement.



     “Restricted Payment” shall mean (a) Dividends, (b) loans to CII or Parent by any other
Borrower Party, (c) any payment of management, consulting or similar fees payable by any Borrower
Party or any Subsidiary of a Borrower Party to any Affiliate and (d) any redemption, purchase,
retirement, defeasance, sinking fund or similar payment or any claim of rescission with respect to
any Equity Interest of any Borrower Party.



     “Restricted Purchase” shall mean any payment on account of the purchase, redemption, or
other acquisition or retirement of any shares of Equity Interests of Parent.



     “Retiree Welfare Plan” shall mean a Plan that is an “employee welfare benefit plan” within
the meaning of Section 3(1) of ERISA that provides for continuing coverage or benefits for any
participant or any beneficiary of a participant after such participant’s termination of employment,
other than continuation coverage provided pursuant to Code Section 4980B (or applicable state law
mandating health insurance continuation coverage for employees) and at the sole expense of the
participant or the beneficiary.



27









 





     “Revolving Commitment Ratio” shall mean, with respect to any Lender, the ratio, expressed
as a percentage, of (a) the portion of the Revolving Loan Commitment of such Lender, divided by (b)
the Revolving Loan Commitment of all Lenders, which, as of the Agreement Date, are set forth
(together with Dollar amounts thereof) on Schedule 1.1(a); provided that for
purposes of Section 2.18(b) and Section 2.18(c), the calculation of “Revolving
Commitment Ratio” shall exclude the portion of the Revolving Loan Commitment of any Defaulting
Lender to the extent its Swing Loan exposure or Letter of Credit exposure is reallocated to the
non-Defaulting Lenders.



     “Revolving Loan Commitment” shall mean the several obligations of the Lenders to advance
the aggregate amount of up to $75,000,000 to the Borrowers on or after the Agreement Date, in
accordance with their respective Revolving Commitment Ratios, pursuant to the terms of this
Agreement, as such amount may be reduced from time to time pursuant to the terms of this Agreement
or increased pursuant to Section 2.17.



     “Revolving Loan Notes” shall mean those certain promissory notes issued by the Borrowers to
each of the Lenders that requests a promissory note, in accordance with each such Lender’s
Revolving Commitment Ratio of the Revolving Loan Commitment, in substantially in the form of
Exhibit G.



     “Revolving Loans” shall mean, collectively, the amounts (other than Agent Advances and
Swing Loans) advanced from time to time by the Lenders to the Borrowers under the Revolving Loan
Commitment, not to exceed the amount of the Revolving Loan Commitment.



     “Sanctioned Country” shall mean a country subject to a sanctions program identified on the
list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published
from time to time.



     “Sanctioned Person” shall mean (i) a Person named on the list of “Specially Designated
Nationals and Blocked Persons” maintained by OFAC available at
http://www.treas.gov/offices/eottfc/ofac/sdn/index.html, or as otherwise published from
time to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization
controlled by a Sanctioned Country, or (C) a person resident in a Sanctioned Country, to the extent
subject to a sanctions program administered by OFAC.



     “S&P” shall mean Standard & Poor’s Ratings Group, a division of McGraw-Hill, Inc., or any
successor thereto.



     “SEA” shall mean the Securities and Exchange Act of 1934 and the rules promulgated
thereunder by the Securities and Exchange Commission, as amended from time to time or any similar
Federal law then in force.



28









 





     “Secured Obligations” shall mean, collectively, the Obligations and the Senior Note
Indebtedness.



     “Secured Parties” shall mean, collectively, the Lender Group, the Trustee and the holders
of the Senior Note Indebtedness.



     “Securities Act” shall mean the Securities Act of 1933, as amended, or any similar Federal
law then in force.



     “Security Agreement” shall mean that certain Security Agreement dated as of the Agreement
Date among the Borrower Parties and the Collateral Agent, on behalf of and for the benefit of, the
Secured Parties, in form and substance satisfactory to Collateral Agent.



     “Security Documents” shall mean, collectively, the Copyright Security Agreements, the
Mortgages, the Patent Security Agreements, the Security Agreement, the Trademark Security
Agreements, all documents executed in connection with the Federal Assignment of Claims Act of 1940
(if any), all UCC-1 financing statements and any other document, instrument or agreement granting
Collateral for the Obligations, as the same may be amended or modified from time to time.



     “Senior Note Documents” shall mean the Indenture and the Security Documents (as defined in
the Indenture), in form and substance satisfactory to the Administrative Agent.



     “Senior Note Indebtedness” shall mean all outstanding principal and interest, including any
default interests, on the senior secured notes of the Borrowers, issued pursuant to the Indenture.



     “Senior Secured Leverage Ratio” shall mean, with respect to the Borrowers and their
Subsidiaries, on a consolidated basis for any period, the ratio of (1) the aggregate amount of all
Funded Debt for Borrowed Money of the Borrower Parties as of the last day of such period
constituting senior debt that is not subordinated in right of payment to the Obligations, and is
secured by Liens on the Collateral or any material portion thereof that are not subordinated to the
Liens on such portion of the Collateral securing the Obligations, to (b) Annualized EBITDA for such
period.



     “Sole Lead Arranger” shall mean SunTrust Robinson Humphrey, Inc.



     “Specified Fiber-to-Tower Capex” shall mean Fiber-to-Tower Capex incurred by the Borrower
Parties, but shall exclude any such Fiber-to-Tower Capex incurred by the Borrower Parties, in
aggregate, in excess of the amounts set forth in the table below for the applicable periods set
forth in such table:



29









 





	 	 	 	 	 
	 	 	Specified Fiber-to-Tower Capex
	Period	 	shall not exceed:
	Calendar year ending December 31, 2010
	 	$	40,000,000	 
	Calendar year ending December 31, 2011
	 	$	20,000,000	 
	Calendar year ending December 31, 2012
	 	$	20,000,000	 
	Calendar year ending December 31, 2013
	 	$	10,000,000	 






     ; provided, however, that if during any calendar year the amount of
Fiber-to-Tower Capex is less than the maximum amount set forth in the table above for such calendar
year, one hundred percent (100%) of such unutilized amount (inclusive of any amounts carried over
from prior calendar years) may be counted as Specified Fiber-to-Tower Capex in the succeeding
calendar year.



     “Standby Letter of Credit” shall mean a Letter of Credit issued to support obligations of
any Borrower Party incurred in the ordinary course of its business, and which is not a Commercial
Letter of Credit.



     “State PUC License” shall mean any license, certificate or other authorization issued by
any PUC to permit the Borrower Parties or their Subsidiaries to offer intrastate telecommunications
services in the state.



     “State Telecommunications Laws” shall mean the statutes of the states of the United States
and the District of Columbia governing the provisions of telecommunications services and the rules,
regulations and published policies, procedures, orders and decisions of the applicable PUC.



     “Subordinated Funded Debt” shall mean Funded Debt of any or all Borrower Parties that is
subordinated in right of payment to the Obligations on terms and conditions satisfactory to the
Administrative Agent.



     “Subsidiary” shall mean, as applied to any Person, (a) any corporation of which more than
fifty percent (50%) of the outstanding stock (other than directors’ qualifying shares) having
ordinary voting power to elect a majority of its board of directors, regardless of the existence at
the time of a right of the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any partnership or
limited liability company of which more than fifty percent (50%) of the outstanding partnership
interests or membership interests, as the case may be, is at the time owned by such Person, or by
one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such
Person, and (b) any other entity which is controlled or capable of being controlled by such Person,
or by one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of
such Person.



30









 





     “Subsidiary Guarantors” shall mean all Subsidiaries of the Borrowers signatory to this
Agreement as a “Guarantor” and all Subsidiaries of the Borrowers that have executed and delivered a
Guaranty Supplement.



     “Swing Bank” shall mean SunTrust Bank, or any other Lender who shall agree with the
Administrative Agent to act as Swing Bank.



     “Swing Loans” shall mean, collectively, the amounts advanced from time to time by the Swing
Bank to the Borrowers under the Revolving Loan Commitment in accordance with Section
2.2(g).



     “Swingline Rate” shall mean the rate offered to the Borrowers by the Administrative Agent
and accepted by the Administrative Borrower with respect to Swing Loans; provided,
however, the Administrative Borrower is under no obligation to accept the rate offered by
the Administrative Agent and the Administrative Agent is under no obligation to fund any Swing
Loans.



     “Taxes” shall have the meaning specified in Section 2.8(b)(i).



     “Telecommunication Assets” shall mean (a) all interest of any Person in any kind of
property or asset, whether real, personal or mixed, tangible or intangible (other than cash or Cash
Equivalents), including Equity Interests, used in the Telecommunications Business or (b) the Equity
Interests of any Person engaged primarily in the Telecommunications Business.



     “Telecommunications Business” shall mean the business of (a) transmitting or providing
services relating to the transmission of voice, video or data through transmission facilities, (b)
constructing, creating, developing or producing communications networks, related network
transmission, equipment, software, devices and content for use in a communications or content
distribution business or (c) evaluating, participating or pursing any other activity or opportunity
that is primarily related to clause (a) or (b) above.



     “Title IV Plan” shall mean a Plan that is an “employee pension benefit plan,” within the
meaning of Section 3(2) of ERISA, that is covered by Title IV of ERISA.



     “Trademark Security Agreements” shall mean, collectively, the Trademark Security Agreements
made in favor of the Collateral Agent, on behalf of the Secured Parties, from time to time.



     “Trustee” shall mean The Bank of New York Mellon Trust Company, N.A.



     “UCC” shall mean the Uniform Commercial Code as the same may, from time to time, be enacted
and in effect in the State of New York; provided, that to the extent that the UCC is used
to define any term herein and such term is defined differently in



31









 







different Articles or Divisions
of the UCC, the definition of such term contained in Article or Division 9 shall govern;
provided  further, that in the event that, by reason of mandatory provisions of law, any or
all of the attachment, perfection or priority of, or remedies with respect to, the Administrative
Agent’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect
in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform
Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the
provisions thereof relating to such attachment, perfection, priority or remedies and for purposes
of definitions related to such provisions.



     “Unfunded Pension Liability” shall mean at any time, the aggregate amount, if any, of the
sum of (a) the amount by which the present value of all accrued benefits under each Title IV Plan
exceeds the fair market value of all assets of such Title IV Plan allocable to such benefits in
accordance with Title IV of ERISA, all determined as of the most recent valuation date for each
such Title IV Plan using the actuarial assumptions for funding purposes in effect under such Title
IV Plan, and (b) for a period of five (5) years following a transaction which might reasonably be
expected to be covered by Section 4069 of ERISA, the liabilities (whether or not accrued) that
could be avoided by any Borrower Party or any ERISA Affiliate as a result of such transaction.



     “Uniform Customs” shall mean the Uniform Customs and Practice for Documentary Credits (2007
Revision), International Chamber of Commerce Publication No. 600, as the same may be amended from
time to time.



     “Unused Line Fee” shall have the meaning specified in Section 2.4(b).



     “US” or “United States” shall mean the United States of America, including the
District of Columbia and its possessions and territories.



     “USA Patriot Act” shall mean the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No.
107-56, 115 Stat. 272 (2001), as the same has been, or shall hereafter be, renewed, extended,
amended or replaced.



     “Voidable Transfer” shall have the meaning specified in Section 11.18.



     “Weighted Average Life to Maturity” shall mean, when applied to any Funded Debt at any
date, the number of years obtained by dividing (a) the sum of the product obtained by multiplying
(i) the amount of each then-remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect thereof, by (ii) the number
of years (calculated to the nearest one-twelfth) that will elapse between such date and the making
of such payment, by (b) the then outstanding principal amount of such Funded Debt.



     “Zayo” has the meaning specified in the preamble.



32









 





     “Zayo Capital” has the meaning specified in the preamble.



     Section 1.2 Accounting Principles. The classification, character and amount of all assets,
liabilities, capital accounts and reserves and of all items of income and expense to be determined,
and any consolidation or other accounting computation to be made, and the interpretation of any
definition containing any financial term, pursuant to this Agreement shall be determined and made
in accordance with GAAP consistently applied, unless such principles are inconsistent with the
express requirements of this Agreement; provided that if because of a change in GAAP after
the date of this Agreement any Borrower or any of its Subsidiaries would be required to alter a
previously utilized accounting principle, method or policy in order to remain in compliance with
GAAP, such determination shall continue to be made in accordance with such Borrower’s or such
Subsidiary’s previous accounting principles, methods and policies. All accounting terms used herein
without definition shall be used as defined under GAAP. All financial calculations hereunder shall,
unless otherwise stated, be determined for the Borrowers on a consolidated basis with their
Subsidiaries.



     Section 1.3 Other Interpretive Matters. Each definition of an agreement in this Article 1
shall include such instrument or agreement as amended, restated, supplemented or otherwise modified
from time to time with, if required, the prior written consent of the Majority Lenders, except as
provided in Section 11.12 and otherwise to the extent permitted under this Agreement and
the other Loan Documents. Except where the context otherwise requires, definitions imparting the
singular shall include the plural and vice versa. The words “hereof”, “herein” and “hereunder” and
words of similar import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, unless otherwise specifically provided herein.
References in this Agreement to “Articles”, “Sections”, “Schedules” or “Exhibits” shall be to
Articles, Sections, Schedules or Exhibits of or to this Agreement unless otherwise specifically
provided. The words “include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”, whether or not so expressly stated in each such instance, and the term
“or” has, except where otherwise indicated, the inclusive meaning represented by the phrase
“and/or”. The word “will” shall be construed to have the same meaning and effect as the word
“shall”. “Writing”, “written” and comparable terms refer to printing, typing, computer disk, e-mail
and other means of reproducing words in a visible form. Except where otherwise specifically
restricted, reference to a party to a Loan Document includes that party and its successors and
assigns. All terms used herein which are defined in Article 9 of the UCC and which are not
otherwise defined herein shall have the same meanings herein as set forth therein.



33









 





ARTICLE 2.




THE LOANS AND THE LETTERS OF CREDIT



     Section 2.1 Extension of Credit. Subject to the terms and conditions of, and in reliance
upon the representations and warranties made in, this Agreement and the other Loan Documents, the
Lenders agree, severally in accordance with their respective Revolving Commitment Ratios, and not
jointly, to extend credit to the Borrowers in an aggregate principal amount not to exceed the
Revolving Loan Commitment.



          (a) The Revolving Loans. Each Lender agrees, severally in accordance with its Revolving
Commitment Ratio and not jointly with the other Lenders, upon the terms and subject to the
conditions of this Agreement, to lend and relend to the Borrowers, from time to time on any
Business Day prior to the Maturity Date, amounts which do not exceed such Lender’s ratable
share (based upon such Lender’s Revolving Commitment Ratio) of Availability, as of such
Business Day. Subject to the terms and conditions hereof and prior to the Maturity Date,
Advances under the Revolving Loan Commitment may be repaid and reborrowed from time to time
on a revolving basis.




          (b) The Letters of Credit. Subject to the terms and conditions of this Agreement, the
Issuing Bank agrees to issue Letters of Credit for the account of the Borrower Parties, from
time to time on any Business Day prior to the date thirty (30) days prior to the Maturity
Date, pursuant to Section 2.15 in an aggregate outstanding face amount not to exceed,
with respect to the issuance of any individual Letter of Credit as of any date of
determination, the Available Letter of Credit Amount as of such date of determination.




          (c) The Swing Loans. Subject to the terms and conditions of this Agreement, the Swing
Bank, in its sole discretion, may from time to time on any Business Day after the Agreement
Date but prior to the Maturity Date, make Swing Loans to the Borrowers (i) in an amount not
to exceed Availability, to the extent in effect at such time of determination, as of such
Business Day and (ii) in an aggregate amount (including all Swing Loans outstanding as of
such Business Day) not to exceed the lesser of (A) the excess of (1) the Swing Bank’s ratable
share (in accordance with its Revolving Commitment Ratio) of the Revolving Loan Commitment
less (2) the sum of the aggregate outstanding principal amount of Swing Loans and Revolving
Loans made by it and the Swing Bank’s ratable share (in accordance with its Revolving
Commitment Ratio) of the outstanding Letter of Credit Obligations and Agent Advances, or (B)
$10,000,000.




          (d) Overadvances. If at any time the amount of the Aggregate Revolving Credit Obligations
exceeds the Revolving Loan Commitment or any other applicable limitation set forth in this
Agreement (including, without limitation, the limitations on Swing Loans, Agent Advances and
Letters of Credit) such excess (an “Overadvance”) shall nevertheless constitute a
portion of the Obligations that are secured




34









 







by the Collateral and are entitled to all benefits thereof. In no event, however, shall the
Borrowers have any right whatsoever to (i) receive any Revolving Loan, (ii) receive any Swing Loan,
or (iii) request the issuance of any Letter of Credit if, before or after giving effect thereto,
there shall exist a Default. In the event that (1) the Lenders shall make any Revolving Loans, (2)
the Swing Bank shall make any Swing Loan, (3) the Administrative Agent shall make any Agent
Advances or (4) the Issuing Bank shall agree to the issuance of any Letter of Credit, which in any
such case gives rise to an Overadvance, the Borrowers shall make, on demand, a payment on the
Obligations to be applied to the Revolving Loans, the Swing Loans, the Agent Advances and the
Letter of Credit Reserve Account, as appropriate, in an aggregate principal amount equal to such
Overadvance.




          (e) Agent Advances.




               (i) Subject to the limitations set forth below and notwithstanding anything else in this
Agreement to the contrary, the Administrative Agent is authorized by the Borrowers and the
Lenders, from time to time in the Administrative Agent’s sole discretion, (A) at any time
that a Default exists, (B) at any time that any of the other conditions precedent set forth
in Article 4 have not been satisfied, or (C) at any time an Overadvance exists or would
result from any Agent Advance (as defined below), to make Base Rate Advances to the Borrowers
on behalf of the Lenders in an aggregate amount outstanding at any time not to exceed
(together with the amount of Swing Loans made pursuant to Section 2.1(c) then
outstanding) $2,000,000, which the Administrative Agent, in its reasonable business judgment,
deems necessary or desirable (1) to preserve or protect the Collateral, or any portion
thereof, (2) to enhance the likelihood of, or maximize the amount of, repayment of the Loans
and other Obligations, or (3) to pay any other amount chargeable to the Borrowers pursuant to
the terms of this Agreement, including costs, fees and expenses as provided under this
Agreement (any of such advances are herein referred to as “Agent Advances”);
provided, that the Majority Lenders may at any time revoke the Administrative Agent’s
authorization to make Agent Advances. Any such revocation must be in writing and shall become
effective prospectively upon the Administrative Agent’s receipt thereof. The Administrative
Agent shall promptly provide to the Administrative Borrower written notice of any Agent
Advance. In no event shall the Aggregate Revolving Credit Obligations, after giving effect to
any Agent Advance, exceed the Revolving Loan Commitment.



               (ii) The Agent Advances shall be secured by the Collateral and shall constitute Obligations
hereunder. Each Agent Advance shall bear interest as a Base Rate Advance. Each Agent Advance
shall be subject to all terms and conditions of this Agreement and the other Loan Documents
applicable to Revolving Loans, except that all payments thereon shall be made to the
Administrative Agent solely for its own account and the making of any Agent Advance shall not
require the consent of the Borrowers.



35









 




The Administrative Agent shall have no duty or obligation to make any Agent Advance hereunder.




               (iii) The Administrative Agent shall notify each Lender no less frequently than weekly, as
determined by the Administrative Agent, of the principal amount of Agent Advances outstanding as of
12:00 noon (New York, New York time) as of such date, and each Lender’s pro rata share thereof.
Each Lender shall before 2:00
p.m. (New York, New York time) on such Business Day make available to the Administrative Agent, in
immediately available funds, the amount of its pro rata share of such principal amount of Agent
Advances outstanding. Upon such payment by a Lender, such Lender shall be deemed to have made a
Revolving Loan to the Borrowers, notwithstanding any failure of the Borrowers to satisfy the
conditions in Section 4.3. The Administrative Agent shall use such funds to repay the
principal amount of Agent Advances. Additionally, if at any time any Agent Advances are
outstanding, any of the events described in Section 9.1(g) or 9.1(h) shall have
occurred, then each Lender shall automatically, upon the occurrence of such event, and without any
action on the part of the Administrative Agent, the Borrowers or the Lenders, be deemed to have
purchased an undivided participation in the principal and interest of all Agent Advances then
outstanding in an amount equal to such Lender’s Revolving Commitment Ratio and each Lender shall,
notwithstanding such Event of Default, immediately pay to the Administrative Agent in immediately
available funds, the amount of such Lender’s participation (and upon receipt thereof, the
Administrative Agent shall deliver to such Lender, a loan participation certificate dated the date
of receipt of such funds in such amount). The disbursement of funds in connection with the
settlement of Agent Advances hereunder shall be subject to the terms and conditions of Section
2.2(e).



     Section 2.2 Manner of Borrowing and Disbursement of Loans.



          (a) Choice of Interest Rate, etc. Any Advance shall, at the option of the Borrowers, be
made either as a Base Rate Advance or as a Eurodollar Advance (except for the first three (3)
Business Days after the Agreement Date, during which period the Loans shall bear interest as a Base
Rate Advance); provided, however, that (i) if the Administrative Borrower fails to
give the Administrative Agent written notice specifying whether a Eurodollar Advance is to be
repaid, continued or converted on a Payment Date, such Advance shall be converted to a Base Rate
Advance on the Payment Date in accordance with Section 2.3(a)(iii), (ii) the Administrative
Borrower may not select a Eurodollar Advance (A) on the Agreement Date, (B) with respect to Swing
Loans, (C) with respect to an Advance, the proceeds of which are to reimburse the Issuing Bank
pursuant to Section 2.15, or (D) if, at the time of such Advance or at the time of the
continuation of, or conversion to, a Eurodollar Advance pursuant to Section 2.2(c), a
Default exists, and the Administrative Agent has notified the Administrative Borrower that no
Eurodollar Advances may be selected by the Administrative Borrower during the continuance of such
Default, and (iii) all Agent Advances shall be made as Base Rate Advances. Any notice given to the
Administrative Agent in connection with a



36









 






requested Advance hereunder shall be given to the
Administrative Agent prior to 11:00
a.m. (New York, New York time) in order for such Business Day to count toward the minimum number of
Business Days required.




          (b) Base Rate Advances.




               (i) Initial and Subsequent Advances. The Administrative Borrower shall give the
Administrative Agent in the case of Base Rate Advances irrevocable notice by telephone not
later than 11:00 a.m. (New York, New York time) one Business Day prior to the date of such
Base Rate Advance and shall immediately confirm any such telephone notice with a written
Request for Advance; provided, however, that the failure by the
Administrative Borrower to confirm any notice by telephone with a written Request for Advance
shall not invalidate any notice so given. Except as otherwise provided in Section
2.2(f), each Base Rate Advance shall be in a principal amount of no less than $1,000,000
an in an integral multiple of $100,000 in excess thereof.



               (ii) Repayments and Conversions. The Borrowers may (A) subject to Section 2.5, at
any time without prior notice repay a Base Rate Advance, or (B) upon at least three (3)
Business Days’ irrevocable prior written notice by the Administrative Borrower to the
Administrative Agent in the form of a Notice of Conversion/Continuation, convert all or a
portion of the principal thereof to one or more Eurodollar Advances. Upon the date indicated
by the Administrative Borrower, such Base Rate Advance shall be so repaid or converted.



          (c) Eurodollar Advances.




               (i) Initial and Subsequent Advances. The Administrative Borrower shall give the
Administrative Agent in the case of Eurodollar Advances irrevocable notice by telephone not
later than 11:00 a.m. (New York, New York time) three (3) days prior to the date of such
Eurodollar Advance and shall immediately confirm any such telephone notice with a written
Request for Advance; provided, however, that the failure by the
Administrative Borrower to confirm any notice by telephone with a written Request for Advance
shall not invalidate any notice so given.



               (ii) Repayments, Continuations and Conversions. At least three (3) Business Days prior to
each Payment Date for a Eurodollar Advance, the Administrative Borrower shall give the
Administrative Agent written notice in the form of a Notice of Conversion/Continuation
specifying whether all or a portion of such Eurodollar Advance outstanding on such Payment
Date is to be continued in whole or in part as one or more new Eurodollar Advances and also
specifying the new Eurodollar Advance Period applicable to each such new Eurodollar Advance
(and subject to the provisions of this Agreement, upon such Payment Date, such Eurodollar
Advance shall be so continued). Upon such Payment Date, any Eurodollar Advance (or portion
thereof)



37









 




not so continued shall be converted to a Base Rate Advance or, subject to Section 2.5, be
repaid.




               (iii) Miscellaneous. Notwithstanding any term or provision of this Agreement which may be
construed to the contrary, each Eurodollar Advance shall be in a principal amount of no less than
$5,000,000 and in an integral multiple of $1,000,000 in excess thereof, and at no time shall the
aggregate number of all Eurodollar Advances then outstanding exceed six (6).




          (d) Notification of Lenders. Upon receipt of (i) a Request for Advance or a telephone,
telecopy or deemed request for Advance, (ii) notification from the Issuing Bank that a draw has
been made under any Letter of Credit (unless the Issuing Bank will be reimbursed through the
funding of a Swing Loan), or (iii) notice from the Administrative Borrower with respect to the
prepayment of any outstanding Eurodollar Advance prior to the Payment Date for such Advance, the
Administrative Agent shall promptly notify each Lender by telephone or telecopy of the contents
thereof and the amount of each Lender’s portion of any such Advance. Each Lender shall, not later
than 1:00 p.m. (New York, New York time) on the date specified for such Advance (under clause (i) or
(ii) of this Section 2.2 (d)) in such notice, make available to the Administrative Agent at
the Administrative Agent’s Office, or at such account as the Administrative Agent shall designate,
the amount of such Lender’s portion of the Advance in immediately available funds.




          (e) Disbursement. Prior to 3:00 p.m. (New York, New York time) on the date of an Advance
hereunder, the Administrative Agent shall, subject to the satisfaction of the conditions set
forth in Article 4, disburse the amounts made available to the Administrative Agent by the
Lenders in like funds by (i) transferring the amounts so made available by wire transfer to
the Disbursement Account or (ii) in the case of an Advance the proceeds of which are to
reimburse the Issuing Bank pursuant to Section 2.15, transferring such amounts to
such Issuing Bank. Unless the Administrative Agent shall have received notice from a Lender
prior to 12:00 noon (New York, New York time) on the date of any Advance that such Lender
will not make available to the Administrative Agent such Lender’s ratable portion of such
Advance, the Administrative Agent may assume that such Lender has made or will make such
portion available to the Administrative Agent on the date of such Advance and the
Administrative Agent may, in its sole discretion and in reliance upon such assumption, make
available to the Borrowers or the Issuing Bank, as applicable, on such date a corresponding
amount. If and to the extent such Lender shall not have so made such ratable portion
available to the Administrative Agent, such Lender agrees to repay to the Administrative
Agent forthwith on demand such corresponding amount together with interest thereon, for each
day from the date such amount is made available to the Borrowers or the Issuing Bank, as
applicable, until the date such amount is repaid to the Administrative Agent, (x) for the
first two (2) Business Days, at the Federal Funds Rate for such Business Days, and (y)
thereafter, at the Base Rate. If such Lender shall repay to the Administrative Agent such


38









 







corresponding amount, such amount so repaid shall constitute such Lender’s portion of the
applicable Advance for purposes of this Agreement and if both such Lender and the Borrowers
shall pay and repay such corresponding amount, the Administrative Agent shall promptly relend
to the Borrowers such corresponding amount. If such Lender does not repay such corresponding
amount immediately upon the Administrative Agent’s demand therefor, the Administrative Agent
shall notify the Administrative Borrower and the Borrowers shall immediately pay such
corresponding amount to the Administrative Agent. The failure of any Lender to fund its
portion of any Advance shall not relieve any other Lender of its obligation, if any,
hereunder to fund its respective portion of the Advance on the date of such borrowing, but no
Lender shall be responsible for any such failure of any other Lender. In the event that a
Lender for any reason fails or refuses to fund its portion of an Advance in violation of this
Agreement, then, until such time as such Lender has funded its portion of such Advance, or
all other Lenders have received payment in full (whether by repayment or prepayment) of the
principal and interest due in respect of such Advance, such non-funding Lender shall not (i)
have the right to vote regarding any issue on which voting is required or advisable under
this Agreement or any other Loan Document and, with respect to any such Lender, the amount of
the Revolving Loan Commitment or Loans, as applicable, held by such Lender shall not be
counted as outstanding for purposes of determining “Majority Lenders” hereunder, and (ii) be
entitled to receive any payments of principal, interest or fees from the Borrowers or the
Administrative Agent (or the other Lenders) in respect of its Loans.





          (f) Deemed Requests for Advance. Unless payment is otherwise timely made by the
Borrowers, the becoming due of any amount required to be paid under this Agreement or any of
the other Loan Documents as principal, interest, reimbursement obligations in connection with
Letters of Credit, premiums, fees, reimbursable expenses or other sums payable hereunder
shall be deemed irrevocably to be a Request for Advance on the due date of, and in an
aggregate amount required to pay, such principal, interest, reimbursement obligations in
connection with Letters of Credit, premiums, fees, reimbursable expenses or other sums
payable hereunder, and the proceeds of a Revolving Loan made pursuant thereto may be
disbursed by way of direct payment of the relevant Obligation and shall bear interest as a
Base Rate Advance. The Lenders shall have no obligation to the Borrowers to honor any deemed
Request for Advance under this Section 2.2(f) unless all the conditions set forth in
Section 4.2 have been satisfied, but, with the consent of the Lenders required under
the last sentence of Section 4.2, may do so in their sole discretion and without
regard to the existence of, and without being deemed to have waived, any Default and without
regard to the existence or creation of an Overadvance or the failure by the Borrowers to
satisfy any of the conditions set forth in Section 4.2. No further authorization,
direction or approval by the Borrowers shall be required to be given by the Borrowers for any
deemed Request for Advance under this Section 2.2(f). The Administrative Agent shall
promptly provide to the Administrative Borrower written notice of any Advance pursuant to
this Section 2.2(f).




39









 









          (g) Special Provisions Pertaining to Swing Loans.




               (i) The Administrative Borrower shall give the Swing Bank written notice in the form of a Request
for Advance, or notice by telephone no later than 12:00 noon. (New York, New York time) on the date on which the Borrowers wish to receive an Advance
of any Swing Loan followed immediately by a written Request for Advance, with a copy to the
Administrative Agent; provided, however, that the failure by the Administrative
Borrower to confirm any notice by telephone with a written Request for Advance shall not invalidate
any notice so given; provided further, however, that any request by the
Administrative Borrower of a Base Rate Advance under the Revolving Loan Commitment shall be deemed
to be a request for a Swing Loan unless the Administrative Borrower specifically requests
otherwise. Each Swing Loan shall bear interest at the rate equal to the Swingline Rate. If the
Swing Bank, in its sole discretion, elects to make the requested Swing Loan, the Swing Loan shall
be made on the date specified in the notice or the Request for Advance and such notice or Request
for Advance shall specify (i) the amount of the requested Swing Loan, and (ii) instructions for the
disbursement of the proceeds of the requested Swing Loan. Each Swing Loan shall be subject to all
the terms and conditions applicable to Revolving Loans, except that all payments thereon shall be
payable to the Swing Bank solely for its own account. The Swing Bank shall have no duty or
obligation to make any Swing Loans hereunder. The Swing Bank shall not make any Swing Loans if the
Swing Bank has received written notice from any Lender (or the Swing Bank has actual knowledge)
that one or more applicable conditions precedent set forth in Section 4.2 will not be
satisfied (or waived pursuant to the last sentence of Section 4.2) on the requested Advance
date. In the event the Swing Bank in its sole and absolute discretion elects to make any requested
Swing Loan, the Swing Bank shall make the proceeds of such Swing Loan available to the Borrowers by
deposit of Dollars in same day funds by wire transfer to the Disbursement Account. In the event
that the Swing Bank informs the Administrative Agent that it will not make the requested Advance as
a Swing Loan, then such request will be deemed a request for a Base Rate Advance under the
Revolving Loan Commitment.



               (ii) The Swing Bank shall notify the Administrative Agent and each Lender no less frequently than
weekly, as determined by the Administrative Agent, of the principal amount of Swing Loans
outstanding as of 3:00 p.m. (New York, New York time) as of such date and each Lender’s pro rata
share (based on its Revolving Commitment Ratio) thereof. Each Lender shall before 12:00 noon (New
York, New York time) on the next Business Day make available to the Administrative Agent, in
immediately available funds, the amount of its pro rata share (based on its Revolving Commitment
Ratio) of such principal amount of Swing Loans outstanding. Upon such payment by a Lender, such
Lender shall be deemed to have made a Revolving Loan to the Borrowers, notwithstanding any failure
of the Borrowers to satisfy the conditions in Section 4.2. The Administrative Agent shall
use such funds to repay the principal amount of Swing Loans to the Swing Bank. Additionally, if at
any time any Swing Loans are outstanding, any of the events described in Section 9.1(g) or
9.1(h) shall have



40









 







occurred, then each Lender shall automatically upon the occurrence of
such event and without any action on the part of the Swing Bank, the Borrowers, the Administrative
Agent or the Lenders be deemed to have purchased an undivided participation in the principal and
interest of all Swing Loans then outstanding in an amount equal to such Lender’s Revolving
Commitment Ratio of the principal and interest of all Swing Loans then outstanding and each Lender
shall, notwithstanding such Event of Default, immediately pay to the Administrative Agent for the
account of the Swing Bank in immediately available funds, the amount of such Lender’s participation
(and upon receipt thereof, the Swing Bank shall deliver to such Lender a loan participation
certificate dated the date of receipt of such funds in such amount). The disbursement of funds in
connection with the settlement of Swing Loans hereunder shall be subject to the terms and
conditions of Section 2.2(e).



          Section 2.3 Interest.




          (a) On Loans. Interest on the Loans, subject to Sections 2.3(b) and (c),
shall be payable as follows:




               (i)
On Base Rate Advances and Swing Loans. Interest on each Base Rate Advance and each
Swing Loan shall be computed for the actual number of days elapsed on the basis of a
hypothetical year of three hundred sixty five (365)/three hundred sixty six (366) days and
shall be payable quarterly in arrears on the last day of each calendar quarter for the prior
calendar quarter, commencing on March 31, 2010. Interest on Base Rate Advances and Swing
Loans then outstanding shall also be due and payable on the Maturity Date (or the date of any
earlier prepayment in full of the Obligations). Interest shall accrue and be payable on each
Base Rate Advance at the simple per annum interest rate equal to the sum of (A) the Base Rate
and (B) the Applicable Margin. Interest shall accrue and be payable on each Swing Loan at the
simple per annum interest rate equal to the Swingline Rate.



               (ii) On Eurodollar Advances. Interest on each Eurodollar Advance shall be computed for the
actual number of days elapsed on the basis of a hypothetical year of three hundred sixty
(360) days and shall be payable in arrears on (x) the Payment Date for such Advance, and (y)
if the Eurodollar Advance Period for such Advance is greater than three (3) months, on the
last day of such three (3) month period and on the last day of the applicable Eurodollar
Advance Period for such Advance. Interest on Eurodollar Advances then outstanding shall also
be due and payable on the Maturity Date (or the date of any earlier prepayment in full of the
Obligations). Interest shall accrue and be payable on each Eurodollar Advance at a rate per
annum equal to the sum of (A) the Eurodollar Basis applicable to such Eurodollar Advance and
(B) the Applicable Margin.



               (iii) If No Notice of Selection of Interest Rate. If the Administrative Borrower fails to
give the Administrative Agent timely notice of its selection of a Eurodollar Basis, or if for any
reason a determination of a Eurodollar Basis



41









 







for any Advance is not timely concluded, the Base Rate
shall apply to such Advance. If the Administrative Borrower fails to elect to continue any
Eurodollar Advance then outstanding prior to the last Payment Date applicable thereto in accordance
with the provisions of Section 2.2, as applicable, the Base Rate shall apply to such
Advance commencing on and after such Payment Date.



          (b) Upon Default. Immediately upon the occurrence and during the continuance of an Event
of Default, interest on the outstanding Obligations shall accrue at the Default Rate.
Interest accruing at the Default Rate shall be payable on demand and in any event on the
Maturity Date (or the date of any earlier prepayment in full of the Obligations) and shall
accrue until the earliest to occur of (i) waiver of the applicable Event of Default in
accordance with Section 11.12, (ii) agreement by the Majority Lenders to rescind the
charging of interest at the Default Rate, or (iii) payment in full of the Obligations. The
Lenders shall not be required to (A) accelerate the maturity of the Loans, (B) terminate the
Revolving Loan Commitment, or (C) exercise any other rights or remedies under the Loan
Documents in order to charge interest hereunder at the Default Rate.




          (c) Computation of Interest.




               (i) In computing interest on any Advance, the date of making the Advance shall be included and
the date of payment shall be excluded; provided, however, that if an Advance
is repaid on the date that it is made, one (1) day of interest shall be due with respect to
such Advance.



               (ii) With respect to the computation of interest hereunder, the application of funds in any
Blocked Account by the Administrative Agent to the Obligations shall be deemed made on the
date of receipt of such funds so long as such funds are received prior to 2:00 p.m. (New
York, New York time), if received after 2:00 p.m. (New York, New York time), such funds shall be deemed received on the next Business Day.



     Section 2.4 Fees.




          (a) Fee Letter. Each Borrower agrees, jointly and severally, to pay to the Administrative
Agent such fees as are set forth in the Fee Letter.




          (b) Unused Line Fee. Each Borrower agrees, jointly and severally, to pay to the
Administrative Agent, for the account of the Lenders in accordance with their respective
Revolving Commitment Ratios, an unused line fee (“Unused Line Fee”) on the aggregate
amount by which the Revolving Loan Commitment exceeded the sum of the average daily amount of
Aggregate Revolving Credit Obligations (other than with respect to any Swing Loans and Agent
Advances) for each day from the Agreement Date through the Maturity Date (or the date of any
earlier prepayment in full of the Obligations), at a per annum rate equal to one half of one
percent (0.50%). Such Unused Line Fee shall be



42









 






computed on the basis of a hypothetical year of three hundred sixty five (365)/three hundred sixty
six (366) days for the actual number of days elapsed, shall be payable in arrears on March 31, 2010
for the immediately preceding calendar month and thereafter shall be payable quarterly in arrears
on the last day of each calendar quarter thereafter for the immediately preceding calendar quarter,
and if then unpaid, on the Maturity Date (or the date of any earlier prepayment in full of the
Obligations), and shall be fully earned when due and non-refundable when paid.




          (c) Letter of Credit Fees.




               (i) The Borrowers shall pay to the Administrative Agent for the account of the Lenders, in
accordance with their respective Revolving Commitment Ratios, a fee on the undrawn amount of
each outstanding Letter of Credit for each day such Letter of Credit is outstanding from the
Date of Issue through the Maturity Date (or the date of any earlier prepayment in full of the
Obligations) at a rate per annum on such amount equal to the Applicable Margin with respect
to Eurodollar Advances in effect from time to time. Such Letter of Credit fee shall be
computed on the basis of a hypothetical year of three hundred sixty (360) days for the actual
number of days elapsed, shall be payable quarterly in arrears for each calendar quarter on
the last day of the immediately succeeding calendar quarter, commencing on March 31, 2010,
and if then unpaid, on the Maturity Date (or the date of any earlier prepayment in full of
the Obligations), and shall be fully earned when due and non-refundable when paid.



               (ii) The Borrowers shall also pay to the Administrative Agent, for the account of the Issuing
Bank, (A) a fee on the undrawn amount of each outstanding Letter of Credit for each day such
Letter of Credit is outstanding from the Date of Issue through the expiration date of each
such Letter of Credit (or any earlier prepayment in full of the Obligations) at a rate of one
quarter of one percent (0.25%) per annum which fee shall be computed on the basis of a
hypothetical year of three hundred sixty (360) days for the actual number of days elapsed,
shall be payable quarterly in arrears on the last day of each calendar quarter for the
immediately preceding calendar quarter, commencing on March 31, 2010 and, if then unpaid on
the Maturity Date (or any earlier prepayment in full of the Obligations) and (B) any
reasonable and customary fees charged by the Issuing Bank for issuance and administration of
such Letters of Credit. The foregoing fees shall be fully earned when due, and non-refundable
when paid.



          (d) Computation of Fees. In computing any fees payable under this Section 2.4,
the first day of the applicable period shall be included and the date of the payment shall be
excluded.




     Section 2.5 Prepayment/Reduction of Commitment.



          (a) The principal amount of any Base Rate Advance may be repaid in full or in part at any
time, without penalty or prior notice. The principal amount of any Eurodollar Advance may be
prepaid prior to the applicable Payment Date, upon three (3)





43











 




Business Days’ prior written notice to the Administrative Agent, provided that the
Borrowers shall reimburse the Lenders and the Administrative Agent, on the earlier of demand or the
Maturity Date, for any Funding Loss or reasonable out-of-pocket expense incurred by the Lenders or
the Administrative Agent in connection with such prepayment, as set forth in Section 2.9.
Each notice of prepayment of any Eurodollar Advance shall be irrevocable, and each prepayment or
repayment made under this Section 2.5(a) shall include the accrued interest on the amount
so prepaid or repaid. Upon receipt of any notice of repayment or prepayment, the Administrative
Agent shall promptly notify each Lender of the contents thereof by telephone or telecopy and of
such Lender’s portion of the repayment or prepayment. Notwithstanding the foregoing, the Borrowers
shall not make any repayment or prepayment of the Revolving Loans unless and until the balance of
the Swing Loans and the Agent Advances then outstanding is zero. Other than with respect to amounts
required to be applied to the Loans pursuant to Section 2.6 or Section 6.13,
repayments or prepayments of principal hereunder shall be in minimum amounts of, with respect to
Base Rate Advances, $1,000,000 and integral multiples of $100,000 in excess thereof, and, with
respect to Eurodollar Advances, $5,000,000, and integral multiples of $1,000,000 in excess thereof,
or, if less, the entire outstanding amount of such Advance. Except as provided in Section
2.5(b), any repayment and prepayment of Advances outstanding under the Revolving Loan
Commitment shall not reduce the Revolving Loan Commitment. Any prepayment of the Loans shall not
affect the Borrowers’ obligation to continue to make payments under any swap agreement (as defined
in 11 U.S.C. §101), including, without limitation, any such swap agreement that is a Lender Hedge
Agreement, which shall remain in full force and effect notwithstanding such prepayment, subject to
the terms of the applicable swap agreement.




          (b) The Borrowers shall have the right, at any time and from time to time after the Agreement
Date and prior to the Maturity Date, upon at least ten (10) Business Days’ prior written notice to
the Administrative Agent, without premium or penalty, to cancel or reduce permanently all or a
portion of the Revolving Loan Commitment on a pro rata basis among the Lenders in accordance with
their respective Revolving Commitment Ratios; provided, that (i) any such partial reduction
be made in an amount not less than $1,000,000 and in integral multiples of $1,000,000 in excess
thereof, (ii) the Revolving Loan Commitment may not be reduced to an amount below the then
outstanding Letter of Credit Obligations and (iii) after giving effect to any partial reduction in
the Revolving Loan Commitment, at least $25,000,000 of the Revolving Loan Commitment shall remain
in place. As of the date of cancellation or reduction set forth in such notice, the Revolving Loan
Commitment shall be permanently canceled or reduced to the amount stated in the Administrative
Borrower’s notice for all purposes herein, and the Borrowers shall (i) pay to the Administrative
Agent for the account of the Lenders the amount necessary to repay in full the principal amount of
the Revolving Loans, Swing Loans and Agent Advances or reduce the principal amount of the Revolving
Loans, Swing Loans and Agent Advances then outstanding to not more than the amount of the Revolving
Loan Commitment as so reduced, together with accrued






44









 







unpaid interest on the amount so prepaid and the Unused Line Fee accrued through the date of the
reduction with respect to the amount reduced, and (ii) reimburse the Administrative Agent and the
Lenders for any Funding Loss or reasonable out-of-pocket expense incurred by any of them in
connection with such payment as set forth in Section 2.9 and (iii) in the case of
cancellation of the Revolving Loan Commitment, shall secure the Letter of Credit Obligations
through the delivery of cash collateral in an amount equal to one hundred five percent (105%) of
the Letters of Credit Obligations.




     Section 2.6 Repayment.



          (a) The Revolving Loans. All unpaid principal and accrued interest on the Revolving
Loans shall be due and payable in full on the Maturity Date. Notwithstanding the foregoing,
however, in the event that at any time and for any reason there shall exist an Overadvance, the
Borrowers shall pay to the Administrative Agent, on demand/in accordance with Section
2.1(d), an amount equal to the Overadvance, which payment shall constitute a mandatory payment
of the Revolving Loans, Agent Advances, Swing Loans and Letter of Credit Reserve Account, as
appropriate.




          (b) The Other Obligations. In addition to the foregoing, the Borrowers hereby promise,
jointly and severally, to pay all Obligations (other than Obligations in respect of Bank Products),
including, without limitation, the principal amount of the Loans, amounts drawn under Letters of
Credit and interest and fees on the foregoing, as the same become due and payable hereunder and, in
any event, on the Maturity Date.





	 	 	Section 2.7 Notes; Loan Accounts.





          (a) The Loans shall be repayable in accordance with the terms and provisions set forth herein
and, upon request by any Lender, the Loans owed to such Lender shall be evidenced by Revolving Loan
Notes. A Revolving Loan Note shall be payable to the order of each Lender requesting such a
Revolving Loan Note in accordance with the Revolving Commitment Ratio of such Lender. Each such
Revolving Loan Note shall be issued by the Borrowers to the applicable Lender and shall be duly
executed and delivered by an Authorized Signatory of each Borrower.




          (b) The Administrative Agent shall open and maintain on its books in the name of the Borrowers
a loan account with respect to the Loans and interest thereon (the “Loan Account”). The
Administrative Agent shall debit such Loan Account for the principal amount of each Advance made by
it on behalf of the Lenders, accrued interest thereon, and all other amounts which shall become due
from the Borrowers pursuant to this Agreement and shall credit the Loan Account for each payment
which the Borrowers shall make in respect to the Obligations. The records of the Administrative
Agent with respect to such Loan Account shall be conclusive evidence of the Loans and accrued
interest thereon, absent manifest error.






45









 








     Section 2.8 Manner of Payment.



          (a) When Payments Due.




               (i) Each payment (including any prepayment) by the
Borrowers on account of the principal of or interest on the Loans, fees, and any other amount owed
to any member of the Lender Group under this Agreement or the other Loan Documents shall be made
not later than 1:00 p.m. (New York, New York time) on the date specified for payment under this
Agreement or any other Loan Document to the Administrative Agent at the Administrative Agent’s
Office, for the account of the Lenders, the Issuing Bank or the Administrative Agent, as the case
may be, in Dollars in immediately available funds. Any payment received by the Administrative Agent
after 1:00 p.m. (New York, New York time) shall be deemed received on the next Business Day. In the
case of a payment for the account of a Lender, the Administrative Agent will promptly thereafter
distribute the amount so received in like funds to such Lender. In the case of a payment for the
account of the Issuing Bank, the Administrative Agent will promptly thereafter distribute the
amount so received in like funds to the Issuing Bank. If the Administrative Agent shall not have
received any payment from the Borrowers as and when due, the Administrative Agent will promptly
notify the Lenders accordingly.



               (ii) Except as provided in the definition of Eurodollar Advance Period, if any payment under
this Agreement or any other Loan Document shall be specified to be made on a day which is not a
Business Day, it shall be made on the next succeeding day which is a Business Day, and such
extension of time shall in such case be included in computing interest and fees, if any, in
connection with such payment.



          (b) No Deduction.




               (i) Any and all payments of principal and interest, or of any
fees or indemnity or expense reimbursements by the Borrowers hereunder or under any other Loan
Documents (the “Borrower Payments”) shall be made without setoff or counterclaim and free
and clear of and without deduction for any and all current or future taxes, levies, imposts,
deductions, charges or withholdings with respect to the Borrower Payments and all interest,
penalties or similar liabilities with respect thereto, excluding taxes imposed on the net income of
any member of the Lender Group by the jurisdiction under the laws of which such member of the
Lender Group is organized or conducts business or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges or withholdings and liabilities
collectively or individually “Taxes”). If any Borrower shall be required to deduct any
Taxes from or in respect of any sum payable to any member of the Lender Group hereunder or under
any other Loan Document, (i) the sum payable shall be increased by the amount (an “additional
amount”) necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.8(b)(i)) such member of the
Lender Group shall receive an amount equal to the sum it would have received had no such deductions
been made, (ii) such Borrower shall make such deductions, and (iii) such Borrower shall



46









 




pay the full amount deducted to the relevant Governmental Authority in accordance with Applicable
Law.




               (ii) In addition, the Borrowers shall pay to the relevant Governmental Authority in accordance
with Applicable Law any current or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this Agreement or any other
Loan Document (such taxes being “Other Taxes”).



               (iii) The Borrowers shall indemnify the members of the Lender Group for the full amount of
Taxes and Other Taxes with respect to Borrower Payments paid by such Person, and any liability
(including penalties, interest and expenses (including reasonable attorney’s fees and expenses))
arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted by the relevant Governmental Authority. A certificate setting forth and
containing an explanation in reasonable detail of the manner in which such amount shall have been
determined and the amount of such payment or liability prepared by a member of the Lender Group or
the Administrative Agent on its behalf, absent manifest error, shall be final, conclusive and
binding for all purposes. Such indemnification shall be made within thirty (30) days after the date
the Administrative Agent or such member, as the case may be, makes written demand therefor. If any
Taxes or Other Taxes for which the Administrative Agent or any member of the Lender Group has
received indemnification from the Borrowers hereunder shall be finally determined to have been
incorrectly or illegally asserted and are refunded to the Administrative Agent or such member, the
Administrative Agent or such member, as the case may be, shall promptly forward to the Borrowers
any such refunded amount (after deduction of any Tax or Other Tax paid or payable by any member of
the Lender Group as a result of such refund), not exceeding the increased amount paid by the
Borrowers pursuant to this Section 2.8(b).



               (iv) As soon as practicable after the date of any payment of Taxes or Other Taxes by the
Borrowers to the relevant Governmental Authority, the Administrative Borrower will deliver to the
Administrative Agent, at its address, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing payment thereof.



               (v) On or prior to the Agreement Date (or, in the case of any Lender that becomes a party to
this Agreement pursuant to an Assignment and Acceptance, on or prior to the effective date of such
Assignment and Acceptance), each Lender which is organized in a jurisdiction other than the United
States or a political subdivision thereof (a “Foreign Lender”) shall provide each of the
Administrative Agent and the Administrative Borrower with either (A) two (2) properly executed
originals of Form W-8ECI or Form W-8BEN (or any successor forms) prescribed by the Internal Revenue
Service or other documents satisfactory to the Administrative Borrower and the



47









 




Administrative Agent, as the case may be, certifying (1) as to such Foreign Lender’s status for
purposes of determining exemption from United States withholding taxes with respect to all payments
to be made to such Foreign Lender hereunder and under any other Loan Documents or Bank Products
Documents or (2) that all payments to be made to such Foreign Lender hereunder and under any other
Loan Documents and Bank Products Documents are subject to such taxes at a rate reduced to zero by
an applicable tax treaty, or (B)(1) a certificate executed by such Lender certifying that such
Lender is not a “bank” and that such Lender qualifies for the portfolio interest exemption under
Section 881(c) of the Code, and (2) two (2) properly executed originals of Internal Revenue Service
Form W-8BEN (or any successor form), in each case, certifying such Lender’s entitlement to an
exemption from United States withholding tax with respect to payments of interest to be made
hereunder or under any other Loan Documents or Bank Products Documents. Each such Foreign Lender
agrees to provide the Administrative Agent and the Administrative Borrower with new forms
prescribed by the Internal Revenue Service upon the expiration or obsolescence of any previously
delivered form, or after the occurrence of any event requiring a change in the most recent forms
delivered by it to the Administrative Agent and the Administrative Borrower.




               (vi) The Borrowers shall not be required to indemnify any Foreign Lender, or to pay any
additional amounts to such Foreign Lender pursuant to Section 2.8(b)(i) or
2.8(b)(iii) to the extent that (A) the obligation to withhold amounts with respect to
United States Federal, state or local withholding tax existed on the date such Foreign Lender
became a party to this Agreement (or, in the case of a transferee, on the effective date of the
Assignment and Acceptance pursuant to which such transferee became a Lender) or, with respect to
payments to a new lending office, the date such Foreign Lender designated such new lending office;
provided, however, that this clause (A) shall not apply to any Foreign Lender that
became a Lender or new lending office that became a new lending office as a result of an assignment
or designation made at the request of the Administrative Borrower; and provided
further, however, that this clause (A) shall not apply to the extent the indemnity
payment or additional amounts, if any, that any member of the Lender Group through a new lending
office would be entitled to receive (without regard to this clause (A)) do not exceed the indemnity
payment or additional amounts that the Person making the assignment or transfer to such member of
the Lender Group making the designation of such new lending office would have been entitled to
receive in the absence of such assignment, transfer or designation or (B) the obligation to pay
such additional amounts or such indemnity payments would not have arisen but for a failure by such
member of the Lender Group to comply with the provisions of Section 2.8(b)(v).



               (vii) Nothing contained in this Section 2.8(b) shall require any member of the Lender
Group to make available to the Borrowers any of its tax returns (or any other information) that it
deems confidential or proprietary.



48









 





     Section 2.9 Reimbursement. Whenever any Lender shall sustain or incur any Funding
Losses (including losses of anticipated profits) or reasonable out-of-pocket expenses in connection
with (a) failure by the Borrowers to borrow or continue any Eurodollar Advance, or convert any
Advance to a Eurodollar Advance, in each case, after having given notice of their intention to do
so in accordance with Section 2.2 (whether by reason of the election of the Borrowers not
to proceed or the non-fulfillment of any of the conditions set forth in this Agreement), or (b)
prepayment of any Eurodollar Advance in whole or in part for any reason or (c) failure by the
Borrowers to prepay any Eurodollar Advance after giving notice of its intention to prepay such
Advance, each Borrower agrees, jointly and severally, to pay to such Lender, promptly upon such
Lender’s demand therefor, an amount sufficient to compensate such Lender for all such Funding
Losses and reasonable out-of-pocket expenses. Such Lender’s good faith determination of the amount
of such Funding Losses and reasonable out-of-pocket expenses, absent manifest error, shall be
binding and conclusive. Losses subject to reimbursement hereunder shall include, without
limitation, expenses incurred by any Lender or any participant of such Lender permitted hereunder
in connection with the re-employment of funds prepaid, repaid, not borrowed, or paid, as the case
may be, and any lost profit of such Lender or any participant of such Lender over the remainder of
the Eurodollar Advance Period for such prepaid Advance. For purposes of calculating amounts payable
to a Lender under this paragraph, each Lender shall be deemed to have actually funded its relevant
Eurodollar Advance through the purchase of a deposit bearing interest at the Eurodollar Rate in an
amount equal to the amount of that Eurodollar Advance and having a maturity and repricing
characteristics comparable to the relevant Eurodollar Advance Period; provided,
however, that each Lender may fund each of its Eurodollar Advances in any manner it sees
fit, and the foregoing assumption shall be utilized only for the calculation of amounts payable
under this Section.



     Section 2.10 Pro Rata Treatment.



          (a) Advances. Each Advance with respect to the Revolving Loans from the Lenders under
this Agreement shall be made pro rata on the basis of their respective Revolving Commitment Ratios.




          (b) Payments. Each payment and prepayment of the principal of the Revolving Loans and
each payment of interest on the Revolving Loans received from the Borrowers shall be made by the
Administrative Agent to the Lenders pro rata on the basis of their respective unpaid principal
amounts thereof outstanding immediately prior to such payment or prepayment (except in cases when a
Lender’s right to receive payments is restricted pursuant to Section 2.2(e)). If any Lender
shall obtain any payment (whether involuntary, through the exercise of any right of set-off or
otherwise) on account of the Loans in excess of its ratable share of Loans under its Aggregate
Commitment Ratio (or in violation of any restriction set forth in Section 2.2(e)), such
Lender shall forthwith purchase from the other Lenders such participation in the Loans made by them
as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each






49









 







of them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded
and such Lender shall repay to the purchasing Lender the purchase price to the extent of such
recovery without interest thereon unless the Lender obligated to repay such amount is required to
pay interest. Each Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.10(b) may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of
such participation. This Section 2.10(b) shall not apply to any payments made on account
of, or in connection with, an assignment of, or the sale of a participation in, any rights and
obligations hereunder, in each case, in accordance with the provisions of Section 11.5, as
such section may be amended from time to time.




     Section 2.11 Application of Payments.



          (a) Payments Prior to Event of Default. At all times during which an Event of Default
has not occurred and is continuing, all amounts received by the Administrative Agent from the
Borrowers, shall be distributed by the Administrative Agent in the following order of priority:




          FIRST, pro rata, to the payment of (i) out-of-pocket costs and expenses (including reasonable
attorneys’ fees) of the Administrative Agent and the Collateral Agent incurred by the
Administrative Agent and the Collateral Agent in connection with the enforcement of the rights of
the Lender Group under the Loan Documents and (ii) any Agent Advances made by the Administrative
Agent under or pursuant to the terms of the Loan Documents and interest accrued thereon;




          SECOND,
pro rata, to the payment of any fees then due and payable to the Administrative Agent, the Issuing
Bank or the Swing Bank hereunder or under any other Loan Documents;




          THIRD, pro rata, to the payment
of all Obligations consisting of accrued fees and interest then due and payable to the Lenders
hereunder;




          FOURTH, to the payment of principal then due and payable on the Swing Loans;




          FIFTH, to
the payment of principal then due and payable on the Revolving Loans;




          SIXTH, to the payment of the
Obligations arising in respect of Bank Products then due and payable; and




          SEVENTH, to the payment
of all other Obligations not otherwise referred to in this
Section 2.11(a) then due and
payable.






50









 








          (b) Payments Subsequent to Event of Default. Notwithstanding anything in this Agreement or
any other Loan Document which may be construed to the contrary, subsequent to the occurrence and
during the continuance of an Event of Default, payments and prepayments with respect to the
Obligations made to the Lender Group, or any of them, or otherwise received by any member of the
Lender Group (from realization on Collateral or otherwise) shall be distributed in the following
order of priority (subject, as applicable, to Section 2.10 and to the terms and provisions
of the Intercreditor Agreement):




          FIRST, pro rata, to the payment of (i) out-of-pocket costs and expenses (including reasonable
attorneys’ fees) of the Administrative Agent and the Collateral Agent incurred in connection with
the enforcement of the rights of the Lender Group under the Loan Documents, and (ii) any Agent
Advances made by the Administrative Agent under or pursuant to the terms of the Loan Documents
(including any costs incurred in connection with the sale or disposition of any Collateral);




          SECOND, pro rata, to payment of any fees owed to the Administrative Agent, the Issuing Bank or the
Swing Bank hereunder or under any other Loan Document;




          THIRD, to the payment of out-of-pocket costs and expenses (including reasonable attorneys’ fees) of
the Lenders incurred in connection with the enforcement of their respective rights under the Loan
Documents;




          FOURTH, to the payment of all Obligations consisting of accrued fees and interest payable to the
Lenders hereunder;




          FIFTH, to the payment of the principal of the Swing Loans then outstanding;




          SIXTH, pro rata, to (i) the payment of principal on the Revolving Loans then outstanding, (ii) the
Letter of Credit Reserve Account to the extent of one hundred five percent (105%) of any Letter of
Credit Obligations then outstanding and (iii) to the payment of any Obligation arising in respect
of the Bank Products;



          SEVENTH,
to any other Obligations not otherwise referred to in this Section 2.11(b); and




          EIGHTH, upon satisfaction in full of all Obligations, to the Borrowers or as otherwise
required by law.




     Section 2.12 Use of Proceeds. The proceeds of the Loans shall be used by the Borrowers
to refinance existing Funded Debt, to fund transaction related fees and expenses, to fund future
acquisitions permitted hereunder, to support strategic growth



51









 




initiatives and to provide for ongoing working capital and for the Borrowers’ and their
Subsidiaries’ general corporate purposes.




     Section 2.13 All Obligations to Constitute One Obligation. All Obligations shall
constitute one general obligation of the Borrowers and shall be secured by the Administrative
Agent’s security interest (on behalf of, and for the benefit of, the Lender Group) and Lien upon
all of the Collateral, and by all other security interests and Liens heretofore, now or at any time
hereafter granted by any Borrower Party to the Administrative Agent or any other member of the
Lender Group, to the extent provided in the Security Documents under which such Liens arise.



     Section 2.14 Maximum Rate of Interest. The Borrowers and the Lender Group hereby agree
and stipulate that the only charges imposed upon the Borrowers for the use of money in connection
with this Agreement are and shall be the specific interest and fees described in this Article 2 and
in any other Loan Document. Notwithstanding the foregoing, the Borrowers and the Lender Group
further agree and stipulate that all closing fees, agency fees, syndication fees, facility fees,
underwriting fees, default charges, late charges, funding or “breakage” charges, increased cost
charges, attorneys’ fees and reimbursement for costs and expenses paid by any member of the Lender
Group to third parties or for damages incurred by the Lender Group, or any of them, are charges to
compensate the Lender Group for underwriting and administrative services and costs or losses
performed or incurred, and to be performed and incurred, by the Lender Group in connection with
this Agreement and the other Loan Documents and shall under no circumstances be deemed to be
charges for the use of money pursuant to Official Code of Georgia Annotated Sections 7-4-2 and
7-4-18 or any other Applicable Law. In no event shall the amount of interest and other charges for
the use of money payable under this Agreement exceed the maximum amounts permissible under any law
that a court of competent jurisdiction shall, in a final determination, deem applicable. The
Borrowers and the Lender Group, in executing and delivering this Agreement, intend legally to agree
upon the rate or rates of interest and other charges for the use of money and manner of payment
stated within it; provided, however, that, anything contained herein to the
contrary notwithstanding, if the amount of such interest and other charges for the use of money or
manner of payment exceeds the maximum amount allowable under Applicable Law, then, ipso
facto as of the Agreement Date, the Borrowers are and shall be liable only for the payment
of such maximum amount as allowed by law, and payment received from the Borrowers in excess of such
legal maximum amount, whenever received, shall be applied to reduce the principal balance of the
Revolving Loans to the extent of such excess.



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     Section 2.15 Letters of Credit.



          (a) Subject to the terms and conditions of this Agreement, the Issuing Bank, on behalf of the
Lenders, and in reliance on the agreements of the Lenders set forth
in Section 2.15(c) below,
hereby agrees to issue one or more Letters of Credit up to an aggregate face amount equal to the
Letter of Credit Commitment; provided, however, that, except as described in the
last sentence of Section 4.3, the Issuing Bank shall not issue any Letter of Credit unless
the conditions precedent to the issuance thereof set forth in Section 4.3 have been
satisfied. Each Letter of Credit shall (i) be denominated in Dollars, and (ii) expire no later
than the earlier to occur of (A) the date thirty (30) days prior to the Maturity Date, and (B)
three hundred sixty (360) days after its date of issuance (but may contain provisions for automatic
renewal provided that no Default exists on the renewal date or would be caused by such renewal and
provided no such renewal shall extend beyond the date thirty (30) days prior to the Maturity Date);
provided, however, that the Issuing Bank shall, at the request of the Borrower, issue Letters of
Credit with a three-year expiration date in an aggregate amount not to exceed $1,000,000. Each
Letter of Credit shall be subject to the Uniform Customs and, to the extent not inconsistent
therewith, the laws of the State of New York. The Issuing Bank shall not at any time be obligated
to issue, or cause to be issued, any Letter of Credit if such issuance would conflict with, or
cause the Issuing Bank to exceed any limits imposed by, any Applicable Law.



          (b) The Administrative Borrower may from time to time request that the Issuing Bank issue a
Letter of Credit for the benefit of any Borrower Party. The Administrative Borrower shall execute
and deliver to the Administrative Agent and the Issuing Bank a Request for Issuance of Letter of
Credit for each Letter of Credit to be issued by the Issuing Bank, not later than 11:00 a.m. (New
York, New York time) on the third (3rd) Business Day preceding the date on which the requested
Letter of Credit is to be issued, or such shorter notice as may be acceptable to the Issuing Bank
and the Administrative Agent. Upon receipt of any such Request for Issuance of Letter of Credit,
subject to satisfaction of all conditions precedent thereto as set forth in Section 4.3 or
waiver of such conditions pursuant to the last sentence of Section 4.3, the Issuing Bank
shall process such Request for Issuance of Letter of Credit and the certificates, documents and
other papers and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested thereby. The Issuing
Bank shall furnish a copy of such Letter of Credit to the Administrative Borrower and the
Administrative Agent following the issuance thereof. In addition to the fees payable pursuant to
Section 2.4(c)(ii), the Borrowers shall pay or reimburse the Issuing Bank for normal and
customary costs and expenses incurred by the Issuing Bank in issuing, effecting payment under,
amending or otherwise administering the Letters of Credit.



          (c) Immediately upon the issuance by the Issuing Bank of a Letter of Credit and in accordance
with the terms and conditions of this Agreement, the Issuing




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Bank shall be deemed to have sold and transferred to each Lender, and each Lender shall be
deemed irrevocably and unconditionally to have purchased and received from the Issuing Bank,
without recourse or warranty, an undivided interest and participation, to the extent of such
Lender’s Revolving Commitment Ratio, in such Letter of Credit and the obligations of the Borrowers
with respect thereto (including, without limitation, all Letter of Credit Obligations with respect
thereto). The Issuing Bank shall promptly notify the Administrative Agent of any draw under a
Letter of Credit. At such time as the Administrative Agent shall be notified by the Issuing Bank
that the beneficiary under any Letter of Credit has drawn on the same, the Administrative Agent
shall promptly notify the Administrative Borrower and the Swing Bank (or, at its option, all
Lenders), by telephone or telecopy, of the amount of the draw and, in the case of each Lender, such
Lender’s portion of such draw amount as calculated in accordance with its Revolving Commitment
Ratio.




          (d) Each Borrower hereby agrees, jointly and severally, to immediately reimburse the Issuing
Bank for amounts paid by the Issuing Bank in respect of draws under each Letter of Credit. In
order to facilitate such repayment, each Borrower hereby irrevocably requests the Lenders, and the
Lenders hereby severally agree, on the terms and conditions of this Agreement (other than as
provided in Article 2 with respect to the amounts of, the timing of requests for, and the repayment
of Advances hereunder and in Article 4 with respect to conditions precedent to Advances hereunder),
with respect to any drawing under a Letter of Credit, to make a Base Rate Advance on each day on
which a draw is made under any Letter of Credit and in the amount of such draw, and to pay the
proceeds of such Advance directly to the Issuing Bank to reimburse the Issuing Bank for the amount
paid by it upon such draw. Each Lender shall pay its share of such Base Rate Advance by paying its
portion of such Advance to the Administrative Agent in accordance with Section 2.2(e) and
its Revolving Commitment Ratio, without reduction for any set-off or counterclaim of any nature
whatsoever and regardless of whether any Default exists or would be caused thereby. The
disbursement of funds in connection with a draw under a Letter of Credit pursuant to this
Section 2.15 shall be subject to the terms and conditions of Section 2.2(e). The
obligation of each Lender to make payments to the Administrative Agent, for the account of the
Issuing Bank, in accordance with this Section 2.15 shall be absolute and unconditional, and
no Lender shall be relieved of its obligations to make such payments by reason of noncompliance by
any other Person with the terms of the Letter of Credit or for any other reason (other than the
gross negligence or willful misconduct of the Issuing Bank in paying such Letter of Credit, as
determined by a final non-appealable judgment of a court of competent jurisdiction). The
Administrative Agent shall promptly remit to the Issuing Bank the amounts so received from the
other Lenders. Any overdue amounts payable by the Lenders to the Issuing Bank in respect of a draw
under any Letter of Credit shall bear interest, payable on demand, (x) for the first two (2)
Business Days, at the Federal Funds Rate, and (y) thereafter, at the Base Rate. Notwithstanding the
foregoing, at the request of the Administrative Agent, the Swing Bank may, at its option and
subject to the conditions set forth in Section 2.2(g) other than the condition that the
applicable






54









 







conditions precedent set forth in Article 4 be satisfied, make Swing Loans to reimburse the Issuing
Bank for amounts drawn under Letters of Credit.




          (e) Each Borrower agrees that each Advance by the Lenders to reimburse the Issuing Bank for
draws under any Letter of Credit, shall, for all purposes hereunder, unless and until converted
into a Eurodollar Advance pursuant to Section 2.2(b)(ii), be deemed to be a Base Rate
Advance under the Revolving Loan Commitment and shall be payable and bear interest in accordance
with all other Base Rate Advances of Revolving Loans.




          (f) Each Borrower agrees that any action taken or omitted to be taken by the Issuing Bank in
connection with any Letter of Credit, except for such actions or omissions as shall constitute
gross negligence or willful misconduct on the part of such Issuing Bank as determined by a final
non-appealable judgment of a court of competent jurisdiction, shall be binding on the Borrowers as
between the Borrowers and the Issuing Bank, and shall not result in any liability of the Issuing
Bank to the Borrowers. The obligation of the Borrowers to reimburse the Issuing Bank for a drawing
under any Letter of Credit or the Lenders for Advances made by them to the Issuing Bank on account
of draws made under the Letters of Credit shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all circumstances
whatsoever (except if arising from the gross negligence or willful misconduct on the part of such
Issuing Bank as determined by a final non-appealable judgment of a court of competent
jurisdiction), including, without limitation, the following circumstances:




               (i) Any lack of validity or enforceability of any Loan Document;



               (ii) Any amendment or waiver of or consent to any departure
from any or all of the Loan Documents;



               (iii) Any improper use which may be made of any Letter of
Credit or any improper acts or omissions of any beneficiary or transferee of any Letter of Credit
in connection therewith;



               (iv) The existence of any claim, set-off, defense or any right which any
Borrower may have at any time against any beneficiary or any transferee of any Letter of Credit (or
Persons for whom any such beneficiary or any such transferee may be acting), any Lender or any
other Person, whether in connection with any Letter of Credit, any transaction contemplated by any
Letter of Credit, this Agreement, or any other Loan Document, or any unrelated transaction;



               (v) Any statement or any other documents presented under any Letter of Credit proving to be insufficient,
forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in
any respect whatsoever;



55









 





               (vi) The insolvency of any Person issuing any documents in connection with any Letter of
Credit;



               (vii) Any breach of any agreement between any Borrower and any beneficiary or transferee of
any Letter of Credit;



               (viii) Any irregularity in the transaction with respect to which any Letter
of Credit is issued, including any fraud by the beneficiary or any transferee of such Letter of
Credit;



               (ix) Any errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, wireless or otherwise, whether or not they are in code;




               (x)
Any act, error, neglect or default, omission, insolvency or failure of business of any of the
correspondents of the Issuing Bank;




               (xi) Any other circumstances arising from causes beyond the
control of the Issuing Bank;



               (xii) Payment by the Issuing Bank under any Letter of Credit against
presentation of a sight draft or a certificate which does not comply with the terms of such Letter
of Credit, provided that such payment shall not have constituted gross negligence or willful
misconduct of the Issuing Bank as determined by a final non-appealable judgment of a court of
competent jurisdiction; and



               (xiii) Any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.



          (g) Each Borrower will indemnify and hold harmless each Indemnified Person from and against
any and all claims, liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever (including reasonable
attorneys’ fees) which may be imposed on, incurred by or asserted against such Indemnified Person
in any way relating to or arising out of the issuance of a Letter of Credit, except that the
Borrowers shall not be liable to an Indemnified Person for any portion of such claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful misconduct of such Indemnified Person
as determined by a final non-appealable judgment of a court of competent jurisdiction. This Section
2.15(g) shall survive termination of this Agreement.




          (h) Each Lender shall be responsible (to the
extent the Issuing Bank is not reimbursed by the Borrowers) for its pro rata share (based on such
Lender’s Revolving Commitment Ratio) of any and all reasonable out-of-pocket costs, expenses
(including reasonable legal fees) and disbursements which may be incurred or made by





56









 







the Issuing Bank in connection with the collection of any amounts due under, the administration of,
or the presentation or enforcement of any rights conferred by any Letter of Credit, any Borrower’s
or any Guarantor’s obligations to reimburse draws thereunder or otherwise. In the event the
Borrowers shall fail to pay such expenses of the Issuing Bank within fifteen (15) days of demand
for payment by the Issuing Bank, each Lender shall thereupon pay to the Issuing Bank its pro rata
share (based on such Lender’s Revolving Commitment Ratio) of such expenses within ten (10) days
from the date of the Issuing Bank’s notice to the Lenders of the Borrowers’ failure to pay;
provided, however, that if the Borrowers shall thereafter pay such expenses, the
Issuing Bank will repay to each Lender the amounts received from such Lender hereunder.




          (i) Unless otherwise expressly agreed to by the Issuing Bank and the Borrowers when a Letter
of Credit is issued and subject to Applicable Laws, (i) each Standby Letter of Credit shall be
governed by the “International Standby Practices 1998” (ISP98) (or such later revision as may be
published by the Institute of International Banking Law & Practice on any date any Letter of Credit
may be issued), (ii) each Commercial Letter of Credit shall be governed by the Uniform Customs and
(iii) in both cases, to the extent not inconsistent therewith, the governing law of this Agreement
set forth in Section 11.7.




     Section 2.16 Bank Products. Any Borrower Party may request and any Lender may, in its
sole and absolute discretion, arrange for such Borrower Party to obtain from such Lender or any
Affiliate of such Lender, Bank Products although no Borrower Party is required to do so. If any
Bank Products are provided by an Affiliate of any Lender, the Borrower Parties agree to indemnify
and hold the Lender Group, or any of them, harmless from any and all costs and obligations now or
hereafter incurred by the Lender Group, or any of them, which arise from any indemnity given by
such Lender to any of its Affiliates, as applicable, related to such Bank Products;
provided, however, nothing contained herein is intended to limit the Borrower
Parties’ rights, with respect to such Lender or any of its Affiliates, as applicable, if any, which
arise as a result of the execution of documents by and between the Borrower Parties and such Person
which relate to any Bank Products. The agreement contained in this Section shall survive
termination of this Agreement. The Borrower Parties acknowledge and agree that the obtaining of
Bank Products from any Lender or its Affiliates (a) is in the sole and absolute discretion of such
Lender or such Affiliates, and (b) is subject to all rules and regulations of such Lender or such
Affiliates.



     Section 2.17 Additional Increase of Commitments; Additional Lenders.



          (a) Increase of the Revolving Loan Commitment.




               (i) So long as no Event of Default has occurred and is
continuing, the Administrative Borrower may request the right to effectuate increases in the
Revolving Loan Commitment (any such increase, a “Commitment Increase”), by an aggregate
additional amount of up to $25,000,000 for all such Commitment Increases



57









 




(the “Commitment Increase Cap”), during the term of this Agreement by delivering a Notice
of Requested Commitment Increase to the Administrative Agent substantially in the form of
Exhibit I (a “Notice of Requested Commitment Increase”), provided that, in each
case: (A) each Commitment Increase shall be at least $5,000,000 and in integral multiples of
$1,000,000 in excess thereof; (B) the proposed Commitment Increase shall have been consented to in
writing by the Administrative Agent (such consent not to be unreasonably withheld), each Lender (if
any) who is increasing its portion of the Revolving Loan Commitment and any other bank or financial
institution acceptable to the Borrowers and the Administrative Agent that has agreed to become a
Lender in respect of all or a portion of the Commitment Increase (a “New Lender”); and (C)
the proposed Commitment Increase, together with any prior Commitment Increase, shall not exceed the
Commitment Increase Cap. Each Notice of Requested Commitment Increase shall specify: (1) the amount
of the proposed Commitment Increase and (2) the requested date of the proposed Commitment Increase
(which shall be at least ten (10) Business Days from the date of delivery of the Notice of
Requested Commitment Increase). Each Notice of Requested Commitment Increase shall be binding on
all Borrowers. Upon the effective date of any Commitment Increase, the Administrative Borrower
shall deliver to the Administrative Agent a certificate of the chief financial officer of the
Administrative Borrower certifying that no Default or Event of Default then exists or would be
caused thereby. No Commitment Increase shall be effective until the Administrative Agent shall have
received amendments to this Agreement and the other Loan Documents, commitments of Lenders or New
Lenders in an aggregate amount equal to such Commitment Increase, Lender Agreements for each Lender
or New Lender committing to such Commitment Increase, any upfront fees to be paid to the Lenders
committing to such Commitment Increase, and, if requested, opinion letters, Revolving Loan Notes
and such other agreements, documents and instruments requested by and reasonably satisfactory to
the Administrative Agent in its Permitted Discretion evidencing and setting forth the conditions of
such Commitment Increase.




               (ii) If the Administrative Agent approves a proposed Commitment Increase, the Administrative
Agent shall deliver a copy of the Notice of Requested Commitment Increase relating thereto to each
Lender. No Lender (or any successor thereto) shall have any obligation to increase its portion of
the Revolving Loan Commitment or its other obligations under this Agreement or the other Loan
Documents, and any decision by a Lender to increase its portion of the Revolving Loan Commitment
shall be made in its sole discretion independently from any other Lender. If the Administrative
Agent receives commitments from the Lenders or the New Lenders in excess of the amount of the
proposed Commitment Increase, the Administrative Agent shall have the right, in its sole
discretion, to reduce and reallocate (within the minimum and maximum amounts specified by each such
Lender or New Lender in its notice to the Administrative Agent) the shares of such Commitment
Increase of the Lenders or New Lenders willing to fund the proposed Commitment Increase so that the
total committed shares of the proposed Commitment Increase equals the proposed Commitment Increase.
The Administrative Agent shall notify each Lender or New Lender, as the case may be,



58









 




whether its proposed share of the proposed Commitment Increase has been accepted and, if so, the
amount of its share of such Commitment Increase, and such Lender shall thereafter execute and
deliver a Lender Agreement with respect to its respective share of such Commitment Increase.




               (iii) Notwithstanding anything to the contrary contained herein, each Commitment Increase
meeting the conditions set forth in Section 2.17(a)(i) shall not require the consent of any
Lender other than those Lenders, if any, which have agreed to increase their portions of the
Revolving Loan Commitment in connection with such Commitment Increase and shall not constitute an
amendment, modification or waiver that is subject to Section 11.12 and shall be effective
as of the later of (a) the date specified in the applicable Notice of Requested Commitment Increase
and (b) the date upon which the foregoing conditions shall have been satisfied or waived by the
Administrative Agent and the Lenders which have agreed to increase their portions of the Revolving
Loan Commitment, or by the requisite Lenders in accordance with Section 11.12 in the case
of a waiver of an Event of Default, as applicable.



          (b) Effect of Commitment Increase. After giving effect to any
Commitment Increase, the outstanding Revolving Loans may not be held pro rata in accordance with
the new Revolving Loan Commitment. In order to remedy the foregoing, on the effective date of each
Commitment Increase, the Lenders (including any New Lenders) shall reallocate the Revolving Loans
owed to them among themselves so that, after giving effect thereto, the Revolving Loans will be
held by the Lenders (including any New Lenders) on a pro rata basis in accordance with their
respective Revolving Commitment Ratios (after giving effect to such Commitment Increase). Each
Lender agrees to wire immediately available funds to the Administrative Agent in accordance with
this Agreement as may be required by the Administrative Agent in connection with the foregoing.
Notwithstanding the provisions of Section 11.5, the reallocations so made by each Lender whose
Revolving Commitment Ratio has increased shall be deemed to be a purchase of a corresponding amount
of the Revolving Loans of the Lender or Lenders whose Revolving Commitment Ratio have decreased and
shall not be considered an assignment for purposes of Section 11.5.




     Section 2.18 Defaulting Lenders. Notwithstanding any provision of this
Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions
shall apply for so long as such Lender is a Defaulting Lender:



          (a) the Unused Line Fees shall cease to accrue on the portion of the Revolving Loan Commitment held
by such Lender so long as it is a Defaulting Lender (except to the extent it is payable to the
Issuing Bank pursuant to clause (c)(v) below);




          (b) if any Swing Loans or Letter of Credit Obligations exist at the time a Lender becomes a
Defaulting Lender then:






59









 









          (i) all or any part of such Swing Loans and Letter of Credit Obligations shall be
reallocated among the non-Defaulting Lenders in accordance with their respective Revolving
Commitment Ratio but only to the extent the Aggregate Revolving Credit Obligations held by
of all non-Defaulting Lenders’ plus the Revolving Commitment Ratio of the such Defaulting
Lender’s Swing Loan and Letter of Credit Obligations does not exceed the portion of the
Revolving Loan Commitment held by the non-Defaulting Lenders;




          (ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, Borrowers shall within one Business Day following notice by the
Administrative Agent (x) first, prepay the Swing Loan in an amount equal to such
Defaulting Lender’s pro rata share of the Swing Loan and (y) second, cash collateralize
the Letters of Credit Obligations in an amount equal to such Defaulting Lender’s pro rata
share of the Letter of Credit Obligations (after giving effect to any partial reallocation
pursuant to clause (i) above) in an amount equal to one hundred five percent (105%) of the
Letter of Credit Obligations for so long as such Letter of Credit Obligations are
outstanding;




          (iii) if any portion of such Defaulting Lender’s pro rata share of the Letter of
Credit Obligations is cash collateralized pursuant to clause (ii) above, Borrowers
shall not be required to pay the fees described in
Section 2.4(c) with respect to
such portion of such Defaulting Lender’s Letter of Credit Obligations so long as it is
cash collateralized;




          (iv) if any portion of such Defaulting Lender’s Letter of Credit Obligations is
reallocated to the non-Defaulting Lenders pursuant to clause (i) above, then the Letter of
Credit Fees under Section 2.4(c) with respect to such portion shall be allocated
among the non-Defaulting Lenders in accordance with their Revolving Commitment Ratio;




          (v) if any portion of such Defaulting Lender’s pro rata share of the Letter of Credit
Obligations is neither cash collateralized nor reallocated pursuant to this Section
2.18(b), then, without prejudice to any rights or remedies of the Issuing Bank or any
Lender hereunder, the Unused Line Fee that otherwise would have been payable to such
Defaulting Lender (with respect to the portion of such Defaulting Lender’s Revolving Loan
Commitment that was utilized by such Letter of Credit Obligations) and the Letter of
Credit Fee under Section 2.4(c) payable with respect to such Defaulting Lender’s
Letter of Credit Obligations shall be payable to the Issuing Bank until such Letter of
Credit Obligations are cash collateralized and/or reallocated in accordance herewith; and



60









 






          (vi) so long as any Lender is a Defaulting Lender, the Swing Bank shall not be
required to fund any Swing Loan and the Issuing Bank shall not be required to issue, amend
or increase any Letter of Credit, unless it is satisfied that the related exposure will be
100% covered by the Revolving Loan Commitment of the non-Defaulting Lenders and/or cash
collateralized in accordance with this Section 2.18(b), and participations in any
such newly issued or increased Letter of Credit or newly made Swing Loan shall be allocated
among non-Defaulting Lenders in accordance with their respective Revolving Commitment Ratio
(and Defaulting Lenders shall not participate therein); and



          (c) any amount payable to such Defaulting Lender hereunder (whether on account of principal,
interest, fees or otherwise) may, in lieu of being distributed to such Defaulting Lender, be
retained by the Administrative Agent in a segregated non-interest bearing account and, subject to
any Applicable Law, be applied at such time or times as may be determined by the Administrative
Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the
Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing
by such Defaulting Lender to the Issuing Bank or Swing Bank hereunder, (iii) third, to the
funding of any Loan or the funding or cash collateralization of any participation in any Swing Loan
or Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion
thereof as required by this Agreement, as determined by the Administrative Agent, (iv)
fourth, if so determined by the Administrative Agent and the Administrative Borrower, held
in such account as cash collateral for future funding obligations of the Defaulting Lender under
this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to Borrowers or
the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the
Borrowers or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s
breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Lender or
as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a
prepayment of the principal amount of any Loans or Letter of Credit Obligations in respect of
Letters of Credit which a Defaulting Lender has funded its participation obligations and (y) made
at a time when the conditions set forth in Section 4.3 are satisfied, such payment shall be
applied solely to prepay the Loans of, and Letter of Credit Obligations owed to, all non-Defaulting
Lenders, based on their Revolving Commitment Ratio, prior to being applied to the prepayment of any
Loans, or Letter of Credit Obligations owed to, any Defaulting Lender.



In the event that the Administrative Agent, the Borrowers, the Issuing Bank or the Swing Bank, as
the case may be, each agrees that a Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then the Swing Loans and Letter of Credit Obligations
of the Lenders shall be readjusted to reflect the inclusion of such Lender’s portion of the
Revolving Loan Commitment and on such date such Lender shall purchase at par such of the Loans of
the other Lenders as the Administrative Agent shall determine may be necessary in order for such
Lender to hold such Loans in accordance with its Revolving Commitment Ratio. The rights and
remedies against a






61









 







Defaulting Lender under this Section 2.18 are in addition to other rights and remedies that
the Borrowers, the Administrative Agent, the Issuing Bank, the Swing Bank and the non-Defaulting
Lenders may have against such Defaulting Lender. The arrangements permitted or required by this
Section 2.18 shall be permitted under this Agreement, notwithstanding any limitation on
Liens or the pro rata sharing provisions or otherwise.




ARTICLE 3.



GUARANTY



     Section 3.1 Guaranty.



          (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the
Lender Group, the full and prompt payment of the Obligations, including, without limitation, any
interest therein (including, without limitation, interest as provided in this Agreement, accruing
after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest
accrues or is recoverable against the Borrowers after the filing of such petition for purposes of
the Bankruptcy Code or is an allowed claim in such proceeding), plus documented, reasonable
attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law,
through an attorney-at-law, or under advice therefrom.




          (b) Regardless of whether any proposed guarantor or any other Person shall become in any other
way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any
part thereof, and regardless of whether or not any Person now or hereafter responsible to the
Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty
or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this
Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be
operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or
in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an
amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the
Revolving Loan Commitment shall have been terminated.




          (c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to
assert any defense (other than the defense of payment in cash in full or performance, to the extent
of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided
in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with
respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the
obligations of any other Person or party (including, without limitation, the Borrowers) relating to
this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with
respect to the Obligations in any action or proceeding brought by the Administrative Agent or any
other member of






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the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations
of any of the Guarantors under this Guaranty.




          (d) The Lender Group, or any of them, may from time to time, without exonerating or releasing
any Guarantor in any way under this Guaranty, (i) take such further or other security or securities
for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge,
abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any
security or securities therefor or any part thereof now or hereafter held by the Lender Group, or
any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the
provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or
appropriate in their sole discretion. Without limiting the generality of the foregoing, or of
Section 3.1(e), it is understood that the Lender Group, or any of them, may, without
exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking
advantage of any security for the Obligations and accept or make any compositions or arrangements,
and realize upon any security for the Obligations when, and in such manner, and with or without
notice, all as such Person may deem expedient.




          (e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the
Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing,
related to or attendant with the Obligations (including any novation), shall discharge all or any
part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the
purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all
liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable
under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor
agrees that until each and every one of the covenants and agreements of this Guaranty is fully
performed, and without possibility of recourse, whether by operation of law or otherwise, such
Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or
thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable
discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or
any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or
omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or
increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any
further dealings between the Borrowers, on the one hand, and any member of the Lender Group, on the
other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and
surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any
nature or description which it may have or may exist based upon, and shall be deemed to have
consented to, any of the foregoing acts, omissions, things, agreements or waivers.




          (f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any
Guarantor, at any time or from time to time when any amount






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shall be due and payable hereunder by any Guarantor following and during the continuance of an
Event of Default, if the Borrowers shall not have timely paid any of the Obligations (or in the
case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount
equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and
appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of
application as the Administrative Agent may from time to time elect in accordance with this
Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the
possession of any member of the Lender Group or under their respective control for any purpose. If
and to the extent that any Guarantor makes any payment to the Administrative Agent or any other
Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against
any Borrower by reason thereof shall be subject and subordinate to the prior payment in full of the
Obligations to the satisfaction of the Lender Group.




          (g) The creation or existence from time to time of Obligations in excess of the amount
committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to
any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group
herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s
obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein
defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the
maximum amount which could be paid by such Guarantor without rendering this Guaranty void or
voidable as would otherwise be held or determined by a court of competent jurisdiction in any
action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.




          (h) Upon the bankruptcy or winding up or other distribution of assets of any Borrower, or of
any surety or guarantor (other than the applicable Guarantor) for any Obligations of the Borrowers
to the Lender Group, or any of them, the rights of the Administrative Agent against any Guarantor
shall not be affected or impaired by the omission of any member of the Lender Group to prove its
claim, or to prove the full claim, as appropriate, against any Borrower, or any other Borrower or
any such other guarantor or surety, and the Administrative Agent may prove such claims as it sees
fit and may refrain from proving any claim and in its discretion may value as it sees fit or
refrain from valuing any security held by it without in any way releasing, reducing or otherwise
affecting the liability to the Lender Group of each of the Guarantors.




          (i) Each Guarantor hereby absolutely, unconditionally and irrevocably expressly waives, except to the extent such waiver
would be expressly prohibited by Applicable Law, the following: (i) notice of acceptance of this
Guaranty, (ii) notice of the existence or creation of all or any of the Obligations, (iii)
presentment, demand, notice of dishonor, protest and all other notices whatsoever (other than
notices expressly required hereunder or under any other Loan Document to which any Guarantor is a





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party), (iv) all diligence in collection or protection of or realization upon the Obligations or
any part thereof, any obligation hereunder, or any security for any of the foregoing, (v) until the
Obligations shall have been paid in full in cash (or, in the case of a Letter of Credit Obligation,
secured through delivery of cash collateral in an amount equal to one hundred five percent (105%)
of the Letter of Credit Obligations, all rights to enforce any remedy which the Lender Group, or
any of them, may have against any Borrower and (vi) until the Obligations shall have been paid in
full in cash (or in the case of a Letter of Credit Obligations, secured through delivery of cash
collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit
Obligations), all rights of subrogation, indemnification, contribution and reimbursement from the
Borrowers for amounts paid hereunder and any benefit of, or right to participate in, any collateral
or security now or hereinafter held by the Lender Group, or any of them, in respect of the
Obligations. If a claim is ever made upon any member of the Lender Group for the repayment or
recovery of any amount or amounts received by such Person in payment of any of the Obligations and
such Person repays all or part of such amount by reason of (A) any judgment, decree or order of any
court or administrative body having jurisdiction over such Person or any of its property, or (B)
any settlement or compromise of any such claim effected by such Person with any such claimant,
including any Borrower, then in such event each Guarantor agrees that any such judgment, decree,
order, settlement or compromise shall be binding upon such Guarantor, notwithstanding any
revocation hereof or the cancellation of any promissory note or other instrument evidencing any of
the Obligations, and such Guarantor shall be and remain obligated to such Person hereunder for the
amount so repaid or recovered to the same extent as if such amount had never originally been
received by such Person.




          (j) This Guaranty is a continuing guaranty of the Obligations and all liabilities to which it
applies or may apply under the terms hereof and shall be conclusively presumed to have been created
in reliance hereon. No failure or delay by any member of the Lender Group in the exercise of any
right, power, privilege or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Administrative Agent of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy and no course of dealing between any
Guarantor and any member of the Lender Group shall operate as a waiver thereof. No action by any
member of the Lender Group permitted hereunder shall in any way impair or affect this Guaranty.
For the purpose of this Guaranty, the Obligations shall include, without limitation, all
Obligations of the Borrowers to the Lender Group, notwithstanding any right or power of any third
party, individually or in the name of any Borrower and the Lender Group, or any of them, to assert
any claim or defense as to the invalidity or unenforceability of any such Obligation, and no such
claim or defense shall impair or affect the obligations of any Guarantor hereunder.




          (k) This is a guaranty of payment and not of collection. In the event the Administrative Agent
makes a demand upon any Guarantor in accordance with the terms of this Guaranty, such Guarantor
shall be held and bound to the Administrative






65









 







Agent directly as debtor in respect of the payment of the amounts hereby guaranteed. All costs and
expenses, including, without limitation, reasonable attorneys’ fees and expenses, incurred by the
Administrative Agent in obtaining performance of or collecting payments due under this Guaranty
shall be deemed part of the Obligations guaranteed hereby.




          (l) Each Subsidiary Guarantor is a direct or indirect wholly owned Domestic Subsidiary of a
Borrower. Each Guarantor expressly represents and acknowledges that any financial accommodations
by the Lender Group to the Borrowers, including, without limitation, the extension of credit, are
and will be of direct interest, benefit and advantage to such Guarantor.




          (m) Each Guarantor shall be entitled to subrogation and contribution rights from and against
the Borrowers to the extent any Guarantor is required to pay to any member of the Lender Group any
amount in excess of the Loans advanced directly to, or other Obligations incurred directly by, such
Guarantor or as otherwise available under Applicable Law; provided, however, that such subrogation
and contribution rights are and shall be subject to the terms and conditions of this Section
3.1 and Section 13.4. The payment obligation of a Guarantor to any other Guarantor
under any Applicable Law regarding contribution rights among co-obligors or otherwise shall be
subordinate and subject in right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this Guaranty, and such Guarantor shall not exercise any
right or remedy with respect to such rights until payment and satisfaction in full of all such
obligations.




     Section 3.2 Special Provisions Applicable to Subsidiary Guarantors. Pursuant to
Section 6.18 of this Agreement, any new Domestic Subsidiary of any Borrower is required to
enter into this Agreement by executing and delivering to the Administrative Agent a Guaranty
Supplement. Upon the execution and delivery of a Guaranty Supplement by such new Domestic
Subsidiary, such Domestic Subsidiary shall become a Guarantor and Borrower Party hereunder with the
same force and effect as if originally named as a Guarantor or Borrower Party herein. The
execution and delivery of any Guaranty Supplement (or any other supplement to any Loan Document
delivered in connection therewith) adding an additional Guarantor as a party to this Agreement or
any other Applicable Loan Document shall not require the consent of any other party hereto. The
rights and obligations of each party hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor hereunder.



ARTICLE 4.



CONDITIONS PRECEDENT



     Section 4.1 Conditions Precedent to Initial Advance. The obligations of the Lenders
to undertake the Revolving Loan Commitment and to make the initial Advance hereunder, and the
obligation of the Issuing Bank to issue (or arrange for the issuance of)



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any initial Letter of Credit hereunder, are subject to the prior or concurrent fulfillment of each
of the following conditions:




          (a) The Administrative Agent shall have received each of the following, in form and substance
satisfactory to the Administrative Agent:




               (i) This duly executed Agreement;



               (ii) A duly executed Revolving Loan Note to the order of each
Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of
the Revolving Loan Commitment;



               (iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform
Commercial Code financing statements related thereto, certificates representing all of the
certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be
delivered to the Collateral Agent pursuant to the Security Agreement, and transfer powers with
respect thereto duly endorsed in blank;



               (iv) The Holdings Pledge Agreement duly executed by Holdings, together with certificates
representing all of the certificated Equity Interests of Zayo and transfer powers with respect
thereto duly endorsed in blank;



               (v) A Trademark Security Agreement duly executed by each Borrower Party;



               (vi) The duly executed Blocked Account Agreements required by Section 6.13;



               (vii) The duly executed Intercreditor Agreement;



               (viii) The Fee Letter duly executed by the Borrowers;



               (ix) The legal opinion of Gibson Dunn & Crutcher LLP, counsel to the Borrower Parties, addressed to
the Lender Group;



               (x) The legal opinion of Bingham McCutchen LLP, regulatory counsel to the Borrower
Parties, addressed to the Lender Group;



               (xi) The legal opinion of Scott Beer, in-house counsel to the Borrower Parties, addressed
to the Lender Group;



               (xii) The legal opinion of Bradley Arant Boult Cummings LLP, Tennessee regulatory counsel
to Zayo Bandwidth Tennessee, LLC, addressed to the Lender Group;



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               (xiii) The applicable Borrower Party shall use commercially reasonable efforts to obtain, with
respect to the following locations, duly executed Collateral Access Agreements: (A) 60
Hudson Street, New York, New York, (B) 111 8th Avenue, New York, New York, (C) 165 Halsey
Street, Newark, New Jersey, (D) Building Two at 1525 Rockwell Avenue, Cleveland, Ohio, (E)
511 11th Avenue South, Minneapolis, Minnesota, (F) 7620 Appling Center Drive, Memphis,
Tennessee, and (G) all locations of any Borrower Party in Pennsylvania that are leased by
any Borrower Party from PPL Electric Utilities Corporation;



               (xiv) With respect to each Borrower Party and Holdings, a loan certificate signed by the
secretary or assistant secretary of such Person (or, in the case of a Person that is a
partnership, the general partner of such Person or, in the case of a Person that is a
limited liability company, the members or manager, as appropriate, of such Person), in
form and substance satisfactory to the Administrative Agent, including a certificate of
incumbency with respect to each Authorized Signatory of such Person, together with
appropriate attachments which shall include the following: (A) a copy of the Certificate
of Incorporation or Formation of such
Person certified to be true, complete and correct by the Secretary of State of the
State of such Person’s incorporation or formation, (B) a true, complete and correct
copy of the By-Laws, partnership agreement or operating agreement of such Person, (C) a
true, complete and correct copy of the resolutions of such Person (or its general
partner, members or manager, as applicable) authorizing the execution, delivery and
performance by such Person of the Loan Documents and, with respect to Borrowers,
authorizing the borrowings hereunder, (D) certificates of good standing from such
Person’s jurisdiction of formation and each other jurisdiction in which such Person
does business, (E) copies of all employment contracts for key management level
employees, if any, and (F) copies of all shareholders or share purchase agreements
relating to the Equity Interests of such Person;



               (xv) Certificates of insurance and loss payable endorsements with respect to the insurance
policies of the Borrower Parties, in each case, meeting the requirements of Section
6.5;



               (xvi) Pay-off and/or release letters, termination statements, canceled mortgages and the like
required by the Administrative Agent in connection with the removal of any Liens (other than
Permitted Liens), including, without limitation, all tax liens, against the assets of the Borrower
Parties, the repayment of Funded Debt or the release of a Borrower Party from a Guaranty;



               (xvii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and
filing offices;



               (xviii) Evidence satisfactory to the Administrative Agent that the Liens granted
pursuant to the Security Documents will be first priority perfected Liens on the Collateral
(subject only to Permitted Liens);



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               (xix) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of
the Administrative Agent, and the Lenders in connection with the execution and delivery of this
Agreement that are invoiced on or prior to the date hereof, including, without limitation, fees and
expenses of counsel to the Administrative Agent;



               (xx) A Solvency Certificate executed by an
Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition
of the Borrower Parties, after giving effect to the transactions contemplated herein including the
initial Advance and, if any, the issuance of the initial Letter of Credit hereunder;


               (xxi) A duly
executed Request for Advance for the initial Advance of the Loans;



               (xxii) A flow of funds report
duly executed by the Administrative Borrower which report shall include a statement of all sources
and uses of funds on the Agreement Date;



               (xxiii) Evidence that all applicable stamp tax or other
tax related to the Loan Documents have been paid; and



               (xxiv) All such other documents as the
Administrative Agent may reasonably request, certified by an appropriate governmental official or
an Authorized Signatory if so requested.



          (b) The Lender Group shall have received a certificate of an Authorized Signatory of the
Administrative Borrower stating that since September 30, 2009, no Materially Adverse Effect shall
have occurred and be continuing.




          (c) The Lender Group shall have received the financial statements described in Section
5.1(k), each in form and substance to the members of the Lender Group.




          (d) The Lender Group shall have received evidence satisfactory to them that all Necessary
Authorizations (including all PUC’s) are in full force and effect and are not subject to any
pending or threatened reversal or cancellation, that no other consents or approvals are required
and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender
Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower
so stating.




          (e) The Administrative Agent shall have completed such other business and legal due diligence
with respect to the Borrowers and the results thereof shall be acceptable to the Administrative
Agent, in its sole discretion.





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          (f) The Senior Note Indebtedness shall have been issued, the proceeds of the Senior Note
Indebtedness shall have been received by the Borrowers and Agent shall have received a fully
executed copy of the Indenture and each other Senior Note Document executed in connection
therewith, accompanied by a certificate from an Authorized Signatory of the Administrative Borrower
certifying that (i) each Senior Note Document is true and correct, (ii) each Senior Note Document
is in full force and effect and (iii) all of the conditions to the closing of the transaction
contemplated by the Senior Note Documents have been satisfied or waived.




          (g) The Lender Group shall have received a certificate from an Authorized Signatory of the
Administrative Borrower, in form and substance satisfactory to the Administrative Agent,
demonstrating that the Borrowers and their Subsidiaries have Annualized EBITDA, as of December 31,
2009, of at least $70,000,000.




          (h) The Lender Group shall have received evidence that the Required PUC Consent Applications
set forth in Schedule 4.1(h) have been filed by the applicable Borrower Parties with the
respective PUC.




          (i) The Lender Group shall have received evidence satisfactory to them that each Borrower
Party is in compliance with the USA Patriot Act.




     Section 4.2 Conditions Precedent to Each Advance. The obligation of the Lenders to
make each Advance, including the initial Advance hereunder (but excluding Advances, the proceeds of
which are to reimburse (i) the Swing Bank for Swing Loans, (ii) the Administrative Agent for Agent
Advances or (iii) the Issuing Bank for amounts drawn under a Letter of Credit), is subject to the
fulfillment of each of the following conditions immediately prior to or contemporaneously with such
Advance:



          (a) All of the representations and warranties of the Borrower Parties under this Agreement and
the other Loan Documents, which, pursuant to Section 5.2, are made at and as of the time of such
Advance, shall be true and correct in all material respects (unless any such representation or
warranty is qualified as to materiality, in which case such representation and warranty shall be
true and correct in all respects) at such time, both before and after giving effect to the
application of the proceeds of the Advance;




          (b) Since September 30, 2009, there has occurred no event which has had or could reasonably be
expected to have a Materially Adverse Effect;




          (c) There shall not exist on the date of such Advance and after giving effect thereto, a
Default or an Event of Default; and




          (d) The Administrative Agent and the Lenders shall have received all such other certificates,
reports, statements, opinions of counsel, or other documents as the






70









 







Administrative Agent or Lenders may reasonably request and all other conditions to the making of
such Advance which are set forth in this Agreement shall have been fulfilled.




          Each Borrower hereby agrees that the delivery of any Request for Advance hereunder or any
telephonic request for an Advance hereunder shall, in each case, be deemed to be the certification
of the Authorized Signatory thereof that all of the conditions set forth in this Section
4.2 have been satisfied. Notwithstanding the foregoing, if the conditions, or any of them, set
forth above are not satisfied, such conditions may be waived by the requisite Lenders under
Section 11.12, and, in any event the Majority Lenders may waive the condition set forth in
Section 4.2(c).




     Section 4.3 Conditions Precedent to Each Letter of Credit. The obligation of the
Issuing Bank to issue each Letter of Credit (including the initial Letter of Credit) hereunder is
subject to the fulfillment of each of the following conditions immediately prior to or
contemporaneously with the issuance of such Letter of Credit:




          (a) All of the representations and
warranties of the Borrower Parties under this Agreement and the other Loan Documents, which,
pursuant to Section 5.2, are made at and as of the time of the issuance of such Letter of Credit,
shall be true and correct in all material respects (unless any such representation or warranty is
qualified as to materiality, in which case such representation and warranty shall be true and
correct in all respects) at such time, both before and after giving effect to the issuance of such
Letter of Credit;





          (b) Since September 30, 2009, there has occurred no event which has had or could
reasonably be expected to have a Materially Adverse Effect;




          (c) There shall not exist on the date
of issuance of such Letter of Credit, and after giving effect thereto, a Default or an Event of
Default; and




          (d) The Administrative Agent and the Issuing Bank shall have received all such other
certificates, reports, statements, opinions of counsel, or other documents as the Administrative
Agent or the Issuing Bank may reasonably request and all other conditions to the issuance of such
Letter of Credit which are set forth in this Agreement shall have been fulfilled.




     Each Borrower hereby agrees that the delivery of any Request for Issuance of a Letter of
Credit hereunder shall be deemed to be the certification of the Authorized Signatory thereof that
all of the conditions set forth in this Section 4.3 have been satisfied. Notwithstanding
the foregoing, if the conditions, or any of them, set forth above are not satisfied, such
conditions may be waived by the requisite Lenders under Section 11.12, and, in any event
the Majority Lenders may waive the condition set forth in Section 4.3(c).



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ARTICLE 5.



REPRESENTATIONS AND WARRANTIES



     Section 5.1 General Representations and Warranties. In order to induce the
Lender Group to enter into this Agreement and to extend the Loans and issue the Letters of Credit
for the benefit of the Borrowers, each Borrower Party hereby represents, and warrants that:



          (a) Organization; Power; Qualification. Each Borrower Party and each Subsidiary of a
Borrower Party (i) is a corporation, partnership or limited liability company duly organized,
validly existing, and in active status or good standing under the laws of its state of
incorporation or formation, (ii) has the corporate or other company power and authority to own or
lease and operate its properties and to carry on its business as now being and hereafter proposed
to be conducted, and (iii) is duly qualified and is in active status or good standing as a foreign
corporation or other company, and authorized to do business, in each jurisdiction in which the
character of its properties or the nature of its business requires such qualification or
authorization except in each case where the failure to have such power and authority described in
clause (ii) above or to be so qualified as described in clause (iii) above would not reasonably be
expected to have a Materially Adverse Effect.




          (b) Authorization; Enforceability. Each Borrower Party has the power and has taken all
necessary action, corporate or otherwise, to authorize it to execute, deliver, and perform its
obligations under this Agreement and each of the other Loan Documents to which it is a party in
accordance with the terms thereof and to consummate the transactions contemplated hereby and
thereby. Each of this Agreement and each other Loan Document to which a Borrower Party is a party
has been duly executed and delivered by such Borrower Party, and (except for Requests for Advance,
Requests for Issuance of Letters of Credit, Notices of Conversion/Continuation, Notices of
Requested Commitment Increases and Uniform Commercial Code financing statements solely to the
extent they do not contain any affirmative obligations of the Borrower Parties) is a legal, valid
and binding obligation of such Borrower Party, enforceable in accordance with its terms except to
the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditor’s rights generally or by
general principles of equity (regardless of whether such enforcement is considered in a proceeding
in equity or at law).




          (c) Partnerships; Joint Ventures; Subsidiaries. Except as disclosed on Schedule
5.1(c)-1, as of the Agreement Date, no Borrower Party or any Subsidiary of a Borrower Party has
any Subsidiaries, which Subsidiaries are identified on such Schedule as Domestic Subsidiaries or
Foreign Subsidiaries. As of the Agreement Date, no Borrower Party or any Subsidiary of a Borrower
Party is a partner or joint venturer in any partnership or joint venture other than (i) the
Subsidiaries listed on Schedule 5.1(c)-1 and






72









 







(ii) the partnerships and joint ventures (that are not Subsidiaries) listed on Schedule
5.1(c)-2. Schedule 5.1(c)-1 and Schedule 5.1(c)-2 set forth, for each Person
set forth thereon, a complete and accurate statement of (i) the percentage ownership of each such
Person by the applicable Borrower Party or Subsidiary of a Borrower Party as of the Agreement Date,
(ii) the state or other jurisdiction of incorporation or formation, as appropriate, of each such
Person as of the Agreement Date, (iii) each state in which the failure of such Person to be
qualified to do business as of the Agreement Date could reasonably be expected to cause a
Materially Adverse Effect and (iv) all of each such Person’s trade names, trade styles or doing
business forms which such Person has used or under which such Person has transacted business during
the five (5) year period immediately preceding the Agreement Date.




          (d) Capital Stock and Related Matters. The authorized Equity Interests as of the Agreement
Date of each Borrower Party and each Subsidiary of a Borrower Party that is a corporation and the
number of shares of such Equity Interests that are issued and outstanding as of the Agreement Date
are as set forth on Schedule 5.1(d). All of the shares of such Equity Interests in each Borrower
Party and each Subsidiary of a Borrower Party that are issued and outstanding as of the Agreement
Date have been duly authorized and validly issued and are fully paid and non-assessable. None of
such Equity Interests in each Borrower Party and each Subsidiary of a Borrower Party have been
issued in violation of the Securities Act, or the securities, “Blue Sky” or other Applicable Laws
of any applicable jurisdiction. As of the Agreement Date, the Equity Interests of each such
Borrower Party and each such Subsidiary of a Borrower Party are owned by the parties listed on
Schedule 5.1(d) in the amounts set forth on such schedule and a description of the Equity
Interests of each such party is listed on Schedule 5.1(d). As of the Agreement Date, except
as described on Schedule 5.1(d), no Borrower Party or any Subsidiary of a Borrower Party has
outstanding any stock or securities convertible into or exchangeable for any shares of its Equity
Interests, nor are there any preemptive or similar rights to subscribe for or to purchase, or any
other rights to subscribe for or to purchase, or any options for the purchase of, or any agreements
providing for the issuance (contingent or otherwise) of, or any calls, commitments, or claims of
any character relating to, any Equity Interests or any stock or securities convertible into or
exchangeable for any Equity Interests. Except as set forth on Schedule 5.1(d), as of the Agreement
Date, no Borrower Party or any Subsidiary of any Borrower Party is subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its Equity
Interests or to register any shares of its Equity Interests, and there are no agreements
restricting the transfer of any shares of such Borrower Party’s or such Subsidiary’s Equity
Interests or restricting the ability of any Subsidiary of any Borrower from making distributions,
dividends or other Restricted Payments to such Borrower.




          (e) Compliance with Law, Loan Documents, and Contemplated
Transactions. The execution, delivery, and performance of this Agreement and each of the
other Loan Documents and the Bank Products Documents in accordance with their






73









 







respective terms and the consummation of the transactions contemplated hereby and thereby do not
and will not (i) violate any Applicable Law, (ii) conflict with, result in a breach of, or
constitute a default under the certificate of incorporation or formation or by laws, partnership
agreement or operating agreement of any Borrower Party or under any indenture, agreement, or other
instrument to which any Borrower Party is a party or by which any Borrower Party or any of its
properties may be bound, or (iii) result in or require the creation or imposition of any Lien upon
or with any assets or property of any Borrower Party except Permitted Liens.




          (f) Necessary Authorizations. Each Borrower Party and each Subsidiary of a Borrower Party
has obtained all Necessary Authorizations (including all FCC Licenses and State PUC Licenses), and
all such Necessary Authorizations (including FCC Licenses and State PUC Licenses) are in full force
and effect except, other than with respect to the transactions contemplated by the Loan Documents,
where failure to obtain such Necessary Authorizations, or the failure of such Necessary
Authorizations to be in full force and effect, could not reasonably be expected to have a
Materially Adverse Effect. None of such Necessary Authorizations is the subject of any pending or,
to the best of each Borrower Party’s knowledge, threatened attack, application, objection or any
other petition with a Governmental Authority for revocation, termination, suspension, denial or
material modification of a Necessary Authorization, by the grantor of the Necessary Authorization
except, other than with respect to the transactions contemplated by the Loan Documents, where the
revocation by the grantor of such Necessary Authorizations could not reasonably be expected to have
a Materially Adverse Effect. The actions of any applicable Governmental Authority granting all
Necessary Authorizations have not been reversed, stayed, enjoined, annulled or suspended. Each
Borrower Party has duly and timely filed all material reports, statements and filings, and paid all
required regulatory fees in accordance with the application rules and regulations of each
applicable Governmental Authority, that are required to be filed by any of them with respect to
licenses under the Communications Act or any applicable State Telecommunications Laws, and are in
all respects in compliance therewith, including the rules and regulations of the FCC and each
applicable State PUC, in each case, except any such failure to comply which has not, and could not
reasonably be expected to have, a Materially Adverse Effect. Each Borrower Party has received, and
is in all respects in compliance with all State PUC Licenses and the applicable State
Telecommunications Laws, except any such failure to comply which has not, and could not reasonably
be expected to have, a Materially Adverse Effect or result in such Borrower Party not being
authorized to own or operate any material portion of its Telecommunications Assets, or incur or
remain liable with respect to any of the Obligations or Liens granted as security therefore. No
Borrower Party has any knowledge of any event or circumstance constituting (i) noncompliance (or
any Person alleging noncompliance) with any rule or regulation of the FCC and (ii) noncompliance
(or any Person alleging noncompliance) with any applicable State Telecommunications Laws, except
any noncompliance which has not, and could not reasonably be expected to have, a Materially Adverse
Effect or result in any Borrower Party not being authorized to






74









 







own or operate any material portion of the Telecommunication Assets, or incur or remain liable
with respect to any of the Obligations or Liens granted as security therefor.




          (g) Title to Properties. Each Borrower Party has good, marketable and legal title to,
or a valid leasehold interest in, all of its properties and assets except as could not,
individually or in the aggregate, be expected to have a Materially Adverse Effect, and none of such
properties or assets is subject to any Liens, other than Permitted Liens.




          (h) Intentionally Omitted.




          (i) Labor Matters. Except as disclosed on Schedule 5.1(i): as of the Agreement
Date, (i) no Borrower Party is engaged in any unfair labor practice; (ii) there is no unfair labor
practice complaint pending against any Borrower Party before the National Labor Relations Board and
no grievance or arbitration proceeding arising out of or under any collective bargaining agreement
that is so pending against any Borrower Party; and (iii) no strike or work stoppage is in existence
involving any employees of any Borrower Party, except (with respect to any matter specified in
clause (i) or (ii) above) such as could not reasonably be expected to have a Materially Adverse
Effect.




          (j) Taxes. Except as set forth on Schedule 5.1(j), all federal, state and
other material tax returns of each Borrower Party and each Subsidiary of a Borrower Party required
by law to be filed have been duly filed, all such tax returns are true, complete and correct in all
material respects, and all federal, state, and other material taxes (including without limitation,
all real estate and personal property, income, franchise, transfer and gains taxes), all general or
special assessments, and other governmental charges or levies upon each Borrower Party and each
Subsidiary of a Borrower Party and any of their respective properties, income, profits, and assets,
which are shown thereon as due and payable, have been paid, except any payment of any of the
foregoing which such Borrower Party or such Subsidiary, as applicable, is currently contesting in
good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP
have been provided on the books of such Borrower Party or such Subsidiary, as the case may be. As
of the Agreement Date, no adjustment relating to any tax returns has been proposed formally or
informally by any Governmental Authority and, to the knowledge of each Borrower Party no basis
exists for any such adjustment, except as reflected in the charges, accruals and reserves on the
books of the Borrower Parties and their Subsidiaries or except such as could not reasonably be
expected to have a Materially Adverse Effect. Except as described in Schedule 5.1(j), no
Borrower Party has executed or filed with the Internal Revenue Service or any other Governmental
Authority any agreement or other document extending, or having the effect of extending, the period
for assessment or collection of any taxes. Except as set forth on Schedule 5.1(j), as of
the Agreement Date, none of the Borrower Parties and their respective predecessors are liable for
any taxes: (i) under any agreement (including any tax sharing agreements) or (ii) to each Borrower
Party’s knowledge, as a transferee. As of the






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Agreement Date, no Borrower Party has agreed, or been requested, to make any adjustment under Code
Section 481(a), by reason of a change in accounting method or otherwise, which would have a
Materially Adverse Effect.




          (k) Financial Statements. The Borrowers have furnished, or have caused to be
furnished, to the Lenders (i) the consolidated audited financial statements of the Borrowers which
are complete and correct in all material respects and present fairly in accordance with GAAP the
respective financial positions of the Borrowers for fiscal years ending on June 30, 2008 and June
30, 2009, and the results of operations for the fiscal year then ended, and (ii) the unaudited
consolidated financial statements of the Borrowers which are complete and correct in all material
respects and present fairly in accordance with GAAP, subject to normal year end adjustments, the
respective financial positions of the Borrowers as at September 30, 2009, and the results of
operations for the twelve-month period then ended.




          (l) No Adverse Change. Since September 30, 2009, there has occurred no event
which has had or could reasonably be expected to have a Materially Adverse Effect.




          (m) Investments and Guaranties. As of the Agreement Date, no Borrower Party or any
Subsidiary of a Borrower Party owns any Equity Interests of any Person except as disclosed on
Schedules 5.1(c)-1 and 5.1(c)-2, or has outstanding loans or advances to, or
guaranties of the obligations of, any Person, except as reflected in the financial statements
referred to in Section 5.1(k) or disclosed on Schedule 5.1(m).




          (n) Liabilities, Litigation, etc. As of the Agreement Date, except for liabilities
incurred in the normal course of business, no Borrower Party or any Subsidiary of any Borrower
Party has any material (individually or in the aggregate) liabilities, direct or contingent, except
as disclosed or referred to in the financial statements referred to in Section 5.1(k) or
with respect to the Obligations or the Senior Note Indebtedness. As of the Agreement Date, except
as described on Schedules 5.1(n), there is no litigation, legal or administrative
proceeding, or, to the knowledge of the Borrower Parties, investigation or other action of any
nature, pending or, to the knowledge of the Borrower Parties, threatened against or affecting any
Borrower Party, any Subsidiary of any Borrower Party or any of their respective properties which
could reasonably be expected to result in any judgment against or liability of such Borrower Party
or Subsidiary in excess of $5,000,000 individually or in the aggregate with respect to all Borrower
Parties and their Subsidiaries, or the loss of any certification or license material to the
operation of such Borrower Party’s or Subsidiary’s business. None of such litigation disclosed on
Schedules 5.1(n), individually or collectively, could reasonably be expected to have a
Materially Adverse Effect.




          (o) ERISA. Schedule 5.1(o) lists (i) all ERISA Affiliates and (ii) all Plans and
separately identifies all Title IV Plans, Multiemployer Plans, and Retiree Welfare Plans. Copies
of all such listed Plans, together with a copy of the latest






76









 







IRS/DOL 5500-series form for each such Plan, have been delivered to the Administrative Agent.
Except with respect to Multiemployer Plans, each Plan intended to be qualified under Code Section
401 has been determined by the Internal Revenue Service to qualify under Section 401 of the Code,
the trusts created thereunder have been determined to be exempt from tax under the provisions of
Sections 501 of the Code, and nothing has occurred that would reasonably be expected to cause the
loss of such qualification or tax-exempt status. Except any such failure to comply which has not,
and could not reasonably be expected to have, a Materially Adverse Effect, each Borrower Party and
each ERISA Affiliate and each of their respective Plans are in compliance in all material respects
with ERISA and the Code. No Borrower Party nor any of its ERISA Affiliates has incurred any
accumulated funding deficiency with respect to any such Plan within the meaning of ERISA or the
Code. No Borrower Party or, to each Borrower Party’s knowledge, any of its ERISA Affiliates has
made any promises of retirement or other benefits to employees, except (i) as set forth in the
Plans and (ii) that could reasonably be expected to have a Materially Adverse Effect. No Borrower
Party or ERISA Affiliate has incurred any material liability to the PBGC in connection with any
such Plan (other than the payment of premiums that are not past due). No Title IV Plan has any
Unfunded Pension Liability. No ERISA Event or event described in Section 4062(e) of ERISA that
could reasonably be expected to have a Materially Adverse Effect has occurred and is continuing
with respect to any such Plan. Except as could not reasonably be expected to have a Materially
Adverse Effect, there are no pending, or to the knowledge of any Borrower Party, threatened claims
(other than claims for benefits in the normal course), sanctions, actions or lawsuits, asserted or
instituted against any Plan or any Person as fiduciary (as defined in Section 3(21) of ERISA) or
sponsor of any Plan. Except as could not reasonably be expected to have a Materially Adverse
Effect, no such Plan or trust created thereunder, or party in interest (as defined in Section 3(14)
of ERISA), or any fiduciary (as defined in Section 3(21) of ERISA), has engaged in a non-exempt
“prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the
Code) which would subject such Plan or any other Plan of any Borrower Party or any of its ERISA
Affiliates, any trust created thereunder, or any such party in interest or fiduciary, or any party
dealing with any such Plan or any such trust to any material penalty or tax on “prohibited
transactions” imposed by Section 502 of ERISA or Section 4975 of the Code.




          (p) Intellectual Property; Licenses; Certifications. As of the Agreement Date, except
as set forth on Schedule 5.1(p), no Borrower Party or any Subsidiary of a Borrower Party
owns any registered patents, trademarks, service marks, copyrights, franchises, licenses and other
intellectual property (collectively, “IP Rights”) and has no pending registration
applications with respect to any of the foregoing. No other IP Rights are necessary for the
operation of the business of the Borrower Parties and their Subsidiaries, except for such IP
Rights, the failure to obtain which could not reasonably be expected to have a Materially Adverse
Effect. No claim has been asserted and is pending by any Person challenging or questioning the use
of any IP Rights or the validity or effectiveness of any IP Rights, nor does any Borrower Party
have knowledge






77









 







of any such claim, and, to the knowledge of the Borrower Parties, the use of any IP Rights by any
Borrower Party or any Subsidiary or the granting of a right or license in respect of any IP Rights
from any Borrower Party or any Subsidiary does not infringe on the rights of any Person, except, in
each case, for such claims, and such infringements, as could not reasonably be expected to have a
Materially Adverse Effect. Except as set forth on Schedule 5.1(p), (a) none of the IP Rights owned
by any of the Borrower Parties is subject to any licensing agreement or similar arrangement and (b)
no material licenses or certifications are necessary for the operation of the Borrower Parties’ and
their Subsidiaries’ business, except, in each case, for such agreements and arrangements and such
licenses and certifications, the failure to obtain which, could not reasonably be expected to have
a Materially Adverse Effect.




          (q) Compliance with Law. Each Borrower Party and each Subsidiary of a Borrower Party
is in compliance with all Applicable Laws and with all of the provisions of its certificate of
incorporation or formation and by-laws or other governing documents except where the failure to be
in compliance could not reasonably be expected to have a Materially Adverse Effect.




          (r) Accuracy and Completeness of Information. All written information, reports, other
papers and data relating to the Borrower Parties and their Subsidiaries furnished by or at the
direction of the Borrower Parties to the Lender Group were, at the time furnished, taken as a whole
with all other such information, reports, other papers and data furnished previously or
concurrently, complete and correct in all material respects. No fact is currently known to any
Borrower Party which has, or could reasonably be expected to have, a Materially Adverse Effect.
With respect to projections, estimates and forecasts given to the Lender Group, such projections,
estimates and forecasts are based on the Borrower Parties’ good faith assessment of the future of
the business at the time made. The Borrower Parties had a reasonable basis for such assessment at
the time made.




          (s) Compliance with Regulations T, U, and X. No Borrower Party or any Subsidiary of a
Borrower Party is engaged principally in the business of or has as one of its important activities
in the business of extending credit for the purpose of purchasing or carrying, and no Borrower
Party or any Subsidiary of a Borrower Party owns or presently intends to acquire, any “margin
security” or “margin stock” as defined in Regulations T, U and X of the Board of Governors of the
Federal Reserve System (herein called “Margin Stock”). None of the proceeds of the Loans
will be used, directly or indirectly, for the purpose of purchasing or carrying any Margin Stock or
for the purpose of reducing or retiring any Funded Debt which was originally incurred to purchase
or carry Margin Stock or for any other purpose which might constitute this transaction a “purpose
credit” within the meaning of said Regulations T, U and X. None of any Borrower Party, any
Subsidiary of a Borrower Party or any bank acting on its behalf has taken or will take any action
which might cause this Agreement or any other Loan Documents to violate Regulation T, U or X or any
other regulation of the Board of





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Governors of the Federal Reserve System or to violate the SEA, in each case as now in effect
or as the same may hereafter be in effect. If so requested by the Administrative Agent, the
Borrower Parties and their Subsidiaries will furnish the Administrative Agent with (i) a statement
or statements in conformity with the requirements of Federal Reserve Form U-1 referred to in
Regulation U of said Board of Governors and (ii) other documents evidencing its compliance with the
margin regulations reasonably requested by the Administrative Agent, including without limitation
an opinion of counsel in form and substance reasonably satisfactory to the Administrative Agent.
Neither the making of the Loans nor the use of proceeds thereof will violate, or be inconsistent
with, the provisions of Regulation T, U or X of said Board of Governors.




          (t) Solvency. As of the Agreement Date and after giving effect to the transactions
contemplated by the Loan Documents (i) the property of the Borrower Parties, on a consolidated
basis, at a fair valuation on a going concern basis, will exceed its debt; (ii) the capital of the
Borrower Parties, on a consolidated basis, will not be unreasonably small to conduct their
business; and (iii) the Borrower Parties, on a consolidated basis, will not have incurred debts, or
have intended to incur debts, beyond their ability to pay such debts as they mature. For purposes
of this Section 5.1(t), “debt” shall mean any liability on a claim, and “claim” shall mean
(A) the right to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, undisputed, legal, equitable, secured or
unsecured, or (B) the right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or unsecured.




          (u) Insurance. The Borrower Parties and their Subsidiaries have insurance meeting the
requirements of Section 6.5, and such insurance policies are in full force and effect. As
of the Agreement Date, all insurance maintained by the Borrower Parties and their Subsidiaries is
fully described on Schedule 5.1(u).




          (v) Broker’s or Finder’s Commissions. No broker’s or finder’s fee or commission will be
payable with respect to the execution and delivery of this Agreement and the other Loan Documents,
and no other similar fees or commissions will be payable by the Borrower Parties for any other
services rendered to the Borrower Parties ancillary to the credit transactions contemplated herein.




          (w) Real Property. All real property leased by each Borrower Party and each Subsidiary of a
Borrower Party constituting a material collocation and interconnection data center location as of
the Agreement Date for which the annual rent expense is greater than $150,000, and the name of the
lessor of such real property, is set forth in Schedule 5.1(w)-1. The leases of each
Borrower Party and each Subsidiary of a Borrower Party are valid, enforceable and in full force and
effect, and, as of the Agreement Date, have not been modified or amended, except as otherwise set
forth in Schedule 5.1(w)-1 or as could not reasonably be expected to have a Materially
Adverse






79









 







Effect. All real property owned by each Borrower Party or a Subsidiary of a Borrower Party as of
the Agreement Date with a value in excess of $350,000 is set forth in Schedule 5.1(w)-2.
The Administrative Borrower shall provide notice to the Administrative Agent upon the purchase by
any Borrower Party of any real property with a value in excess of $350,000, and, if the value of
such real property is in excess of $500,000, upon the request of the Collateral Agent, the
applicable Borrower Party shall deliver a Mortgage with respect to such real property and all other
documentation reasonably requested by the Collateral Agent, including, without limitation, one or
more opinions of counsel.




          (x) Environmental Matters.





          (i) Except as specifically disclosed in Schedule 5.1(x) or as could not, individually or in
the aggregate, reasonably be expected to have a Materially Adverse Effect, no Borrower Party or any
Subsidiary thereof (A) has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any Environmental Law, (B) has
received notice of any claim with respect to any Environmental Law or (C) knows of any basis for
any liability under any Environmental Law.




          (ii) Except in each case, as could not, individually or in the aggregate, reasonably be expected to
have a Materially Adverse Effect or as otherwise set forth in Schedule 5.1(x), (A) there
are no and never have been any underground or above-ground storage tanks or any surface
impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have
been treated, stored or disposed on any property currently owned or, to the knowledge of any
Borrower Party, operated by any Borrower Party; (B) there is no asbestos or asbestos-containing
material on any property currently owned or, to the knowledge of any Borrower Party, operated by
any Borrower Party or; and (C) to the knowledge of the Borrower Parties, Hazardous Materials have
not been released, discharged or disposed of on any property currently or formerly owned or
operated by any Borrower Party or any Subsidiary thereof.




               (iii) Except in each case, as could not, individually or in the aggregate, reasonably be expected
to have a Materially Adverse Effect or as otherwise set forth on Schedule 5.1(x), (i) no
Borrower Party or any Subsidiary thereof is undertaking, either individually or together with other
potentially responsible parties, any investigation or assessment or remedial or response action
relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any
site, location or operation, either voluntarily or pursuant to the order of any Governmental
Authority or the requirements of any Environmental Law; and (ii) all Hazardous Materials generated,
used, treated, handled or stored at, or transported to or from, any property currently or formerly
owned or operated by any Borrower Party or any Subsidiary thereof have been disposed of in a



80









 




manner not reasonably expected to result in liability to any Borrower Party or any Subsidiary
thereof.




          (y) Intentionally Omitted.




          (z) Intentionally Omitted.




          (aa) Investment
Company Act. No Borrower Party or any Subsidiary of a Borrower Party is required to
register under the provisions of the Investment Company Act of 1940, as amended, and neither the
entering into or performance by the Borrower Parties of this Agreement nor the issuance of any
Revolving Loan Notes violates any provision of such Act or requires any consent, approval, or
authorization of, or registration with, any governmental or public body or authority pursuant to
any of the provisions of such Act, in each case, that have not already been obtained.




          (bb) Patriot Act. Neither any Borrower Party nor any of its Subsidiaries is an “enemy” or
an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the
United States of America (50 U.S.C. App. §§ 1 et seq.), as amended or any enabling legislation or
executive order relating thereto. Neither any Borrower Party nor any or its Subsidiaries is in
violation of (a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or
any enabling legislation or executive order relating thereto or (c) the USA Patriot Act. None of
the Borrower Parties (i) is a blocked person described in section 1 of the Executive Order No.
13224 or (ii) to the best of its knowledge, engages in any dealings or transactions, or is
otherwise associated, with any such blocked person.




          (cc) OFAC. None of the Borrower Parties, any Subsidiary of Parent, any Affiliate of the
Borrower Parties (other than an Affiliate that is a shareholder of Parent) or, to the knowledge of
any Borrower Party as of the Agreement Date, any Affiliate that is a shareholder of Parent (i) is a
Sanctioned Person, (ii) has more than 15% of its assets in Sanctioned Countries, or (iii) derives
more than 15% of its operating income from investments in, or transactions with Sanctioned Persons
or Sanctioned Countries. No part of the proceeds of any Loans hereunder will be used directly or
indirectly to fund any operations in, finance any investments or activities in or make any payments
to, a Sanctioned Person or a Sanctioned Country or for any payments to any governmental official or
employee, political party, official of a political party, candidate for political office, or anyone
else acting in an official capacity, in order to obtain, retain or direct business or obtain any
improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.




          (dd) Indenture.




               (i) Delivery. The Borrowers have delivered to the Administrative Agent complete and
correct copies of (i) each Senior Note Document and



81









 




of all exhibits and schedules thereto as of the date hereof, and (ii) copies of any amendment,
restatement, supplement or other modification to or waiver of each Senior Note Document entered
into after the date hereof.




               (ii) Governmental Approvals. All Governmental Authorizations and all other authorizations,
approvals and consents of any other Person required to be obtained by the Senior Note Documents as
of the date of this Agreement have been obtained and are in full force and effect.



               (iii) Conditions Precedent. On the Agreement Date, all of the conditions to the
effectiveness of the Indenture have been duly satisfied or waived.



     Section 5.2 Survival of Representations and Warranties, etc. All representations and
warranties made under this Agreement and the other Loan Documents shall be deemed to be made, and
shall be true and correct, at and as of the Agreement Date and, in all material respects (unless
any such representation or warranty is qualified as to materiality, in which case such
representation and warranty shall be true and correct in all respects), at the date of each Advance
or issuance of a Letter of Credit hereunder (except to the extent that such representation or
warranty specifically refers to an earlier date, in which case it shall be so true and correct as
of such earlier date), except to the extent previously fulfilled in accordance with the terms of
this Agreement or the other Loan Documents and to the extent subsequently inapplicable. All
representations and warranties made under this Agreement and the other Loan Documents shall
survive, and not be waived by, the execution hereof by the Lender Group, or any of them, any
investigation or inquiry by any member of the Lender Group, or the making of any Advance or the
issuance of any Letter of Credit under this Agreement.



ARTICLE 6.



GENERAL COVENANTS



     Until the later of the date the Obligations are repaid in full or the date the Borrowers no longer
have the right to borrow, or have Letters of Credit issued, hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Majority Lenders shall
otherwise give their prior consent in writing:



     Section 6.1 Preservation of Existence and Similar Matters. Each Borrower Party will, and
will cause each of its Subsidiaries to (i) except as expressly permitted by Section 8.7,
preserve and maintain its due organization, valid existence and good standing, in each case in its
jurisdiction of incorporation or organization, (ii) qualify and remain qualified and authorized to
do business in each jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization except where the failure to be so qualified
would not reasonably be expected to have a



82









 





Materially Adverse Effect, and (iii) maintain all Necessary Authorizations except where the failure
to maintain such Necessary Authorizations could not reasonably be expected to have a Materially
Adverse Effect.



     Section 6.2 Compliance with Applicable Law. Each Borrower Party will, and will cause each
of its Subsidiaries to, comply, in all material respects, with the requirements of all Applicable
Law, except in such instances in which such requirement of Applicable Law is being contested in
good faith by appropriate proceedings diligently conducted, or in which failure to comply with such
requirement of Applicable Law could not reasonably be expected to have a Materially Adverse Effect.



     Section 6.3 Maintenance of Properties. Each Borrower Party will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in the ordinary course of business in good
repair, working order and condition, normal wear and tear and disposal of obsolete equipment
excepted, all properties used or useful in its business (whether owned or held under lease), and
from time to time make or cause to be made all needed and appropriate repairs, renewals,
replacements, additions, betterments, and improvements thereto, except where the failure to do so
could not reasonably be expected to have a Materially Adverse Effect.



     Section 6.4 Accounting Methods and Financial Records. Parent and its Subsidiaries shall
maintain, on a consolidated basis, a system of accounting established and administered in
accordance with GAAP and will keep adequate records and books of account in which complete entries
will be made in accordance with such accounting principles consistently applied and reflecting all
transactions required to be reflected by such accounting principles.



     Section 6.5 Insurance. Each Borrower Party will, and will cause each of its Subsidiaries
to, maintain insurance including, but not limited to, property insurance, public liability,
comprehensive general liability with respect to losses and claims in excess of $1,000,000
individually, or $2,000,000 in the aggregate during any policy year, business interruption and
fidelity coverage insurance, in such amounts and against such risks as would be customary for
companies in the same industry and of comparable size as the Borrower Parties and their
Subsidiaries from financially sound and reputable insurance companies having and maintaining an
A.M. Best rating of “A minus” or better and being in a size category of VI or larger or otherwise
acceptable to the Administrative Agent. In addition to the foregoing, each Borrower Party further
agrees to maintain and pay for insurance upon all goods constituting Collateral wherever located,
in storage or in transit in vehicles, vessels or aircraft, including goods evidenced by documents,
covering casualty, hazard, public liability and such other risks and in such amounts as would be
customary for companies in the same industry and of comparable size as the Borrower Parties and not
less than replacement costs, from financially sound and reputable insurance companies having and
maintaining an A.M. Best rating of “A minus” or better and being in a size category of VI or larger
or otherwise acceptable to the Administrative



83









 




Agent to insure the Lender Group’s interest in such Collateral. All such property insurance
policies covering goods that constitute Collateral shall name the Collateral Agent as loss payee
and all liability insurance policies shall name the Administrative Agent and the Collateral Agent
as additional insured. Each Borrower Party shall deliver certificates of insurance evidencing that
the required insurance is in force together with satisfactory lender’s loss payable and additional
insured, as applicable, endorsements. Each policy of insurance or endorsement shall contain a
clause requiring the insurer to give not less than thirty (30) days’ prior written notice to the
Administrative Agent in the event of cancellation or material modification of the policy for any
reason whatsoever (other than non-payment of premiums, which notice may be less than thirty (30)
days but shall be at least ten (10) days). If any Borrower Party fails to provide and pay for such
insurance, the Administrative Agent may, at the Borrowers’ expense, procure the same, but shall not
be required to do so. Each Borrower Party agrees to deliver to the Administrative Agent, promptly
as rendered, true copies of all reports made in any reporting forms to insurance companies.




     Section 6.6 Payment of Taxes and Claims. Each Borrower Party will, and will cause each of
its Subsidiaries to, pay and discharge all taxes, assessments, and governmental charges or levies
imposed upon it or its income or profit or upon any properties belonging to it prior to the date on
which penalties attach thereto, and all lawful claims for labor, materials and supplies which have
become due and payable and which by law have or may become a Lien upon any of its Property; except
that, no such tax, assessment, charge, levy, or claim need be paid which is being contested in good
faith by appropriate proceedings and for which adequate reserves shall have been set aside on the
appropriate books, but only so long as such tax, assessment, charge, levy, or claim does not become
a Lien or charge other than a Permitted Lien.



     Section 6.7 Visits and Inspections. Each Borrower Party will, and will permit each of its
Subsidiaries to, permit representatives of the Administrative Agent, including, without limitation,
any consultant engaged by the Administrative Agent who has agreed with the Borrower Parties to
comply with Section 11.17, upon reasonable advance notice to the Borrower Parties and,
unless an Event of Default has occurred and is continuing, not more than two (2) times each
calendar year, to (a) visit and inspect the properties of the Borrower Parties and their
Subsidiaries during normal business hours, (b) inspect and make extracts from and copies of the
Borrower Parties’ and their Subsidiaries’ books and records and (c) discuss with the Borrower
Parties’ and their Subsidiaries’ respective principal officers the Borrower Parties’ or such
Subsidiaries’ businesses, assets, liabilities, financial positions, results of operations, and
business prospects relating to the Borrower Parties or such Subsidiaries. Any other member of the
Lender Group may, at its expense (unless an Event of Default has occurred and is continuing),
accompany the Administrative Agent on any regularly scheduled visit (or at any time that a Default
exists any visit regardless of whether it is regularly scheduled) to the Borrower Parties and their
Subsidiaries’ properties. In addition, the Borrowers shall permit the Administrative Agent and the
Lenders to conduct an annual meeting, upon reasonable



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advance notice to the Administrative Borrower and at a time reasonably convenient to the
Administrative Borrower, at the Administrative Borrower’s corporate headquarters which may also be
conducted telephonically or at another location to be mutually agreed upon by the Administrative
Agent and the Administrative Borrower; provided, for the avoidance of doubt, the Borrower
Parties shall not be responsible for the costs and expenses of the Administrative Agent and the
Lenders with respect to such annual meeting.




     Section 6.8 Intentionally Omitted.



     Section 6.9 ERISA. Each Borrower Party shall at all times make, or cause to be made, prompt
payment of contributions required to meet the minimum funding standards set forth in ERISA with
respect to each Borrower Party’s and its ERISA Affiliates’ Plans that are subject to such funding
requirements; furnish to the Administrative Agent, promptly upon the Administrative Agent’s request
therefor, copies of any annual report required to be filed pursuant to ERISA in connection with
each such Plan of each Borrower Party and its ERISA Affiliates; notify the Administrative Agent as
soon as practicable of any ERISA Event regarding any such Plan that could reasonably be expected to
have a Materially Adverse Effect; and furnish to the Administrative Agent, promptly upon the
Administrative Agent’s request therefor, such additional information concerning any such Plan as
may be reasonably requested by the Administrative Agent.



     Section 6.10 Lien Perfection. Each Borrower Party agrees to take such action as may be
reasonably requested by the Collateral Agent to perfect or continue the perfection of the
Collateral Agent’s (on behalf of, and for the benefit of, the Secured Parties) security interest in
the Collateral. Each Borrower Party hereby authorizes the Collateral Agent to file any such
financing statement on such Borrower Party’s behalf describing the Collateral as “all assets of the
debtor” or “all personal property of the debtor”.



     Section 6.11 Intentionally Omitted.



     Section 6.12 Intentionally Omitted.



     Section 6.13 Blocked Account Agreements.



          (a) Each deposit account and securities account owned or maintained by the Borrower Parties (other
than an Excluded Deposit Account) shall be maintained at a bank or financial institution which is
reasonably acceptable to the Collateral Agent (each such bank, a “Cash Management Bank”).
As of the Agreement Date, each deposit account and securities account of the Borrower Parties are
listed on Schedule 6.13 and such schedule designates which accounts are deposit accounts.
Except with respect to Excluded Deposit Accounts or with the prior written consent of the
Collateral Agent, each deposit account and securities account maintained by any Borrower Party
shall be subject to a control agreement in form and substance satisfactory to the Administrative
Agent and such bank or financial institution (each such account, a “Blocked Account



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Agreement”). Each such Blocked Account Agreement shall provide, among other things, that
from and after the Agreement Date, the relevant Cash Management Bank, agrees, from and after the
receipt of a notice (an “Activation Notice”) from the Collateral Agent (which Activation
Notice shall be given by the Collateral Agent at any time at which an Event of Default has occurred
and is continuing), to forward immediately all amounts in each deposit account or securities
account, as the case may be to the Collateral Agent per its instructions and to commence the
process of daily sweeps from such account to the Collateral Agent.




          (b) In the event that any Borrower Party shall at any time receive any remittances of any of the
foregoing directly or shall receive any other funds representing proceeds of the Collateral, such
Borrower Party shall hold the same as trustee for the Collateral Agent, shall segregate such
remittances from its other assets, and shall promptly deposit the same into a Blocked Account. All
cash, cash equivalents, checks, notes, drafts or similar items of payment received by any Borrower
Party shall be deposited into a Blocked Account promptly upon receipt thereof by such Borrower
Party.



     Section 6.14 Further Assurances. Upon the request of the Administrative Agent, each
Borrower Party will promptly cure, or cause to be cured, defects in the creation and issuance of
any Revolving Loan Notes and the execution and delivery of the Loan Documents (including this
Agreement) and any Bank Products Documents, resulting from any act or failure to act by any
Borrower Party or any employee or officer thereof. Each Borrower Party at its expense will promptly
execute and deliver to the Administrative Agent and the Lenders, or cause to be executed and
delivered to the Administrative Agent and the Lenders, all such other and further documents,
agreements, and instruments in compliance with or accomplishment of the covenants and agreements of
the Borrower Parties in the Loan Documents (including this Agreement) and the Bank Products
Documents, or more fully to effect the purposes thereof or of any of the Loan Documents or the Bank
Products Documents, or to ensure the continued validity, perfection and priority of the Liens in
accordance with the terms hereof, all as may be necessary or appropriate in connection therewith as
may be reasonably requested by the Administrative Agent.



     Section 6.15 Broker’s Claims. Each Borrower Party hereby indemnifies and agrees to hold
each member of the Lender Group harmless from and against any and all losses, liabilities, damages,
costs and expenses which may be suffered or incurred by such member of the Lender Group in respect
of any claim, suit, action or cause of action now or hereafter asserted by a broker or any Person
acting in a similar capacity arising from or in connection with the execution and delivery of this
Agreement or any other Loan Document or Bank Products Document or the consummation of the
transactions contemplated herein or therein. This Section 6.15 shall survive termination of
this Agreement.



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     Section 6.16 Indemnity. Each Borrower Party will indemnify and hold harmless each
Indemnified Person from and against any and all claims, liabilities, investigations, losses,
damages, actions, demands, penalties, judgments, suits, investigations and costs, expenses
(including reasonable fees and expenses of experts, agents, consultants and counsel) and
disbursements, in each case, of any kind or nature (whether or not the Indemnified Person is a
party to any such action, suit or investigation, and whether such claim, proceeding or action is
brought by either any Borrower, any Guarantor, or any third party) whatsoever which may be imposed
on, incurred by, or asserted against an Indemnified Person resulting from any breach or alleged
breach by the Borrower Parties of any representation or warranty made hereunder, or otherwise in
any way relating to or arising out of the Revolving Loan Commitment, this Agreement, the other Loan
Documents, the Bank Products Documents or any other document contemplated by this Agreement, the
making, administration or enforcement of the Loan Documents and the Loans or any Bank Products
Documents, any transaction contemplated hereby or any related matters unless, with respect to any
of the above, such Indemnified Person or its officers, directors, employees or agents, is
determined by a final non-appealable judgment of a court of competent jurisdiction to have acted or
failed to act with gross negligence or willful misconduct or to have been in material breach of any
Loan Document. NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO ANY LOAN
DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON
ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR
TERMINATED UNDER ANY LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER
OR UNDER ANY OTHER LOAN DOCUMENT. This Section 6.16 shall survive termination of this
Agreement whether or not any Obligations remain outstanding.



     Section 6.17 Environmental Matters. Each Borrower Party shall (a) conduct its operations
and keep and maintain its Properties in compliance with all Environmental Laws, except where the
failure to do so could not reasonably be expected to have a Materially Adverse Effect; (b) obtain
and renew all environmental permits necessary for its operations and Properties, except where the
failure to do so could not reasonably be expected to have a Materially Adverse Effect; and (c)
implement any and all investigation, remediation, removal and response actions that are appropriate
or necessary to maintain the value and marketability of its Properties or to otherwise comply with
Environmental Laws pertaining to the presence, generation, treatment, storage, use, disposal,
transportation or release of any Hazardous Materials on, at, in, under, above, to, from or about
any of its Properties, provided, however, that no Borrower Party shall be required
to undertake any such investigation, remediation, removal or response action to the extent that (i)
its obligation to do so is being contested in good faith and by proper proceedings and adequate
reserves have been set aside and are being maintained by the



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Borrower Parties with respect to such circumstances in accordance with GAAP, or (ii) failure to
undertake any investigation, remediation, removal or response action could not reasonably be
expected to have a Materially Adverse Effect.




     Section 6.18 Formation of Subsidiaries. At the time of the formation of any direct or
indirect Subsidiary of any Borrower after the Agreement Date or the acquisition of any direct or
indirect Subsidiary of any Borrower after the Agreement Date, the Borrower Parties, as appropriate,
shall (a) cause such Subsidiary, if it is a Domestic Subsidiary to provide to the Administrative
Agent, for the benefit of the Lender Group, a joinder and supplement to this Agreement
substantially in the form of Exhibit H (each, a “Guaranty Supplement”), pursuant to
which such Domestic Subsidiary shall agree to join as a Guarantor of the Obligations under Article
3 and as a Borrower Party under this Agreement, a supplement to the Security Agreement, and such
other security documents, together with appropriate Uniform Commercial Code financing statements,
all in form and substance reasonably satisfactory to the Administrative Agent or Collateral Agent,
as applicable, (b) provide to the Collateral Agent, for the benefit of the Secured Parties, a
pledge agreement and appropriate certificates and powers or Uniform Commercial Code financing
statements, pledging all direct or beneficial ownership interest in such Subsidiary, if it is a
Foreign Subsidiary, in form and substance reasonably satisfactory to the Collateral Agent,
provided, however, such pledge will only be required to the extent the Equity
Interests of such Foreign Subsidiary are directly owned and held by a Borrower Party, and such
pledge shall be limited to sixty-five percent (65%) of the Equity Interests of such Foreign
Subsidiary, and (c) provide to the Administrative Agent, for the benefit of the Lender Group and
the Collateral Agent, for the benefit of the Secured Parties, all other documentation reasonably
requested, including one or more opinions of counsel satisfactory to the Administrative Agent,
which in its reasonable opinion is appropriate with respect to such formation and the execution and
delivery of the applicable documentation referred to above. Nothing in this Section 6.18
shall authorize any Borrower Party or any Subsidiary of a Borrower Party to form or acquire any
Subsidiary in violation of Article 8. Any document, agreement or instrument executed or
issued pursuant to this Section 6.18 shall be a “Loan Document” for purposes of this
Agreement.



     Section 6.19 Required PUC Consents. Each Borrower Party shall diligently pursue obtaining
all Required PUC Consents set forth on Schedule 6.19.



     Section 6.20 Post-Closing Matters. Execute and deliver the documents and complete the tasks
set forth on Schedule 6.20, in each case within the time limits specified on such schedule.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, failure by
Borrower Parties to take the actions set forth on Schedule 6.20 within the time period
required under this Agreement or any other Loan Document shall not be deemed a Default or an Event
of Default or shall result in a failure to satisfy the conditions set forth in Sections
4.1, 4.2 and 4.3, so long as such actions are completed within the time periods
set forth on Schedule 6.20.



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ARTICLE 7.




INFORMATION COVENANTS



     Until the earlier of the date the Obligations are repaid in full or the date the Borrowers no
longer have a right to borrow, or have Letters of Credit issued, hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority Lenders shall
otherwise give their prior consent in writing, the Borrower Parties will furnish or cause to be
furnished to each member of the Lender Group; provided, however, that the
Administrative Borrower, at its option, may deliver such items described in Sections 7.1,
7.2, 7.3, 7.5 and 7.6 to the Administrative Agent with instructions
to post such items on “IntraLinks” or any similar website for viewing by the Lenders or to send
such items to the Lenders via electronic mail and the Administrative Agent shall post or send via
electronic mail such items within a reasonable period of time after delivery thereby by the
Administrative Borrower to it and such posting or sending via electronic mail shall constitute
delivery of such items to the Lenders:



     Section 7.1 Quarterly Financial Statements and Information. Within forty-five
(45) days after the last day of each fiscal quarter in each fiscal year of the Borrowers, the
balance sheet of Parent and its Subsidiaries as at the end of such fiscal quarter, and the related
statement of income and retained earnings and related statement of cash flows for such fiscal
quarter which financial statements shall set forth in comparative form (i) such figures as at the
end of such quarter during the previous fiscal year and for such quarter during the previous fiscal
year and (ii) as contained in Parent’s and its Subsidiaries’ budget most recently delivered to the
Administrative Agent for such periods, all of which shall be on a consolidated and consolidating
basis, and shall be certified by an Authorized Signatory of the Administrative Borrower to be, in
his or her opinion, complete and correct in all material respects and to present fairly in
accordance with GAAP the financial position of Parent and its Subsidiaries, as at the end of such
period and the results of operations for such period, subject only to normal year-end adjustments
and lack of footnotes.



     Section 7.2 Annual Financial Statements and Information; Certificate of No Default. Within
ninety (90) days after the end of each fiscal year of Parent, the audited balance sheet of Parent
and its Subsidiaries as at the end of such year and the related audited statements of income and
retained earnings and related audited statements of cash flows for such year, all of which shall be
on a consolidated basis, together with consolidating schedules for the Parent and its Subsidiaries,
which financial statements shall set forth in comparative form such figures as at the end of and
for the previous year, and shall be accompanied by an opinion of Grant Thornton LLP or other
independent certified public accountants of recognized national standing satisfactory to the
Administrative Agent, which opinion shall not include a “going concern” or like qualification,
exception or explanation or any qualification or exception as to scope of such audit consistent
with past practices, stating that such financial statements have been



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prepared in all material respects in accordance with GAAP and fairly present the financial
condition of Parent and its Subsidiaries in all material respects.




     Section 7.3 Compliance Certificates.



          (a) Compliance Certificates. At the time the financial statements are furnished pursuant to
Section 7.1 and Section 7.2, a Compliance Certificate:




          (b) Setting forth as at the end of the relevant period, the arithmetical calculations required to
establish whether or not the Borrower Parties were in
compliance with the requirements of the Financial Covenants;




          (c) Stating whether any material change in GAAP or the application thereof has occurred since the
date of the Borrowers’ audited financial statements delivered on the Agreement Date, and, if any
change has occurred, specifying the effect of such change on the financial statements accompanying
such certificate; and




          (d) Stating that, to the best of his or her knowledge, no Default has occurred as at the end of such
period, or, if a Default has occurred, disclosing each such Default and its nature, when it
occurred and whether it is continuing.




     Section 7.4 Access to Accountants. Each Borrower Party hereby authorizes the Administrative
Agent to communicate directly with the Borrower Parties’ and their Subsidiaries’ independent public
accountants; provided, that a representative of the Borrower Parties shall be given the
opportunity to participate in any “in person” or telephonic communications between the
Administrative Agent and such accountants and the Borrower Parties shall receive copies of any
written communication between the Administrative Agent and such accountants, and authorizes these
accountants to disclose to the Administrative Agent any and all financial statements and other
supporting financial data, including matters relating to the annual audit and copies of any
management letter with respect thereto.



     Section 7.5 Additional Reports.




          (a) Promptly upon (and in any event within three (3) Business Days of) receipt thereof, the
Borrower Parties shall deliver to the Lender Group copies of any final management report prepared
in connection with the annual audit referred to in Section 7.2;




          (b) Within forty-five (45) days after the end of each fiscal year, the Borrower Parties shall
deliver to the Lender Group an annual budget approved by the board of directors of Parent
including, without limitation, an annual income statement, balance sheet, statement of cash flows
and availability forecast for the immediately succeeding year on a quarterly basis;





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          (c) Intentionally Omitted;




          (d) If there is a material change in GAAP after September 30, 2009, that affects the presentation
of the financial statements referred to in Section 7.1 or 7.2, then, in addition to
delivery of such financial statements, and on the date such financial statements are required to be
delivered, the Borrower Parties shall furnish the adjustments and reconciliations necessary to
enable the Borrowers and each Lender to determine compliance with the Financial Covenants, all of
which shall be determined in accordance with GAAP consistently applied; and




          (e) From time to time at the request of the Administrative Agent, and promptly upon (and in any
event within three (3) Business Days of) each request, the Borrower Parties shall, and shall cause
their Subsidiaries to, deliver to the Administrative Agent on behalf of the Lender Group such data,
certificates, reports, statements, opinions of counsel, documents, or further information regarding
the business, assets, liabilities, financial position, projections, results of operations, or
business prospects of the Borrower Parties, such Subsidiaries, or any of them, as the
Administrative Agent may reasonably request.




     Section 7.6 Notice of Litigation and Other Matters.



          (a) Promptly upon (and in any event within three (3) Business Days of) any Borrower Party’s
obtaining knowledge of the institution of, or a written threat of, any action, suit, governmental
investigation or arbitration proceeding against any Borrower Party, any Subsidiary of a Borrower
Party or any Property, which action, suit, governmental investigation or arbitration proceeding, if
adversely determined, would expose, in such Borrower Party’s reasonable judgment, any Borrower
Party or any Subsidiary of a Borrower Party to liability in an aggregate amount in excess of
$10,000,000, such Borrower Party shall notify the Lender Group of the occurrence thereof, and the
Borrower Parties shall provide such additional information with respect to such matters as the
Lender Group, or any of them, may reasonably request.




          (b) Promptly upon (and in any event within three (3) Business Days of) any Borrower Party’s
obtaining knowledge of the occurrence of any default (whether or not any Borrower Party has
received notice thereof from any other Person) on Funded Debt of any Borrower Party or any
Subsidiary of a Borrower Party which singly, or in the aggregate, exceeds $10,000,000, such
Borrower Party shall notify the Lender Group of the occurrence thereof;




          (c) Promptly upon (and in any event within three (3) Business Days of) any Borrower Party’s receipt
of notice of the pendency of any proceeding for the condemnation or other taking of any material
Property (excluding any condemnation or other taking that does not have a material and adverse
impact on the conduct of the Borrower Parties’ business) of any Borrower Party or any Subsidiary of
a Borrower Party, such Borrower Party shall notify the Lender Group of the occurrence thereof;





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          (d) Promptly upon (and in any event within three (3) Business Days of) any Borrower Party’s receipt
of notice of any event that could reasonably be expected to result in a Materially Adverse Effect,
such Borrower Party shall notify the Lender Group of the occurrence thereof;




          (e) Promptly (and in any event within ten (10) Business Days) following any material amendment or
change approved by the board of directors of the Borrowers to the budget submitted to the Lender
Group pursuant to Section 7.5(b), the Borrower Parties shall notify the Lender Group of the
occurrence thereof;




          (f) Promptly upon (and in any event within three (3) Business Days of) any officer of any Borrower
becoming aware of any (i) Default under any Loan Document or any Senior Note Document, (ii) breach
under any lease under which any Borrower Party makes rental payments in excess of $250,000 in any
year, or (iii) default under any other agreement (other than those referenced in clause (i) of this
Section 7.6(f) or in Section 7.6(b)) to which any Borrower Party or any Subsidiary
of a Borrower Party is a party or by which any Borrower Party’s or any such Subsidiary’s properties
is bound which could reasonably be expected to have a Materially Adverse Effect, then the Borrower
Parties shall notify the Lender Group of the occurrence thereof giving in each case the details
thereof and specifying the action proposed to be taken with respect thereto;




          (g) Promptly (but in any event within three (3) Business Days) following the occurrence of (i) any
ERISA Event or (ii) a “prohibited transaction” (as such term is defined in Section 406 of ERISA or
Section 4975 of the Code) with respect to any Plan of any Borrower Party or any of its ERISA
Affiliates which would subject any Borrower Party to any penalty or tax on “prohibited
transactions” imposed by Section 502 of ERISA or Section 4975 of the Code or the commencement or
threatened commencement of any litigation regarding any such Plan or naming it or the trustee of
any such Plan with respect to such Plan (other than claims for benefits in the ordinary course of
business), the Borrower Parties shall notify the Administrative Agent and the Lenders of the
occurrence thereof, provided such occurrence, proceeding, or failure exposes such Borrower Party or
ERISA Affiliate to liability;




          (h) Promptly (but in any event within five (5) Business Days) notify the Lender Group in writing of
any material change in the accounting policies or financial reporting practices of any Borrower
Party or any Subsidiary;




          (i) Promptly (but in any event within three (3) Business Days) notify the Administrative Agent of
the acquisition by any Borrower Party of any additional fiber optic capacity (including through
intercompany transfers between Borrower Parties) in states other than disclosed on the Closing
Date; and




          (j) Promptly (but in any event within two (2) Business Days) (i) notify the Administrative Agent of
any material communications with the applicable PUC with






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respect to the Required PUC Consents, to the extent such communications concern a potential loss or
revocation of any Required PUC Consent, and (ii) provide the Administrative Agent with copies of
all written applications, notices, information requests, or orders received or sent in writing to
or from any PUC with respect to such consents and any other consents with respect to the financings
contemplated hereby.




ARTICLE 8.



NEGATIVE COVENANTS



     Until the earlier of the date the Obligations are repaid in full or the date the Borrowers shall no
longer have a right to borrow, or have Letters of Credit issued, hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority Lenders shall
otherwise give their prior consent in writing:



     Section 8.1 Funded Debt. No Borrower Party will, or will permit any of its Subsidiaries to,
create, assume, incur, or otherwise become or remain obligated in respect of, or permit to be
outstanding, any Funded Debt except:



          (a) Funded Debt under this Agreement and the other Loan Documents and the Bank Products Documents;




          (b) the Funded Debt existing on the Agreement Date and described on Schedule 8.1;




          (c) trade or accounts payable and/or similar obligations, and accrued expenses, incurred in the
ordinary course of business, other than for borrowed money;




          (d) Funded Debt of a Borrower Party or any Subsidiary of a Borrower Party that is secured by
Permitted Liens described in clause (f) of the definition of Permitted Liens (including, without
limitation, Capitalized Lease Obligations), not to exceed an aggregate principal amount equal to
the sum of (i) $35,000,000 and (ii) 2.50% of the consolidated total assets of the Borrower Parties,
determined as of the end of the most recent fiscal quarter of the Borrowers for which internal
financial statements are available, at any time;


          (e) Guaranties permitted by Section 8.2;




          (f) unsecured Funded Debt of any Borrower Party owed to another Borrower Party;




          (g) obligations under Hedge Agreements not entered into for speculative purposes;





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          (h) the Senior Note Indebtedness in the original aggregate principal amount of $250,000,000;




          (i) unsecured Subordinated Funded Debt of any Borrower Party not to exceed an aggregate principal
amount of $100,000,000, so long (i) such Funded Debt has no mandatory sinking fund, redemption or
amortization, or maturity earlier than one year and one day prior to the Maturity Date,
(ii) as at the time of the incurrence of such Funded Debt and immediately after giving effect to
the incurrence of such Funded Debt and the application of the proceeds thereof, the Borrower
Parties are in pro forma compliance with the Leverage Ratio set forth in Section 8.8(a) as
of the last day of the immediately preceding fiscal quarter for which financial statements are
available (and the Administrative Borrower shall provide to the Administrative Agent a certificate
from an Authorized Signatory of the Administrative Borrower certifying such compliance) and (iii)
at the time of and immediately after giving effect to the incurrence of such Funded Debt and the
application of the proceeds thereof, on a pro forma basis, no Default or Event of Default is in
existence;




          (j) other unsecured Funded Debt of any Borrower Party not to exceed the aggregate principal amount
of $200,000,000, so long as (i) such Funded Debt has no mandatory sinking fund, redemption or
amortization, or maturity earlier than one year and one day prior to the Maturity Date, (ii) the
Borrower Parties are in compliance, on a pro forma basis for the issuance of such Fund Debt, with
the Leverage Ratio set forth in Section 8.8(a) as of the last day of the immediately
preceding fiscal quarter for which financial statements are available (and the Administrative
Borrower shall provide to the Administrative Agent a certificate from an Authorized Signatory of
the Administrative Borrower certifying such compliance) and (iii) at the time of and immediately
after giving effect to the incurrence of such Funded Debt and the application of the proceeds
thereof, on a pro forma basis, no Default or Event of Default is in existence;




          (k) Funded Debt arising from agreements providing for indemnification, adjustment of purchase price
or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Borrower Parties pursuant to such agreements, in any case incurred
in connection with the disposition or acquisition of any business, assets or Equity Interests, so
long as the amount does not exceed the gross proceeds actually received by the Borrower Parties in
connection with such disposition;




          (l) Funded Debt arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary course of business;
provided, that such Funded Debt is extinguished within five Business Days of its
incurrence;




          (m) Funded Debt in respect of bid, performance or surety bonds or letters of credit issued in the
ordinary course of business, including letters of credit supporting lease obligations or supporting
(or in lieu of) such bid, performance or surety





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bonds or in respect of workers’ compensation claims, or other Funded Debt with respect to
reimbursement obligations regarding workers’ compensation claims;




          (n) customer deposits and advance payments received from customers for goods and services sold in
the ordinary course of business;




          (o) Permitted Refinancing Indebtedness in exchange for, or the net cash proceeds of which are used
to refund, refinance or replace Funded Debt that was permitted by clauses (b), (d),
(h) , (o) or (q) of this Section 8.1;




          (p) Funded Debt to the extent the net cash proceeds thereof are promptly deposited to defease or to
satisfy and discharge the Senior Note Indebtedness in accordance with the terms of the Senior Note
Documents; and




          (q) Permitted Secured Acquisition Indebtedness in an aggregate amount outstanding at any time not
to exceed $50,000,000, none of which may be incurred unless, at the time of incurrence, the Senior
Secured Leverage Ratio for most recent fiscal quarter then ended is no greater, calculated on a Pro
Forma Basis, than 3.50 to 1.00.




     Section 8.2 Guaranties. No Borrower Party will, or will permit any Subsidiary of a Borrower
Party to, at any time guarantee or enter into or assume any Guaranty, or be obligated with respect
to, or permit to be outstanding, any Guaranty, other than (a) guaranties of the Obligations, (b)
guaranties by any Borrower Party of obligations under agreements of any other Borrower Party
entered into in connection with the acquisition of services, supplies, and equipment in the
ordinary course of business of such Borrower Party, (c) endorsements of instruments in the ordinary
course of business, (d) guaranties by any Borrower Party of any obligation of any other Borrower
Party and (e) guaranties of any Funded Debt permitted by Section 8.1.



     Section 8.3 Liens. No Borrower Party will, or will permit any Subsidiary of a Borrower
Party to, create, assume, incur, or permit to exist or to be created, assumed, or permitted to
exist, directly or indirectly, any Lien on any of its property, real or personal, now owned or
hereafter acquired, except for Permitted Liens.



     Section 8.4 Restricted Payments and Purchases. No Borrower Party shall, or shall permit any
Subsidiary of a Borrower Party to, directly or indirectly declare or make any Restricted Payment or
Restricted Purchase, or set aside any funds for any such purpose, other than Dividends on common
stock which accrue (but are not paid in cash) or are paid-in-kind or Dividends on preferred stock
which accrue (but are not paid in cash) or are paid-in-kind; provided, however,
that (a) any Borrower’s Subsidiaries may make Restricted Payments to any Borrower or a wholly owned
Domestic Subsidiary of any Borrower that is a Borrower Party, (b) the Borrower Parties may
repurchase, redeem or otherwise acquire or retire for value of any Equity Interests of Zayo, or
declare or pay dividends or make other distributions, directly or indirectly, to CII, to fund the



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repurchase, redemption or other acquisition or retirement for value of any Equity Interests of CII,
in each case held by any current or former employee or director of the Borrower Parties (or any
Subsidiaries thereof) pursuant to the terms of any employee equity subscription agreement, stock
option agreement or similar agreement entered into in the ordinary course of business; or, prior to
Zayo’s initial public offering, declare or pay dividends or make other distributions, directly or
indirectly, to any of Zayo’s direct or indirect parent companies for the purpose of enabling CII to
effect a repurchase, redemption or other acquisition or retirement of the Equity Interests in CII
from one or more of its equity investors that fail to comply with their funding commitments under
the CII Limited Liability Company Agreement; provided that the aggregate price paid, or distributed
or paid out as a dividend under this subsection (b) in any calendar year will not exceed $5,000,000
and (c) any Borrower may make additional Restricted Payments and Restricted Purchases in the
following amounts after the Agreement Date, so long as both before and after giving effect to such
Restricted Payment or Restricted Purchase, (i) no Default has occurred and is continuing or would
result from the making of such Restricted Payment or Restricted Purchase and (ii) minimum
Availability is greater than or equal to $32,500,000: (A) if the Leverage Ratio is greater than or
equal to 3.50 to 1.00 at the time of the proposed payment of the Restricted Payments or the
proposed Restricted Purchase, $0, (B) if the Leverage Ratio is less than 3.50 to 1.00 but greater
than or equal to 2.50 to 1.00 at the time of the proposed payment of the Restricted Payments or the
proposed Restricted Purchase, $25,000,000, (C) if the Leverage Ratio is less than 2.50 to 1.00 but
greater than or equal to 1.50 to 1.00 at the time of the proposed payment of the Restricted
Payments or the proposed Restricted Purchase, $35,000,000, and (D) if the Leverage Ratio is less
than 1.50 to 1.00 at the time of the proposed payment of the Restricted Payments or the proposed
Restricted Purchase, $45,000,000. With respect to Restricted Payments and Restricted Purchases
permitted under subsection (c), the Administrative Borrower, on behalf of the Borrower Parties,
shall deliver to the Administrative Agent prior to the making of any Restricted Payment or
Restricted Purchase a certificate, together with supporting documents in form and substance
reasonably satisfactory to the Administrative Agent, executed by an Authorized Signatory of the
Administrative Borrower certifying that as of the date of such proposed Restricted Payment or
Restricted Purchase the Leverage Ratio is at the applicable level for such Restricted Payment or
Restricted Purchase.




     Section 8.5 Investments. No Borrower Party will, or will permit any Subsidiary of a
Borrower Party to, make Investments, except that (a) the Borrower Parties may purchase or otherwise
acquire and own and may permit any of their Subsidiaries to purchase or otherwise acquire and own
Cash Equivalents; (b) the Borrower Parties may hold the Investments in existence on the Agreement
Date and described on Schedule 8.5; (c) any Borrower Party may make Investments
constituting accounts receivable created, acquired or made and trade credit extended in the
ordinary course of business and payable or dischargeable in accordance with customary trade terms ,
and may convert any of its accounts that are in excess of ninety (90) days past due into notes or
Equity Interests from the applicable Account Debtor so long as the



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Collateral Agent is granted a first priority security interest in such Equity Interests or notes
which Lien is perfected contemporaneously with the conversion of such Account to Equity Interests
or notes; (d) the Borrower Parties and their Subsidiaries may hold the Equity Interests of their
respective Subsidiaries in existence as of the Agreement Date and their Subsidiaries created after
the Agreement Date in accordance with Section 6.18 and Section 8.7(g); (e) without
limiting Section 8.2, any Borrower Party may make Investments in any other Borrower Party;
(f) the Borrower Parties may hold Investments arising out of Hedge Agreements not entered into for
speculative purposes; (g) the Borrower Parties may make short term loans to employees in the
ordinary course of business in an aggregate amount not to exceed $100,000 at any time; (h) the
Borrower Parties may make Permitted Asset Swaps; (i) the Borrower Parties may make Investments in
the Equity Interests of CoBank, ACB pursuant to CoBank, ACB’s Patronage Program so long as such
Investments are not acquired through the expenditure of any cash or other assets of any Borrower
Party, other than a one time membership fee in an amount not to exceed $1,000; (j) the Borrower
Parties may make additional Investments after the Agreement Date, (i) in an aggregate amount not to
exceed $20,000,000 during the term of this Agreement, so long as both before and after giving
effect to such Investment, (A) no Default or Event of Default has occurred and is continuing or
would result from the making of such Investment, (B) minimum Availability is greater than or equal
to $32,500,000 and (C) the Leverage Ratio is greater than or equal to 2.50 to 1.00, or (ii) in an
aggregate amount not to exceed $50,000,000 during the term of this Agreement, so long as both
before and after giving effect to such Investment, (A) no Default or Event of Default has occurred
and is continuing or would result from the making of such Investment, (B) minimum Availability is
greater than or equal to $32,500,000 and (C) the Leverage Ratio is less than 2.50 to 1.00; (k) the
Borrower Parties may make additional Investments in an aggregate amount not to exceed $500,000 in
any fiscal year of the Borrowers; (l) the Borrower Parties may acquire assets or properties to the
extent otherwise permitted under this Agreement and may give deposits therefor to the extent
permitted by clause (n) of the definition of Permitted Liens; (m) the Borrower Parties may make
Guaranties permitted by Section 8.2; and (n) the Borrower Parties may make additional Investments,
to the extent that, giving effect to such additional Investments, the Available Amount Utilization
as of such date shall not exceed the Available Amount as of such date. With respect to Investments
permitted under clause (j), the Administrative Borrower, on behalf of the Borrower Parties, shall
deliver to the Administrative Agent a certificate, together with supporting documents in form and
substance reasonably satisfactory to the Administrative Agent, executed by an Authorized Signatory
certifying that as of the date of such proposed Investment the Leverage Ratio is at the applicable
level for such Investment.




     Section 8.6 Affiliate Transactions. No Borrower Party shall, or shall permit any Subsidiary
of a Borrower Party to, enter into or be a party to any agreement or transaction with any Affiliate
(other than a Borrower Party or a Subsidiary of a Borrower Party) except (a) as described on
Schedule 8.6, (b) upon terms that are no less favorable to such Borrower Party or such
Subsidiary than it would obtain in a comparable arms



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length transaction with a Person not an Affiliate of such Borrower Party or such Subsidiary or (c)
as permitted by Sections 8.4 and Section 8.5.




     Section 8.7 Liquidation; Change in Ownership, Name, or Year; Disposition or Acquisition of
Assets; Etc. No Borrower Party shall, or shall permit any Subsidiary to, at any time:



          (a) Liquidate or dissolve itself (or suffer any liquidation or dissolution) or otherwise wind up
its business, except that any Subsidiary of Parent may liquidate or dissolve itself in accordance
with Applicable Law;




          (b) Sell, lease, abandon, transfer or otherwise dispose of, in a single transaction or a series of
related transactions, any assets, property or business (including any Equity Interests), except for
(i) sales, leases, transfers and other dispositions in the ordinary course of business at the fair
market value thereof and for cash or cash equivalents, (ii) physical assets used or consumed in the
ordinary course of business, (iii) Permitted Asset Swaps, (iv) sales, leases, transfers and other
dispositions of (A) any property or equipment that has become damaged, worn out or obsolete or any
property, equipment or other asset that, in the reasonable good faith judgment of such Borrower
Party or such Subsidiary, as the case may be, is not used or useful in the business of such
Borrower Party or such Subsidiary, as the case may be, and (B) any assets in the ordinary course of
business including the transfer, conveyance, sale, lease or other disposition of optical fiber
owned by any Borrower Party or any of its Subsidiaries in the ordinary course of their business,
provided that no such fiber asset sale shall, individually or in the aggregate with all other fiber
asset sales, impede the Borrower Parties or their Subsidiaries from conducting their businesses as
conducted as of the date hereof (as determined in good faith by the Board of Directors of the
Administrative Borrower), (v) the sale, lease, transfer or other disposition of assets, property or
business (including any Equity Interests), provided that the Borrower Parties (or one or more of
them) (A) enter, within 180 days from the date of such sale, lease, transfer or disposition, into a
binding agreement to apply an amount equal to the net cash proceeds thereof to make an investment
in property, plant, equipment or other non-current assets that will be used or useful in the
business of the Borrower Parties (including, without limitation, (1) expenditures for maintenance,
repair or improvement of existing properties and assets and (2) any such investment effected
through the acquisition of the Equity Interests in another Person that, after giving effect to such
acquisition, will be a Subsidiary of a Borrower), and (B) consummate such binding agreement within
365 days from the date of such sale, lease, transfer or disposition; provided, in each
case, that the prior consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for any such sale, lease, transfer or disposition to the
extent that the net cash proceeds thereof, in the aggregate together with the net cash proceeds of
all other sales, leases, transfers and dispositions effected pursuant to this clause (v),
exceeds $20,000,000 and (vi) the sale or other disposal of other assets with a sale value not





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greater than $5,000,000 in the aggregate for all such assets if the purchase price therefor is paid
solely in cash.




          (c) Acquire (i) any Person, (ii) all or any substantial part of the assets, property or business of
a Person, or (iii) any assets that constitute a division or operating unit of the business of any
Person; provided, however, that the Borrower Parties and their Subsidiaries shall
be permitted to consummate an acquisition described above if, (i) before and after giving effect to
such acquisition, no Default has occurred and is continuing or would result from the making of such
acquisition and (ii) the Administrative Borrower, on behalf of the Borrower Parties, delivers to
the Administrative Agent a certificate, together with supporting documents in form and substance
reasonably satisfactory to the Administrative Agent, executed by an Authorized Signatory certifying
that as of such date of such proposed acquisition, both before and after giving effect to such
acquisition: (A) the Leverage Ratio does not exceed than 4.00 to 1.00, and (B) Availability shall
be equal to or greater than $15,000,000; provided, further, that, notwithstanding
the foregoing, if Availability is equal to or greater than $15,000,000, the Borrower Parties and
their Subsidiaries shall be permitted to consummate an acquisition described above (x) to the
extent constituting a Permitted Asset Swap, or (y) to the extent that, giving effect to such
acquisition, the Available Amount Utilization as of such date shall not exceed the Available Amount
as of such date;




          (d) Merge or consolidate with any other Person; provided, however, that (i) any
Subsidiary of Parent may merge into any Borrower Party so long as, with respect to any merger with
any Borrower, such Borrower shall be the surviving entity after such merger and, with respect to
any merger with any other Borrower Party, such other Borrower Party shall be the surviving entity
after such merger, (ii) any Foreign Subsidiary may merge into another Foreign Subsidiary, and (iii)
any Borrower Party or any Subsidiary of a Borrower Party may merge with any Person in order to
consummate an acquisition permitted under Section 8.7(c) so long as, with respect to any
merger with any Borrower, such Borrower shall be the surviving entity after such merger, and, with
respect to any merger with any other Borrower Party, such other Borrower Party shall be the
surviving entity after such merger;




          (e) Change its legal name, state of incorporation or formation or structure without giving the
Administrative Agent at least ten (10) days prior written notice of its intention to do so and
complying with all reasonable requirements of the Lenders in regard thereto;




          (f) Change its year-end for accounting purposes from the fiscal year ending June 30, except with
the prior written consent of the Administrative Agent; or




          (g) Create any Subsidiary; provided, however, that the Borrowers or any Subsidiary
of the Borrowers may create wholly owned Subsidiaries so long as the Borrowers and such
Subsidiaries comply with Sections 6.10 and 6.18.





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     Section 8.8 Financial Covenants.



          (a) Leverage Ratio. The Borrower Parties shall not permit, for the fiscal quarter ending March
31, 2010, for each fiscal quarter end thereafter, the Leverage Ratio for the immediately preceding
twelve (12) month period then ended to be greater than 4.25 to 1.00.




          (b) Fixed Charge Coverage Ratio. The Borrower Parties shall not permit, for the fiscal
quarter ending March 31, 2010, and for each fiscal quarter end thereafter, the Fixed Charge
Coverage Ratio for the immediately preceding twelve (12) month period then ended to be less than
the required amount for the applicable period set forth below:




	 	 	 
	Applicable Period	 	Applicable Ratio
	For the twelve-month periods ending
March 31, 2010 and June 30, 2010
	 	0.75 to 1.00
	For the twelve-month periods ending
September 30, 2010 and December 31,
2010
	 	1.00 to 1.00
	For the twelve-month periods ending
March 31, 2011 and June 30, 2011
	 	1.10 to 1.00
	For the twelve-month periods ending
September 30, 2011, December 31, 2011,
March 31, 2012 and June 30, 2012
	 	1.15 to 1.00
	For the twelve-month period ending
September 30, 2012 and for each fiscal
month thereafter
	 	1.25 to 1.00






     Section 8.9 Additional Fiber Optic. The Borrower Parties shall not acquire any additional
fiber optic capacity unless (a) such Borrower Party is in the business of transmitting
communications and qualifies as a “transmitting utility,” as defined in the Uniform Commercial Code
in the state in which such fiber optic capacity is located, and (b) a transmitting utility Uniform
Commercial Code financing statement has been filed in such state naming such Borrower Party, as
debtor, and the Collateral Agent, as secured party.



     Section 8.10 Conduct of Business. The Borrower Parties shall not engage substantially in any
line of business substantially different from the lines of business conducted by the Borrower
Parties and their Subsidiaries on the Agreement Date or from any lines of business reasonably
related, complementary, ancillary or incidental thereto.



     Section 8.11 Sales and Leasebacks. No Borrower Party shall, or shall permit any Subsidiary of
a Borrower Party to, enter into any arrangement, directly or indirectly,



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with any third party whereby such Borrower Party or such Subsidiary, as applicable, shall sell or
transfer any property, real or personal, whether now owned or hereafter acquired, and whereby such
Borrower Party or such Subsidiary, as applicable, shall then or thereafter rent or lease as lessee
such property or any part thereof or other property which such Borrower Party or such Subsidiary
intends to use for substantially the same purpose or purposes as the property sold or transferred,
except in an aggregate amount to the exceed $10,000,000.




     Section 8.12 Amendment and Waiver. Except as permitted hereunder, no Borrower Party shall, or
shall permit any Subsidiary of a Borrower Party to, enter into any amendment of, or agree to or
accept any waiver, which would adversely affect the rights of such Borrower Party or such
Subsidiary, as applicable, or any member of the Lender Group, of (a) its articles or certificate of
incorporation or formation and by-laws, partnership agreement or other governing documents or (b)
the Senior Note Documents, except amendments, waivers and modifications permitted by the
Intercreditor Agreement.



     Section 8.13 ERISA Liability. No Borrower Party shall fail to meet all of the applicable
minimum funding requirements of ERISA and the Code, without regard to any waivers thereof, to the
extent such failure could reasonably be expected to have a Materially Adverse Effect and, to the
extent that the assets of any of their Plans would be less (by $250,000 or more) than an amount
sufficient to provide all accrued benefits payable under such Plans, the Borrower Parties shall
make the maximum deductible contributions allowable under the Code (based on the Borrowers’ current
actuarial assumptions). No Borrower Party shall, or shall cause or permit any ERISA Affiliate to,
(a) cause or permit to occur any event that could result in the imposition of a Lien under Section
430 of the Code or Section 302 or 4068 of ERISA, or (b) cause or permit to occur an ERISA Event to
the extent the event described in (a) or (b) individually or in the aggregate could reasonably be
expected to have a Materially Adverse Effect.



     Section 8.14 Prepayments. No Borrower Party shall, or shall permit any Subsidiary of a
Borrower Party to, prepay, redeem, defease or purchase in any manner, or deposit or set aside funds
for the purpose of any of the foregoing, make any payment in respect of principal of, or make any
payment in respect of interest on, any Funded Debt incurred under subsection (i) and (j) of Section
8.1, except any Borrower may (a) make regularly scheduled payments of principal or interest
required in accordance with the terms of the instruments governing such Funded Debt, (b) make
prepayments on, or offer to repurchase, such Funded Debt with Equity Proceeds, and (c) make
prepayments on, or offer to repurchase, such Funded Debt with the proceeds arising out of on or
more sales or dispositions of assets.



     Section 8.15 Negative Pledge. No Borrower Party shall, or shall permit any Subsidiary of any
Borrower Party to, directly or indirectly, enter into any agreement (other than the Loan Documents)
with any Person that prohibits or restricts or limits the ability of any Borrower Party or any such
Subsidiary to create, incur, pledge, or suffer to



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exist any Lien upon any of its respective assets, or restricts the ability of any Subsidiary of a
Borrower to pay Dividends to such Borrower.




     Section 8.16 Inconsistent Agreements. No Borrower Party shall, or shall permit any Subsidiary
of any Borrower Party to, enter into any contract or agreement which would violate the terms
hereof, any other Loan Document, any Senior Note Document or any Bank Products Document.



     Section 8.17 Senior Note Documents. No Borrower Party shall amend, modify or waive, or request
or agree to, any amendment, modification or waiver of any provision of the Senior Note Documents to
the extent such amendment, modification or waiver is prohibited by the terms of the Intercreditor
Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and this
Agreement, the terms of the Intercreditor Agreement shall govern and control as between the
Administrative Agent and the Lenders, on the one hand, and the Trustee and the holders of the
Senior Note Indebtedness, on the other hand.



ARTICLE 9.



DEFAULT



     Section 9.1 Events of Default. Each of the following shall constitute an Event of Default,
whatever the reason for such event and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment or order of any court or any order, rule, or
regulation of any governmental or non-governmental body:



          (a) Any representation, warranty or certification made under this Agreement or any other Loan
Document shall prove incorrect or misleading in any material respect (unless such representation,
warranty or certification is qualified as to materiality, in which case such representation,
warranty or certification shall at any time prove to have been incorrect or misleading in any
respect) when made or deemed to have been made pursuant to Section 5.2;




          (b) (i) Any payment of any principal hereunder, or any reimbursement obligations with respect
to any Letter of Credit shall not be received by the Administrative Agent on the date such payment
is due, or (ii) any payment of any interest hereunder or any fees or any other amounts payable
hereunder or under the other Loan Documents by any Borrower Party shall not be received by the
Administrative Agent within three (3) Business Days from the date on which such payment is due;




          (c) Any Borrower Party shall default in the performance or observance of any agreement or
covenant contained in Sections 2.12, 6.1, 6.5, 6.7, 6.10, 6.15, 6.20 or in Article 7 or Article 8;







102









 








          (d) Any Borrower Party shall default in the performance or observance of any other agreement
or covenant contained in this Agreement not specifically referred to elsewhere in this Section 9.1,
and such default, if curable, shall not be cured to the Majority Lenders’ satisfaction within the
earlier of (i) a period of thirty (30) days from the date that an officer of such Borrower Party
knew of the occurrence of such default, or (ii) a period of thirty (30) days after written notice
of such default is given by the Administrative Agent to the Administrative Borrower;




          (e) There shall occur any default in the performance or observance by any Borrower Party of
any agreement or covenant contained in any of the other Loan Documents or in the Bank Products
Documents with respect to Lender Hedge Agreements (other than this Agreement or the Security
Documents or as otherwise provided in this Section 9.1) which shall not be cured to the Majority
Lenders’ satisfaction within the applicable cure period, if any, provided for in such Loan Document
or Bank Products Document, or, if there is no applicable cure period set forth in such Loan
Document or Bank Product Document, within the earlier of (i) a period of thirty (30) days from the
date that an officer of a Borrower knew of the occurrence of such default, or (ii) a period of
thirty (30) days after written notice of such default is given by the Administrative Agent to the
Administrative Borrower;




          (f) There shall occur any Change in Control;




          (g) (i) There shall be entered a decree or order for relief in respect of any Borrower Party
or any Subsidiary of a Borrower Party under the Bankruptcy Code, or any other applicable federal or
state bankruptcy law or other similar law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator, or similar official of any Borrower Party or any Subsidiary of a Borrower
Party or of any substantial part of its properties, or ordering the winding-up or liquidation of
the affairs of any Borrower Party or any Subsidiary of a Borrower Party, or (ii) an involuntary
petition shall be filed against any Borrower Party or any Subsidiary of a Borrower Party and a
temporary stay entered and (A) such petition and stay shall not be diligently contested, or (B) any
such petition and stay shall continue undismissed for a period of sixty (60) consecutive days;




          (h) Any Borrower Party or any Subsidiary of a Borrower Party shall commence an Insolvency
Proceeding or any Borrower Party or any Subsidiary of a Borrower Party shall consent to the
institution of an Insolvency Proceeding or to the appointment or taking of possession of a
receiver, liquidator, assignee, trustee, custodian, sequestrator, or other similar official of such
Borrower Party or any Subsidiary of a Borrower Party or of any substantial part of its properties,
or any Borrower Party or any Subsidiary of a Borrower Party shall fail generally to pay its debts
as they become due, or any Borrower Party or any Subsidiary of a Borrower Party shall take any
action in furtherance of any such action;




          (i) A final judgment (other than a money judgment or judgments fully covered (except for
customary deductibles or copayments not to exceed $5,000,000 in the







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aggregate) by insurance as to which the insurance company has acknowledged coverage) shall be
entered by any court against any Borrower Party or any Subsidiary of any Borrower Party for the
payment of money which exceeds, together with all such other judgments of the Borrower Parties and
their Subsidiaries, $10,000,000 in the aggregate, or a warrant of attachment or execution or
similar process shall be issued or levied against property of any Borrower Party or any Subsidiary
of a Borrower Party pursuant to a final judgment which, together with all other such property of
the Borrower Parties and their Subsidiaries subject to other such process, exceeds in value
$10,000,000 in the aggregate, and if, within thirty (30) days after the entry, issue, or levy
thereof, such judgment, warrant, or process shall not have been paid or discharged or stayed
pending appeal, or if, after the expiration of any such stay, such judgment, warrant, or process
shall not have been paid or discharged;




          (j) There shall be at any time (i) any “accumulated funding deficiency,” as defined in ERISA
or in Section 412 of the Code, with respect to any Plan maintained by any Borrower Party or any
ERISA Affiliate of a Borrower Party, or to which any Borrower Party or any of its ERISA Affiliates
has any liabilities; (ii) a trustee shall be appointed by a United States District Court to
administer any Plan maintained by any Borrower Party or any ERISA Affiliate of a Borrower Party, or
to which any Borrower Party or any of its ERISA Affiliates has any liabilities; (iii) the PBGC
shall institute proceedings to terminate any such Plan; (iv) any Borrower Party or any ERISA
Affiliate of any Borrower Party shall incur any liability to the PBGC in connection with the
termination of any such Plan; (v) any Plan or trust created under any Plan of any Borrower Party or
any ERISA Affiliate of any Borrower Party shall engage in a non-exempt “prohibited transaction” (as
such term is defined in Section 406 of ERISA or Section 4975 of the Code) which would subject any
such Plan, any trust created thereunder, any trustee or administrator thereof, or any party dealing
with any such Plan or trust to any tax or penalty on “prohibited transactions” imposed by Section
502 of ERISA or Section 4975 of the Code; (vi) any Borrower Party or any ERISA Affiliate of any
Borrower Party shall enter into or become obligated to contribute to a Multiemployer Plan; (vii)
there shall be at any time a Lien imposed against the assets of a Borrower Party or ERISA Affiliate
under Code Section 430, or ERISA Sections 302 or 4068; or (viii) there shall occur at any time an
ERISA Event; provided, however that no Event of Default shall occur as a result of an event
described in clauses (i), (ii), (iii), (iv), (v), (vii) or (viii) of this Section 9.1(j) unless
such event either individually or in the aggregate with other events described therein could
reasonably be expected result in an aggregate liability greater than $10,000,000 or otherwise have
a Materially Adverse Effect;




          (k) (i) There shall occur any default (after the expiration of any applicable grace or cure
period) under any indenture, agreement, or instrument evidencing Funded Debt of any Borrower Party
or any Subsidiary of a Borrower Party in an aggregate principal amount exceeding $10,000,000
(determined singly or in the aggregate with other Funded Debt) which entitles the holders thereof
to cause such debt to become due prior to its stated maturity, (ii) there shall occur any default
under any







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Hedge Agreement (after the expiration of any applicable cure period set forth therein) with a
termination value in excess of $10,000,000 (measured at the time of such default) and (iii) any
event of default shall occur under the Indenture;




          (l) All or any portion of any Loan Document or any Bank Products Document shall at any time
and for any reason be declared to be null and void, the effect of which is to render any such
material Loan Document or Bank Product Document inadequate for the practical realization of the
rights and benefits afforded thereby, or a proceeding shall be commenced by any Borrower Party, any
Subsidiary of a Borrower Party or any Affiliate thereof, or by any Governmental Authority having
jurisdiction over any Borrower Party, any Subsidiary of a Borrower Party or any Affiliate thereof,
seeking to establish the invalidity or unenforceability thereof (exclusive of questions of
interpretation of any provision thereof), or any Borrower Party, any Subsidiary of a Borrower Party
or any Affiliate thereof shall deny that it has any liability or obligation for the payment of any
Obligation provided under any Loan Document or any Bank Products Document, or any Lender Hedge
Agreement shall be terminated as a result of a default or event of default thereunder by any
Borrower Party;




          (m) Intentionally Omitted;




          (n) One or more of the material authorizations, licenses, certificates or permits relating to
any Borrower Party’s ability to continue to engage in the Telecommunications Business or operate a
material portion of the Telecommunications Assets is cancelled, suspended, materially limited,
terminated or revoked and such cancellation, suspension, limitation, termination or revocation has
become final, or a Borrower Party, or grantor of any such material authorization, license or permit
fails to timely renew such authorization, license or permit prior to the expiration thereof; or




          (o) Any determination, order or other decree by any PUC denying a Required PUC Consent
Application or otherwise declining to provide any Required PUC Consent where such denial has become
final.




     Section 9.2 Remedies. If an Event of Default shall have occurred and shall be continuing, in
addition to the rights and remedies set forth elsewhere in this Agreement, the other Loan Documents
and any Bank Products Documents:




          (a) With the exception of an Event of Default specified in Section 9.1(g) or (h), the
Administrative Agent may in its discretion (unless otherwise instructed by the Majority Lenders) or
shall at the direction of the Majority Lenders, (i) terminate the Revolving Loan Commitment and the
Letter of Credit Commitment, or (ii) declare the principal of and interest on the Loans and all
other Obligations (other than any Obligations existing from time to time of any Borrower Party to
the Administrative Agent (or an Affiliate of the Administrative Agent) arising in connection with
any Bank Products Documents) to be forthwith due and payable without presentment, demand,







105









 







protest, or notice of any kind, all of which are hereby expressly waived, anything in this
Agreement or in any other Loan Document to the contrary notwithstanding, or both.




          (b) Upon the occurrence and continuance of an Event of Default specified in Section 9.1(g) or
(h), such principal, interest, and other Obligations (other than any Obligations existing from time
to time of any Borrower Party to the Administrative Agent (or an Affiliate of the Administrative
Agent) arising in connection with any Bank Products Documents) shall thereupon and concurrently
therewith become due and payable, and the Revolving Loan Commitment and the Letter of Credit
Commitment, shall forthwith terminate, all without any action by the Lender Group, or any of them
and without presentment, demand, protest, or other notice of any kind, all of which are expressly
waived, anything in this Agreement or in any other Loan Document to the contrary notwithstanding.




          (c) The Administrative Agent may in its discretion (unless otherwise instructed by the
Majority Lenders) or shall at the direction of the Majority Lenders exercise all of the
post-default rights granted to the Lender Group, or any of them, under the Loan Documents or under
Applicable Law. The Administrative Agent, for the benefit of the Lender Group, shall have the
right to the appointment of a receiver for the Property of the Borrower Parties, and the Borrower
Parties hereby consent to such rights and such appointment and hereby waive any objection the
Borrower Parties may have thereto or the right to have a bond or other security posted by the
Lender Group, or any of them, in connection therewith.




          (d) In regard to all Letters of Credit with respect to which presentment for honor shall not
have occurred at the time of any acceleration of the Obligations pursuant to the provisions of this
Section 9.2 or, upon the request of the Administrative Agent, after the occurrence of an Event of
Default and prior to acceleration, the Borrowers shall promptly upon demand by the Administrative
Agent deposit in a Letter of Credit Reserve Account opened by the Administrative Agent for the
benefit of the Lender Group an amount equal to one hundred five percent (105%) of the aggregate
then undrawn and unexpired amount of such Letter of Credit Obligations. Amounts held in such Letter
of Credit Reserve Account shall be applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after such Letters of Credit
shall have expired or been fully drawn upon, if any, shall be applied to repay other Obligations in
the manner set forth in Section 2.11. Pending the application of such deposit to the payment of the
Reimbursement Obligations, the Administrative Agent shall, to the extent reasonably practicable,
invest such deposit in an interest bearing open account or similar available savings deposit
account and all interest accrued thereon shall be held with such deposit as additional security for
the Obligations. After all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied, and all other Obligations shall have been paid
in full, the balance, if any, in such Letter of Credit Reserve Account shall be returned to the
Borrowers. Except as expressly provided hereinabove, presentment,







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demand, protest and all other notices of any kind are hereby expressly waived by the Borrowers.




          (e) The rights and remedies of the Lender Group hereunder shall be cumulative, and not
exclusive.




ARTICLE 10.



THE ADMINISTRATIVE AGENT



     Section 10.1 Appointment and Authorization. Each member of the Lender Group hereby irrevocably
appoints and authorizes, and hereby agrees that it will require any transferee of any of its
interest in this Agreement and the other Loan Documents and its Loans, its portion of the Revolving
Loan Commitment and, if applicable, Letter of Credit Commitment irrevocably to appoint and
authorize, the Administrative Agent to take such actions as its agent on its behalf and to exercise
such powers hereunder and under the other Loan Documents as are delegated by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto. Without limiting the
foregoing, each member of the Lender Group hereby authorizes the Administrative Agent to execute
and deliver each Loan Document to which the Administrative Agent is, or is required to be, a party.
Neither the Administrative Agent nor any of its directors, officers, employees, or agents shall be
liable for any action taken or omitted to be taken by it hereunder or in connection herewith,
except for its own gross negligence or willful misconduct as determined by a final non-appealable
order of a court of competent jurisdiction.



     Section 10.2 Interest Holders. The Administrative Agent may treat each Lender, or the Person
designated in the last notice filed with the Administrative Agent under this Section 10.2, as the
holder of all of the interests of such Lender in this Agreement and the other Loan Documents, its
Loans and its portion of the Revolving Loan Commitment until written notice of transfer, signed by
such Lender (or the Person designated in the last notice filed with the Administrative Agent) and
by the Person designated in such written notice of transfer, in form and substance satisfactory to
the Administrative Agent, shall have been filed with the Administrative Agent.



     Section 10.3 Consultation with Counsel. The Administrative Agent may consult with legal
counsel selected by it and shall not be liable to any Lender or the Issuing Bank for any action
taken or suffered by it in good faith in reliance on the advice of such counsel.



     Section 10.4 Documents. The Administrative Agent shall not be under any duty to examine,
inquire into, or pass upon the validity, effectiveness, or genuineness of this Agreement, any other
Loan Document, or any instrument, document, or communication furnished pursuant hereto or in
connection herewith, and the Administrative Agent shall



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be entitled to assume that they are valid, effective, and genuine, have been signed or sent by the
proper parties, and are what they purport to be.




     Section 10.5 Administrative Agent and Affiliates. With respect to the Revolving Loan
Commitment and Loans, the Administrative Agent shall have the same rights and powers hereunder as
any other Lender, and the Administrative Agent and its Affiliates, as the case may be, may accept
deposits from, lend money to, and generally engage in any kind of business with the Borrower
Parties or any Affiliates of, or Persons doing business with, the Borrower Parties, as if it were
not the Administrative Agent or affiliated with the Administrative Agent and without any obligation
to account therefor. The Lenders and the Issuing Bank acknowledge that the Administrative Agent and
its Affiliates have other lending and investment relationships with the Borrower Parties and their
Affiliates and in the future may enter into additional such relationships.



     Section 10.6 Responsibility of the Administrative Agent. Notwithstanding any provision to the
contrary contained elsewhere in this Agreement or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor
shall the Administrative Agent have or be deemed to have any fiduciary relationship with any other
member of the Lender Group, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term “agent” in this Agreement with reference to the Administrative Agent
is not intended to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any Applicable Law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative relationship between
independent contracting parties. The Administrative Agent shall be entitled to assume that no
Default exists unless it has actual knowledge, or has been notified by any Borrower Party, of such
fact, or has been notified by a Lender that such Lender considers that a Default exists, and such
Lender shall specify in detail the nature thereof in writing. The Administrative Agent shall
provide each Lender with copies of such documents received from any Borrower Party as such Lender
may reasonably request.



     Section 10.7 Action by Administrative Agent.



          (a) The Administrative Agent shall be entitled to use its discretion with respect to
exercising or refraining from exercising any rights which may be vested in it by, and with respect
to taking or refraining from taking any action or actions which it may be able to take under or in
respect of, this Agreement, unless the Administrative Agent shall have been instructed by the
Majority Lenders to exercise or refrain from exercising such rights or to take or refrain from
taking such action. The Administrative Agent shall incur no liability under or in respect of this
Agreement with respect to anything which it may do or refrain from doing in the reasonable exercise
of its judgment or which may seem to it to be necessary or desirable in the circumstances.







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          (b) The Administrative Agent shall not be liable to the Lenders and the Issuing Bank, or any
of them, in acting or refraining from acting under this Agreement or any other Loan Document in
accordance with the instructions of the Majority Lenders (or all Lenders if expressly required by
Section 11.12), and any action taken or failure to act pursuant to such instructions shall be
binding on all Lenders and the Issuing Bank.




     Section 10.8 Notice of Default. In the event that any member of the Lender Group shall acquire
actual knowledge, or shall have been notified in writing, of any Default, such member of the Lender
Group shall promptly notify the other members of the Lender Group, and the Administrative Agent
shall take such action and assert such rights under this Agreement as the Majority Lenders shall
request in writing, and the Administrative Agent shall not be subject to any liability by reason of
its acting pursuant to any such request. If the Majority Lenders shall fail to request the
Administrative Agent to take action or to assert rights under this Agreement in respect of any
Default after their receipt of the notice of any Default from a member of the Lender Group, or
shall request inconsistent action with respect to such Default, the Administrative Agent may, but
shall not be required to, take such action and assert such rights (other than rights under Article
9) as it deems in its discretion to be advisable for the protection of the Lender Group, except
that, if the Majority Lenders have instructed the Administrative Agent not to take such action or
assert such right, in no event shall the Administrative Agent act contrary to such instructions.



     Section 10.9 Responsibility Disclaimed. The Administrative Agent shall not be under any
liability or responsibility whatsoever as Administrative Agent:



          (a) To any Borrower Party or any other Person or entity as a consequence of any failure or
delay in performance by or any breach by, any member of the Lender Group of any of its obligations
under this Agreement;




          (b) To any Lender Group, or any of them, as a consequence of any failure or delay in
performance by, or any breach by, any Borrower Party or any other obligor of any of its obligations
under this Agreement or any other Loan Document; or




          (c) To any Lender Group, or any of them, for any statements, representations, or warranties in
this Agreement, or any other document contemplated by this Agreement or any information provided
pursuant to this Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability, or sufficiency of this Agreement,
any other Loan Document, or any other document contemplated by this Agreement.




     Section 10.10 Indemnification. The Lenders agree to indemnify (to the extent not reimbursed by
the Borrowers) and hold harmless the Administrative Agent and each of its Affiliates, employees,
representatives, officers and directors (each an “Administrative Agent Indemnified Person”) pro
rata in accordance with their Aggregate Commitment Ratios from and against any and all claims,
liabilities, investigations, losses,



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damages, actions, demands, penalties, judgments, suits, investigations, costs, expenses (including
fees and expenses of experts, agents, consultants and counsel) and disbursements, in each case, of
any kind or nature (whether or not an Administrative Agent Indemnified Person is a party to any
such action, suit or investigation) whatsoever which may be imposed on, incurred by, or asserted
against an Administrative Agent Indemnified Person resulting from any breach or alleged breach by
the Borrower Parties, or any of them, of any representation or warranty made hereunder, or
otherwise in any way relating to or arising out of the Revolving Loan Commitment, the Loans, the
Letters of Credit, this Agreement, the other Loan Documents or any other document contemplated by
this Agreement or any action taken or omitted by the Administrative Agent under this Agreement, any
other Loan Document, or any other document contemplated by this Agreement (other than Bank Products
Documents), the making, administration or enforcement of the Loan Documents and the Loans or any
transaction contemplated hereby or any related matters unless, with respect to any of the above,
such Administrative Agent Indemnified Person is determined by a final non-appealable judgment of a
court of competent jurisdiction to have acted or failed to act with gross negligence or willful
misconduct. This Section 10.10 is for the benefit of each Administrative Agent Indemnified Person
and shall not in any way limit the obligations of the Borrower Parties under Section 6.16. The
provisions of this Section 10.10 shall survive the termination of this Agreement.




     Section 10.11 Credit Decision. Each member of the Lender Group represents and warrants to each
other member of the Lender Group that:



          (a) In making its decision to enter into this Agreement and to make its Advances it has
independently taken whatever steps it considers necessary to evaluate the financial condition and
affairs of the Borrower Parties and that it has made an independent credit judgment, and that it
has not relied upon information provided by the Administrative Agent or any of its Affiliates;




          (b) So long as any portion of the Obligations remains outstanding, it will continue to make
its own independent evaluation of the financial condition and affairs of the Borrower Parties; and




          (c) Except for notices, reports and other documents expressly herein required to be furnished
to the Lenders by the Administrative Agent, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or creditworthiness of the Borrower
Parties which may come into the possession of any of the Administrative Agent or any Affiliates of
the Administrative Agent.




     Section 10.12 Successor Administrative Agent. Subject to the appointment and acceptance of a
successor Administrative Agent as provided below, the Administrative Agent may resign at any time
by giving written notice thereof to the Lenders and the



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Administrative Borrower. Upon any such resignation, the Majority Lenders shall have the right to
appoint a successor Administrative Agent (with the consent of the Administrative Borrower if no
Event of Default then exists). If no successor Administrative Agent shall have been so appointed
by the Majority Lenders, and shall have accepted such appointment within thirty (30) days after the
retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be any
Lender or a Person organized under the laws of the US, a State or any political subdivision thereof
which has combined capital and reserves in excess of $250,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges, duties, and obligations of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of
this Article 10 shall continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as the Administrative Agent.




     Section 10.13 Administrative Agent May File Proofs of Claim. The Administrative Agent may
file such proofs of claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent, its agents,
financial advisors and counsel), the Lenders and the Issuing Bank allowed in any judicial
proceedings relative to any Borrower Party, or any of their respective creditors or property, and
shall be entitled and empowered to collect, receive and distribute any monies, securities or other
property payable or deliverable on any such claims and any custodian in any such judicial
proceedings is hereby authorized by each Lender and the Issuing Bank to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the Issuing Bank, to pay to the Administrative Agent any
amount due to the Administrative Agent for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent, its agents, financial advisors and counsel, and any other
amounts due the Administrative Agent under Section 11.2. Nothing contained in this Agreement or the
Loan Documents shall be deemed to authorize the Administrative Agent to authorize or consent to or
accept or adopt on behalf of any Lender or the Issuing Bank any plan of reorganization,
arrangement, adjustment or composition affecting this Agreement, any Revolving Loan Notes, the
Letters of Credit or the rights of any holder thereof, or to authorize the Administrative Agent to
vote in respect of the claim of any Lender or the Issuing Bank in any such proceeding.



     Section 10.14 Collateral. The Administrative Agent is hereby authorized to hold all Collateral
pledged pursuant to any Loan Document and to act on behalf of the Lender Group, in its own capacity
and through other agents appointed by it, under the Security



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Documents; provided, that the Administrative Agent shall not agree to the release of any Collateral
except in accordance with the terms of this Agreement. The Lender Group acknowledges that the
Loans, any Overadvances, all Obligations with respect to Bank Products Documents and all interest,
fees and expenses hereunder constitute one Funded Debt, secured by all of the Collateral. The
Administrative Agent hereby appoints each Lender and the Issuing Bank as its agent (and each Lender
and the Issuing Bank hereby accepts such appointment) for the purpose of perfecting the
Administrative Agent’s Liens in assets which, in accordance with the UCC, can be perfected by
possession. Should any Lender or the Issuing Bank obtain possession of any such Collateral, subject
to the limitations set forth in the Blocked Account Agreements, promptly upon the Administrative
Agent’s request therefor shall deliver such Collateral to the Administrative Agent or in accordance
with the Administrative Agent’s instructions.




     Section 10.15 Release of Collateral.



          (a) Each Lender and the Issuing Bank hereby directs, in accordance with the terms of this
Agreement, the Administrative Agent, and the Administrative Agent agrees, to release any Lien held
by the Administrative Agent for the benefit of the Lender Group:




               (i) against all of the Collateral, upon final and indefeasible payment in full of the
Obligations and termination of the Revolving Loan Commitment; or



               (ii) against any part of the Collateral sold, transferred or disposed of by the Borrower
Parties (including, without limitation, all property, assets and rights of any Guarantor released
pursuant to subsection (b) below) if such sale, transfer or other disposition is permitted by
Section 8.7 or is otherwise consented to by the requisite Lenders for such release as set forth in
Section 11.12, as certified to the Administrative Agent by the Administrative Borrower in a
certificate of an Authorized Signatory of the Administrative Borrower.



               (iii) Each Lender and the Issuing Bank hereby directs the Administrative Agent, and the
Administrative Agent agrees, to execute and deliver or file or authorize the filing of such
termination and partial release statements and do such other things as are necessary to release
Liens to be released pursuant to this Section 10.15 promptly upon the effectiveness of any such
release. Upon request by the Administrative Agent at any time, the Lenders and the Issuing Bank
will confirm in writing the Administrative Agent’s authority to release particular types or items
of Collateral pursuant to this Section 10.15.



          (b) Each Lender and the Issuing Bank hereby directs, in accordance with the terms of this
Agreement, the Administrative Agent, and the Administrative Agent agrees, (i) to release any
Guarantor from its obligations hereunder, including, without limitation, its obligations with
respect to the Guaranty) in connection with any





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sale or other disposition, including by merger or otherwise, of Equity Interests in such
Guarantor after which such Guarantor is no longer a Subsidiary of any Borrower, if such sale or
disposition complies with the applicable provisions of this Agreement or is otherwise consented to
by the applicable Lenders for such release as set forth in Section 11.12, as certified to
the Administrative Agent by the Administrative Borrower, and (ii) to execute and deliver or file or
authorize the filing of such documents, statements and instruments and do such other things as are
necessary to release such Guarantor from such obligations pursuant to this Section 10.15
promptly upon the effectiveness of any such release. Upon request by the Administrative Agent at
any time, the Lenders and the Issuing Bank shall confirm in writing the Administrative Agent’s
authority to release the applicable Guarantor pursuant to this Section 10.15.




     Section 10.16 Additional Agents. None of the Lenders or other entities identified on
the facing page of this Agreement as a “Sole Lead Arranger”, “Co-Syndication Agents”, or
“Documentation Agent” shall have any right, power, obligation, liability, responsibility or duty
under this Agreement or any other Loan Document other than those applicable to all Lenders as such
if such entity is also a Lender. Without limiting the foregoing, none of the Lenders or other
entities so identified shall have or be deemed to have any fiduciary relationship with any other
Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders
or other entities so identified in deciding to enter into this Agreement or any other Loan Document
or in taking or not taking action hereunder or thereunder.



ARTICLE 11.




MISCELLANEOUS



     Section 11.1 Notices.



          (a) All notices and other communications under this Agreement shall be in writing and shall be
deemed to have been given five (5) days after deposit in the mail, designated as certified mail,
return receipt requested, postage-prepaid, or one (1) day after being entrusted to a reputable
commercial overnight delivery service, or when delivered to the telegraph office or sent out (with
receipt confirmed) by telex or telecopy (or to the extent specifically permitted under Section
11.1(c) only, when sent out by electronic means) addressed to the party to which such notice is
directed at its address determined as in this Section 11.1. All notices and other
communications under this Agreement shall be given to the parties hereto at the following
addresses:





     (i) If to any Borrower Party, to such Borrower Party in care of the Administrative
Borrower at:


Zayo Group, LLC

901 Front Street, Suite 200

Louisville, CO 80027




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Attn: Ken desGarennes, Chief Financial Officer

Telecopy No.: (303) 226-5942

Email: kdesgarennes@zayo.com



with a copy to:



Gibson Dunn & Crutcher LLP

200 Park Avenue

New York, New York 10166-0193

Attn: Aaron F. Adams

Telecopy: (212) 351-6245

Email: afadams@gibsondunn.com




          (ii) If to the Administrative Agent, to it at:


SunTrust Bank

303 Peachtree Street

Twenty-Fifth Floor

Atlanta, Georgia 30308

Attn: Doug Weltz

Telecopy No.: (404) 221-2001

Email: Agency.Services@suntrust.com



with a copy to:



Kevin Conboy, Esq.

Paul, Hastings, Janofsky & Walker LLP

600 Peachtree Street, N.E.

Suite 2400

Atlanta, Georgia 30308

Telecopy No.: (404) 815-2424

Email: kevinconboy@paulhastings.com




          (iii) If to the Lenders, to them at the addresses set forth on the signature pages of this
Agreement; and



          (iv) If to the Issuing Bank, at the address set forth on the signature pages of this
Agreement.



     (b) Any party hereto may change the address to which notices shall be directed under this
Section 11.1 by giving ten (10) days’ written notice of such change to the other parties.




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          (c) The Borrowers may make delivery of the items required by Sections 7.1, 7.2
and 7.3 via Electronic Transmission to the Lender Group. The Administrative Agent
shall so post such items within a reasonable period of time after delivery thereof by
Borrowers. Such posting or sending via Electronic Transmission to the Lender Group shall
constitute delivery of such items to the Lender Group.




     Section 11.2 Expenses. Each
Borrower agrees, jointly and severally, to promptly pay or promptly reimburse:



          (a) All documented, reasonable out-of-pocket costs and expenses of the Administrative Agent
and its Affiliates in connection with the preparation, negotiation, execution, delivery and
syndication of this Agreement, the other Loan Documents and the Bank Products Documents, the
transactions contemplated hereunder and thereunder, and the making of the initial Advance
hereunder, including, but not limited to, the documented, reasonable fees and disbursements of
counsel for the Administrative Agent and its Affiliates;




          (b) All documented, reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the administration of the transactions contemplated in this Agreement, the other
Loan Documents and the Bank Products Documents, and the preparation, negotiation, execution, and
delivery of any waiver, amendment, or consent by the Lenders relating to this Agreement, the other
Loan Documents or the Bank Products Documents, including, but not limited to, all documented,
reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with their
periodic field audits, appraisals and examinations, and the internal per diem audit charge as
established by the Administrative Agent from time to time, per auditor, plus documented, reasonable
out-of-pocket costs and expenses for each field audit or examination of a Borrower Party performed
by personnel employed by the Administrative Agent, and the documented, reasonable fees and
disbursements of counsel for the Administrative Agent;




          (c) All documented, out-of-pocket costs and expenses of the Administrative Agent, the Issuing
Bank and any Lender in connection with any restructuring, refinancing, or “work out” of the
transactions contemplated by this Agreement, and of obtaining performance under this Agreement, the
other Loan Documents and the Bank Products Documents, and all documented, out-of-pocket costs and
expenses of collection if default is made in the payment of the Obligations, which in each case
shall include documented fees and out-of-pocket expenses of counsel for the Administrative Agent,
the Issuing Bank and any Lender, and the documented fees and out-of-pocket expenses of any experts
of the Administrative Agent, or consultants of the Administrative Agent;




          (d) All taxes, assessments, general or special, and other charges levied on, or assessed,
placed or made against any of the Collateral, any Revolving Loan Notes or the Obligations; and




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          (e) All documented, reasonable out-of-pocket costs and expenses incurred by the Issuing Bank
in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder.




     Section 11.3 Waivers. The rights and remedies of the Lender Group under this
Agreement, the other Loan Documents and the Bank Products Documents shall be cumulative and not
exclusive of any rights or remedies which they would otherwise have. No failure or delay by the
Lender Group, or any of them, or the Majority Lenders in exercising any right shall operate as a
waiver of such right. The Lender Group expressly reserves the right to require strict compliance
with the terms of this Agreement in connection with any funding of a request for an Advance. In the
event the Lenders decide to fund a request for an Advance at a time when the Borrowers are not in
strict compliance with the terms of this Agreement, such decision by the Lenders shall not be
deemed to constitute an undertaking by the Lenders to fund any further requests for Advances or
preclude the Lenders from exercising any rights available to the Lenders under the Loan Documents
or at law or equity. Any waiver or indulgence granted by the Lenders or by the Majority Lenders
shall not constitute a modification of this Agreement, except to the extent expressly provided in
such waiver or indulgence, or constitute a course of dealing by the Lenders at variance with the
terms of the Agreement such as to require further notice by the Lenders of the Lenders’ intent to
require strict adherence to the terms of the Agreement in the future. Any such actions shall not in
any way affect the ability of the Lenders, in their discretion, to exercise any rights available to
them under this Agreement or under any other agreement, whether or not the Lenders are party,
relating to the Borrowers.




     Section 11.4 Set-Off. In addition to any rights now or hereafter granted under
Applicable Law and not by way of limitation of any such rights, except to the extent limited by
Applicable Law, at any time that an Event of Default exists, each member of the Lender Group and
each subsequent holder of the Obligations is hereby authorized by the Borrower Parties at any time
or from time to time, without notice to the Borrower Parties or to any other Person, any such
notice being hereby expressly waived, to set-off and to appropriate and apply any and all deposits
(general or special, time or demand, including, but not limited to, Funded Debt evidenced by
certificates of deposit, in each case whether matured or unmatured, but not including any amounts
held by any member of the Lender Group or any of its Affiliates in any escrow account) and any
other Funded Debt at any time held or owing by any member of the Lender Group or any such holder to
or for the credit or the account of any Borrower Party, against and on account of the obligations
and liabilities of the Borrower Parties, to any member of the Lender Group or any such holder under
this Agreement, any Revolving Loan Notes, any other Loan Document and any Bank Products Documents,
including, but not limited to, all claims of any nature or description arising out of or connected
with this Agreement, any Revolving Loan Notes, any other Loan Document or any Bank Products
Document, irrespective of whether or not (a) the Lender Group shall have made any demand hereunder
or (b) the Lender Group shall have declared the principal of and interest on the Loans and any




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Revolving Loan Notes and other amounts due hereunder to be due and payable as permitted by
Section 9.2 and although said obligations and liabilities, or any of them, shall be
contingent or unmatured. Any sums obtained by any member of the Lender Group or by any subsequent
holder of the Obligations shall be subject to the application of payments provisions of Article 2.




     Section 11.5 Assignment.



          (a) 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 no
Borrower Party may assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or transfer by any Borrower
Party without such consent 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 and, to the extent expressly contemplated
hereby, the Affiliates of the Administrative Agent) any legal or equitable right, remedy or claim
under or by reason of this Agreement. Notwithstanding anything else in this Section 11.5,
no assignments, participations or other transfers of rights under this Agreement shall be permitted
to any Person that is a competitor, or an Affiliate of a competitor, or any Borrower Party or any
of its Subsidiaries.




          (b) Any Lender (and any Lender that is an Issuing Bank) may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its portion of the Revolving Loan Commitment and the Loans at the time owing to it and,
if applicable, all or a portion of its portion of the Letter of Credit Commitment and excluding
rights and obligations with respect to Bank Products Documents); provided that (i) except in the
case of an assignment of the entire remaining amount of the assigning Lender’s portion of the
Revolving Loan Commitment and the Loans at the time owing to it or in the case of an assignment to
a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the portion of the Revolving Loan Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect to such assignment
is delivered to the Administrative Agent) shall not be less than $1,000,000, unless each of the
Administrative Agent and, so long as no Default exists, the Administrative Borrower otherwise
consents (each such consent not to be unreasonably withheld), and (ii) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500 (unless such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund), and the Eligible Assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire. Subject to acceptance
and recording thereof by the Administrative Agent pursuant
to Section 11.5(c), from and after the effective date specified in each Assignment and
Acceptance, the Eligible Assignee thereunder shall be a party hereto and, to the extent of




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the
interest assigned by such Assignment and Acceptance, 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 Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance 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 Sections 2.8(b), 2.9, 6.18, 12.3
and 12.5). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph 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
paragraph (d) of this Section 11.5.




          (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrowers,
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the portion of the Revolving Loan Commitment of, and principal amount 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, and the Borrowers, the 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, notwithstanding notice to the contrary;
provided, that failure to make any such recordation, or any error in such recordation,
shall not affect the Commitment of any Lender. The Register shall be available for inspection by
the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior
notice.




          (d) Any Lender may, without the consent of, or notice to, the Borrowers or the Administrative
Agent, sell participations to one or more banks or other entities (a “Participant”) in all
or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a
portion of its portion of the Revolving 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) the Borrowers and the Lender Group shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement. 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 Section
11.12(a)(i) that affects such Participant. Subject to paragraph (e) of this Section, the
Borrowers agree that each Participant shall be entitled to the benefits of Sections 2.8(b),
2.9, 6.18 and 12.3 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to Section 11.5(b). To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 11.4 as though it




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were a Lender, provided such Participant agrees to be subject to Section 2.10(b) as
though it were a Lender.




          (e) A Participant shall not be entitled to receive any greater payment under Section
2.8(b) or Section 12.3 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Administrative Borrower’s prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.8(b) unless the Administrative Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 2.8(b) as though it were a Lender.




          (f) 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 without limitation
(i) any pledge or assignment to secure obligations to a Federal Reserve Bank and (ii) in the case
of any Lender that is a Fund, any pledge or assignment of all or any portion of such Lender’s
rights under this Agreement to any holders of obligations owed, or securities issued, by such
Lender as security for such obligations or securities, or to any trustee for, or any other
representative of, such holders, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.




     Section 11.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such separate counterparts
shall together constitute but one and the same instrument. In proving this Agreement or any other
Loan Document in any judicial proceedings, it shall not be necessary to produce or account for more
than one such counterpart signed by the party against whom such enforcement is sought. Any
signatures delivered by a party by facsimile transmission or by electronic transmission shall be
deemed an original signature hereto. The foregoing shall apply to each other Loan Document mutatis
mutandis.



     Section 11.7 Under Seal; Governing Law. This Agreement and the other Loan Documents
are intended to take effect as sealed instruments and shall be construed in accordance with and
governed by the laws of the State of New York, without regard to the conflict of laws principles
thereof, except to the extent otherwise provided in the Loan Documents.



     Section 11.8 Severability. Any provision of this Agreement which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.



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     Section 11.9 Headings. Headings used in this Agreement are for convenience only and
shall not be used in connection with the interpretation of any provision hereof.



     Section 11.10 Source of Funds. Notwithstanding the use by the Lenders of the Base Rate
and the Eurodollar Rate as reference rates for the determination of interest on the Loans, the
Lenders shall be under no obligation to obtain funds from any particular source in order to charge
interest to the Borrowers at interest rates tied to such reference rates.



     Section 11.11 Entire Agreement. THIS WRITTEN AGREEMENT, TOGETHER WITH THE OTHER LOAN
DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. Each Borrower Party represents and warrants to the
Lender Group that it has read the provisions of this Section 11.11 and discussed the
provisions of this Section 11.11 and the rest of this Agreement with counsel for such
Borrower Party, and such Borrower Party acknowledges and agrees that the Lender Group is expressly
relying upon such representations and warranties of such Borrower Party (as well as the other
representations and warranties of such Borrower Party set forth in this Agreement and the other
Loan Documents) in entering into this Agreement.



     Section 11.12 Amendments and Waivers.



          (a) Neither this Agreement, any other Loan Document nor any term hereof or thereof may be
amended orally, nor may any provision hereof be waived orally but only by an instrument in writing
signed by the Majority Lenders, or in the case of Loan Documents executed by the Administrative
Agent (and not the other members of the Lender Group), signed by the Administrative Agent and
approved by the Majority Lenders and, in the case of an amendment, also by the Borrowers, except
that: (i) the consent of each of the Lenders and, in the case of an amendment, the Borrowers, shall
be required for (A) any sale or release of, or the subordination of the Administrative Agent’s
security interest in, any material Collateral except in conjunction with sales or transfers of
Collateral permitted hereunder, (B) except in conjunction with transactions permitted hereunder,
any release of any guarantor of the Obligations, (C) any extensions, postponements or delays of the
Maturity Date or the
scheduled date of payment of interest or principal or fees, or any reduction of principal
(without a corresponding payment with respect thereto), or reduction in the rate of interest or
fees due to the Lenders hereunder or under any other Loan Documents (it being understood that any
amendment or modification to the financial definitions in this Agreement shall not constitute a
reduction in the rate of interest for purposes on this Section 11.12), (D) any amendment of this
Section 11.12 or of the definition of “Majority Lenders” or any other provision of the Loan
Documents specifying the number or percentage of Lenders



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required to waive, amend or modify any
rights thereunder or make any determination or grant any consent thereunder; (E) any amendment
increasing the Revolving Loan Commitment (it being understood and agreed that a waiver of any
Default or Event of Default or modification of any of the defined terms contained herein (other
than those defined terms specifically addressed in this Section 11.12) shall not constitute
a change in the terms of any portion of the Revolving Loan Commitment held by any Lender); (F) any
amendment to the definition of “Availability” and the defined terms used therein; and
(G) any amendment to Section 2.11; (ii) the consent of the Administrative Agent, the
Majority Lenders and the Borrowers shall be required for any amendment to Section 2.1(e) or
Article 10; (iii) the consent of the Issuing Bank, the Majority Lenders and the Borrowers
shall be required for any amendment to Section 2.1(b) or 2.15 or the definition of
“Letter of Credit Commitment”; (iv) the consent of the Guarantors and the Majority Lenders shall be
required for any amendment to Article 3; (v) the consent of the Swing Bank, the Majority Lenders
and the Borrowers shall be required for any amendment to Section 2.1(c) or Section
2.2(g); (vi) the consent of the Administrative Agent only shall be required to amend
Schedule 1.1(a) to reflect assignments of any portion of the Revolving Loan Commitment and
Loans in accordance with this Agreement and (vii) any amendment, waiver or other modification of
any term or condition of the Fee Letter shall require the consent of the Administrative Agent and
the Borrowers only. In addition to the required consents set forth above, if SunTrust Bank or any
Affiliate thereof has entered into a Lender Hedge Agreement with any Borrower Party and SunTrust
Bank is no longer the Administrative Agent or a Lender, the consent of SunTrust Bank or such
Affiliate shall be required for any amendment to Section 2.11 or any amendment described in
Section 11.12(a)(i)(A). Any amendment, modification, waiver, consent, termination or
release of any Bank Products Documents may be effected by the parties thereto without the consent
of the Lender Group.




          (b) Each Lender grants to the Administrative Agent the right to purchase all (but not less
than all) of such Lender’s portion of the Revolving Loan Commitment, portion of the Letter of
Credit Commitment, the Loans and Letter of Credit Obligations owing to it and any Revolving Loan
Notes held by it and all of its rights and obligations hereunder and under the other Loan Documents
at a price equal to the outstanding principal amount of the Loans payable to such Lender plus any
accrued but unpaid interest on such Loans and accrued but unpaid commitment fees and letter of
credit fees owing to such Lender plus the amount necessary to cash collateralize any Letters of
Credit issued by such Lender, which right may be exercised by the Administrative Agent if such
Lender refuses to execute any amendment, waiver or consent which requires the written consent of
all of the Lenders and to which the Majority Lenders, the Administrative Agent and the Borrowers
have agreed. Each Lender agrees that if the Administrative Agent exercises its option hereunder, it
shall promptly execute and deliver an Assignment and Acceptance and other agreements and
documentation necessary to effectuate such assignment. The Administrative Agent may assign its
purchase rights hereunder to any assignee if such assignment complies with the requirements of
Section 11.5(b).




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          (c) If any fees are paid to the Lenders as consideration for amendments, waivers or consents
with respect to this Agreement, at Administrative Agent’s election, such fees may be paid only to
those Lenders that agree to such amendments, waivers or consents within the time specified for
submission thereof.




     Section 11.13 Other Relationships; No Advisory or Fiduciary Responsibility. No
relationship created hereunder or under any other Loan Document shall in any way affect the ability
of any member of the Lender Group to enter into or maintain business relationships with any
Borrower, or any of its Affiliates, beyond the relationships specifically contemplated by this
Agreement and the other Loan Documents. In connection with all aspect of each transaction
contemplated hereby (including in connection with any amendment, waiver or other modification
hereof or of any other Loan Document), each Borrower acknowledges and agrees that (a) (i) the
arranging and other services regarding this Agreement provided by the Administrative Agent, the
Sole Lead Arranger, and the Co-Syndication Agents, are arm’s-length commercial transactions between
each Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Sole Lead
Arranger and the Co-Syndication Agents, on the other hand, (ii) each Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii)
each Borrower is capable of evaluating, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan Documents, (b) (i) the
Administrative Agent and the Sole Lead Arranger each is and has been acting solely as a principal
and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will
not be acting as an advisor, agent or fiduciary for the Borrowers or any of their Affiliates, or
any other Person and (ii) neither the Administrative Agent, the Sole Lead Arranger nor the
Co-Syndication Agents has any obligation to the Borrowers or any of their Affiliates with respect
to the transactions contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents, and (c) the Administrative Agent, the Sole Lead Arranger and the
Co-Syndication Agents and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrowers and their Affiliates,
and neither the Administrative Agent, the Sole Lead Arranger nor the Co-Syndication Agents has any
obligation to disclose any of such interests to the Borrowers or their Affiliates. To the fullest
extent permitted by law, each Borrower hereby waives and releases any claims that it may have
against the Administrative Agent, the Sole Lead Arranger and the Co-Syndication Agents with respect
to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.



     Section 11.14 Pronouns. The pronouns used herein shall include, when appropriate,
either gender and both singular and plural, and the grammatical construction of sentences shall
conform thereto.



     Section 11.15 Disclosure. The Borrower Parties agree that the Administrative Agent,
and the Administrative Agent agrees that the Borrower Parties, shall each have the



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right, with the
consent of the other (such consent not to be unreasonably withheld), to issue press releases
regarding the making of the Loans and the issuance and the Revolving Loan Commitment to the
Borrowers pursuant to the terms of this Agreement.




     Section 11.16 Replacement of Lender. In the event that a Replacement Event occurs and
is continuing with respect to any Lender, the Administrative Borrower may designate another
financial institution (such financial institution being herein called a “Replacement
Lender”) acceptable to the Administrative Agent, and which is not a Borrower or an Affiliate of
any Borrower, to assume such Lender’s portion of the Revolving Loan Commitment hereunder, to
purchase the Loans and participations of such Lender and such Lender’s rights hereunder and (if
such Lender is the Issuing Bank) to issue Letters of Credit in substitution for all outstanding
Letters of Credit issued by such Lender, without recourse to or representation or warranty by, or
expense to, such Lender for a purchase price equal to the outstanding principal amount of the Loans
payable to such Lender plus any accrued but unpaid interest on such Loans and accrued but unpaid
commitment fees and letter of credit fees owing to such Lender plus amounts necessary to cash
collateralize any Letters of Credit issued by such Lender, and upon such assumption, purchase and
substitution, and subject to the execution and delivery to the Administrative Agent by the
Replacement Lender of documentation satisfactory to the Administrative Agent (pursuant to which
such Replacement Lender shall assume the obligations of such original Lender under this Agreement),
the Replacement Lender shall succeed to the rights and obligations of such Lender hereunder and
such Lender shall no longer be a party hereto or have any rights hereunder provided that the
obligations of the Borrowers to indemnify such Lender with respect to any event occurring or
obligations arising before such replacement shall survive such replacement. “Replacement
Event” shall mean, with respect to any Lender, (a) the commencement of or the taking of
possession by, a receiver, custodian, conservator, trustee or liquidator of such Lender, or the
declaration by the appropriate regulatory authority that such Lender is insolvent or such Lender
shall become a Defaulting Lender or (b) the making of any claim by any Lender under Section
2.8(b), 12.3 or 12.5, unless the changing of the lending office by such Lender
would obviate the need of such Lender to make future claims under such Sections.



     Section 11.17 Confidentiality. No member of the Lender Group shall disclose any
non-public confidential information regarding the Borrower Parties (“Confidential
Information”; which shall include all information received from any Borrower Party or any of
its Subsidiaries
relating to any Borrower Party or any of its Subsidiaries or any of their respective
businesses, other than any such information that is available to or in the possession of the Lender
Group (or any intended recipient) on a non-confidential basis prior to disclosure by any Borrower
Party or any of its Subsidiaries, provided that, such information was or is clearly identified at
the time of delivery as confidential) to any other Person without the consent of the Borrowers,
other than (i) to such member of the Lender Group’s Affiliates and their officers, directors,
employees, agents and advisors, to other members of the Lender Group and, as contemplated by
Section 11.5, to actual or



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prospective assignees and participants, and then only on a
confidential basis, with instructions to keep such Confidential Information confidential, and
provided that such parties agree to be bound by confidentiality provisions substantially similar to
those hereunder, (ii) as required by any law, rule or regulation or judicial process, (iii) to any
nationally recognized rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality of any Confidential
Information relating to the Borrower Parties received by it from such member of the Lender Group,
(iv) as requested or required by any state, federal or foreign authority or examiner regulating
banks or banking and (v) in connection with the exercise of any remedy hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder.




     Section 11.18 Revival and Reinstatement of Obligations. If the incurrence or payment
of the Obligations by any Borrower or any Guarantor, or the transfer to the Lender Group of any
property, should for any reason subsequently be declared to be void or voidable under any state or
federal law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to
fraudulent conveyances, preferences or other voidable or recoverable payments of money or transfers
of property (collectively, a “Voidable Transfer”), and if the Lender Group, or any of them,
is required to repay or restore, in whole or in part, any such Voidable Transfer, or elects to do
so upon the reasonable advice of its counsel, then, as to any such Voidable Transfer, or the amount
thereof that the Lender Group, or any of them, is required or elects to repay or restore, and as to
all reasonable costs, expenses and attorneys fees of the Lender Group related thereto, the
liability of the Borrowers or such Guarantor, as applicable, automatically shall be revived,
reinstated and restored and shall exist as though such Voidable Transfer had never been made.



     Section 11.19 Electronic Transmissions. (a) Authorization. Subject to the
provisions of this Section 11.19(a), each of the Administrative Agent, the Borrowers, the
Lenders, the Issuing Bank and each of their Affiliates is authorized (but not required) to
transmit, post or otherwise make or communicate, in its sole discretion, Electronic Transmissions
in connection with any Loan Document and the transactions contemplated therein. Each of the
Borrowers and the other Borrower Parties hereby acknowledges and agrees, and each of the Borrowers
and the other Borrower Parties shall cause each of their Subsidiaries to acknowledge and agree,
that the use of Electronic Transmissions is not necessarily secure and that there are risks
associated with such use, including risks of interception, disclosure and abuse and each indicates
it assumes and accepts such risks by hereby authorizing the transmission of Electronic
Transmissions.



          (b) Separate Agreements. All uses of an E-System shall be governed by and subject to,
in addition to the terms and conditions of this Agreement, separate terms and conditions posted or
referenced in such E-System and related contractual



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obligations executed by Borrower Parties or the
members of the Lender Group in connection with the use of such E-System.




          (c) Limitation of Liability. All E-Systems and Electronic Transmissions shall be
provided “as is” and “as available”. None of Administrative Agent or any of its Affiliates warrants
the accuracy, adequacy or completeness of any E-Systems or Electronic Transmission, and each
disclaims all liability for errors or omissions therein. No warranty of any kind is made by the
Administrative Agent or any of its Affiliates in connection with any E-Systems or Electronic
Transmission, including any warranty of merchantability, fitness for a particular purpose,
non-infringement of third-party rights or freedom from viruses or other code defects. Each of the
Borrowers and the other Borrower Parties agrees that the Administrative Agent has no responsibility
for maintaining or providing any equipment, software, services or any testing required in
connection with any Electronic Transmission or otherwise required for any E-System.




ARTICLE 12.




YIELD PROTECTION



     Section 12.1 Eurodollar Rate Basis Determination. Notwithstanding anything contained
herein which may be construed to the contrary, if with respect to any proposed Eurodollar Advance
for any Eurodollar Advance Period, the Administrative Agent (a) determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Eurodollar Advance Period or (b) is advised by the
Majority Lenders that the Eurodollar Basis for such Eurodollar Advance Period will not adequately
and fairly reflect the cost to the Lenders of making or maintaining the Loans for such Eurodollar
Advance Period, the Administrative Agent shall forthwith give notice thereof to the Administrative
Borrower and the Lenders, whereupon until the Administrative Agent notifies the Administrative
Borrower that the circumstances giving rise to such situation no longer exist, the obligations of
the Lenders to make Eurodollar Advances shall be suspended.



     Section 12.2 Illegality. If any change in Applicable Law, any change in the
interpretation or administration of any Applicable Law by any Governmental Authority, central bank,
or comparable agency charged with the interpretation or administration thereof, or any change in
compliance with Applicable Law as a result of any request or directive (whether or not having the
force of law) of any such authority, central bank, or comparable agency after the Agreement Date,
shall make it unlawful for any Lender to make, maintain, or fund its Eurodollar Advances, such
Lender shall so notify the Administrative Agent, and the Administrative Agent shall forthwith give
notice thereof to the other Lenders and the Administrative Borrower. Before giving any notice to
the Administrative Agent pursuant to this Section 12.2, such Lender shall designate a
different lending office if such designation will avoid the need for giving such notice and will
not, in the good faith judgment of such Lender, be otherwise disadvantageous to such



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Lender. Upon
receipt of such notice, notwithstanding anything contained in Article 2, the Borrowers
shall repay in full the then outstanding principal amount of each affected Eurodollar Advance of
such Lender, together with accrued interest thereon, either (a) on the last day of the then current
Eurodollar Advance Period applicable to such Eurodollar Advance if such Lender may lawfully
continue to maintain and fund such Eurodollar Advance to such day or (b) immediately if such Lender
may not lawfully continue to fund and maintain such Eurodollar Advance to such day. Concurrently
with repaying each affected Eurodollar Advance of such Lender, notwithstanding anything contained
in Article 2, the Borrowers shall borrow a Base Rate Advance from such Lender, and such
Lender shall make such Advance in an amount such that the outstanding principal amount of the
Revolving Loans held by such Lender shall equal the outstanding principal amount of such Revolving
Loans immediately prior to such repayment.




     Section 12.3 Increased Costs.



          (a) If any change in Applicable Law, any change in the interpretation or administration of any
Applicable Law by any Governmental Authority, central bank, or comparable agency charged with the
interpretation or administration thereof or any change in compliance with Applicable Law as a
result of any request or directive (whether or not having the force of law) of such Governmental
Authority, central bank, or comparable agency after the Agreement Date:




               (i) Shall subject any Lender to any tax, duty, or other charge with respect to its obligation
to make Eurodollar Advances, or its Eurodollar Advances, or shall change the basis of taxation of
payments to any Lender of the principal of or interest on its Eurodollar Advances or in respect of
any other amounts due under this Agreement in respect of its Eurodollar Advances or its obligation
to make Eurodollar Advances (except for changes in the rate of tax on the overall net income of
such Lender);



               (ii) Shall impose, modify, or deem applicable any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve System, but excluding any included in an
applicable Eurodollar Reserve Percentage), special deposit, assessment, or other requirement or
condition against assets of, deposits (other than as described in Section 12.5) with or for
the account of, or commitments or credit
extended by any Lender, or shall impose on any Lender or the eurodollar interbank borrowing
market any other condition affecting its obligation to make such Eurodollar Advances or its
Eurodollar Advances; and the result of any of the foregoing is to increase the cost to such Lender
of making or maintaining any such Eurodollar Advances, or to reduce the amount of any sum received
or receivable by the Lender under this Agreement or under any Revolving Loan Notes with respect
thereto, and such increase is not given effect in the determination of the Eurodollar Rate;



               (iii) Shall subject the Issuing Bank or any Lender to any tax, duty or other charge with
respect to the obligation to issue Letters of Credit, maintain



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Letters of Credit or participate in
Letters of Credit, or shall change the basis of taxation of payments to the Issuing Bank or any
Lender in respect of amounts drawn under Letters of Credit or in respect of any other amounts due
under this Agreement in respect of Letters of Credit or the obligation of the Issuing Bank to issue
Letters of Credit or maintain Letters of Credit or the obligation of the Lenders to participate in
Letters of Credit (except for changes in the rate of tax on the overall net income of the Issuing
Bank or any Lender); or




               (iv) Shall impose, modify, or deem applicable any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve System), special deposit, assessment, or
other requirement or condition against assets of, deposits (other than as described in Section
12.5) with or for the account of, or commitments or credit extended by the Issuing Bank, or
shall impose on the Issuing Bank or any Lender any other condition affecting the obligation to
issue Letters of Credit, maintain Letters of Credit or participate in Letters of Credit; and the
result of any of the foregoing is to increase the cost to the Issuing Bank or any Lender of
issuing, maintaining or participating in any such Letters of Credit or to reduce the amount of any
sum received or receivable by the Issuing Bank or any Lender under this Agreement with respect
thereto,



     then promptly upon demand by such Lender or Issuing Bank, the Borrowers agree to pay,
without duplication of amounts due under Section 2.8(b), to such Lender or Issuing Bank
such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased
costs. Each Lender or Issuing Bank will promptly notify the Borrowers and the Administrative Agent
of any event of which it has knowledge, occurring after the date hereof, which will entitle such
Lender or the Issuing Bank to compensation pursuant to this Section 12.3 and will designate
a different lending office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the sole judgment of such Lender or the Issuing Bank, be
otherwise disadvantageous to such Lender or the Issuing Bank. Failure or delay on the part of any
Lender or the Issuing Bank to demand compensation pursuant to this Section 12.3 shall not
constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation;
provided that the Borrowers shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section 12.3 for any increased costs or reductions incurred more than
270 days prior to the date that such Lender or the Issuing Bank notifies the Borrowers of the
change in Applicable Law or other occurrence giving rise to such increased costs or reductions and
of such Lender’s or the Issuing Bank’s intention to claim compensation therefor; provided further that, if the change in Applicable Law or other occurrence giving rise to such increased
costs or reductions is retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.



          (b) A certificate of any Lender or the Issuing Bank claiming compensation under this
Section 12.3 and setting forth the additional amount or amounts



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to be paid to it hereunder and calculations therefor shall be conclusive in the absence of manifest
error. In determining such amount, such Lender or the Issuing Bank may use any reasonable averaging
and attribution methods. If any Lender demands compensation under this Section 12.3, the
Borrowers may at any time, upon at least five (5) Business Days’ prior notice to such Lender,
prepay in full the then outstanding affected Eurodollar Advances of such Lender, together with
accrued interest thereon to the date of prepayment, along with any reimbursement required under
Section 2.9. Concurrently with prepaying such Eurodollar Advances, the Borrowers shall
borrow a Base Rate Advance, or a Eurodollar Advance not so affected, from such Lender, and such
Lender shall make such Advance in an amount such that the outstanding principal amount of the
Revolving Loans held by such Lender shall equal the outstanding principal amount of such Revolving
Loans immediately prior to such prepayment.




     Section 12.4 Effect On Other Advances. If notice has been given pursuant to
Sections 12.1, 12.2 or 12.3 suspending the obligation of any Lender to make
any, or requiring Eurodollar Advances of any Lender to be repaid or prepaid, then, unless and until
such Lender (or, in the case of Section 12.1, the Administrative Agent) notifies the
Administrative Borrower that the circumstances giving rise to such repayment no longer apply, all
Advances which would otherwise be made by such Lender as to the Eurodollar Advances affected shall,
at the option of the Administrative Borrower, be made instead as Base Rate Advances.



     Section 12.5 Capital Adequacy. If after the Agreement Date, any Lender or Issuing Bank
(or any Affiliate of the foregoing) shall have reasonably determined that the adoption of any
Applicable Law, governmental rule, regulation or order regarding the capital adequacy of banks or
bank holding companies, or any change therein, 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 such Lender or Issuing Bank (or
any Affiliate of the foregoing) with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such Governmental Authority, central bank or comparable
agency (but only if such adoption, change, request or directive occurs after the Agreement Date),
has or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s (or
any Affiliate of the foregoing) capital as a consequence of such Lender’s or Issuing Bank’s portion
of the Revolving Loan Commitment or obligations hereunder to a level below that which it could have
achieved but for such adoption, change or compliance (taking into consideration such Lender’s or
Issuing Bank’s (or any Affiliate of the foregoing) policies with respect to capital adequacy
immediately before such adoption, change or compliance and assuming that such Lender’s or Issuing
Bank’s (or any Affiliate of the foregoing) capital was fully utilized prior to such adoption,
change or compliance), then, promptly upon demand by such Lender or Issuing Bank, the Borrowers
shall immediately pay to such Lender or Issuing Bank such additional amounts as shall be sufficient
to compensate such Lender or Issuing Bank for any such reduction actually suffered;
provided, however, that there shall be no duplication of



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amounts paid to a Lender
pursuant to this sentence and Section 12.3. A certificate of such Lender or Issuing Bank
setting forth the amount to be paid to such Lender or Issuing Bank by the Borrowers as a result of
any event referred to in this paragraph shall, absent manifest error, be conclusive. Such Lender or
the Issuing Bank will designate a different lending office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the sole judgment of such Lender
or the Issuing Bank, be otherwise disadvantageous to such Lender or the Issuing Bank. Failure or
delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this
Section
12.5 shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to
demand such compensation; provided that the Borrowers shall not be required to compensate a
Lender or the Issuing Bank pursuant to this Section 12.5 for any reductions in rate of
return incurred more than 270 days prior to the date that such Lender or the Issuing Bank notifies
the Borrowers of the change in Applicable Law or other occurrence giving rise to such reductions
and of such Lender’s or the Issuing Bank’s intention to claim compensation therefore.




ARTICLE 13.




JURISDICTION, VENUE AND WAIVER OF JURY TRIAL



     Section 13.1 Jurisdiction and Service of Process. FOR PURPOSES OF ANY LEGAL ACTION OR
PROCEEDING BROUGHT BY ANY PARTY HERETO WITH RESPECT TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR
ANY BANK PRODUCTS DOCUMENT, EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE PERSONAL
JURISDICTION OF THE FEDERAL AND STATE COURTS SITTING IN THE COUNTY OF NEW YORK, STATE OF NEW YORK
AND EACH BORROWER PARTY HEREBY IRREVOCABLY DESIGNATES AND APPOINTS, AS ITS AUTHORIZED AGENT FOR
SERVICE OF PROCESS IN THE STATE
OF NEW YORK, THE ADMINISTRATIVE BORROWER, OR SUCH OTHER PERSON AS SUCH BORROWER PARTY SHALL
DESIGNATE HEREAFTER BY WRITTEN NOTICE GIVEN TO THE ADMINISTRATIVE AGENT. THE CONSENT TO
JURISDICTION HEREIN SHALL NOT BE EXCLUSIVE. THE LENDER GROUP SHALL FOR ALL PURPOSES AUTOMATICALLY,
AND WITHOUT ANY ACT ON THEIR PART, BE ENTITLED TO TREAT SUCH DESIGNEE OF EACH BORROWER PARTY AS THE
AUTHORIZED AGENT TO RECEIVE FOR AND ON BEHALF OF SUCH BORROWER PARTY SERVICE OF WRITS, OR SUMMONS
OR OTHER LEGAL PROCESS IN THE STATE OF NEW YORK, WHICH SERVICE SHALL BE DEEMED EFFECTIVE PERSONAL
SERVICE ON SUCH BORROWER PARTY SERVED WHEN DELIVERED, WHETHER OR NOT SUCH AGENT GIVES NOTICE TO
SUCH BORROWER PARTY; AND DELIVERY OF SUCH SERVICE TO ITS AUTHORIZED AGENT SHALL BE DEEMED TO BE
MADE WHEN PERSONALLY DELIVERED OR THREE (3) BUSINESS DAYS AFTER MAILING BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO SUCH AUTHORIZED



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AGENT. EACH PARTY HERETO FURTHER IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL TO SUCH PARTY AT THE ADDRESS SET FORTH IN SECTION 11.1 ABOVE, SUCH SERVICE
TO BECOME EFFECTIVE THREE (3) BUSINESS DAYS AFTER SUCH MAILING. IN THE EVENT THAT, FOR ANY REASON,
SUCH AGENT OR ITS SUCCESSORS SHALL NO LONGER SERVE AS AGENT OF EACH BORROWER PARTY TO RECEIVE
SERVICE OF PROCESS IN THE STATE OF NEW YORK, EACH BORROWER PARTY SHALL SERVE AND ADVISE THE
ADMINISTRATIVE AGENT THEREOF SO THAT AT ALL TIMES EACH BORROWER PARTY WILL MAINTAIN AN AGENT TO
RECEIVE SERVICE OF PROCESS IN THE STATE OF NEW YORK ON BEHALF OF SUCH BORROWER PARTY WITH RESPECT
TO THIS AGREEMENT, ALL OTHER LOAN DOCUMENTS AND THE BANK PRODUCTS DOCUMENTS. IN THE EVENT THAT, FOR
ANY REASON, SERVICE OF LEGAL PROCESS CANNOT BE MADE IN THE MANNER DESCRIBED ABOVE, SUCH SERVICE MAY
BE MADE IN SUCH MANNER AS PERMITTED BY LAW.




     Section 13.2 Consent to Venue. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY
OBJECTION IT WOULD MAKE NOW OR HEREAFTER FOR THE LAYING OF VENUE OF ANY SUIT, ACTION, OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY BANK PRODUCTS DOCUMENT
BROUGHT IN THE FEDERAL COURTS OF THE UNITED STATES SITTING IN NEW YORK COUNTY, NEW YORK, AND HEREBY
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION, OR PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.



     Section 13.3 Waiver of Jury Trial. EACH PARTY HERETO, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, WAIVES, AND OTHERWISE AGREES NOT TO REQUEST, A TRIAL BY JURY IN ANY COURT AND IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM OF ANY TYPE IN WHICH ANY PARTY HERETO OR ANY OF THEIR
RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR
INDIRECTLY OUT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, THE BANK PRODUCTS DOCUMENTS AND THE
RELATIONS AMONG THE PARTIES LISTED IN THIS ARTICLE 13.



     Section 13.4 All Obligations to Constitute Joint and Several Obligations.



          (a) All Obligations shall constitute joint and several obligations of the Borrowers and shall
be secured by the Administrative Agent’s Lien upon all of the Collateral, and by all other Liens
heretofore, now or at any time hereafter granted by each Borrower to the Administrative Agent, for
the benefit of the Lender Group, to the extent



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provided in the Loan Documents or Bank Product
Documents under which such Lien arises. Each Borrower expressly represents and acknowledges that it
is part of a common enterprise with the other Borrowers and that any financial accommodations by
the Administrative Agent, and the other members of the Lender Group to any other Borrower hereunder
and under the other Loan Documents and the Bank Product Documents are and will be of direct and
indirect interest, benefit and advantage to all Borrowers. Each Borrower acknowledges that any
Request for Advance, Notice of Conversion/Continuation, Notice of Requested Commitment Increase,
Request for Issuance of Letter of Credit or other notice or request given by any Borrower
(including the Administrative Borrower) to the Administrative Agent shall bind all Borrowers, and
that any notice given by the Administrative Agent or any other member of the Lender Group to any
Borrower shall be effective with respect to all Borrowers. Each Borrower acknowledges and agrees
that each Borrower shall be liable, on a joint and several basis, for all of the Loans and other
Obligations, regardless of which Borrower actually may have received the proceeds of any of the
Loans or other extensions of credit or have had Letters of Credit issued hereunder or the amount of
such Loans received, Letters of Credit issued or the manner in which the Administrative Agent or
any other member of the Lender Group accounts among the Borrowers for such Loans, Letters of Credit
or other extensions of credit on its books and records, and further acknowledges and agrees that
Loans and other extensions of credit to any Borrower inure to the mutual benefit of all of the
Borrowers and that the Administrative Agent and the other members of the Lender Group are relying
on the joint and several liability of the Borrowers in extending the Loans and other financial
accommodations hereunder. Each Borrower shall be entitled to subrogation and contribution rights
from and against the other Borrowers to the extent any Borrower is required to pay to any member of
the Lender Group any amount in excess of the Loans advanced directly to, or other Obligations
incurred directly by, such Borrower or as otherwise available under Applicable Law;
provided, however, that such subrogation and contribution rights are and shall be
subject to the terms and conditions of this Section 13.4.




          (b) In the event any Borrower Party (a “Funding Borrower Party”) shall make any
payment or payments under this Agreement or shall suffer any loss as a result of any realization
upon any collateral granted by it to secure its obligations hereunder, such Funding Borrower Party
shall have the right to seek contribution payments from each other Borrower Party (each, a
“Contributing Borrower Party”) to the extent permitted by Applicable Law. Nothing in this
Section 13.4(b) shall affect any Borrower Party’s joint and several liability to the Lender
Group for the entire amount of its Obligations. Each Borrower Party covenants and agrees that (i)
its right to receive any contribution hereunder from a Contributing Borrower Party shall be
subordinate and junior in right of payment to all obligations of the Borrower Parties to the Lender
Group hereunder and (ii) it shall not exercise any such contribution rights unless and until the
Obligations shall have been paid in full in cash (or, with respect to Letters of Credit, cash
collateralized or supported by a letter of credit) and the Revolving Loan Commitment terminated.




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          (c) Nothing in this Section 13.4 shall affect any Borrower’s joint and several
liability to the Lender Group for the entire amount of its Obligations. Each Borrower Party
covenants and agrees that its right to receive any contribution hereunder from a contributing
Borrower Party shall be subordinate and junior in right of payment to all Obligations of the
Borrowers to the Lender Group hereunder. No Borrower Party will exercise any rights that it may
acquire by way of subrogation hereunder or under any other Loan Document or any Bank Product
Document or at law by any payment made hereunder or otherwise, nor shall any Borrower Party seek or
be entitled to seek any contribution or reimbursement from any other Borrower Party in respect of
payments made by such Borrower Party hereunder or under any other Loan Document or under any Bank
Product Document, until all amounts owing to the Lender Group on account of the Obligations are
paid in full in cash (or, with respect to Letters of Credit, are either cash collateralized or
supported by a letter of credit) and the Revolving Loan Commitment is terminated. If any amounts
shall be paid to any Borrower Party on account of such subrogation or contribution rights at any
time when all of the Obligations shall not have been paid in full, such amount shall be held by
such Borrower Party in trust for the Lender Group segregated from other funds of such Borrower
Party, and shall, forthwith upon receipt by such Borrower Party, be turned over to the
Administrative Agent in the exact form received by such Borrower Party (duly endorsed by such
Borrower Party to the Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, as provided for herein.




     Section 13.5 The Administrative Borrower. Each Borrower hereby irrevocably appoints
Zayo as the borrowing agent and attorney-in-fact for all Borrowers (the “Administrative
Borrower”), which appointment shall remain in full force and effect unless and until the
Administrative Agent shall have received prior written notice signed by each Borrower that such
appointment has been revoked and that another Borrower has been appointed the Administrative
Borrower. Each Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (i)
to provide the Administrative Agent with all notices with respect to Loans and Letters of Credit
obtained for the benefit of any Borrower and all other notices and instructions under this
Agreement and (ii) to take such action as the Administrative Borrower deems appropriate on its
behalf to
obtain Loans and Letters of Credit and to exercise such other powers as are reasonably
incidental thereto to carry out the purposes of this Agreement.




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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized officers, all as of the day and year first above written.



	 	 	 	 	 
	BORROWERS:	 ZAYO GROUP, LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 
	 	ZAYO CAPITAL, INC.

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 



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	GUARANTORS:	 ZAYO ENTERPRISE NETWORKS, LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 
	 	ZAYO BANDWIDTH, LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 
	 	ZAYO COLOCATION, INC.

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 
	 	ZAYO BANDWIDTH TENNESSEE, LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 
	 	ADESTA COMMUNICATIONS, INC.

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 



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	 	FIBERNET TELECOM, INC.

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 
	 	LOCAL FIBER, LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 
	 	ZAYO BANDWIDTH CENTRAL, LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 
	 	ZAYO BANDWIDTH CENTRAL (VIRGINIA), LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 
	 	ZAYO BANDWIDTH NORTHEAST, LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 



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	 	ZAYO BANDWIDTH NORTHEAST SUB, LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:   Chief Financial Officer 	 
	 



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ADMINISTRATIVE AGENT,

COLLATERAL AGENT


ISSUING BANK AND LENDERS:



	 	 	 	 	 
	 	SUNTRUST BANK, as the Administrative Agent, 

the Collateral Agent, the Issuing Bank, a Lender

and the Swing Bank

 	 
	 	By:  	/s/ Horace J. Zona III
 	 
	 	 	Name:  	Horace J. Zona III
 	 
	 	 	Title:  	Managing Director 	 
	 



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	 	MORGAN STANLEY BANK, N.A., as a Lender

 	 
	 	By:  	/s/ Melissa James
 	 
	 	 	Name:  	Melissa James  	 
	 	 	Title:  	Authorized Signatory 	 
	 



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ROYAL BANK OF CANADA, as a Lender

 	 
	 	By:  	/s/ Mark S. Gronich
 	 
	 	 	Name:  	MARK S. GRONICH 	 
	 	 	Title:  	AUTHORIZED SIGNATORY 	 
	 



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	 	BARCLAYS BANK PLC, as a Lender

 	 
	 	By:  	/s/ Ritam Bhalla
 	 
	 	 	Name:  	Ritam Bhalla  	 
	 	 	Title:  	Vice President 	 
	 



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	 	COBANK, ACB, as a Lender

 	 
	 	By:  	/s/ Ted Koener
 	 
	 	 	Name:  	Ted Koener 	 
	 	 	Title:  	Managing Director 	 
	 



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	 	OPY CREDIT CORP., as a Lender

 	 
	 	By:  	/s/
Brian S. Perman
 	 
	 	 	Name:  	Brian S. Perman  	 
	 	 	Title:  	Managing Director 	 
	 



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