Exhibit 10.16


WAIVER AND AMENDMENT NO. 5 TO

LOAN AND SECURITY AGREEMENT


                    This
WAIVER AND AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT (“Amendment”) is
dated as of March 18, 2009 and is entered into by and between WAVE2WAVE COMMUNICATIONS, INC., a Delaware
corporation (“Borrower
Representative”), and GREYSTONE IFUNDING CORPORATION, a Virginia
corporation, successor in interest to Greystone Business Credit II, L.L.C. (“Lender”).


WITNESSETH:


                    WHEREAS,
Borrower Representative, Wilmington Trust Company and George Jeff Mennen as
co-trustees U/A/D November 25, 1970, as amended for the benefit of John Henry
Mennen (the “Mennen
Trust”; and together with Borrower Representative, the “Borrowers” and each,
a “Borrower”), and
Lender are parties to that certain Loan and Security Agreement dated as of
October 12, 2007 (as heretofore or hereinafter amended, modified and
supplemented from time to time, the “Loan Agreement”; capitalized terms not
otherwise defined herein have the definitions provided therefore in the Loan
Agreement);


                    WHEREAS,
certain Events of Default exist under the Loan Agreement, as described on
Exhibit A attached hereto (the “Existing Events of Default”);


                    WHEREAS,
Borrowers have requested that Lender waive the Existing Events of Default and
Lender has agreed to waive the Existing Events of Default, subject to the terms
and conditions contained herein; and


                    WHEREAS,
Borrowers have requested that Lender amend the Loan Agreement in certain
respects as set forth herein and Lender has agreed to amend the Loan Agreement
in certain respects, subject to the terms and conditions contained herein;


                    NOW
THEREFORE, in consideration of the mutual conditions and agreements set forth
in the Loan Agreement and this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:


                    1. Waiver. Subject to the satisfaction of the conditions set forth in
Section 3 hereof and in reliance upon the representations and warranties set
forth in this Amendment, Lender hereby waives the Existing Events of Default.
The foregoing is a limited waiver and shall not constitute a waiver of any
other Events of Default or Defaults that are now in existence or that may
hereafter occur.


                    2. Amendment. Subject to the satisfaction of the conditions set forth in
Section 3 below, and in reliance on the representations set forth in Section 4
below, the Loan Agreement is amended as follows:


                    
(a) The Loan Agreement is hereby amended by inserting the following legend
immediately before the title on the first page of the Loan Agreement:


-1-









	
  

 	
  

 
	
  

 	
 THIS
 INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY AND ANY SECURITY
 INTERESTS OR OTHER LIENS SECURING SUCH OBLIGATIONS ARE SUBORDINATE IN THE
 MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN AMENDED AND RESTATED
 INTERCREDITOR AGREEMENT DATED AS OF MARCH 18, 2009 BETWEEN WILMINGTON TRUST
 COMPANY AND GEORGE JEFF MENNEN AS CO-TRUSTEES U/A/D NOVEMBER 25, 1970, AS
 AMENDED FOR THE BENEFIT OF JOHN HENRY MENNEN (“JUNIOR LENDER) AND GBC
 FUNDING, LLC (“SENIOR LENDER”), TO THE INDEBTEDNESS OWED TO SENIOR LENDER,
 AND TO THE SECURITY INTERESTS AND LIENS SECURING SUCH INDEBTEDNESS, PURSUANT
 TO AND IN CONNECTION WITH THAT CERTAIN LOAN AND SECURITY AGREEMENT DATED AS
 OF JANUARY 25, 2008 AMONG WAVE2WAVE COMMUNICATIONS, INC., RNK, INC., AND
 SENIOR LENDER, AS SUCH LOAN AND SECURITY AGREEMENT MAY BE AMENDED, RESTATED,
 SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME.

 



                    (b) The
preamble to the Loan Agreement is hereby amended by deleting the reference to
“Greystone Business Credit II, L.L.C. (“Lender”)” and inserting a
reference to “Greystone Funding Corporation (and its successors and assigns, “Lender”)”in
lieu thereof.


                    (c) Section 2.2(e) of the Loan Agreement is hereby amended and restated in its
entirety as follows:


                    [Intentionally Omitted]


                    (d) Section 3.4
of the Loan Agreement is hereby amended and restated in its entirety as
follows:


                    [Intentionally Omitted]


                    (e) Section 7.4
of the Loan Agreement is hereby amended and restated in its entirety as
follows:


	
  

 	
  

 
	
  

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

 



                    (f) Clause (vi)
of Section 8.1 of the Loan Agreement is hereby amended and restated in its
entirety as follows:


-2-









	
  

 	
  

 
	
  

 	
           (vi)
 the occurrence of any default beyond applicable grace or cure periods under
 any financing agreement, security agreement or other agreement, instrument or
 document (other than the Revolving Loan Documents) executed and delivered by
 (A) Wave2Wave with respect to the Seller Notes, (B) any Borrower or any
 Obligor with, or in favor of, any Person other than Lender or with respect to
 indebtedness in excess of $250,000 either comprising a payment default or any
 other default entitling the holder of such obligation to accelerate such
 indebtedness or (C) any Borrower, any Obligor or any other Affiliate of any
 Borrower with, or in favor of, Lender or any Affiliate of Lender (provided
 that for purposes of this clause (C), Affiliates of any Borrower shall not
 include managers, directors, officers or employees of such Borrower);

 



                    (g)
Clause (xiv) of Section 8.1 of the Loan Agreement is hereby amended and
restated in its entirety as follows:


                    [Intentionally Omitted]


                    (h)
The defined terms “Amendment No. 3 Fee”, “Revolving Control Agreement” and
“Revolving Joinder Agreement” is hereby deleted from Schedule B to the Loan
Agreement.


                    3. Conditions to Effectiveness.
The effectiveness of this Amendment is subject to the following conditions
precedent, each to be in form and substance satisfactory to Lender:


                    (a)
Lender shall have received a fully executed copy of the Consent and
Reaffirmation attached hereto;


                    (b)
Lender shall have received each agreement, document and instrument requested by
Lender in connection with this Amendment;


                    (c)
Lender shall have been reimbursed for all reasonable costs, fees and expenses
incurred by Lender in connection with the preparation and execution of this
Amendment;


                    (d)
all proceedings taken in connection with the transactions contemplated by this
Amendment and all documents, instruments and other legal matters incident
thereto shall be satisfactory to Lender and its legal counsel; and


                    (e)
no Default or Event of Default shall have occurred and be continuing except for
the Existing Events of Default.


                    4. Representations
and Warranties. To induce Lender to enter into this Amendment, Borrowers, jointly and severally, represent and warrant to Lender that:


                    (a)
the execution, delivery and performance of this Amendment has been duly
authorized by all requisite corporate action on the part of each Borrower and
that this Amendment has been duly executed and delivered by each Borrower;


-3-





                    (b)
each of the representations and warranties set forth in Section 5 of the Loan
Agreement, are true and correct in all material respects as of the date hereof (except to the extent
they relate to an earlier date, in which case they shall have been true and
correct in all material respects as of such earlier date); and


                    (c)
no Default or Event of Default has occurred and is continuing except for the
Existing Events of Default.


                    5. Release. In consideration of the agreements of Lender contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, each Borrower, on behalf of itself and its successors,
assigns, and other legal representatives, hereby absolutely, unconditionally
and irrevocably releases, remises and forever discharges Lender and their
successors and assigns, and their present and former shareholders, Affiliates,
subsidiaries, divisions, predecessors, directors, officers, attorneys,
employees, agents and other representatives (Lender and all such other Persons
being hereinafter referred to collectively as the “Releasees” and individually
as a “Releasee”), of and from all demands, actions, causes of action, suits,
covenants, contracts, controversies, agreements, promises, sums of money,
accounts, bills, reckonings, damages and any and all other claims,
counterclaims, defenses, rights of set-off, demands and liabilities whatsoever
(individually, a “Claim” and collectively, “Claims”) of every name and nature,
known or unknown, suspected or unsuspected, both at law and in equity, which
such Borrower or any of its successors, assigns, or other legal representatives
may now or hereafter own, hold, have or claim to have against the Releasees or
any of them for, upon, or by reason of any circumstance, action, cause or thing
whatsoever which arises at any time on or prior to the day and date of this
Amendment, including, without limitation, for or on account of, or in relation
to, or in any way in connection with any of the Loan Agreement, or any of the
other Loan Documents or transactions thereunder or related thereto. Each
Borrower understands, acknowledges and agrees that the release set forth above
may be pleaded as a full and complete defense and may be used as a basis for an
injunction against any action, suit or other proceeding which may be
instituted, prosecuted or attempted in breach of the provisions of such
release. Each Borrower agrees that no fact, event, circumstance, evidence or
transaction which could now be asserted or which may hereafter be discovered
shall affect in any manner the final, absolute and unconditional nature of the
release set forth above


                    6. Severability. Any provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.


                    7. References. Any reference to the Loan Agreement contained
in any document, instrument or Loan Agreement executed in connection with the
Loan Agreement shall be deemed to be a reference to the Loan Agreement as
modified by this Amendment.


                    8. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which
taken together shall be one and the same instrument. Delivery of an executed
counterpart of a signature page of


-4-





this
Amendment by facsimile or other electronic transmission shall be effective as
delivery of a manually executed counterpart of this Amendment.


                    9. Ratification. The terms and provisions set forth in this Amendment shall
modify and supersede all inconsistent terms and provisions of the Loan
Agreement and shall not be deemed to be a consent to the modification or waiver
of any other term or condition of the Loan Agreement. Except as expressly
modified and superseded by this Amendment, the terms and provisions of the Loan
Agreement are ratified and confirmed and shall continue in full force and
effect.


                    10. Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of New York, without regard to conflict of
laws principles that would require the application of laws other than those of
the state of New York. Whenever possible each provision of this Amendment shall
be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Amendment shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Amendment.


[Signature Page Follows]


-5-






                    IN
WITNESS WHEREOF,
the parties hereto have caused this Amendment to be duly executed under seal
and delivered by their respective duly authorized officers on the date first
written above. 


	
  

 	
  

 
	
     Borrower
 Representative:

 	
     Lender:

 
	
 WAVE2WAVE COMMUNICATIONS INC.

 	
 GREYSTONE FUNDING CORPORATION

 
	
  

 	
  

 
	
 By: /s/ Steve Asman

 	
 By: /s/ Illegible

 
	
 Steve Asman

 	
 Illegible

 
	
 President

 	
 Authorized Signatory

 



Signature Page to Waiver and
Amendment No. 5 to Loan and Security Agreement





EXHIBIT A


 Existing Events of Default


	
  

 	
  

 
	
 •

 	
 Event of Default under
 Section 8.1(iii) of the Loan Agreement for Borrower Representative’s failure
 to be substantially in conformance with the financial projections previously
 delivered to Lender as required in Section 8(a) of Schedule A to the Loan
 Agreement for the fiscal quarter ending on December 31, 2008 

 
	
  

 	
  

 
	
  •

 	
 Event of Default under
 Section 8.1(iii) of the Loan Agreement for Borrowers’ failure to timely
 comply with the covenants in Section 1 of the Waiver and Amendment No. 3 to
 Loan and Security Agreement dated September 19, 2008 among Borrowers and
 Lender 

 
	
  

 	
  

 
	
  •

 	
 Event of Default under
 Section 8.1(xiv) of the Loan Agreement as a result of existing Events of
 Default (as defined in the Revolving Loan Agreement) under the Revolving Loan
 Agreement 

 
	
  

 	
  

 
	
  •

 	
 Event of Default under
 Section 8.1(vi)(A) of the Loan Agreement as a result of Events of Default
 under the Seller Notes, relating to (i) those certain payments that were due
 under the Seller Notes but not made by the Borrower Representative on
 November 10, 2008 and February 10, 2009 and (ii) Section 3(a)(iii) of the
 Seller Notes in connection with the cross defaults to the Seller Notes
 related to the Existing Events of Default 

 



Signature Page to Waiver and
Amendment No. 5 to Loan and Security Agreement 





CONSENT AND REAFFIRMATION


                    Each
of the undersigned (each a “Guarantor”
and collectively the “Guarantors” hereby (i) acknowledges receipt of a copy of the foregoing Waiver and
Amendment No. 5 to Loan and Security Agreement (the “Amendment”) between Wave2Wave Communications, Inc., a Delaware corporation and
Greystone Funding Corporation; (ii) consents to Borrower Representatives
execution and delivery of the Amendment and (iii) reaffirms its obligations
under the Corporate Guaranty dated as of October 12, 2007 (the “Guaranty”) and the other loan documents executed in connection therewith. Although
Guarantors have been informed of the matters set forth herein and have
acknowledged and agreed to same, Guarantors understand that Lender has no
obligation to inform Guarantors of such matters in the future or to seek
Guarantors’ acknowledgment or agreement to future amendments, waivers or
consents, and nothing herein shall create such a duty.


                    Each
of the undersigned further agrees that after giving effect to the Amendment,
the Guaranty shall remain in full force and effect.





                    IN
WITNESS WHEREOF, each Guarantor has executed this Consent and Reaffirmation on
and as of the date of the Amendment. 


	
  

 	
  

 
	
  

 	
 WAVE2WAVE VOIP
 COMMUNICATIONS, LLC

 
	
  

 	
 By: /s/ Steve Asman

 
	
  

 	
 Steve Asman

 
	
  

 	
 President

 
	
  

 	
  

 
	
  

 	
 WAVE2WAVE DATA
 COMMUNICATIONS, LLC

 
	
  

 	
 By: /s/ Steve Asman

 
	
  

 	
 Steve Asman

 
	
  

 	
 President

 
	
  

 	
  

 
	
  

 	
 WAVE2WAVE COMMUNICATIONS,
 MIDWEST

 
	
  

 	
 REGION LLC

 
	
  

 	
 By: /s/ Steve Asman

 
	
  

 	
 Steve Asman

 
	
  

 	
 President

 
	
  

 	
  

 
	
  

 	
 RNK, INC.

 
	
  

 	
 By: /s/ Eric Mann

 
	
  

 	
 Eric Mann

 
	
  

 	
 Treasurer

 
	
  

 	
  

 
	
  

 	
 RNK VA, LLC

 
	
  

 	
 By: /s/ Eric Mann

 
	
  

 	
 Eric Mann

 
	
  

 	
 Treasurer

 
	
  

 	
  

 



Consent and Reaffirmation to
Waiver and Amendment No. 5 to Loan and Security Agreement