Exhibit 10.12


FIRST AMENDMENT TO LOAN AND SECURITY
AGREEMENT


                    THIS
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (“Amendment”) is dated as of November 2, 2007 and is by and
between WAVE2WAVE COMMUNICATIONS, INC., a Delaware corporation (“Wave”), 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 collectively with Wave, each a “Borrower” and collectively the “Borrowers”), and GREYSTONE BUSINESS CREDIT II, L.L.C. (“Lender”).


                    WHEREAS,
Borrowers and Lender are parties to that certain Loan and Security Agreement
dated as of October 12, 2007 (the “Loan Agreement”; capitalized
terms used but not defined herein shall have the meaning ascribed thereto in the Loan Agreement); and 


                    WHEREAS,
Borrowers have requested that Lender agree to amend the Loan Agreement in order
to provide further financial accommodations to Borrowers; 


                    WHEREAS,
Lender is willing to amend the Loan Agreement in accordance with the terms set forth below; and 


                    NOW
THEREFORE, in consideration of the mutual agreements, provisions and covenants
contained herein, the parties agree as follows the parties hereto hereby agree
as follows: 


                    1.
Amendments to Loan Agreement. Subject to the conditions set forth in
Section 2 of this Amendment, and in reliance on the representations, warranties, covenants and other agreements
contained herein, Borrowers and Lender hereby agree to amend the Loan Agreement
as follows: 


                    (a)
Section 1.1 of the Loan Agreement is hereby amended and restated in its
entirety as follows: 


	
  

 	
  

 
	
  

 	
           1.1
 Term Loan. Subject to the terms and conditions contained in this Agreement,
 Lender will make on the date of this Agreement an advance to Borrowers
 computed with respect to the value of all Eligible Securities owned by the
 Mennen Trust on the date of this Agreement (the “Initial
 Advance”) in the principal
 amount, if any, set forth in Section 2(a) of Schedule A. Subject to the terms
 and conditions contained in this Agreement, Lender will make on the Second
 Advance Date an advance to Borrowers computed with respect to the value of
 all Eligible Securities owned by the Mennen Trust on the Second Advance Date
 (the “Second Advance” and
 collectively with the Initial Advance each an “Advance” and collectively “Advances”) in the principal amount, if any, set forth
 in Section 2(a) of Schedule A. The Advances are referred to as a “Term Loan
 Advance” and the “Term Loan” and will be wired to Borrowers’ Bank set forth
 in Section 16 of Schedule A or as directed by 

 













	
  

 	
  

 
	
  

 	
 Borrowers pursuant to the
 terms of the authorization to pay proceeds dated as of the date hereof Each
 Advance will be evidenced by a term note in the form attached hereto as
 Exhibit A. 

 
	
  

 	
  

 
	
  

 	
                     (b)
 Section 2.2 of the Loan Agreement is hereby amended by adding a new clause
 (e) thereto as follows: 

 
	
  

 	
  

 
	
  

 	
                     (e)
 Second Advance Fee. A closing fee of $22,500, which fee shall be due and
 payable in full on the Second Advance Date. 

 
	
  

 	
  

 
	
  

 	
                     (c)
 Section 7.2 of the Loan. Agreement is hereby amended to delete the reference
 to “May 12, 2008” set forth therein and replacing such reference with
 “October 10, 2008”. 

 
	
  

 	
  

 
	
  

 	
                     (d)
 Schedule A to the Loan Agreement shall be amended by deleting the reference
 to “$34,000,000” in Section 2(a) thereof and replacing such reference with
 “$34,000,000 on and after the date hereof until the Second Advance Date and,
 on and after the Second Advance Date, $35,700,000”, 

 
	
  

 	
  

 
	
  

 	
                     (e)
 Schedule B to the Loan Agreement is hereby amended by adding the following
 defined terms thereto in proper alphabetical order: 

 
	
  

 	
  

 
	
  

 	
                     “Second Advance” has the meaning set forth in Section 1.1. 

 
	
  

 	
  

 
	
  

 	
                     “Second Advance Date” means November 2, 2007. 

 
	
  

 	
  

 
	
  

 	
                     2
 Conditions Precedent. The effectiveness of this Amendment is subject
 to the satisfaction of the following conditions precedent: 

 
	
  

 	
  

 
	
  

 	
                     (a)
 the execution and delivery of this Amendment by Borrowers and Lender; 

 
	
  

 	
  

 
	
  

 	
                     (b)
 the execution by Borrowers of the additional Term Note in favor of Lender in
 the amount of $1,700,000 dated as of the date hereof; 

 
	
  

 	
  

 
	
  

 	
                     (c)
 the payment by Borrowers to Lender of the Second Advance Fee set forth in
 paragraph 1(b) above; and 

 
	
  

 	
  

 
	
  

 	
                     (e)
 the execution and delivery of the attached Consent and Reaffirmation by each
 of the parties thereto. 

 
	
  

 	
  

 
	
  

 	
                     3.
 Representations and Warranties. To induce Lender to enter into this
 Amendment, each Borrower hereby represents and warrants to Lender: 

 


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                     (a)
 that the execution, delivery and performance of this Amendment by It has been
 duly authorized by all requisite action and that this Amendment has been duly
 executed and delivered by it; 

 
	
  

 	
  

 
	
  

 	
                     (b)
 that each of the representations and warranties set forth in the Loan
 Agreement are true and correct in all material respects as of the date
 hereof; and 

 
	
  

 	
  

 
	
  

 	
                     (c)
 no Default or Event of Default exists as of the date hereof. 

 
	
  

 	
  

 
	
  

 	
                     4.
 Effect of Amendment. Except as modified pursuant hereto, no other changes or
 modifications to the Loan Documents are intended or implied and, in all
 other respects, the Loan Documents hereby are ratified, restated and
 confirmed by all parties hereto as of the effective date hereof. To the
 extent of conflict between the terms of this Amendment and the other Loan
 Documents, the terms of this Amendment shall govern and control. The Loan
 Agreement and this Amendment shall be read and construed as one agreement. 

 
	
  

 	
  

 
	
  

 	
                     5.
 Amendment as a Loan Document. Borrowers and Lender hereby agree that
 this Amendment shall constitute a “Loan Document” for all purposes of the
 Loan Agreement and the other Loan Documents, and any references to the Loan
 Documents contained in any notice, request, certificate or other document
 executed concurrently with or alter the execution and delivery of this
 Amendment shall be deemed to include this Amendment unless the context shall
 otherwise specify. 

 
	
  

 	
  

 
	
  

 	
                     6.
 Costs and Expenses. Each Borrower absolutely and unconditionally agrees to pay to
 Lender, on demand by Lender at any time, whether or not all or any of the
 transactions contemplated by this Amendment are. consummated: all fees and
 disbursements of any counsel to Lender in connection with the preparation,
 negotiation, execution, or delivery of this Amendment and any agreements
 contemplated hereby and expenses which shall at any time be incurred or
 sustained by Lender or any participant of Lender or any of their respective
 directors, officers, employees or agents as a consequence of or in any way in
 connection with the preparation, negotiation, execution, or delivery of this
 Amendment and any agreements contemplated hereby. 

 
	
  

 	
  

 
	
  

 	
                     7.
 Further Assurances. At Borrowers’ expense, the parties hereto shall execute and deliver
 such additional documents and take such further action as may be necessary or
 desirable to effectuate the provisions and purposes of this Amendment. 

 
	
  

 	
  

 
	
  

 	
                     8.
 Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of
 each of the parties hereto and their respective successors and assigns.
 Notwithstanding any other provision set forth in this Amendment, the Lender
 may at any time, without the consent of any Borrower, assign, sell, convey,
 pledge, hypothecate, or otherwise encumber any or all of its rights and
 benefits under this Amendment, the other Loan Documents or the Collateral. 

 


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                     9.
 Survival of Representations and Warranties. All representations and warranties made in
 this Amendment or any other document furnished in connection with this
 Amendment shall survive the execution and delivery of this Amendment and the
 other documents, and no investigation by Lender or any closing shall affect
 the representations and warranties or the right of Lender to rely upon them. 

 
	
  

 	
  

 
	
  

 	
                     10. Release.

 
	
  

 	
  

 
	
  

 	
                     (a)
 In consideration of the agreements of Lender contained herein and for other
 good and valuable consideration, the receipt and sufficiency of which are
 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 its
 successors and assigns, and its 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 kind and nature, known or unknown, suspected or unsuspected, at law
 or in equity, which any 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
 date of this Amendment, including, without limitation, for or on account of,
 or in relation to, or in any way in connection with this Amendment, the Loan
 Agreement, or any of the other Loan Documents or transactions hereunder or thereunder. 

 
	
  

 	
  

 
	
  

 	
                     (b)
 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. 

 
	
  

 	
  

 
	
  

 	
                     (c)
 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. 

 
	
  

 	
  

 
	
  

 	
                     11.
 Covenant Not to Sue.
 Each Borrower, on behalf of itself and its successors, assigns, and other
 legal representatives, hereby absolutely, unconditionally and irrevocably,
 covenants and agrees with and in favor of each Releasee that it will not sue
 (at law, in equity, in any regulatory proceeding or otherwise) any Releasee
 on the basis of any Claim released, remised and discharged by any Borrower
 pursuant to Section 10 above, If any Borrower or any of its successors,
 assigns or other legal representatives violates the foregoing covenant, such
 Borrower, for itself and its successors, assigns and legal representatives,
 agrees to pay, in addition to such other damages as any Releasee may sustain 

 


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 as a result of such
 violation, all attorneys’ fees and costs incurred by any Releasee as a result
 of such violation. 

 
	
  

 	
  

 
	
  

 	
                     12.
 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. 

 
	
  

 	
  

 
	
  

 	
                     13.
 Reviewed by Attorneys. Each Borrower represents and warrants to Lender
 that it (a) understands fully the terms of this Amendment and the
 consequences of the execution and delivery of this Amendment, (b) has been
 afforded an opportunity to discuss this Amendment with, and have this
 Amendment reviewed by, such attorneys and other persons as such Borrower may
 wish, and (c) has entered into this Amendment and executed and delivered all
 documents in connection herewith of its own free will and accord and without
 threat, duress or other coercion of any kind by any Person. The parties
 hereto acknowledge and agree that
 neither this Amendment nor the other documents executed pursuant hereto shall
 be construed more favorably in favor of one than the other based upon which
 party drafted the same, it being acknowledged that all parties hereto
 contributed substantially to the negotiation and preparation of this
 Amendment and the other documents executed pursuant hereto or in connection
 herewith. 

 
	
  

 	
  

 
	
  

 	
                     14.
 Governing Law: Consent to Jurisdiction and Venue. EXCEPT AS OTHERWISE
 EXPRESSLY PROVIDED IN ANY OF THE LOAN DOCUMENTS, THIS AMENDMENT AND THE OTHER
 LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
 THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
 WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
 PRINCIPLES. EACH BORROWER HEREBY CONSENTS AND AGREES THAT THE STATE OR
 FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK SHALL HAVE EXCLUSIVE
 JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN BORROWERS
 AND LENDER PERTAINING TO THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR
 TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AMENDMENT OR ANY OF THE
 OTHER. LOAN DOCUMENTS; PROVIDED, THAT NOTHING IN THIS AMENDMENT SHALL
 BE DEEMED OR OPERATE TO PRECLUDE LENDER FROM BRINGING SUIT OR TAKING OTHER
 LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE OBLIGATIONS, TO REALIZE
 ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A
 JUDGMENT OR OTHER COURT ORDER IN FAVOR OF LENDER. EACH BORROWER EXPRESSLY
 SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
 COMMENCED IN ANY SUCH COURT, AND EACH BORROWER HEREBY WAIVES ANY OBJECTION
 WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
 FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING
 OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
 EACH BORROWER HEREBY WAIVES 

 


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 PERSONAL SERVICE OF ANY
 AND ALL PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF
 SUCH PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH
 BORROWER AT THE ADDRESS SET FORTH IN THE LOAN AGREEMENT AND THAT SERVICE SO
 MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH BORROWER’S ACTUAL
 RECEIPT THEREOF OR THREE (3) DAYS THE SAME HAS BEEN POSTED. 

 
	
  

 	
  

 
	
  

 	
                     15.
 Mutual Waiver of
 Jury Trial. THE PARTIES
 HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING
 BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR
 OTHERWISE BETWEEN LENDER AND BORROWERS ARISING OUT OF, CONNECTED WITH,
 RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
 CONNECTION WITH THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS. OR THE
 TRANSACTIONS’ RELATED THERETO. 

 
	
  

 	
  

 
	
  

 	
                     16.
 Counterparts.
 This Amendment may be executed in any number of counterparts, but all of such
 counterparts shall together constitute but one and the same agreement. 

 


[Signature page follows]


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                     IN
 WITNESS WHEREOF, the undersigned have executed this Amendment on the date first above written. 

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
 BORROWERS:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 WAVE2WAVE
 COMMUNICATIONS, INC.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By

 	
                /s/
 Steven Asman

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
                Steven
 Asman

 
	
  

 	
  

 	
                President

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 WILMINGTON
 TRUST COMPANY AND GEORGE

 
	
  

 	
 JEFF
 1VIENNEN AS CO-TRUSTEES U/A/D

 
	
  

 	
 NOVEMBER
 25, 1970, AS AMENDED FOR THE

 
	
  

 	
 BENEFIT
 OF JOHN HENRY MENNEN

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ George Jeff Mennen

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 George Jeff Mennen,
 Co-Trustee 1T/A/D November

 
	
  

 	
  

 	
 25, 1970, as amended for
 the benefit of John Henry

 
	
  

 	
  

 	
 Mennen

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 Wilmington Trust Company,
 Co-Trustee U/A/D

 
	
  

 	
  

 	
 November 25, 1970, as
 amended for the benefit of

 
	
  

 	
  

 	
 John Henry Mennen

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By:

 	
 /s/ Mark A. Oller

 
	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
    Mark A.
 Oller, Vice President

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 LENDER:

 
	
  

 	
  

 
	
  

 	
 GREYSTONE
 BUSINESS CREDIT II, L.L.C.

 






	
  

 	
  

 	
  

 
	
  

 	
 By /s/ [Ilegible
 signature]

 	
  

 
	
  

 	
  

 	

 


 




	
  

 	
  

 	
  

 
	
  

 	
 Print Name

 
	
  

 	
  

 	

 


 




	
  

 	
  

 	
  

 
	
  

 	
 Its

 	
  

 
	
  

 	
  

 	

 


 



Signature page to First Amendment to Loan and Security Agreement 





CONSENT AND REAFFIRMATION


	
  

 	
  

 
	
  

 	
                     Each
 of Wave2Wave VoIP Communications, LLC, a Delaware limited liability company (“VoIP”), Wave2Wave Data Communications, LLC, a
 Delaware limited liability company (“Data”), and Wave2Wave Communications Mid-West
 Region, LLC, a Delaware limited liability company (“Region” and, together the VoIP and Data, each a “Guarantor” and collectively the “Guarantors” hereby (i) acknowledges receipt of a copy
 of the foregoing First Amendment to Loan and Security Agreement (the “Amendment”) among Wave2Wave Communications, Inc., a
 Delaware corporation, 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 and Greystone Business Credit II, L.L.C.; (ii)
 consents to Borrower’s execution and delivery of the Amendment and (iii)
 reaffirms its obligations under the Corporate Guaranty dated as of October
 12, 2007 (the “Guaranty”). 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/
 Steven Asman

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
           Steven
 Asman

 
	
  

 	
  

 	
           President

 
	
  

 	
  

 	
  

 
	
  

 	
 WAVE2WAVE
 DATA COMMUNICATIONS, LLC

 
	
  

 	
  

 	
  

 
	
  

 	
 By

 	
           /s/
 Steven Asman

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
           Steven
 Asman

 
	
  

 	
  

 	
           President

 
	
  

 	
  

 	
  

 
	
  

 	
 WAVE2WAVE
 COMMUNICATIONS MID-WEST REGION, LLC

 
	
  

 	
  

 	
  

 
	
  

 	
 By

 	
           /s/
 Steven Asman

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
           Steven
 Asman

 
	
  

 	
  

 	
           President