Exhibit 10.13


WAIVER, CONSENT AND AMENDMENT NO. 2 TO 
LOAN AND SECURITY AGREEMENT


                    This
WAIVER, CONSENT AND AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT
(“Amendment”) is dated as of January 25, 2008, and is entered into by and
between WAVE2WAVE COMMUNICATIONS, INC., a Delaware corporation (“Borrower Representative”), and
GREYSTONE FUNDING 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 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); and 


                    WHEREAS,
separate Events of Default exist under Section 8.1 of the Loan Agreement for
(i) Borrower’s failure to deliver to Lender a deposit account control agreement
with Wachovia Bank, National Association, covering account number 200008773227
pursuant to the terms of that certain post-closing letter agreement executed by
Borrowers and agreed to by Lender on October 12, 2007 (the “Post-closing Letter”); (ii)
Borrowers’ failure to deliver to Lender evidence that no debt is owing by
Borrowers to Level 3 Communications, LLC and Borrowers’ failure to deliver to
Lender an acknowledgement copy of a filed UCC termination statement evidencing
the termination of the UCC-1 financing statement number 51069054 filed in the
Secretary of State of the State of Delaware naming Intellispace, Inc. as
debtor, each pursuant to the terms of the Post-closing Letter; (iii) Borrowers’
failure to deliver to Lender evidence that the judgment lien in the amount of
$54,932.15 in favor of plaintiff Getronicswang Co LLC has been released
pursuant to the terms of the Post-closing Letter; and (iv) Borrowers’ failure
to deliver to Lender a deposit account control agreement with North Fork Bank
covering Borrowers’ deposits with North Fork Bank or Borrowers’ failure to (a)
cause such deposits to be moved to a bank subject to a deposit account control
agreement acceptable to Lender and (b) close such accounts with North Fork
Bank, pursuant to the terms of the Post-closing Letter (collectively, 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; 


                    WHEREAS,
Borrower Representative has informed Lender that it desires to enter into a
certain revolving loan and security agreement by and among Borrower
Representative, RNK, Inc., a Massachusetts corporation, and Greystone Business
Credit 11, L.L.C. dated as of January 25, 2008 (the “Revolving Loan Agreement”); 









	
  

 	
  

 
	
  

 	
                     WHEREAS,
 in absence of prior written consent of Lender, the Revolving Loan Agreement
 shall constitute a Default under Section 5.20 of the Loan Agreement and a
 corresponding Event of Default under Section 8.1 of the Loan Agreement and a
 separate Event of Default under Section 8.1 of the Loan Agreement; 

 
	
  

 	
  

 
	
  

 	
                     WHEREAS,
 Borrowers have requested that Lender consent to the Revolving Loan Agreement
 and Lender has agreed to consent to the Revolving Loan Agreement, 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 4 hereof and in reliance upon the representations and warranties set
 forth in this Amendment, Lender hereby waives the Existing Events of Default;
 provided, that (a) within 45 days of the date hereof Borrower
 Representative delivers to Lender evidence of the release of the judgment
 lien in favor of plaintiff, Getronicswang Co LLC, (b) within 30 days of the
 date hereof Borrower Representative delivers to Lender evidence that account
 number 200008773227 at Wachovia Bank, National Association has been closed
 and (c) within 60 days after the date hereof, Borrower Representative either
 (1) causes North Fork Bank to execute and deliver lockbox and, Deposit Account control agreements
 in favor of Lender and in form and substance satisfactory to Lender covering
 all lockboxes and Deposit Accounts at North Fork Bank; or (ii) (A) open new
 lockboxes and Deposit Accounts at a financial association acceptable to
 Lender and cause such new lockboxes and Deposit Accounts to be subject to
 lockbox and Deposit Account control agreements in favor of Lender and in form
 and substance satisfactory to Lender and (B) close all existing lockboxes and
 Deposit Accounts held by Borrowers and their Subsidiaries with North Fork
 Bank. 

 
	
  

 	
  

 
	
  

 	
 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.
 Consent. Lender hereby consents to the Revolving Loan Agreement. The
 foregoing is a limited consent and shall not constitute a consent to or
 waiver of any other Defaults or Events of Default that are now in existence
 or that may hereafter occur. 

 
	
  

 	
  

 
	
  

 	
                     3.
 Amendment. Subject to the satisfaction of the conditions set forth in
 Section 3 below, and in reliance on the representations set forth in Section4
 below, the Loan Agreement is amended as follows: 

 
	
  

 	
  

 
	
  

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

 


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 3.4
 Securities Account; Supplement to Portfolio.
 No Borrower shall take any action, including without limitation
 the transfer of any Securities out of any Securities Account, that will
 result in the aggregate marked to market value of the Securities in the
 Securities Accounts to be less than 117.65% of the outstanding principal
 balance of the Obligations on any date of determination. In the event that
 the aggregate marked to market value of Eligible Securities in the Securities
 Accounts is on any date of determination less than the lesser of (a)
 $39,700,000 and (b) 111.11% of the then outstanding principal balance of the
 Obligations, the Borrowers shall within one (1) Business Day, deposit
 Securities in.
 the Securities Accounts such that the aggregate value of Securities in the
 Securities Accounts exceeds the lesser of (a) $42,000,000 and (b) 117.65% of
 the then outstanding principal balance of the Obligations immediately after
 giving effect to such deposit. 

 	
  

 






	
  

 	
  

 	
  

 
	
  

 	
                     (b)
 Section 5.3 of the Loan Agreement is hereby amended by amending and restating
 the fifth sentence thereof in its entirety as follows:

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 “Wave2Wave
 is not a lessee or sublessee under any real property lease or sublease
 pursuant to which the lessor or the sublessor may obtain any rights in any of
 the Collateral, except for the leases or subleases for locations (a) as to
 which Wave2Wave has delivered to Lender a landlord’s waiver in form and
 substance satisfactory to Lender or (b) where the value of the Collateral is
 at all times less than $250,000.”

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
                     (c)
 Section 5.20 of the Loan Agreement is hereby amended by deleting the word
 “and” immediately prior to subclause (B) of clause (v) thereof, redesignating
 subclause (B) as subclause (C) of clause (v) thereof, and inserting a new
 subclause (B) of clause (v) therein to read as follows:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 ”, (B)
 indebtedness incurred pursuant to the Revolving Loan Documents subject to the
 terms of the Intercreditor Agreement and”

 
	
  

 	
  

 
	
  

 	
                     (d)
 Section 7.2 of the Loan Agreement is hereby amended by deleting clause (ii)
 of the proviso in the first sentence thereof and inserting the following
 clause (ii) therein:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 ”(ii) if any
 Borrower or Affiliate of any Borrower is also a party to a financing
 arrangement with Lender, no such early termination by Borrower Representative
 shall be effective unless such Person simultaneously terminates its financing
 arrangement with Lender.”

 
	
  

 	
  

 
	
  

 	
                     (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 Tight or remedy of Lender or relieve any Borrower
 of any of the Obligations

 


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 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, (a) the Mennen Trust
 acknowledges and agrees that the Revolving Joinder Agreement and Revolving
 Control Agreement shall be effective and in full force and effect without any
 action required by Lender, any of Lender’s Affiliates, the Mennen Trust, any
 of the Mennen Trust’s Affiliates or any other Person and (b) 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)
 Schedule B of the Loan Agreement is hereby amended by amending the definition
 of “Permitted Debt” by deleting the word “and” immediately prior to clause
 (iv) thereof, redesignating clause (iv) as clause (v) thereof, and inserting
 a new clause (iv) therein to read as follows:

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 ”, (iv)
 indebtedness incurred pursuant to the terms of the Revolving Loan Documents
 subject to the terms of the Intercreditor Agreement, and”

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
                     (g)
 Schedule B of the Loan Agreement is hereby amended by amending the definition
 of “Permitted Liens” by deleting the word “and” immediately prior to clause
 (xii) thereof, redesignating clause (xii) as clause (xii) thereof, and
 inserting a new clause (xii) therein to read as follows:

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 ”(xii) Liens
 on the assets of Borrowers with respect to the Revolving Loan Documents; and”

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
                     (h)
 Schedule B of the Loan Agreement is hereby amended by adding the following
 new definitions thereto in appropriate alphabetical order:

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  “Intercreditor Agreement” means
 that certain Intercreditor Agreement dated as of January 25, 2008 between
 Lender and Greystone Business Credit II, L.L.C., as amended, restated,
 supplemented or otherwise modified from time to time.”

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  “Revolving Control Agreement” means
 that certain Control Agreement, Trading and Payment of Interest and Dividends
 Permitted dated January 25, 2008 among the Mennen Trust, Wilmington Trust
 Company and Greystone Business Credit II, L.L.C., as amended, restated,
 supplemented or otherwise modified from time to time.”

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  “Revolving Joinder Agreement” means
 that certain Joinder Agreement dated January 25, 2008 among the Mennen Trust,
 certain Obligors and Greystone Business Credit II, L.L.C., as amended,
 restated, supplemented or otherwise modified from time to time.”

 


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  “Revolving Loan Agreement” means that certain Loan and Security
 Agreement dated January 25, 2008 among Greystone Business Credit II, L.L.C.,
 Wave2Wave and RNK, as amended, restated, supplemented or otherwise modified
 from time to time.”

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  “Revolving Loan Documents” means the Revolving Loan Agreement and each
 agreement, document or instrument executed in connection therewith, in each
 case, as amended, restated, supplemented or otherwise modified from time to
 time.”

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
                     4.
 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 each agreement, document and instrument set forth
 on the Closing Checklist set forth as Exhibit A hereto, each in form and substance
 satisfactory to Lender; 

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
                     
 (c) 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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
                     5.
 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;

 
	
  

 	
  

 
	
  

 	
                     (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. 

 
	
  

 	
  

 
	
  

 	
                     6.
 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 

 


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                     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. 

 






	
  

 	
  

 	
  

 	
  

 
	
 Borrowers:

 	
 Lender:

 
	
  

 
	
 WAVE2WAVE
 COMMUNICATIONS, INC.

 	
 GREYSTONE
 FUNDING CORPORATION

 
	
  

 
	
 By: /s/ Eric Mann

 	
 By: /s/ [illegible
 signature]

 
	
 Name: Eric Mann

 	
  

 	

 


 	
  

 
	
 Title: CFO

 	
  

 	
 Its Authorized Signatory 

 	
  

 



Signature
Page to Waiver, Consent and Amendment No. 2 to Loan and Security Agreement