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EXHIBIT 10.22  






 
 

LOAN AND SECURITY AGREEMENT
  
    by and among
  
    WORLDXCHANGE CORP.
  
    as Borrower,
  
    and
  
    FOOTHILL CAPITAL CORPORATION
  
    as Lender
  
    Dated as of
December 10, 2001    
  










   LOAN AND SECURITY AGREEMENT  


        THIS LOAN AND SECURITY AGREEMENT (this "Agreement"), is entered into as of December 10, 2001, between  FOOTHILL
CAPITAL CORPORATION, a California corporation ("Lender"), and WORLDXCHANGE CORP., a Delaware
corporation ("Borrower"). 


        The
parties agree as follows: 


1.    DEFINITIONS AND CONSTRUCTION.  


        1.1    Definitions.    As used in this Agreement, the following terms shall have the
following
definitions: 




        "Account Debtor" means any Person who is or who may become obligated under, with respect to, or on account of, an Account, chattel paper, or a General
Intangible.
With respect to any LEC Account, "Account Debtor" refers to the LEC obligated with respect thereto rather than the end-user unless the context in which such term is used clearly requires
otherwise. With respect to any Clearinghouse Account, "Account Debtor" refers to the Clearinghouse obligated with respect thereto rather than the end-user unless the context in which such
term is used clearly requires otherwise. 



        "Accounts" means all of Borrower's now owned or hereafter acquired right, title, and interest with respect to "accounts" (as that term is defined in the Code),
and any and all supporting obligations in respect thereof. 


         "ACH Transactions" means any cash management or related services (including the Automated Clearing House processing of electronic funds transfers through the
direct Federal Reserve Fedline system) provided by Wells Fargo or its Affiliates for the account of Borrower or its Subsidiaries. 



        "Acquisition" means the acquisition by Borrower of all or substantially all of the Stock of any other Person or all or substantially all of the assets of any
other Person, including any such acquisition accomplished by means of a merger or consolidation. 


         "Additional Documents" has the meaning set forth in Section 4.4. 


         "Advances" has the meaning set forth in Section 2.1. 



        "Affiliate" means, as applied to any Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with, such
Person. For purposes of this definition, "control" means the possession, directly or indirectly, of the power to direct the management and policies of a Person, whether through the ownership of Stock,
by contract, or otherwise; provided, however, that, for purposes of the definition of Eligible Accounts and Section 7.14  hereof: (a) any Person
which owns directly or indirectly 10% or more of the securities having ordinary voting power for the election of directors or other members of the
governing body of a Person or 10% or more of the partnership or other ownership interests of a Person (other than as a limited partner of such Person) shall be deemed to control such Person,
(b) each director (or comparable manager) of a Person shall be deemed to be an Affiliate of such Person, and (c) each partnership or joint venture in which a Person is a partner or joint
venturer shall be deemed to be an Affiliate of such Person. 


         "Agreement" has the meaning set forth in the preamble hereto. 



        "Applicable Prepayment Premium" means, as of any date of determination, an amount equal to (a) during the period of time from and after the date of the
execution and delivery 




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of this Agreement up to, but not including, the date that is the first anniversary of the Closing Date, 3% times the Maximum Revolver Amount,
(b) during the period of time from and including the date that is the first anniversary of the Closing Date up to, but not including, the date that is the second anniversary of the Closing
Date, 2% times the Maximum Revolver Amount, and (c) during the period of
time from and including the date that is the second anniversary of the Closing Date up to and including the Maturity Date, 1% times the Maximum Revolver
Amount. 


         "Approved Billing Services Agreement" means a Billing Services Agreement a true and complete copy of which previously has been provided to Lender and Lender's
counsel for review, that is in form and substance reasonably satisfactory to Lender, with respect to which the rights of Borrower thereunder may be the subject of an attached, enforceable, and
perfected security interest in favor of Lender. 


         "Assignee" has the meaning set forth in Section 14.1(a). 


         "Authorized Person" means any officer or other employee of Borrower. 


         "Availability" means, as of any date of determination, if such date is a Business Day, and determined at the close of business on the immediately preceding
Business Day, if such date of determination is not a Business Day, the amount that Borrower is entitled to borrow as Advances under Section 2.1  (after giving effect to all then outstanding
Obligations (other than Bank Products Obligations) and all sublimits and reserves applicable hereunder). 


         "Bank Product Agreements" means those certain cash management service agreements entered into from time to time by Borrower or its Subsidiaries in connection
with
any of the Bank Products. 


         "Bank Product Obligations" means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by Borrower or its Subsidiaries
to
Wells Fargo or its Affiliates pursuant to or evidenced by the Bank Product Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter arising, and including all such amounts that Borrower is obligated to reimburse to Lender as a result of Lender purchasing participations or executing
indemnities or reimbursement obligations with respect to the Bank Products provided to Borrower or its Subsidiaries pursuant to the Bank Product Agreements. 


         "Bank Products" means any service or facility extended to Borrower or its Subsidiaries by Wells Fargo or any Affiliate of Wells Fargo including:
(a) credit
cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH Transactions, (f) cash management, including controlled disbursement,
accounts or services, or (g) Hedge Agreements. 


         "Bank Product Reserves" means, as of any date of determination, the amount of reserves that Lender has established (based upon Wells Fargo's or its
Affiliate's
reasonable determination of the credit exposure in respect of then extant Bank Products) for Bank Products then provided or outstanding. 


         "Bankruptcy Code" means the United States Bankruptcy Code, as in effect from time to time. 



        "Base Rate" means, the rate of interest announced within Wells Fargo at its principal office in San Francisco as its "prime rate", with the understanding that
the
"prime rate" is one of Wells Fargo's base rates (not necessarily the lowest of such rates) and serves as the 




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basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publication or
publications as Wells Fargo may designate. 


        "Base Rate Loan" means each portion of an Advance that bears interest at a rate determined by reference to the Base Rate. 


         "Base Rate Margin" means 1.75 percentage points. 


         "Benefit Plan" means a "defined benefit plan" (as defined in Section 3(35) of ERISA) for which Borrower or
any Subsidiary or ERISA Affiliate of Borrower has been an "employer" (as defined in Section 3(5) of ERISA) within the past six years. 



        "Billing and Collection Charges Reserve" means, as of any date of determination thereof, which determination shall not be made more frequently than weekly
without
the consent of Borrower unless an Event of Default has occurred and is continuing, the actual aggregate outstanding accrued and unpaid obligations of Borrower to LECs or Clearinghouses, on such date
of determination, with respect to billing and collection charges payable under Billing Services Agreements for those LECs or Clearinghouses which bill such charges separately to Borrower (as opposed
to being offset directly on a LEC Confirmation Statement or a Clearinghouse Confirmation Statement). 



        "Billing Reserve" means $500,000; provided, however, that if, as of any date of determination after
June 30, 2002, Borrower maintains EBITDA of $2,500,000 for the immediately preceding 6 month period, then the Billing Reserve shall be reduced to $0. 


         "Billing Services Agreement" means a billing services agreement or similar agreement that has been entered into and is in full force and effect between
Borrower
and a LEC or a Clearinghouse. 


        "Board of Directors" means the board of directors (or comparable managers) of Borrower or any committee thereof duly authorized to act on behalf of the board.



         "Books" means Borrower's now owned or hereafter acquired books and records (including all of its Records indicating, summarizing, or evidencing its assets
(including the Collateral) or liabilities, all of its Records relating to its business operations or financial condition, and all of its goods or General Intangibles related to such information). 



        "Borrower" has the meaning set forth in the preamble to this Agreement. 


         "Borrower's 2002 Business Plan" means the written business plan for Borrower with respect to Borrower's fiscal year 2002 that is attached hereto as 
Exhibit B-1. 


         "Borrowing" means a borrowing hereunder of an Advance. 



        "Borrowing Base" has the meaning set forth in Section 2.1. 


         "Borrowing Base Certificate" means a certificate in the form of Exhibit B-2. 


         "Business" means the sale of long distance telecommunications services throughout the United States. 



        "Business Day" means any day that is not a Saturday, Sunday, or other day on which national banks are authorized or required to close. 




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         "Canadian Subsidiary" means WorldxChange Communications, Inc., a company organized under the laws of Canada. 



        "Capital Lease" means a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP. 


         "Capitalized Lease Obligation" means any Indebtedness represented by obligations under a Capital Lease. 


         "Carrier" means any provider of long distance telecommunications access or network services with whom Borrower from time to time does business. 



        "Carrier Agreement" means each contract or agreement in effect between Borrower and a Carrier. 


         "Cash Equivalents" means (a) marketable direct obligations issued or unconditionally guaranteed by the United States or issued by any agency thereof and
backed by the full faith and credit of the United States, in each case maturing within 1 year from the date of acquisition thereof, (b) marketable direct obligations issued by any state
of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within 1 year from the date of acquisition thereof and, at the time of
acquisition, having the highest rating obtainable from either S&P or Moody's, (c) commercial paper maturing no more than 1 year from the date of acquisition thereof and, at the time of
acquisition, having a rating of A-1 or P-1, or better, from S&P or Moody's, and (d) certificates of deposit or bankers'
acceptances maturing within 1 year from the date of acquisition thereof either (i) issued by any bank organized under the laws of the United States or any state thereof which bank has a
rating of A or A2, or better, from S&P or Moody's, or (ii) certificates of deposit less than or equal to $100,000 in the aggregate issued by any other bank insured by the Federal Deposit
Insurance Corporation. 


        "Cash Management Bank" has the meaning set forth in Section 2.7(a). 


         "Cash Management Account" has the meaning set forth in Section 2.7(a). 


         "Cash Management Agreements" means those certain cash management service agreements, in form and substance satisfactory to Lender, each of which is among
Borrower, Lender, and one of the Cash Management Banks. 


        "Change of Control" means (a) any "person" or "group" (within the meaning of Sections 13(d) and 14(d) of the Exchange Act), other than
Permitted Holders, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 30%, or more, of the Stock of Borrower having the right
to vote for the election of members of the Board of Directors, or (b) a majority of the members of the Board of Directors do not constitute Continuing Directors. 


         "Clearinghouse" means any LEC billing clearinghouse that Borrower may engage from time to time. 



        "Clearinghouse Account" means, as of any date of determination, any Account of Borrower transferred or sold to, or submitted for billing and collection to or
through, a Clearinghouse. 


         "Clearinghouse Confirmation Statement" means a written confirmation statement sent to Borrower by a Clearinghouse to confirm the receipt by the Clearinghouse
from
Borrower of call transaction records relating to Accounts that the Clearinghouse is to bill to the end-user. 




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         "Closing Date" means the date of the making of the initial Advance (or other extension of credit) hereunder. 


         "Closing Date Business Plan" means the set of Projections of Borrower for the 1 year period following the Closing Date (on a month by month basis), in
form
and substance (including as to scope and underlying assumptions) satisfactory to Lender. 


        "Code" means the California Uniform Commercial Code, as in effect from time to time. 


         "Collateral" means all of Borrower's now owned or hereafter acquired right, title, and interest in and to each of the following: 


        (a)  Accounts,



        (b)  Books, 


        (c)  Equipment, 


        (d)  General
Intangibles, 


        (e)  Inventory,



        (f)    Investment
Property, 


        (g)  Negotiable
Collateral, 


        (h)  money
or other assets of Borrower that now or hereafter come into the possession, custody, or control of Lender, and 



        (i)    the
proceeds and products, whether tangible or intangible, of any of the foregoing, including proceeds of insurance covering any or all of the foregoing, and any and all
Accounts, Books, Equipment, General Intangibles, Inventory, Investment Property, Negotiable Collateral, Real Property, money, deposit accounts, or other tangible or intangible property resulting from
the sale, exchange, collection, or other disposition of any of the foregoing, or any portion thereof or interest therein, and the proceeds thereof. 


         "Collateral Access Agreement" means a landlord waiver, bailee letter, or acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other
Person in possession of, having a Lien upon, or having rights or interests in the Equipment or Inventory, in each case, in form and substance satisfactory to Lender. 


         "Collections" means all cash, checks, notes, instruments, and other items of payment (including insurance
proceeds, proceeds of cash sales, rental proceeds, and tax refunds) of Borrower. 


         "Compliance Certificate" means a certificate substantially in the form of Exhibit C-1 delivered
by the chief financial officer of Borrower to Lender. 


        "Continuing Director" means (a) any member of the Board of Directors who was a director (or comparable manager) of Borrower on the Closing Date, and
(b) any individual who becomes a member of the Board of Directors after the Closing Date if such individual was appointed or nominated for election to the Board of Directors by Permitted
Holders. 


         "Control Agreement" means a control agreement, in form and substance satisfactory to Lender, executed and delivered by Borrower, Lender, and the applicable
securities intermediary with respect to a Securities Account or bank with respect to a deposit account. 


        "Counsel" means Counsel Corporation, an Ontario corporation. 




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         "Counsel Loan" means the $14,850,000 Indebtedness owed by Borrower to Counsel US arising pursuant to that certain Loan and Security Agreement, as amended,
dated
as of June 4, 2001, between Borrower and Counsel US. 


        "Counsel US" means Counsel Corporation (US), a Delaware corporation. 


         "CPT" means CPT-1 Holdings, Inc., a Delaware corporation. 


         "Daily Balance" means, with respect to each day during the term of this Agreement, the amount of an Obligation owed at the end of such day. 


         "DDA" means any checking or other demand deposit account maintained by Borrower. 



        "Default" means an event, condition, or default that, with the giving of notice, the passage of time, or both, would be an Event of Default. 


         "Designated Account" means that certain DDA of Borrower identified on Schedule D-1. 


         "Designated Account Bank" means that certain bank of Borrower identified on Schedule D-1. 



        "Dilution" means, with respect to Accounts, in each case based upon the experience of the immediately prior 90 days, the result of dividing (a) the
Dollar amount of bad debt write-downs, credits, unbillable transactions, and other dilutive items with respect to the Accounts for such period (excluding billing and collection charges billed
separately to Borrower, and up-front rejects and up-front credits already
deducted in arriving at net confirmed revenues on Confirmation Statements), by (b) Borrower's net confirmed revenues for such period with respect to Accounts. 



        "Disbursement Letter" means an instructional letter executed and delivered by Borrower to Lender regarding the extensions of credit to be made on the Closing
Date, the form and substance of which is satisfactory to Lender. 


         "Dollars" or "$" means United States dollars. 


         "Due Diligence Letter" means the due diligence letter sent by Lender's counsel to Borrower, together with Borrower's completed responses to the inquiries set
forth therein, the form and substance of such responses to be satisfactory to Lender. 



        "EBITDA" means, with respect to any fiscal period, Borrower's and its Subsidiaries consolidated net earnings (or loss), minus
extraordinary gains, plus interest expense, income taxes, and depreciation and amortization for such period, as determined in
accordance with GAAP. 


         "Eligible Accounts" means those Accounts created by Borrower in the ordinary course of its business, that arise out of Borrower's sale of goods, sale of
Accounts
relating to the provision of telecommunication services, or rendition of services, that comply with each of the representations and warranties respecting Eligible Accounts made by Borrower in the Loan
Documents, and that are not excluded as ineligible by virtue of one or more of the criteria set forth below; provided, however, that such criteria may
be fixed and revised from time to time by Lender in Lender's Permitted Discretion to address the results of any audit performed by Lender from time to time after the Closing Date. In determining the
amount to be included, 




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Eligible Accounts shall be calculated net of customer deposits and unapplied cash remitted to Borrower. Eligible Accounts shall not include the following: 



        (a)  Accounts
that the Account Debtor has failed to pay within 90 days of original invoice date or Accounts with selling terms of more than 60 days, 


        (b)  Accounts
owed by an Account Debtor (or its Affiliates) where 50% or more of all Accounts owed by that Account Debtor (or its Affiliates) are deemed ineligible under
clause (a) above, 


        (c)  Accounts
with respect to which the Account Debtor is an employee, Affiliate, or agent of Borrower, 


        (d)  Accounts
arising in a transaction wherein goods are placed on consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and
hold, or any other terms by reason of which the payment by the Account Debtor may be conditional, 


        (e)  Accounts
that are not payable in Dollars, 


        (f)    Accounts
with respect to which the Account Debtor either (i) does not maintain its chief executive office in the United States, or (ii) is not organized
under the laws of the United States or any state thereof, or (iii) is the government of any foreign country or sovereign state, or of any state, province, municipality, or other political
subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, unless (y) the Account is supported by an irrevocable letter of credit satisfactory to
Lender (as to form, substance, and issuer or domestic confirming bank) that has been delivered to Lender and is directly drawable by Lender, or (z) the Account is covered by credit insurance in
form, substance, and amount, and by an insurer, satisfactory to Lender, 


        (g)  Accounts
with respect to which the Account Debtor is either (i) the United States or any department, agency, or instrumentality of the United States (exclusive,
however, of Accounts with respect to which Borrower has complied, to the reasonable satisfaction of Lender, with the Assignment of Claims Act, 31 USC § 3727), or (ii) any state of
the United States (exclusive, however, of (y) Accounts owed by any state that does not have a statutory counterpart to the Assignment of Claims Act, or (z) Accounts owed by any state
that does have a statutory counterpart to the Assignment of Claims Act as to which Borrower has complied to Lender's satisfaction), 


        (h)  Accounts
with respect to which the Account Debtor is a creditor of Borrower, has or has asserted a right of setoff, has disputed its liability, or has made any claim
with respect to its obligation to pay the Account, to the extent of such claim, right of setoff, or dispute, 


        (i)    (i) Accounts
with respect to an Account Debtor, other than a creditworthy ILEC, whose total obligations owing to Borrower exceed 20% (such percentage as applied
to a particular Account Debtor being subject to reduction by Lender in its Permitted Discretion if the creditworthiness of such Account Debtor deteriorates) of all Eligible Accounts, to the extent of
the obligations owing by such Account Debtor in excess of such percentage, and (ii) Accounts with respect to an Account Debtor that is a creditworthy ILEC whose total obligation owing to
Borrower exceeds 50% (such percentage as applied to a particular Account Debtor being subject to reduction by Lender in its Permitted Discretion if the
creditworthiness of such Account Debtor deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor in excess of such percentage, 



        (j)    Accounts
with respect to which the Account Debtor is subject to an Insolvency Proceeding, is not Solvent, has gone out of business, or as to which Borrower has received 




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notice of an imminent Insolvency Proceeding or a material impairment of the financial condition of such Account Debtor, 


        (k)  Accounts
with respect to which the Account Debtor is located in the states of New Jersey, Minnesota, or West Virginia (or any other state that requires a creditor to
file a business activity report or similar document in order to bring suit or otherwise enforce its remedies against such Account Debtor in the courts or through any judicial process of such
state), unless Borrower has qualified to do business in New Jersey, Minnesota, West Virginia, or such other states, or has filed a business activities report with the applicable division of taxation,
the department of revenue, or with such other state offices, as appropriate, for the then-current year, or is exempt from such filing requirement, 


        (l)    Accounts,
the collection of which, Lender, in its Permitted Discretion, believes to be doubtful by reason of the Account Debtor's financial condition, 



        (m)  Accounts
that are not subject to a valid and perfected first priority Lender's Lien, 


        (n)  LEC
Accounts submitted for billing and collection to a LEC with respect to which there does not exist an Approved Billing Services Agreement, 


        (o)  LEC
Accounts (i) that are not covered by a LEC Confirmation Statement received by Borrower from the applicable LEC, or (ii) that are covered by a LEC
Confirmation Statement received by Borrower from the applicable LEC to the extent of (without duplication) reductions of or offsets against amounts otherwise payable with respect thereto by reason of
up-front LEC rejects or credits deducted in arriving at net confirmed revenues on such LEC Confirmation Statement, 


        (p)  Clearinghouse
Accounts submitted for billing and collection to a Clearinghouse with respect to which there does not exist an Approved Billing Services Agreement, 


        (q)  Clearinghouse
Accounts (i) that are not covered by a Clearinghouse Confirmation Statement received by Borrower from the applicable Clearinghouse, or
(ii) that are covered by a Clearinghouse
Confirmation Statement received by Borrower from the applicable Clearinghouse to the extent of (without duplication) reductions of or offsets against amounts otherwise payable with respect thereto by
reason of up-front Clearinghouse rejects or credits deducted in arriving at net confirmed revenues on such Clearinghouse Confirmation Statement, 


        (r)  Accounts
with respect to which (i) the goods giving rise to such Account have not been shipped and billed to the Account Debtor, or (ii) the services
giving rise to such Account have not been performed and billed to the Account Debtor, or 


        (s)  Accounts
that represent the right to receive progress payments or other advance billings that are due prior to the completion of performance by Borrower of the subject
contract for goods or services. 


        "Environmental Actions" means any complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative
proceeding,
judgment, letter, or other communication from any Governmental Authority, or any third party involving violations of Environmental Laws or releases of Hazardous Materials from (a) any assets,
properties, or businesses of Borrower or any predecessor in interest, (b) from adjoining properties or businesses, or (c) from or onto any facilities which received Hazardous Materials
generated by Borrower or any predecessor in interest. 


        "Environmental Law" means any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable
guideline, binding and 




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enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, to the extent binding on Borrower, relating to the environment, employee health and safety, or Hazardous Materials, including CERCLA; RCRA; the
Federal Water Pollution Control Act, 33 USC § 1251 et seq; the Toxic Substances Control Act, 15 USC, § 2601  et seq; the Clean Air Act, 42 USC
§ 7401 et seq.; the Safe Drinking Water Act, 42 USC.
§ 3803 et seq.; the Oil Pollution Act of 1990, 33 USC. § 2701 et seq.; the
Emergency Planning and the Community Right-to-Know Act of 1986, 42 USC. § 11001 et seq.; the Hazardous Material
Transportation Act, 49 USC § 1801 et seq.; and the Occupational Safety and Health Act, 29 USC. §651 et
seq. (to the extent it regulates occupational exposure to Hazardous Materials); any state and local or foreign counterparts or equivalents, in each case as amended from time to
time. 


         "Environmental Liabilities and Costs" means all liabilities, monetary obligations, Remedial Actions, losses, damages, punitive damages, consequential damages,
treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines,
penalties, sanctions, and interest incurred as a result of
any claim or demand by any Governmental Authority or any third party, and which relate to any Environmental Action. 


         "Environmental Lien" means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs. 


         "Equipment" means all of Borrower's now owned or hereafter acquired right, title, and interest with respect to equipment, machinery, machine tools, motors,
furniture, furnishings, fixtures, vehicles (including motor vehicles), tools, parts, goods (other than consumer goods, farm products, or Inventory), wherever located, including all attachments,
accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing. 


         "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto. 


         "ERISA Affiliate" means (a) any Person subject to ERISA whose employees are treated as employed by the same employer as the employees of Borrower under
IRC
Section 414(b), (b) any trade or business subject to ERISA whose employees are treated as employed by the same employer as the employees of Borrower under IRC Section 414(c),
(c) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any organization subject to ERISA that is a member of an affiliated service group of which Borrower is
a member under IRC Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that is a party to an
arrangement with Borrower and whose employees are aggregated with the employees of Borrower under IRC Section 414(o). 


         "Event of Default" has the meaning set forth in Section 8. 



        "Excess Availability" means the amount, as of the date any determination thereof is to be made, equal to Availability minus
the aggregate amount, if any, of all trade payables of Borrower aged in excess of historical levels with respect thereto and all book overdrafts in excess of historical
practices with respect thereto, in each case as determined by Lender in its Permitted Discretion. 


         "Exchange Act" means the Securities Exchange Act of 1934, as in effect from time to time. 




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         "Fee Letter" means that certain fee letter, dated as of even date herewith, between Borrower and Lender, in form and substance satisfactory to Lender.



         "FEIN" means Federal Employer Identification Number. 


         "Funding Date" means the date on which a Borrowing occurs. 



        "Funding Losses" has the meaning set forth in Section 2.13(b)(ii). 


         "GAAP" means generally accepted accounting principles as in effect from time to time in the United States, consistently applied. 


         "General Intangibles" means all of Borrower's now owned or hereafter acquired right, title, and interest with respect to general intangibles (including
payment
intangibles, contract rights, rights to payment, rights arising under common law, statutes, or regulations, choses or things in action, goodwill, patents, trade names, trademarks, servicemarks,
copyrights, blueprints, drawings, purchase orders, customer lists, monies due or recoverable from pension funds, route lists, rights to payment and other rights under any royalty or licensing
agreements, infringement claims, computer programs, information contained on computer disks or tapes, software, literature, reports, catalogs, money, deposit accounts, insurance premium rebates, tax
refunds, and tax refund claims), and any and all supporting obligations in respect thereof, and any other personal property other than goods, Accounts, Investment Property, and Negotiable Collateral. 


         "Governing Documents" means, with respect to any Person, the certificate or articles of incorporation, by-laws, or other organizational documents of
such Person. 


        "Governmental Authority" means any federal, state, local, or other governmental or administrative body, instrumentality, department, or agency or any court,
tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving panel or body. 


         "Guarantor" means CPT. 


         "Guaranty" means a limited recourse guaranty executed and delivered by CPT in favor of Lender whereby CPT guaranties the Obligations, with recovery against
CPT
for the Obligations so guarantied limited to all of the issued and outstanding Stock of Borrower owned by CPT. 


         "Hazardous Materials" means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as
"hazardous substances," "hazardous materials," "hazardous wastes," "toxic substances," or any other formulation intended to define, list, or classify substances by reason of deleterious properties
such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or "EP toxicity", (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids,
synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any
flammable substances or explosives or any radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of 50 parts per million. 




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         "Hedge Agreement" means any and all transactions, agreements, or documents now existing or hereafter entered into between Borrower or its Subsidiaries and
Wells
Fargo or its Affiliates, which provide for an interest rate, credit, commodity 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 Borrower's or its Subsidiaries' exposure to fluctuations in interest or
exchange rates, loan, credit exchange, security or currency valuations or commodity prices. 


         "ILEC" means an incumbent LEC. 


         "Indebtedness" means (a) all obligations of Borrower for borrowed money, (b) all obligations of Borrower evidenced by bonds, debentures, notes, or
other similar instruments and all reimbursement or other obligations of Borrower in respect of letters of credit, bankers acceptances, interest rate swaps, or other financial products, (c) all
obligations of Borrower under Capital Leases, (d) all obligations or liabilities of others secured by a Lien on any asset of Borrower, irrespective of whether such obligation or liability is
assumed, (e) all obligations of Borrower for the deferred purchase price of assets (other than trade debt incurred in the ordinary course of Borrower's business and repayable in accordance with
customary trade practices), and (f) any obligation of Borrower guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or
sold with recourse to Borrower) any obligation of any other Person. 


         "Indemnified Liabilities" has the meaning set forth in Section 11.3. 



        "Indemnified Person" has the meaning set forth in Section 11.3. 


         "Insolvency Proceeding" means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any other state or federal
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. 



        "Intangible Assets" means, with respect to any Person, that portion of the book value of all of such Person's assets that would be treated as intangibles under
GAAP. 


         "Inventory" means all Borrower's now owned or hereafter acquired right, title, and interest with respect to inventory, including goods held for sale or lease
or
to be furnished under a contract of service, goods that are leased by Borrower as lessor, goods that are furnished by Borrower under a contract of service, and raw materials, work in process, or
materials used or consumed in Borrower's business. 


        "Investment" means, with respect to any Person, any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees,
advances, or capital contributions (excluding (a) commission, travel, and similar advances to officers and employees of such Person made in the ordinary course of business, and
(b) bona fide Accounts arising from the sale of goods or rendition of services in the ordinary course of business consistent with past practice),
purchases or other acquisitions for consideration of Indebtedness or Stock, and any other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. 



        "Intercreditor Agreement" means an intercreditor agreement, in form and substance satisfactory to Lender, executed and delivered by Counsel US and Lender.





11





 





         "Investment Property" means all of Borrower's now owned or hereafter acquired right, title, and interest with respect to "investment property" as that term is
defined in the Code, and any and all supporting obligations in respect thereof. 


        "IRC" means the Internal Revenue Code of 1986, as in effect from time to time. 


         "LEC" means a local exchange carrier or telephone company that provides basic telecommunications services to its customers and from whom Borrower receives
payments with respect to Accounts. 


         "LEC Account" means, as of any date of determination, any Account of Borrower submitted by or on behalf of Borrower to a LEC for billing and payment pursuant
to a
Billing Services Agreement. 


        "LEC Confirmation Statement" means a written confirmation statement sent to Borrower by a LEC to confirm the receipt by the LEC from Borrower of call
transaction
records relating to Accounts that the LEC is to bill to the end-user. 


         "LEC Reserve" means, as of any date of determination thereof, which determinations shall not be made more frequently than weekly without the consent of
Borrower
unless an Event of Default has occurred and is continuing, the actual aggregate outstanding accrued and unpaid obligations of Borrower to each LEC for which Borrower is including LEC Accounts in the
Borrowing Base with respect to connection or access charges. 


        "Lender" has the meaning set forth in the preamble to this Agreement. 


         "Lender Expenses" means all (a) costs or expenses (including taxes, and insurance premiums) required to be paid by Borrower under any of the Loan
Documents
that are paid or incurred by Lender, (b) reasonable fees or charges paid or incurred by Lender in connection with Lender's transactions with Borrower, including, fees or charges for
photocopying, notarization, couriers and messengers, telecommunication, public record searches (including tax lien, litigation, and UCC searches and including searches with the patent and trademark
office, the copyright office, or the department of motor vehicles), filing, recording, publication, periodic business valuations (to the extent of the fees and charges (and up to the amount of any
limitation) contained in this Agreement), real estate surveys, real estate title policies and endorsements, and environmental audits, (c) reasonable costs and expenses incurred by Lender in the
disbursement of funds to Borrower (by wire transfer or otherwise), (d) charges paid or incurred by Lender resulting from the dishonor of checks, (e) reasonable costs and expenses paid or
incurred by Lender to correct any default or enforce any provision of the Loan Documents, or in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for
sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated, (f) audit fees and expenses of Lender related to audit examinations of the
Books to the extent of the fees and charges (and up to the amount of any limitation) contained in this Agreement, (g) reasonable costs and expenses of third party claims or any other suit paid
or incurred by Lender in enforcing or defending the Loan Documents or in connection with the transactions contemplated by the Loan Documents or Lender's relationship with Borrower or any guarantor of
the Obligations, (h) Lender's reasonable fees and expenses (including attorneys fees) incurred in advising, structuring, drafting, reviewing, administering, or amending the Loan Documents, and
(i) Lender's
reasonable fees and expenses (including attorneys fees) incurred in terminating, enforcing (including attorneys fees and expenses incurred in connection with a "workout," a "restructuring," or an
Insolvency Proceeding concerning Borrower or in exercising rights or remedies under the Loan Documents), or defending the 




12





 






Loan Documents, irrespective of whether suit is brought, or in taking any Remedial Action concerning the Collateral. 


         "Lender-Related Person" means Lender, Lender's Affiliates, and the officers, directors, employees, and agents of Lender. 



        "Lender's Account" means the account identified on Schedule L-1. 


         "Lender's Liens" means the Liens granted by Borrower to Lender under this Agreement or the other Loan Documents. 


         "Lien" means any interest in an asset securing an obligation owed to, or a claim by, any Person other than the owner of the asset, whether such interest shall
be
based on the common law, statute, or contract, whether such interest shall be recorded or perfected, and whether such interest shall be contingent upon the occurrence of some future event or events or
the existence of some future circumstance or circumstances, including the lien or security interest arising from a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment, deposit
arrangement, security agreement, conditional sale or trust receipt, or from a lease, consignment, or bailment for security purposes and also including reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases, and other title exceptions and encumbrances affecting Real Property. 


         "Loan Account" has the meaning set forth in Section 2.10. 



        "Loan Documents" means this Agreement, the Bank Product Agreements, the Cash Management Agreements, the Control Agreements, the Disbursement Letter, the Due
Diligence Letter, the Fee Letter, the Guaranty, the Officers' Certificate, the Stock Pledge Agreement, any note or notes executed by Borrower in connection with this Agreement and payable to Lender,
and any other agreement entered into, now or in the future, by Borrower and Lender in connection with this Agreement. 


         "Material Adverse Change" means (a) a material adverse change in the business, prospects, operations, results of operations, assets, liabilities or
condition (financial or otherwise) of Borrower, (b) a material impairment of Borrower's ability to perform its obligations under the Loan Documents to which it is a party or of Lender's ability
to enforce the Obligations or realize upon the Collateral, or (c) a material impairment of the enforceability or priority of the Lender's Liens with respect to the Collateral as a result of an
action or failure to act on the part of Borrower. 


         "Maturity Date" has the meaning set forth in Section 3.4. 


         "Maximum Revolver Amount" means $20,000,000. 



        "Negotiable Collateral" means all of Borrower's now owned and hereafter acquired right, title, and interest with respect to letters of credit, letter of credit
rights, instruments, promissory notes, drafts, documents, and chattel paper (including electronic chattel paper and tangible chattel paper), and any and all supporting obligations in respect thereof. 


         "Obligations" means (a) all loans, Advances, debts, principal, interest (including any interest that, but for the provisions of the Bankruptcy Code,
would
have accrued), contingent reimbursement obligations with respect to outstanding premiums, liabilities (including all amounts charged to Borrower's Loan Account pursuant hereto), obligations, fees
(including the fees provided for in the Fee Letter), charges, costs, Lender Expenses (including any fees or expenses that, but for the provisions of the Bankruptcy Code, would have accrued), lease
payments, guaranties, covenants, and duties of any kind and description owing by Borrower to 




13





 






Lender pursuant to or evidenced by the Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, and including all interest not paid when due and all Lender Expenses that Borrower is required to pay or reimburse by the Loan Documents, by law, or otherwise, and (b) all
Bank Product Obligations. Any reference in this Agreement or in the Loan Documents to the Obligations shall include all amendments, changes, extensions, modifications, renewals replacements,
substitutions, and supplements, thereto and thereof, as applicable, both prior and subsequent to any Insolvency Proceeding. 


         "Officers' Certificate" means the representations and warranties of officers form submitted by Lender to Borrower, together with Borrower's completed
responses to
the inquiries set forth therein, the form and substance of such responses to be satisfactory to Lender. 



        "Originating Lender" has the meaning set forth in Section 14.1(d). 


         "Overadvance" has the meaning set forth in Section 2.5. 


         "PAR" means purchase of accounts receivable. 


         "PAR Statement" means a written confirmation sent to Borrower by a LEC or Clearinghouse to confirm the receipt by such LEC or Clearinghouse from Borrower of
the
charges that such LEC or Clearinghouse are to bill on behalf of Borrower to the end-user. 


         "Participant" has the meaning set forth in Section 14.1(d). 


         "Permitted Acquisition" means an Acquisition by Borrower so long as (a) no Default or Event of Default shall have occurred and be continuing or would
result from the consummation of the proposed Acquisition, (b) the Person, or the assets of the Person, being acquired are useful in the business of Borrower as such business exists on the
Closing Date, (c) Borrower has (i) complied with its obligations under Section 4.1 hereof or (ii) in the case of the
acquisition of Stock of a Person, has caused the Person that is the subject of the Acquisition to execute and deliver a guaranty of the Obligations and a security agreement encumbering, on a
first-priority basis, all of its assets to secure such guaranty, in each case in form and substance satisfactory to Lender, and (d) Borrower obtains the written consent of Lender prior to the
consummation of the proposed Acquisition. 


         "Permitted Discretion" means a determination made in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender)
business
judgment. 


        "Permitted Dispositions" means (a) sales or other dispositions by Borrower of Equipment that is substantially worn, damaged, or obsolete in the ordinary
course of Borrower's business, (b) the use or transfer of money or Cash Equivalents by Borrower in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents,
and (c) the licensing by Borrower, on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of Borrower's
business. 


         "Permitted Holder" means Counsel or any of its Subsidiaries. 



        "Permitted Investments" means (a) investments in Cash Equivalents, (b) investments in negotiable instruments for collection, and (c) advances
made in connection with purchases of goods or services in the ordinary course of business. 


         "Permitted Liens" means (a) Liens held by Lender, (b) Liens for unpaid taxes that either (i) are not yet delinquent, or (ii) do not
constitute an Event of Default hereunder and are the subject of Permitted Protests, (c) Liens set forth on Schedule P-1,
(d) the interests of lessors 




14





 






under operating leases, (e) purchase money Liens or the interests of lessors under Capital Leases to the extent that such Liens or interests secure Permitted Purchase Money Indebtedness and so
long as such Lien attaches only to the asset purchased or acquired and the proceeds thereof, (f) Liens arising by operation of law in favor of warehousemen, landlords, carriers, mechanics,
materialmen, laborers, or suppliers, incurred in the ordinary course of business of Borrower and not in connection with the borrowing of money, and which Liens either (i) are for sums not yet
delinquent, or (ii) are the subject of Permitted Protests, (g) Liens arising from deposits made in connection with obtaining worker's compensation or other unemployment insurance,
(h) Liens or deposits to secure performance of bids, tenders, or leases incurred in the ordinary course of business of Borrower and not in connection with the borrowing of money,
(i) Liens granted as security for surety or appeal bonds in connection with obtaining such bonds in the ordinary course of business of Borrower, (j) Liens resulting from any judgment or
award that is not an Event of Default hereunder, (k) Liens with respect to the Real Property Collateral that are exceptions to the commitments for title insurance issued in connection with the
Mortgages, as accepted by Lender, and (l) with respect to any Real Property that is not part of the Real Property Collateral, easements, rights of way, and zoning restrictions that do not
materially interfere with or impair the use or operation thereof by Borrower. 


         "Permitted Protest" means the right of Borrower to protest any Lien (other than any such Lien that secures the Obligations), taxes (other than payroll taxes
or
taxes that are the subject of a United States federal tax lien), or rental payment, provided that (a) a reserve with respect to such obligation is established on the Books in such amount as is
required under GAAP, (b) any such protest is instituted promptly and prosecuted diligently by Borrower in good faith, and (c) Lender is satisfied that, while any
such protest is pending, there will be no impairment of the enforceability, validity, or priority of any of the Lender's Liens. 


         "Permitted Purchase Money Indebtedness" means, as of any date of determination, Purchase Money Indebtedness incurred after the Closing Date in an aggregate
principal amount outstanding at any one time not in excess of $7,000,000. 


         "Person" means natural persons, corporations, limited liability companies, limited partnerships, general partnerships, limited liability partnerships, joint
ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments and agencies and political subdivisions thereof. 


         "Personal Property Collateral" means all Collateral other than Real Property. 


         "Projections" means Borrower's forecasted (a) balance sheets, (b) profit and loss statements, and (c) cash flow statements, all prepared on a
basis consistent with Borrower's historical financial statements, together with appropriate supporting details and a statement of underlying assumptions. 



        "Purchase Money Indebtedness" means Indebtedness (other than the Obligations, but including Capitalized Lease Obligations), incurred at the time of, or within
20 days after, the acquisition of any fixed assets for the purpose of financing all or any part of the acquisition cost thereof. 


         "Real Property" means any estates or interests in real property now owned or hereafter acquired by Borrower and the improvements thereto. 



        "Record" means information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form.





15





 





         "Remedial Action" means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous
Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public
health or welfare or the indoor or outdoor environment, (c) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or
(d) conduct any other actions authorized by 42 USC § 9601. 


         "Report" has the meaning set forth in Section 16.17. 



        "Required Availability" means Excess Availability and unrestricted cash and Cash Equivalents in an amount of not less than $2,500,000. 


         "Revolver Usage" means, as of any date of determination, the then extant amount of outstanding Advances. 


         "SEC" means the United States Securities and Exchange Commission and any successor thereto. 


         "Securities Account" means a "securities account" as that term is defined in the Code. 



        "Solvent" means, with respect to any Person on a particular date, that such Person is not insolvent (as such term is defined in the Uniform Fraudulent Transfer
Act). 


         "Stock" means all shares, options, warrants, interests, participations, or other equivalents (regardless of how designated) of or in a Person, whether voting
or
nonvoting, including common stock, preferred stock, or any other "equity security" (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by
the SEC under the Exchange Act). 


        "Stock Pledge Agreement" means a stock pledge agreement, in form and substance satisfactory to Lender, executed and delivered by CPT to Lender with respect to
the
pledge of the Stock of Borrower owned by CPT. 


         "Subsidiary" of a Person means a corporation, partnership, limited liability company, or other entity in which that Person directly or indirectly owns or
controls
the shares of Stock having ordinary voting power to elect a majority of the board of directors (or appoint other comparable managers) of such corporation, partnership, limited liability company, or
other entity. 


        "Subsidiary Stock Pledge Agreement" means a stock pledge agreement, in form and substance satisfactory to Lender, executed and delivered by Borrower to Lender
with respect to the pledge of the Stock of Canadian Subsidiary owned by Borrower. 


         "Taxes" has the meaning set forth in Section 16.5. 


         "Telecommunication Taxes" means all excise or other special taxes that in any way relate to the Borrower's provision of telecommunications services.




        "Telecommunication Tax Reserve" means, as of any date of determination by Lender, which determinations shall not be made more frequently than monthly without
the
consent of Borrower unless an Event of Default has occurred and is continuing, an amount (without duplication) equal to the aggregate amount of all unpaid Telecommunications Taxes and any related tax
liens arising, or that may in the future arise, with respect to such unpaid 




16





 






Telecommunication Taxes, that Lender reasonably determines to have priority over Lender's liens or security interests in the Collateral. 


         "Voidable Transfer" has the meaning set forth in Section 16.8. 


         "Wells Fargo" means Wells Fargo Bank, National Association, a national banking association. 





        1.2    Accounting Terms.    All accounting terms not specifically defined herein
shall be
construed in accordance with GAAP. When used herein, the term "financial statements" shall include the notes and schedules thereto. Whenever the term "Borrower" is used in respect of a financial
covenant or a related definition, it shall be understood to mean Borrower and its Subsidiaries on a consolidated basis unless the context clearly requires otherwise. 


        1.3    Code.    Any terms used in this Agreement that are defined in the Code shall
be
construed and defined as set forth in the Code unless otherwise defined herein. 



        1.4    Construction.    Unless the context of this Agreement or any other Loan
Document
clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the term "including" is not limiting, and the term "or" has, except where
otherwise indicated, the inclusive meaning represented by the phrase "and/or." The words "hereof," "herein," "hereby," "hereunder," and similar terms in this Agreement or any other Loan Document refer
to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular provision of this Agreement or such other Loan Document, as the case may be. Section,
subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Agreement or in the other Loan Documents to any agreement,
instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as
applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). Any
reference herein to any Person shall be construed to include such Person's successors and permitted assigns. Any requirement of a writing contained herein or in the other Loan Documents shall be
satisfied by the transmission of a Record and any Record transmitted shall constitute a representation and warranty as to the accuracy and completeness of the information contained therein. 



        1.5    Schedules and Exhibits.    All of the schedules and exhibits attached to this
Agreement
shall be deemed incorporated herein by reference. 


2.    LOAN AND TERMS OF PAYMENT.  


        2.1    Revolver Advances.    




        (a)  Subject
to the terms and conditions of this Agreement, and during the term of this Agreement, Lender agrees to make advances
("Advances") to Borrower in an amount at any one time outstanding
not to exceed an amount equal to the lesser of (i) the Maximum Revolver Amount, or (ii) the Borrowing Base. For purposes of this
Agreement, "Borrowing Base," as of any date of determination, shall mean the result of: 



        (y)  the lesser of



        (i)    85%
of the amount of Eligible Accounts, less the amounts, if any, of each of (A) the Dilution Reserve,
(B) the LEC Reserve, and (C) the Billing and Collection Charges Reserve, and 


        (ii)  an
amount equal to Borrower's Collections with respect to Accounts for the immediately preceding 90 day period,  minus






17





 








        (z)  the
sum of (i) the Bank Products Reserve, (ii) the Telecommunication Tax Reserve, (iii) the Billing Reserve, and (iv) the aggregate amount of
reserves, if any, established by Lender under Section 2.1(b). 




        (b)  Anything
to the contrary in this Section 2.1 notwithstanding, Lender shall have the right to establish reserves in
such amounts, and with respect to such matters, as Lender in its Permitted Discretion shall deem necessary or appropriate, against the Borrowing Base, including reserves with respect to
(i) sums that Borrower is required to pay (such as taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to
pay under any Section of this Agreement or any other Loan Document, and (ii) amounts owing by Borrower to any Person to the extent secured by a Lien on, or trust over, any of the Collateral
(other than any existing Permitted Lien set forth on Schedule P-1 which is specifically identified thereon as entitled to have
priority over the Lender's Liens), which Lien or trust, in the Permitted Discretion of Lender likely would have a priority superior to the Lender's Liens (such as Liens or trusts in favor of
landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales, or other taxes
where given priority under applicable law) in and to such item of the Collateral. 


        (c)  Lender
shall have no obligation to make additional Advances hereunder to the extent such additional Advances would cause the Revolver Usage to exceed the Maximum
Revolver Amount. 


        (d)  Amounts
borrowed pursuant to this Section may be repaid and, subject to the terms and conditions of this Agreement, reborrowed at any time during the term of this
Agreement. 





        2.2    Intentionally omitted    


        2.3    Borrowing Procedures and Settlements.    




        (a)  Procedure for Borrowing. Each Borrowing shall be made by a request by an Authorized Person delivered to Lender (which
notice must be received by Lender no later than 10:00 a.m. (California time) on the Business Day that is the requested Funding Date specifying (i) the amount of such Borrowing, and
(ii) the requested Funding Date, which shall be a Business Day. At Lender's election, in lieu of delivering the above-described request in writing, any Authorized Person may give Lender
telephonic notice of such request by the required time, with such telephonic notice to be confirmed in writing within 24 hours of the giving of such notice. 


        (b)  Making of Advances. If Lender has received a timely request for a Borrowing in accordance with the provisions hereof, and
subject to the satisfaction of the applicable terms and conditions set forth herein, Lender shall make the proceeds of such Advance available to Borrower on the applicable Funding Date by transferring
immediately available funds equal to such proceeds to Borrower's Designated Account. 





        2.4    Payments.    




        (a)  Payments by Borrower. 



        (i)    Except
as otherwise expressly provided herein, all payments by Borrower shall be made to Lender's Account and shall be made in immediately available funds, no later than
11:00 a.m. (California time) on the date specified herein. Any payment received by Lender later than 11:00 a.m. (California time) shall be deemed to have been received on the following
Business Day and any applicable interest or fee shall continue to accrue until such following Business Day. 





18





 



        (ii)  Borrower
shall make payments to ensure that no Advance or portion of any Advance shall be outstanding for more than 364 days. 




        (b)  Application and Reversal of Payments. 



        (i)    All
payments shall be remitted to Lender and all such payments (other than payments received while no Default or Event of Default has occurred and is continuing and
which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Lender,
shall be applied as follows: 



        (A)  first, to pay any Lender Expenses then due to Lender under the Loan Documents, until paid in full, 


        (B)  second, to pay any fees then due to Lender under the Loan Documents until paid in full, 


        (C)  third, ratably to pay interest due in respect of the Advances until paid in full, 


        (D)  fourth, so long as no Event of Default has occurred and is continuing, and at Lender's election, to pay amounts then due
and owing by Borrower or its Subsidiaries in respect of Bank Products, until paid in full, 


        (E)  fifth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in
full; it being understood and agreed that, so long as no Event of Default has occurred and is continuing, such amounts shall be deemed applied to the payment of the Advances in the order in which they
were made, 


        (F)  sixth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances
until paid in full, and (ii) to Lender, to be held by Lender, for the benefit of Wells Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank
Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower's and its Subsidiaries' obligations in respect of the then extant Bank
Products have been paid in full or the cash collateral amount has been exhausted, 


        (G)  seventh, to pay any other Obligations until paid in full, and 



        (H)  eighth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law. 




        (ii)  In
each instance, so long as no Default or Event of Default has occurred and is continuing, Section 2.4(b)(i)  shall not be deemed to apply to any payment by Borrower specified by Borrower to be
for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement. 


        (iii)  For
purposes of the foregoing, "paid in full" means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service
fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements,
whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding. 


        (iv)  In
the event of a direct conflict between the priority provisions of this Section 2.4 and other provisions
contained in any other Loan Document, it is the 





19





 







intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of
any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.4 shall control and govern. 






        2.5    Overadvances.    If, at any time or for any reason, the amount of Obligations
(other
than Bank Product Obligations) owed by Borrower to Lender pursuant to Sections 2.1 is greater than either the Dollar or percentage limitations
set forth in Sections 2.1, (an "Overadvance"), Borrower immediately shall pay to Lender, in cash,
the amount of such excess, which amount shall be used by Lender to reduce the Obligations in accordance with the priorities set forth in  Section 2.4(b)(i). In addition, Borrower hereby promises to
pay the Obligations (including principal, interest, fees, costs, and expenses) in
Dollars in full to Lender as and when due and payable under the terms of this Agreement and the other Loan Documents. 


        2.6    Interest Rates: Rates, Payments, and Calculations.    




        (a)  Interest Rates. Except as provided in clause (c) below, all Obligations (except for undrawn Letters of
Credit and except for Bank Product Obligations) that have been charged to the Loan Account pursuant to the terms hereof shall bear interest on the Daily Balance thereof at a per annum rate equal to
the Base Rate plus the Base Rate Margin. 


        The
foregoing notwithstanding, at no time shall any portion of the Obligations bear interest on the Daily Balance thereof at a per annum rate less than 6%. To the extent that interest
accrued hereunder at the rate set forth herein would be less than the foregoing minimum daily rate, the interest rate chargeable hereunder for such day automatically shall be deemed increased to the
minimum rate. 


        (b)  [Intentionally omitted].


        (c)  Default Rate. Upon the occurrence and during the continuation of an Event of Default, all Obligations that have been
charged to the Loan Account pursuant to the terms hereof shall bear interest on the Daily Balance thereof at a per annum rate equal to 4 percentage points above the per annum rate otherwise
applicable hereunder. 


        (d)  Payment. Interest and all other fees payable hereunder shall be due and payable, in arrears, on the first day of each
month at any time that Obligations or obligation to extend credit hereunder are outstanding. Borrower hereby authorizes Lender, from time to time without prior notice to Borrower, to charge such
interest and fees, all Lender Expenses (as and when incurred), the fees and costs provided for in Section 2.11 (as and when accrued or incurred), and all other payments as and when due and
payable under any Loan Document (including any amounts due and payable to Wells Fargo or its Affiliates in respect of Bank Products up to the amount of the then extant Bank Products Reserve) to
Borrower's Loan Account, which amounts thereafter shall constitute Advances hereunder and shall accrue interest at the rate then applicable to Advances hereunder. Any interest not paid when due shall
be compounded by being charged to Borrower's Loan Account and shall thereafter constitute Advances hereunder and shall accrue interest at the rate then applicable to Advances that are Base Rate Loans
hereunder. 


        (e)  Computation. All interest and fees chargeable under the Loan Documents shall be computed on the basis of a 360 day
year for the actual number of days elapsed. In the event the Base Rate is changed from time to time hereafter, the rates of interest hereunder based upon the Base Rate automatically and
immediately shall be increased or decreased by an amount equal to such change in the Base Rate. 




20





 





        (f)    Intent to Limit Charges to Maximum Lawful Rate. In no event shall the interest rate or rates payable under this
Agreement, plus any other amounts paid in connection herewith, exceed the highest rate permissible under any law that a court of competent jurisdiction shall, in a final determination, deem
applicable. Borrower and Lender, in executing and delivering this Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated within it;  provided, however, that,
anything contained herein to the contrary notwithstanding, if said rate or rates of interest or manner of payment exceeds the
maximum allowable under applicable law, then, ipso facto, as of the date of this Agreement, Borrower is and shall be liable only for the payment of such
maximum as allowed by law, and payment received from Borrower in excess of such legal maximum, whenever received, shall be applied to reduce the principal balance of the Obligations to the extent of
such excess. 





        2.7    Cash Management.    




        (a)  Borrower
shall (i) establish and maintain cash management services of a type and on terms satisfactory to Lender at one or more of the banks set forth on  Schedule 2.7(a) (each, a "Cash Management Bank"), and shall request in writing and otherwise take
such reasonable steps to ensure that all of its Account Debtors forward payment of the amounts owed by them directly to such Cash Management Bank, and (ii) deposit or cause to be deposited
promptly, and in any event no later than the first Business Day after the date of receipt thereof, all Collections (including those sent directly by Account Debtors to a Cash Management Bank) into a
bank account in Lender's name (a "Cash Management Account") at one of the Cash Management Banks. 


        (b)  Each
Cash Management Bank shall establish and maintain Cash Management Agreements with Lender and Borrower, in form and substance acceptable to Lender. Each such Cash
Management Agreement shall provide, among other things, that (i) all items of payment deposited in such Cash Management Account and proceeds thereof are held by such Cash Management Bank as
agent or bailee-in-possession for Lender, (ii) the Cash Management Bank has no rights of setoff or recoupment or any other claim against the applicable Cash Management
Account other than for payment of its service fees and other charges directly related to the administration of such Cash Management Account and for returned checks or other items of payment, and
(iii) it immediately will forward by daily sweep all amounts in the applicable Cash Management Account to the Lender's Account. 


        (c)  So
long as no Default or Event of Default has occurred and is continuing, Borrower may amend Schedule 2.7(a) to
add or replace a Cash Management Bank or Cash Management Account; provided, however, that (i) such prospective Cash Management Bank shall be
satisfactory to Lender and Lender shall have consented in writing in advance to the opening of such Cash Management Account with the prospective Cash Management Bank, and (ii) prior to the time
of the opening of such Cash Management Account, Borrower and such prospective Cash Management Bank shall have executed and delivered to Lender a Cash Management Agreement. Borrower shall close any of
its Cash Management Accounts (and establish replacement cash management accounts in accordance with the foregoing sentence) promptly and in any event within 30 days of notice from Lender that
the creditworthiness of any Cash Management Bank is no longer acceptable in Lender's reasonable judgment, or as promptly as practicable and in any event within 60 days of notice from Lender
that the operating performance, funds transfer, or availability procedures or performance of the Cash Management Bank with respect to Cash Management Accounts or Lender's liability under any Cash
Management Agreement with such Cash Management Bank is no longer acceptable in Lender's reasonable judgment. 




21











  




        (d)  The
Cash Management Accounts shall be cash collateral accounts, with all cash, checks and similar items of payment in such accounts securing payment of the Obligations,
and in which Borrower is hereby deemed to have granted a Lien to Lender. 





        2.8    Crediting Payments; Float Charge.    The receipt of any payment item by Lender
(whether
from transfers to Lender by the Cash Management Banks pursuant to the Cash Management Agreements or otherwise) shall not be considered a payment on account unless such payment item is a wire transfer
of immediately available federal funds made to the Lender's Account or unless and until such payment item is honored when presented for payment. Should any payment item not be honored when presented
for payment, then Borrower shall be deemed not to have made such payment and interest shall be calculated accordingly. Anything to the contrary contained herein notwithstanding, any payment item shall
be deemed received by Lender only if it is received into the Lender's Account on a Business Day on or before 11:00 a.m. (California time). If any payment item is received into the Lender's
Account on a non-Business Day or after 11:00 a.m. (California time) on a Business Day, it shall be deemed to have been received by Lender as of the opening of business on the
immediately following Business Day. From and after the Closing Date, Lender shall be entitled to charge Borrower for 1 Business Day of "clearance" or "float" at the rate applicable to Base Rate Loans
under Section 2.6 on all Collections that are received by Borrower (regardless of whether forwarded by the Cash Management Banks to Lender). This
across-the-board 1 Business Day clearance or float charge on all Collections is acknowledged by the parties to constitute an integral aspect of the pricing of the financing of
Borrower and shall apply irrespective of whether or not there are any outstanding monetary Obligations; the effect of such clearance or float charge being the equivalent of charging 1 Business Day of
interest on such Collections. 


        2.9    Designated Account.    Lender is authorized to make the Advances under this
Agreement
based upon telephonic or other instructions received from anyone purporting to be an Authorized Person, or without instructions if pursuant to Section 2.6(d). Borrower agrees to establish and
maintain the Designated Account with the Designated Account Bank for the purpose of receiving the proceeds of the Advances requested by Borrower and made by Lender hereunder. Unless otherwise agreed
by Lender and Borrower, any Advance requested by Borrower and made by Lender hereunder shall be made to the Designated Account. 


        2.10    Maintenance of Loan Account; Statements of Obligations.    Lender shall
maintain an
account on its books in the name of Borrower (the "Loan Account") on which Borrower will be charged with all Advances made by Lender to Borrower or for
Borrower's account and with all other payment Obligations hereunder or under the other Loan Documents (except for Bank Product Obligations), including, accrued interest, fees and expenses, and Lender
Expenses. In accordance with Section 2.8, the Loan Account will be credited with all payments received by Lender from Borrower or for Borrower's
account, including all amounts received in the Lender's Account from any Cash Management Bank. Lender shall render statements regarding the Loan Account to Borrower, including principal, interest,
fees, and including an itemization of all charges and expenses constituting Lender Expenses owing, and such statements shall be conclusively presumed to be correct and accurate and constitute an
account stated between Borrower and Lender unless, within 30 days after receipt thereof by Borrower, Borrower shall deliver to Lender written objection thereto describing the error or errors
contained in any such statements. 


        2.11    Fees.    Borrower shall pay to Lender the following fees and charges, which
fees and
charges shall be non-refundable when paid (irrespective of whether this Agreement is terminated thereafter): 




        (a)  Unused Line Fee. On the first day of each month during the term of this Agreement, an unused line fee in an amount equal
to 0.5% per annum times the result of (a) the Maximum Revolver Amount minus the then extant Billing Reserve,  less (b) the average Daily Balance
of Advances that were outstanding during the immediately preceding month, 




22





 


        (b)  Fee Letter Fees. As and when due and payable under the terms of the Fee Letter, Borrower shall pay to Lender the fees set
forth in the Fee Letter, and 


        (c)  Audit and Valuation Charges. Audit and valuation fees and charges as follows (i) a fee of $850 per day, per
auditor, plus out-of-pocket expenses for each financial audit of Borrower performed by personnel employed by Lender, (ii) if implemented, a one time charge of $5,000
plus out-of-pocket expenses for expenses for the establishment of electronic collateral reporting systems, and (iii) after the occurrence and during the continuance of
an Event of Default, the actual charges paid or incurred by Lender if it elects to employ the services of one or more third Persons to perform financial audits of Borrower or to assess Borrower's
business valuation. 





        2.12    [Intentionally omitted].    


        2.13    [Intentionally omitted].    



        2.14    [Intentionally omitted].    


3.    CONDITIONS; TERM OF AGREEMENT.  


        3.1    Conditions Precedent to the Initial Extension of Credit.    The obligation of
Lender to
make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Lender, of each of the conditions precedent set forth below: 




        (a)  the
Closing Date shall occur on or before December 31, 2001; 


        (b)  Lender
shall have received all financing statements required by Lender, duly executed by Borrower, and Lender shall have received searches reflecting the filing of all
such financing statements; 


        (c)  Lender
shall have received each of the following documents, in form and substance satisfactory to Lender, duly executed, and each such document shall be in full force
and effect: 



        (i)    the
Control Agreements, 


        (ii)  the
Disbursement Letter, 


        (iii)  the
Due Diligence Letter, 


        (iv)  the
Fee Letter, 


        (v)  the
Guaranty, 


        (vi)  the
Cash Management Agreements, 


        (vii) the
Officers' Certificate, 


        (viii)  the
Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed
in blank, 


        (ix)  the
Subsidiary Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto
endorsed in blank, and 


        (x)  the
Intercreditor Agreement; 




        (d)  Lender
shall have received a certificate from the Secretary of Borrower attesting to the resolutions of Borrower's Board of Directors authorizing its execution,
delivery, and 




23





 



performance of this Agreement and the other Loan Documents to which Borrower is a party and authorizing specific officers of Borrower to execute the same; 



        (e)  Lender
shall have received copies of Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of Borrower; 


        (f)    Lender
shall have received a certificate of status with respect to Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the
appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction; 


        (g)  Lender
shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the
appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change,
which certificates shall indicate that Borrower is in good standing in such jurisdictions; 


        (h)  Lender
shall have received a certificate of insurance, together with the endorsements thereto, as are required by  Section 6.8, the form and substance of which shall be satisfactory to Lender; 


        (i)    Lender
shall have received Collateral Access Agreements with respect to the following location: 9775 Business Park Avenue, San Diego, California; 



        (j)    Lender
shall have received an opinion of Borrower's counsel in form and substance satisfactory to Lender; 


        (k)  Lender
shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by
Borrower have been timely filed and all taxes upon Borrower or its properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency,
except such taxes that are the subject of a Permitted Protest; 


        (l)    Lender
and Lender's counsel shall have been provided with a true and complete copy of each Billing Services Agreement listed on  Schedule 3.1(l) and shall have had a reasonable opportunity to review each
such Billing Services Agreement, and Lender either (i) shall
have advised Borrower that each such Billing Services Agreement is an Approved Billing Services Agreement, or, (ii) as to any Billing Services Agreements that are not Approved Billing Services
Agreements, Lender shall have advised Borrower that Lender nevertheless is prepared to close (with the LEC Accounts relating to such non-approved Billing Services Agreements, if any, not
constituting Eligible LEC Accounts) and Borrower shall have agreed in writing to such arrangement with respect to non-approved Billing Services Agreements; 



        (m)  Borrower
shall have the Required Availability after giving effect to the initial extensions of credit hereunder and Lender shall have received satisfactory evidence that
Borrower's current liabilities are reasonably current and consistent with Borrower's historical practices; 


        (n)  Lender
shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of Borrower's books and records and verification
of Borrower's representations and warranties to Lender, the results of which shall be satisfactory to Lender; 



        (o)  Lender
shall have received completed reference checks with respect to Borrower's senior management, the results of which are satisfactory to Lender in its sole
discretion; 




24





 





        (p)  Lender
shall have received Borrower's 2002 Business Plan and Closing Date Business Plan; 


        (q)  Borrower
shall pay all Lender Expenses incurred in connection with the transactions evidenced by this Agreement; 



        (r)  Lender
shall have received copies of each of the Carrier Agreements listed on Schedule 3.1(r), together with a
certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof; 


        (s)  Borrower
shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by
Borrower of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and 



        (t)    all
other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in
form and substance satisfactory to Lender. 





        3.2    Conditions Subsequent to the Initial Extension of Credit.    The obligation of
Lender
to continue to make Advances (or otherwise extend credit hereunder) is subject to the fulfillment, on or before the date applicable thereto, of each of the conditions subsequent set forth below (the
failure by Borrower to so perform or cause to be performed constituting an Event of Default): 




        (a)  within
30 days of the Closing Date, deliver to Lender certified copies of the policies of insurance, together with the endorsements thereto, as are required by  Section 6.8, the form and substance of
which shall be satisfactory to Lender and its counsel. 





        3.3    Conditions Precedent to all Extensions of Credit.    The obligation of Lender
to make
all Advances (or to extend any other credit hereunder) shall be subject to the following conditions precedent: 




        (a)  the
representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of
such extension of credit, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), 


        (b)  no
Default or Event of Default shall have occurred and be continuing on the date of such extension of credit, nor shall either result from the making thereof, 



        (c)  no
injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the extending of such credit shall have been issued and remain
in force by any Governmental Authority against Borrower, Lender, or any of their Affiliates. 


        (d)  no
Material Adverse Change shall have occurred. 





        3.4    Term.    This Agreement shall become effective upon the execution and delivery
hereof
by Borrower and Lender and shall continue in full force and effect for a term ending on December 10, 2004 (the "Maturity Date"). The foregoing
notwithstanding, Lender shall have the right to terminate its obligations under this Agreement immediately and without notice upon the occurrence and during the continuation of an Event of Default. 


        3.5    Effect of Termination.    On the date of termination of this Agreement, all
Obligations
(including all Bank Products Obligations) immediately shall become due and payable without notice or demand (including providing cash collateral to be held by Lender for the benefit of Wells Fargo or
its Affiliates with respect to the then extant Bank Products Obligations). No termination of this Agreement, however, shall relieve or discharge Borrower of its duties, Obligations, or covenants 


25





 




hereunder and the Lender's Liens in the Collateral shall remain in effect until all Obligations have been fully and finally discharged and Lender's obligations to provide additional credit hereunder
have been terminated. When this Agreement has been terminated and all of the Obligations have been fully and finally discharged and Lender's obligations to provide additional credit under the Loan
Documents have been terminated irrevocably, Lender will, at Borrower's sole expense, execute and deliver any UCC termination statements, lien releases, mortgage releases, re-assignments of
trademarks, discharges of security interests, and other similar discharge or release documents (and, if applicable, in recordable form) as are reasonably necessary to release, as of record, the
Lender's Liens and all notices of security interests and liens previously filed by Lender with respect to the Obligations. 


        3.6    Early Termination by Borrower.    Borrower has the option, at any time upon
60 days prior written notice to Lender, to terminate this Agreement by paying to Lender, in cash, the Obligations (including providing cash collateral to be held by Lender for the benefit of
Wells Fargo or its Affiliates with respect to the then extant Bank Products Obligations), in full, together with the Applicable Prepayment Premium. If Borrower has sent a notice of termination
pursuant to the provisions of this Section, then Lender's obligations to extend credit hereunder shall terminate on the date set forth as the date of termination of this Agreement in such notice and
Borrower shall be obligated to repay the Obligations (including providing cash collateral to be held by Lender for the benefit of Wells Fargo or its Affiliates with respect to the then extant Bank
Products Obligations), in full, together with the Applicable Prepayment Premium, on the date set forth as the date of termination of this Agreement in such notice. In the event of the termination of
this Agreement and repayment of the Obligations at any time prior to the Maturity Date, for any other reason, including (a) termination upon the election of Lender to terminate after the
occurrence of an Event of Default, (b) foreclosure and sale of Collateral, (c) sale of the Collateral in any Insolvency Proceeding, or (iv) restructure, or compromise of the
Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure, or arrangement in any Insolvency Proceeding, then, in view of the impracticability and extreme
difficulty of ascertaining the actual amount of damages to Lender or profits lost by Lender as a result of such early termination, and by mutual agreement of the parties as to a reasonable estimation
and calculation of the lost profits or damages of Lender, Borrower shall pay the Applicable Prepayment Premium to Lender, measured as of the date of such termination. The foregoing notwithstanding,
(w) if, between
the Closing Date and the Maturity Date, Borrower consummates an initial public offering, private placement of equity with a third party that is not an Affiliate of Borrower or private placement of
subordinated debt with a third party that is not an Affiliate of Borrower and the Obligations are prepaid concurrent with and as a result of such initial public offering, private placement of equity
or private placement of subordinated debt, the Applicable Prepayment Premium shall be reduced by 50%, (x) if, at any time after the one year anniversary of the Closing Date, Borrower refinances
with a Wells Fargo commercial banking unit, then Borrower shall not be required to pay the Applicable Prepayment Premium, (y) if, at any time between the Closing Date and the Maturity Date,
Borrower sells all or substantially all of its assets, or enters into a merger or consolidation pursuant to which it is not the surviving entity, or CPT sells all of the Stock of Borrower, in each
case, to an unaffiliated third Person, then Borrower shall not be required to pay the Applicable Prepayment Premium, and (z) if, at any time between the Closing Date and the Maturity Date,
Lender refuses to consent to an Acquisition proposed by Borrower, and as of the date of such refusal such Acquisition, if it were consummated, would constitute a Permitted Acquisition (except for the
refusal of Lender to consent thereto and/or the good faith failure of Borrower to be able to comply with clause (c)(ii) of the definition of Permitted Acquisitions) then the Applicable
Prepayment Premium shall be reduced by 50% if the prepayment occurs in connection with the consummation of the proposed Acquisition and within 180 days of the declination by Lender. In respect
of any proposed Acquisition, if Lender has not responded affirmatively or negatively within 10 days of the date on which it first receives a request therefor from Borrower, it shall be deemed
to have declined such request as of the 10th day after the date of receipt. 


26





 



4.    CREATION OF SECURITY INTEREST.  


        4.1    Grant of Security Interest.    Borrower hereby grants to Lender a continuing
security
interest in all of its right, title, and interest in all currently existing and hereafter acquired or arising Personal Property Collateral in order to secure prompt repayment of any and all of the
Obligations in accordance with the terms and conditions of the Loan Documents and in order to secure prompt performance by Borrower of each of its covenants and duties under the Loan Documents. The
Lender's Liens in and to the Personal Property Collateral shall attach to all Personal Property Collateral without further act on the part of Lender or Borrower. Anything contained in this Agreement
or any other Loan Document to the contrary notwithstanding, except for Permitted Dispositions, Borrower has no authority, express or implied, to dispose of any item or portion of the Collateral. At
such time as all of the Obligations (other than contingent indemnification obligations to the extent no claims giving rise thereto have been asserted) have been paid in cash in full and any and all
obligations of Lender to extend credit hereunder have been terminated, Lender agrees to provide to Borrower, at Borrower's expense, any and all termination statements, reconveyances, or releases
necessary to release the Collateral from the Liens granted in favor of Lender. 


        4.2    Negotiable Collateral.    In the event that any Collateral, including proceeds,
 is
evidenced by or consists of Negotiable Collateral, and if and to the extent that perfection of priority of Lender's security interest
is dependent on or enhanced by possession, Borrower, immediately upon the request of Lender, shall endorse and deliver physical possession of such Negotiable Collateral to Lender. 



        4.3    Collection of Accounts, General Intangibles, and Negotiable Collateral.    At
any time
after the occurrence and during the continuation of an Event of Default, Lender or Lender's designee may (a) notify Account Debtors of Borrower that the Accounts, chattel paper, or General
Intangibles have been assigned to Lender or that Lender has a security interest therein, or (b) collect the Accounts, chattel paper, or General Intangibles directly and charge the collection
costs and expenses to the Loan Account. Borrower agrees that it will hold in trust for Lender, as Lender's trustee, any Collections that it receives and immediately will deliver said Collections to
Lender or a Cash Management Bank in their original form as received by Borrower. 



        4.4    Delivery of Additional Documentation Required.    At any time upon the request
of
Lender, Borrower shall execute and deliver to Lender, any and all financing statements, original financing statements in lieu of continuation statements, fixture filings, security agreements, pledges,
assignments, endorsements of certificates of title, and all other documents (the "Additional Documents") that Lender may request in its Permitted
Discretion, in form and substance satisfactory to Lender, to perfect and continue perfected or better perfect the Lender's Liens in the Collateral (whether now owned or hereafter arising or acquired),
to create and perfect Liens in favor of Lender in any Real Property acquired after the Closing Date, and in order to fully consummate all of the transactions contemplated hereby and under the other
Loan Documents. To the maximum extent permitted by applicable law, Borrower authorizes Lender to execute any such Additional Documents in Borrower's name and authorizes Lender to file such executed
Additional Documents in any appropriate filing office. In addition, on such periodic basis as Lender shall require, Borrower shall (a) provide Lender with a report of all new patentable,
copyrightable, or trademarkable materials acquired or generated by Borrower during the prior period, (b) cause all patents, copyrights, and trademarks acquired or generated by Borrower that are
not already the subject of a registration with the appropriate filing office (or an application therefor diligently prosecuted) to be registered with such appropriate filing office in a manner
sufficient to impart constructive notice of Borrower's ownership thereof, and (c) cause to be prepared, executed, and delivered to Lender supplemental schedules to the applicable Loan Documents
to identify such patents, copyrights, and trademarks as being subject to the security interests created thereunder. 


27





 



        4.5    Power of Attorney.    Borrower hereby irrevocably makes, constitutes, and
appoints
Lender (and any of Lender's officers, employees, or agents designated by Lender) as Borrower's true and lawful attorney, with power to (a) if Borrower refuses to, or fails timely to execute and
deliver any of the documents described in Section 4.4, sign the name of Borrower on any of the documents described in Section 4.4, (b) at any time that an Event of Default has
occurred and is continuing, sign Borrower's name on any invoice or bill of lading relating to the Collateral, drafts against Account Debtors, or notices to Account Debtors, (c) send requests
for verification of Accounts, (d) endorse Borrower's name on any Collection item that may come into Lender's possession, (e) at any time that an Event of Default has occurred and is
continuing, make, settle, and adjust all claims under Borrower's policies of insurance and make all determinations and decisions with respect to such policies of insurance, and (f) at any time
that an Event of Default has occurred and is continuing, settle and adjust disputes and claims respecting the Accounts, chattel paper, or General Intangibles directly with Account Debtors, for
amounts and upon terms that Lender determines to be reasonable, and Lender may cause to be executed and delivered any documents and releases that Lender determines to be necessary. The appointment of
Lender as Borrower's attorney, and each and every one of its rights and powers, being coupled with an interest, is irrevocable until all of the Obligations have been fully and finally repaid and
performed and Lender's obligations to extend credit hereunder are terminated. 


        4.6    Right to Inspect.    Lender and its officers, employees, or agents shall have
the
right, from time to time hereafter to inspect the Books and to check or test the Collateral in order to verify Borrower's financial condition or the amount, quality, value, condition of, or any other
matter relating to, the Collateral. 


        4.7    Control Agreements.    Borrower agrees that it will not transfer assets out of
any
Securities Accounts other than as permitted under Section 7.19 and, if to another securities intermediary, unless each of Borrower, Lender, and
the substitute securities intermediary have entered into a Control Agreement. No arrangement contemplated hereby or by any Control Agreement in respect of any Securities Accounts or other Investment
Property shall be modified by Borrower without the prior written consent of Lender. Upon the occurrence and during the continuance of a Default or Event of Default, Lender may notify any securities
intermediary to liquidate the applicable Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to the Lender's Account. 


5.    REPRESENTATIONS AND WARRANTIES.  


        In order to induce Lender to enter into this Agreement, Borrower makes the following representations and warranties to Lender which shall be true, correct, and
complete, in all material respects, as of the date hereof, and shall be true, correct, and complete, in all material respects, as of the Closing Date, and at and as of the date of the making of each
Advance (or other extension of credit) made thereafter, as though made on and as of the date of such Advance (or other extension of credit) (except to the extent that such representations and
warranties relate solely to an earlier date) and such representations and warranties shall survive the execution and delivery of this Agreement: 


        5.1    No Encumbrances.    Borrower has good and indefeasible title to the Collateral
and the
Real Property, free and clear of Liens except for Permitted Liens. 


        5.2    Eligible Accounts.    The Eligible Accounts are bona
fide existing payment obligations of Account Debtors created by the rendition of services to such Account Debtors in the ordinary course of Borrower's business, owed to
Borrower without defenses, disputes, offsets, counterclaims, or rights of return or cancellation. As to each Eligible Account, such Account is not: 




        (a)  owed
by an employee, Affiliate, or agent of Borrower, 




28





 


        (b)  on
account of a transaction wherein goods were placed on consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold,
or on any other terms by reason of which the payment by the Account Debtor may be conditional, 


        (c)  payable
in a currency other than Dollars, 


        (d)  owed
by an Account Debtor that has or has asserted a right of setoff, has disputed its liability, or has made any claim with respect to its obligation to pay the
Account, 


        (e)  owed
by an Account Debtor that is subject to any Insolvency Proceeding or is not Solvent or as to which Borrower has received notice of an imminent Insolvency Proceeding
or a material impairment of the financial condition of such Account Debtor, 


        (f)    on
account of a transaction as to which the goods giving rise to such Account have not been shipped and billed to the Account Debtor or the services giving rise to such
Account have not been performed and accepted by the Account Debtor, 



        (g)  a
right to receive progress payments or other advance billings that are due prior to the completion of performance by Borrower of the subject contract for goods or
services, and 


        (h)  an
Account that has not been billed to the customer. 





        5.3    [Intentionally omitted].    



        5.4    Equipment.    All of the Equipment is used or held for use in Borrower's
business and
is fit for such purposes. 


        5.5    Location of Inventory and Equipment.    The Inventory and Equipment are not
stored with
a bailee, warehouseman, or similar party and are located only at the locations identified on Schedule 5.5. 



        5.6    [intentionally omitted].    


        5.7    Location of Chief Executive Office; FEIN.    The chief executive office of
Borrower is
located at the address indicated in Schedule 5.7 and Borrower's FEIN is identified in  Schedule 5.7. 



        5.8    Due Organization and Qualification; Subsidiaries.    




        (a)  Borrower
is duly organized and existing and in good standing under the laws of the jurisdiction of its organization and qualified to do business in any state where the
failure to be so qualified reasonably could be expected to have a Material Adverse Change. 


        (b)  Set
forth on Schedule 5.8(b), is a complete and accurate description of the authorized capital Stock of Borrower,
by class, and, as of the Closing Date, a description of the number of shares of each such class that are issued and outstanding. Other than as described on  Schedule 5.8(b), there are no
subscriptions, options, warrants, or calls relating to any shares of Borrower's capital Stock, including any right
of conversion or exchange under any outstanding security or other instrument. Borrower is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any
shares of its capital Stock or any security convertible into or exchangeable for any of its capital Stock. 



        (c)  Set
forth on Schedule 5.8(c), is a complete and accurate list of Borrower's direct and indirect Subsidiaries,
showing: (i) the jurisdiction of their organization, (ii) the number of shares of each class of common and preferred Stock authorized for each of such Subsidiaries, and (iii) the
number and the percentage of the outstanding shares of each such class owned directly or indirectly by Borrower. All of the outstanding capital Stock of each such Subsidiary has been validly issued
and is fully paid and non-assessable. 



        (d)  Except
as set forth on Schedule 5.8(c), there are no subscriptions, options, warrants, or calls relating to any
shares of Borrower's Subsidiaries' capital Stock, including any right of 




29





 






conversion or exchange under any outstanding security or other instrument. Neither Borrower nor any of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of Borrowers' Subsidiaries' capital Stock or any security convertible into or exchangeable for any such capital Stock. 





        5.9    Due Authorization; No Conflict.    




        (a)  The
execution, delivery, and performance by Borrower of this Agreement and the Loan Documents to which it is a party have been duly authorized by all necessary action on
the part of Borrower. 


        (b)  The
execution, delivery, and performance by Borrower of this Agreement and the Loan Documents to which it is a party do not and will not (i) violate any provision
of federal, state, or local law or regulation applicable to Borrower, the Governing Documents of Borrower, or any order, judgment, or decree of any court or other Governmental Authority binding on
Borrower, (ii) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any material contractual obligation of Borrower,
(iii) result in or require the creation or imposition of any Lien of any nature whatsoever upon any properties or assets of Borrower, other than Permitted Liens, or (iv) require any
approval of Borrower's interestholders or any approval or consent of any Person under any material contractual obligation of Borrower. 


        (c)  Other
than the filing of financing statements, fixture filings, and Mortgages, the execution, delivery, and performance by Borrower of this Agreement and the Loan
Documents to which Borrower is a party do not and will not require any registration with, consent, or approval of, or notice to, or other action with or by, any Governmental Authority or other Person. 


        (d)  This
Agreement and the other Loan Documents to which Borrower is a party, and all other documents contemplated hereby and thereby, when executed and delivered by
Borrower will be the legally valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except as enforcement may be limited by equitable
principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors' rights generally. 


        (e)  The
Lender's Liens are validly created, perfected, and first priority Liens, subject only to Permitted Liens. 





        5.10    Litigation.    Other than those matters disclosed on  Schedule 5.10, there are no actions, suits, or proceedings pending or, to the best knowledge of Borrower, threatened against Borrower, or any of
its Subsidiaries, as applicable, except for (a) matters that are fully covered by insurance (subject to customary deductibles), and (b) matters arising after the Closing Date that, if
decided adversely to Borrower, or any of its Subsidiaries, as applicable, reasonably could not be expected to result in a Material Adverse Change. 


        5.11    No Material Adverse Change.    All financial statements relating to Borrower
that have
been delivered by Borrower to Lender have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack of footnotes and being subject to
year-end audit adjustments) and present fairly in all material respects, Borrower's financial condition as of the date thereof and results of operations for the period then ended. There
has not been a Material Adverse Change with respect
to Borrower since the date of the latest financial statements submitted to Lender on or before the Closing Date. 


        5.12    Fraudulent Transfer.    




        (a)  Borrower
is Solvent. 




30





 


        (b)  No
transfer of property is being made by Borrower and no obligation is being incurred by Borrower in connection with the transactions contemplated by this Agreement or
the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of Borrower. 





        5.13    Employee Benefits.    None of Borrower, any of its Subsidiaries, or any of
their ERISA
Affiliates maintains or contributes to any Benefit Plan. 


        5.14    Environmental Condition.    Except as set forth on  Schedule 5.14, (a) to Borrower's knowledge, none of Borrower's assets has ever been used by Borrower or by previous owners or operators in
the disposal of, or to produce, store, handle, treat, release, or transport, any Hazardous Materials, where such production, storage, handling, treatment, release or transport was in violation, in any
material respect, of applicable Environmental Law, (b) to Borrower's knowledge, none of Borrower's properties or assets has ever been designated or identified in any manner pursuant to any
environmental protection statute as a Hazardous Materials disposal site, (c) Borrower has not received notice that a Lien arising under any Environmental Law has attached to any revenues or to
any Real Property owned or operated by Borrower, and (d) Borrower has not received a summons, citation, notice, or directive from the Environmental Protection Agency or any other federal or
state governmental agency concerning any action or omission by Borrower resulting in the releasing or disposing of Hazardous Materials into the environment. 



        5.15    Brokerage Fees.    Borrower has not utilized the services of any broker or
finder in
connection with Borrower's obtaining financing from Lender under this Agreement and no brokerage commission or finders fee is payable by Borrower in connection herewith. 


        5.16    Intellectual Property.    Borrower owns, or holds licenses in, all trademarks,
 trade
names, copyrights, patents, patent rights, and licenses that are necessary to the conduct of its business as currently conducted. Attached hereto as Schedule 5.16  is a true, correct, and complete
listing of all material patents, patent applications, trademarks, trademark applications, copyrights, and copyright registrations as to which
Borrower is the owner or is an exclusive licensee. 


        5.17    Leases.    Borrower enjoys peaceful and undisturbed possession under all
leases
material to the business of Borrower and to which it is a party or under which it is operating. All of such leases are valid and subsisting and no material default by Borrower exists under any of
them. 


        5.18    DDAs.    Set forth on Schedule 5.18
are all of Borrower's DDAs, including, with respect to each depository (i) the name and address of such depository, and (ii) the account numbers of the accounts
maintained with such depository. 


        5.19    Complete Disclosure.    All factual information (taken as a whole) furnished
by or on
behalf of Borrower in writing to Lender (including all information contained in the Schedules hereto or in the other Loan Documents) for purposes of or in connection with this Agreement, the other
Loan Documents, or any transaction contemplated herein or therein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of Borrower in writing to Lender
will be, true and accurate, in all material respects, on the date as of which such information is dated or certified and not incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided. On the Closing Date, the Closing Date Projections
represent, and as of the date on which any other Projections are delivered to Lender, such additional Projections represent Borrower's good faith best estimate of its future performance for the
periods covered thereby. 


        5.20    Indebtedness.    Set forth on Schedule 5.20
is a true and complete list of all Indebtedness of Borrower outstanding immediately prior to the Closing Date that is to remain outstanding after the Closing Date and such
Schedule accurately reflects the aggregate principal amount of such Indebtedness and the principal terms thereof. 


31







   6.    AFFIRMATIVE COVENANTS.  


        Borrower covenants and agrees that, so long as any credit hereunder shall be available and until full and final payment of the Obligations, Borrower shall and
shall cause each of its Subsidiaries to do all of the following: 



        6.1    Accounting System.    Maintain a system of accounting that enables Borrower to
produce
financial statements in accordance with GAAP and maintain records pertaining to the Collateral that contain information as from time to time reasonably may be requested by Lender. 


        6.2    Collateral Reporting.    Provide Lender with the following documents at the
following
times in form satisfactory to Lender: 



	Weekly	 	(a) a sales journal, collection journal, and credit register since the last such schedule and a calculation of the Borrowing Base as of such date,
	

 	
 	

(b) notice of all returns, disputes, or claims, and
	

 	
 	

(c) a report calculating the aggregate outstanding accrued and unpaid obligations of Borrower to LECs and Clearinghouses as of the last day of the week most recently ended, with respect to billing and collection charges payable under Billing
Services Agreements and detailing any accruals or payments with respect thereto that occurred during such week.
	

Monthly (not later than the 10th day of each month)	
 	

(d) a detailed calculation of the Borrowing Base (including detail regarding those Accounts that are not Eligible LEC Accounts),
	

 	
 	

(e) a detailed aging, by total, of the Accounts, together with a reconciliation to the detailed calculation of the Borrowing Base previously provided to Lender, and
	

 	
 	

(f) a summary aging, by vendor, of Borrower's accounts payable and any book overdraft.
	

Quarterly	
 	

(g) a detailed list of Borrower's LECs and Clearinghouses, and
	

 	
 	

(h) a report regarding Borrower's accrued, but unpaid, ad valorem taxes.
	

Upon request by Lender	
 	

(i) copies of invoices in connection with the Accounts, credit memos, remittance advices, deposit slips, shipping and delivery documents in connection with the Accounts and, for Equipment acquired by Borrower, purchase orders and invoices,

	

 	
 	

(j) PAR Statements, and
	

 	
 	

(k) such other reports as to the Collateral, or the financial condition of Borrower, as Lender may request.





        In
addition, Borrower agrees to cooperate fully with Lender to facilitate and implement a system of electronic collateral reporting in order to provide electronic reporting of each of
the items set forth above. 


        6.3    Financial Statements, Reports, Certificates.    Deliver to Lender: 




        (a)  as
soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal
year) after the end of each month during each of Borrower's fiscal years, 




32





 



        (i)    a
company prepared consolidated balance sheet, income statement, and statement of cash flow covering Borrower's and its Subsidiaries' operations during such period, 



        (ii)  a
certificate signed by the chief financial officer of Borrower to the effect that: 



        (A)  the
financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit
adjustments) and fairly present in all material respects the financial condition of Borrower and its Subsidiaries, 


        (B)  the
representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the
date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), 


        (C)  there
does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such
non-compliance as to which he or she may have knowledge and what action Borrower has taken, is taking, or proposes to take with respect thereto), and 




        (iii)  for
each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail,
compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and 




        (b)  as
soon as available, but in any event within 90 days after the end of each of Borrower's fiscal years, 



        (i)    financial
statements of Borrower and its Subsidiaries for each such fiscal year, audited by one of the so-called "Big Five" firms of independent certified
public accountants and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income
statement, and statement of cash flow and, if prepared, such accountants' letter to management), 


        (ii)  a
certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under  Section 7.20, 




        (c)  as
soon as available, but in any event within 30 days prior to the start of each of Borrower's fiscal quarters, 



        (i)    copies
of Borrower's Projections, in form (including as to scope and underlying assumptions) satisfactory to Lender, in its sole discretion, for the forthcoming year,
quarter by quarter, certified by the chief financial officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby, 




        (d)  if
and when filed by Borrower, 



        (i)    Form 10-Q
quarterly reports, Form 10-K annual reports, and Form 8-K current reports, 


        (ii)  any
other filings made by Borrower with the SEC, 


        (iii)  copies
of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and 





33





 






        (iv)  any
other information that is provided by Borrower to its shareholders generally, 




        (e)  if
and when filed by Borrower and as requested by Lender, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) Borrower
conducts business or is required to pay any such excise tax, (ii) where Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower,
or (iii) where Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change, 



        (f)    as
soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that
Borrower proposes to take with respect thereto, and 


        (g)  upon
the request of Lender, any other report reasonably requested relating to the financial condition of Borrower. 





        In
addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no
Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Lender and to
release to Lender whatever financial information concerning Borrower Lender reasonably may request. If an Event of Default has occurred and is continuing, Borrower waives the right to assert a
confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and
agrees that Lender may contact directly any such accounting firm or service bureau in order to obtain such information. Unless an Event of Default has occurred and is continuing, Lender agrees to
provide Borrower with notice before contacting such accounting firm and agrees that Borrower may participate in any meeting or discussions with such accounting firm and Lender (so long as the presence
of Borrower would not delay the meeting or discussion and so long as the presence of Borrower would not inhibit the ability of the accounting firm to provide Lender with a candid assessment of
Borrower's financial condition); it being understood that Lender shall not be liable to Borrower for failing to provide such notice so long as such failure is not wilful. 


        6.4    [Intentionally omitted].    


        6.5    Chargebacks.    Cause chargebacks and allowances, as between Borrower and its
Account
Debtors, to be on the same basis and in accordance with the usual customary practices of Borrower, as they exist at the time of the execution and delivery of this Agreement. 


        6.6    Maintenance of Properties.    Maintain and preserve all of its properties
which are
necessary or useful in the proper conduct to its business in good working order and condition, ordinary wear and tear excepted, and comply at all times with the provisions of all leases to which it is
a party as lessee so as to prevent any loss or forfeiture thereof or thereunder. 



        6.7    Taxes.    Cause all assessments and taxes, whether real, personal, or
otherwise, due or
payable by, or imposed, levied, or assessed against Borrower or any of its assets to be paid in full, before delinquency or before the expiration of any extension period, except to the extent that the
validity of such assessment or tax shall be the subject of a Permitted Protest. Borrower will make timely payment or deposit of all tax payments and withholding taxes required of it by applicable
laws, including those laws concerning F.I.C.A., F.U.T.A., state disability, and local, state, and federal income taxes, and will, upon request, furnish Lender with proof satisfactory to Lender
indicating that Borrower has made such payments or deposits. Borrower shall deliver satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which Borrower is required to
pay any such excise tax. 


34





 



        6.8    Insurance.    




        (a)  At
Borrower's expense, maintain insurance respecting its assets wherever located, covering loss or damage by fire, theft, explosion, and all other hazards and risks as
ordinarily are insured against by other Persons engaged in the same or similar businesses. Borrower also shall maintain business interruption, public liability, and product liability insurance, as
well as insurance against larceny, embezzlement, and criminal misappropriation. All such policies of insurance shall be in such amounts and with such insurance companies as are reasonably satisfactory
to Lender. Borrower shall deliver copies of all such policies to Lender with a satisfactory lender's loss payable endorsement naming Lender as sole loss payee or additional insured, as appropriate.
Each policy of insurance or endorsement shall contain a clause requiring the insurer to give not less than 30 days prior written notice to Lender in the event of cancellation of the policy for
any reason whatsoever. 


        (b)  Borrower
shall give Lender prompt notice of any loss covered by such insurance. Any monies received as payment for any loss under any insurance policy mentioned above
(other than liability insurance policies) or as payment of any award or compensation for condemnation or taking by eminent domain, shall be paid over to Lender to be applied at the option of Borrower
either to the prepayment of the Obligations or shall be disbursed to Borrower under staged payment terms reasonably satisfactory to Lender for application to the cost of repairs, replacements, or
restorations. 


        (c)  Borrower
will not take out separate insurance concurrent in form or contributing in the event of loss with that required to be maintained under this Section 6.8,
unless Lender is included thereon as named insured with the loss payable to Lender under a lender's loss payable endorsement or its equivalent. Borrower immediately shall notify Lender whenever such
separate insurance is taken out, specifying the insurer thereunder and full particulars as to the policies evidencing the same, and copies of such policies promptly shall be provided to Lender. 





        6.9    Location of Inventory and Equipment.    Keep the Inventory and Equipment only
at the
locations identified on Schedule 5.5; provided, however, that Borrower may amend Schedule 5.5  so long as such amendment occurs by written notice
to Lender not less than 30 days prior to the date on which Inventory or Equipment is moved to such new location, so
long as such new location is within the continental United States, and so long as, at the time of such written notification, Borrower provides any financing statements or fixture filings necessary to
perfect and continue perfected the Lender's Liens on such assets and also provides to Lender a Collateral Access Agreement. 


        6.10    Compliance with Laws.    Comply with the requirements of all applicable laws,
rules,
regulations, and orders of any Governmental Authority, including the Fair Labor Standards Act and the Americans With Disabilities Act, other than laws, rules, regulations, and orders the
non-compliance with which, individually or in the aggregate, would not result in and reasonably could not be expected to result in a Material Adverse Change. 


        6.11    Leases.    Pay when due all rents and other amounts payable under any leases
to which
Borrower is a party or by which Borrower's properties and assets are bound, unless such payments are the subject of a Permitted Protest. 



        6.12    Brokerage Commissions.    Pay any and all brokerage commission or finders
fees
incurred in connection with or as a result of Borrower's obtaining financing from Lender under this Agreement. Borrower agrees and acknowledges that payment of all such brokerage commissions or
finders fees shall be the sole responsibility of Borrower, and Borrower agrees to indemnify, defend, and hold Lender harmless from and against any claim of any broker or finder arising out of
Borrower's obtaining financing from Lender under this Agreement. 


35





 



        6.13    Existence.    At all times preserve and keep in full force and effect
Borrower's valid
existence and good standing and any rights and franchises material to Borrower's businesses. 


        6.14    Environmental.    




        (a)  Keep
any property either owned or operated by Borrower free of any Environmental Liens or post bonds or other financial assurances sufficient to satisfy the obligations
or liability evidenced by such Environmental Liens, (b) comply, in all material respects, with Environmental Laws and provide to Lender documentation of such compliance which Lender reasonably
requests, (c) promptly notify Lender of any release of a Hazardous Material in any reportable quantity from or onto property owned or operated by Borrower and take any Remedial Actions required
to abate said release or otherwise to come into compliance with applicable Environmental Law, and (d) promptly provide Lender with written notice within 10 days of the receipt of any of
the following: (i) notice that an Environmental Lien has been filed against any of the real or personal property of Borrower, (ii) commencement of any Environmental Action or notice that
an Environmental Action will be filed against Borrower, and (iii) notice of a violation, citation, or other administrative order which reasonably could be expected to result in a Material
Adverse Change. 





        6.15    Disclosure Updates.    Promptly and in no event later than 5 Business Days
after
obtaining knowledge thereof, (a) notify Lender if any written information, exhibit, or report furnished to Lender contained any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements contained therein not misleading in light of the circumstances in which made, and (b) correct any defect or error that may be discovered therein
or in any Loan Document or in the execution, acknowledgement, filing, or recordation thereof. 


        6.16    Performance of Obligations to Carriers.    Except as otherwise specifically
excepted
by Schedule 6.16, from and after the date hereof, make all payments due from it to Carriers within 60 days of their due date, and
otherwise comply in all material respects with Borrower's non-monetary contractual obligations to Carriers; provided that Borrower shall not be in breach of this  Section 6.16 by virtue of claiming
permitted credits and deductions, or by virtue of immaterial breaches that would not permit Carriers to
enforce default remedies. Should Borrower acquire knowledge that Borrower is in breach of this Section 6.16 or should Borrower receive a written
default notice from any Carrier, in each such instance Borrower promptly shall notify Lender of same and all relevant details pertaining thereto. If Lender reasonably determines that Borrower is in
breach of the requirements of this Section 6.16, and that such breach may have an adverse effect upon the value or collectibility of the Accounts
(such as, by way of illustration but not by way of limitation, where a Carrier threatens to contact customers of Borrower and give notices or assert demands that could confuse such customers or
interfere with collection of the affected Accounts by Borrower or Lender), then Lender in the reasonable exercise of its discretion may elect to pay to such Carrier amounts claimed by such Carrier to
be due from Borrower, whereupon such amounts so paid by lender shall become Lender Expenses immediately due and payable from Borrower to Lender. 


        6.17    LEC, Clearinghouse, and Carrier Agreements.    From time to time, if and as
requested
by Lender, Borrower shall deliver to Lender copies of all Billing Services Agreement, Carrier Agreements, and/or other material agreements in effect between Borrower and LECs, Clearinghouses or
Carriers; provided that if any such agreement contains confidentiality restrictions, Lender will agree to reasonable restrictions upon the use or dissemination of such agreement by Lender. 



        6.18    Change of Management    


        If
at any time after the Closing Date, the individual who serves as Borrower's Chief Financial Officer resigns, is terminated or otherwise fails to continue to serve as Chief Financial
Officer, 


36





 




Borrower shall fill such office within 90 days of such resignation, termination, or failure to serve with an individual reasonably acceptable to the Lender. 



        6.19    Trademarks    


        Borrower
shall (a) cause all of its trademarks that are not already the subject of a registration with the United States Patent and Trademark Office (or an application therefor
diligently prosecuted) to be registered with the United States Patent and Trademark Office in a manner sufficient to impart constructive notice of Borrower's ownership thereof, and (b) cause to
be prepared, executed, and delivered to Lender, with sufficient time to permit Lender to record no later than the last Business Day within 10 days following the date that such trademarks have
been registered or an application for registration has been filed, a Trademark Security Agreement reflecting the security interest of Lender in such trademarks, which shall be in form and content
suitable for registration with the United States
Patent and Trademark Office so as to give constructive notice, when so registered, of the transfer by Borrower to Lender of a security interest in such trademarks. 


7.    NEGATIVE COVENANTS.  


        Borrower covenants and agrees that, so long as any credit hereunder shall be available and until full and final payment of the Obligations, Borrower will not and
will not permit any of its Subsidiaries to do any of the following: 



        7.1    Indebtedness.    Create, incur, assume, permit, guarantee, or otherwise become
or
remain, directly or indirectly, liable with respect to any Indebtedness, except: 




        (a)  Indebtedness
evidenced by this Agreement and the other Loan Documents, 


        (b)  Indebtedness
set forth on Schedule 5.20, 


        (c)  Permitted
Purchase Money Indebtedness, and 


        (d)  refinancings,
renewals, or extensions of Indebtedness permitted under clauses (b) and (c) of this Section 7.1  (and continuance or renewal of any Permitted Liens associated therewith) so long as:
(i) the terms and conditions of such refinancings, renewals, or extensions do not,
in Lender's judgment, materially impair the prospects of repayment of the Obligations by Borrower or materially impair Borrower's creditworthiness, (ii) such refinancings, renewals, or
extensions do not result in an increase in the principal amount of, or interest rate with respect to, the Indebtedness so refinanced, renewed, or extended, (iii) such refinancings, renewals, or
extensions do not result in a shortening of the average weighted maturity of the Indebtedness so refinanced, renewed, or extended, nor are they on terms or conditions that, taken as a whole, are
materially more burdensome or restrictive to Borrower, and (iv) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Obligations, then the
terms and conditions of the refinancing, renewal, or extension Indebtedness must include subordination terms and conditions that are at least as favorable to Lender as those that were applicable to
the refinanced, renewed, or extended Indebtedness. 





        7.2    Liens.    Create, incur, assume, or permit to exist, directly or indirectly,
any Lien
on or with respect to any of its assets, of any kind, whether now owned or hereafter acquired, or any income or profits therefrom, except for Permitted Liens (including Liens that are replacements of
Permitted Liens to the extent that the original Indebtedness is refinanced, renewed, or extended under Section 7.1(d) and so long as the
replacement Liens only encumber those assets that secured the refinanced, renewed, or extended Indebtedness). 


37





 

        7.3    Restrictions on Fundamental Changes.    




        (a)  Enter
into any merger or consolidation (other than a Permitted Acquisition), reorganization, or recapitalization, or reclassify its Stock. 


        (b)  Liquidate,
wind up, or dissolve itself (or suffer any liquidation or dissolution). 



        (c)  Convey,
sell, lease, license, assign, transfer, or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its assets (other
than pursuant to a Permitted Acquisition). 





        7.4    Disposal of Assets.    Other than Permitted Dispositions, convey, sell, lease,
license,
assign, transfer, or otherwise dispose of any of Borrower's assets. 


        7.5    Change Name.    Change Borrower's name, FEIN, corporate structure, or identity,
 or add
any new fictitious name; provided, however, that Borrower may change its name upon at least 30 days prior written notice to Lender of such change
and so long as, at the time of such written notification, Borrower provides any financing statements or fixture filings necessary to perfect and continue perfected the Lender's Liens. 


        7.6    Guarantee.    Guarantee or otherwise become in any way liable with respect to
the
obligations of any third Person except by endorsement of instruments or items of payment for deposit to the account of Borrower or which are transmitted or turned over to Lender. 



        7.7    Nature of Business.    Make any change in Borrower's Business. 


        7.8    Prepayments and Amendments.    




        (a)  Except
in connection with a refinancing permitted by Section 7.1(d), prepay, redeem, defease, purchase, or
otherwise acquire any Indebtedness of Borrower, other than the Obligations in accordance with this Agreement, and 



        (b)  Except
in connection with a refinancing permitted by Section 7.1(d), directly or indirectly, amend, modify, alter,
increase, or change any of the terms or conditions of any agreement, instrument, document, indenture, or other writing evidencing or concerning Indebtedness permitted under
Sections 7.1(b) or (c). 





        7.9    Change of Control.    Cause, permit, or suffer, directly or indirectly, any
Change of
Control. 


        7.10    Consignments.    Consign any Inventory or sell any Inventory on bill and hold,
 sale or
return, sale on approval, or other conditional terms of sale. 


        7.11    Distributions.    Make any distribution or declare or pay any dividends (in
cash or
other property, other than common Stock) on, or purchase, acquire, redeem, or retire any of Borrower's Stock, of any class, whether now or hereafter outstanding. 



        7.12    Accounting Methods.    Modify or change its method of accounting (other than
as may be
required to conform to GAAP) or enter into, modify, or terminate any agreement currently existing, or at any time hereafter entered into with any third party accounting firm or service bureau for the
preparation or storage of Borrower's accounting records without said accounting firm or service bureau agreeing to provide Lender information regarding the Collateral or Borrower's financial
condition. 


        7.13    Investments.    Except for Permitted Investments and Permitted Acquisitions,
directly
or indirectly, make or acquire any Investment or incur any liabilities (including contingent obligations) for or in connection with any Investment; provided,
however, that Borrower shall not have Permitted Investments (other than in the Cash Management Accounts) in excess of $25,000 outstanding at any one time unless Borrower and
the applicable securities intermediary or bank have entered into Control 


38





 




Agreements governing such Permitted Investments, as Lender shall determine in its Permitted Discretion, to perfect (and further establish) the Lender's Liens in such Permitted Investments. 



        7.14    Transactions with Affiliates.    Except as set forth on  Schedule 7.14, directly or indirectly enter into or permit to exist any transaction with any Affiliate of Borrower except for transactions that
are upon fair and reasonable terms, that are fully disclosed to Lender, and that are no less favorable to Borrower than would be obtained in an arm's length transaction with a
non-Affiliate. 


        7.15    Suspension.    Suspend or go out of a substantial portion of its business.




        7.16    [Intentionally omitted].    


        7.17    Use of Proceeds.    Use the proceeds of the Advances for any purpose other
than
(a) on the Closing Date, (i) to repay $2,500,000 of principal under the Counsel Note, and (ii) to pay transactional fees, costs, and expenses incurred in connection with this
Agreement, the other Loan Documents, and the transactions contemplated hereby and thereby, and (b) thereafter, consistent with the terms and conditions hereof, for its lawful and permitted
purposes including, without limitation, the financing of working capital, capital expenditures, payment of indebtedness and general corporate expenses. 


        7.18    Change in Location of Chief Executive Office; Inventory and Equipment with
Bailees.    Relocate its chief executive office to a new location without providing 30 days prior written notification thereof to Lender and so long as, at the
time of such written notification, Borrower provides any financing statements or fixture filings necessary to perfect and continue perfected the Lender's Liens and also provides to Lender a Collateral
Access Agreement with respect to such new location. The Inventory and Equipment shall not at any time now or hereafter be stored with a bailee, warehouseman, or similar party without Lender's prior
written consent. 


        7.19    Securities Accounts.    Establish or maintain any Securities Account unless
Lender
shall have received a Control Agreement in respect of such Securities Account. Borrower shall not transfer assets out of any Securities Account; provided, however, that, so long as no Event of Default
has occurred and is continuing or would result therefrom, Borrower may use such assets (and the proceeds thereof) to the extent not prohibited by this Agreement. 



        7.20    Financial Covenants.    




        (a)  Minimum EBITDA. If the sum of Excess Availability and unrestricted cash and Cash Equivalents at any time during any of
the periods set forth in the following table is less than $2,500,000, then Borrower shall not fail to maintain EBITDA for the applicable period, measured on a fiscal quarter-end basis, of
not less than the required amount set forth in the following table for the applicable period set forth opposite thereto; 




	Applicable Amount
 
	 	Applicable Period

	$	1,250,000	 	For the 3 month period ending March 31, 2002
	$	2,500,000	 	For the 6 month period ending June 30, 2002
	$	3,750,000	 	For the 9 month period ending September 30, 2002
	$	5,000,000	 	For the 12 month period ending each fiscal quarter thereafter





39







   
        For the period ending March 31, 2002, Lender shall adjust Borrower's EBITDA to reflect the amount of discretionary promotional expenses expensed during such period. The foregoing
notwithstanding, if Borrower fails to maintain the required EBITDA for any period, Borrower shall have 10 calendar days following the applicable period to provide Lender with evidence (in form
and substance reasonably satisfactory to Lender) that it (i) has received one or more equity capital contributions in cash or (ii) has consummated a private placement of subordinated
debt (which subordinated debt shall be subject to a subordination agreement in form and substance reasonably satisfactory to Lender) in an aggregate amount such that the sum of Excess Availability and
unrestricted cash and Cash Equivalents after the receipt of such equity capital contributions is at least $2,500,000. 




        (b)  Capital Expenditures. Make capital expenditures (i) in Fiscal Year 2002 in excess of $5,000,000 (ii) in
Fiscal Year 2003 in excess of $3,000,000 and (iii) in Fiscal Year 2004 in excess of 120% of the actual amount of aggregate capital expenditures in Fiscal Year 2003 (which amounts shall include
all expenditures made in connection with any Permitted Acquisition); provided, however, that the maximum capital expenditures amount for any fiscal year
shall be increased by an amount equal to the lesser of the portion, if any, of the maximum capital expenditures amount set forth above for the previous fiscal year that was not actually utilized for
capital expenditures during such fiscal year. 





        7.21    Contracts with Carriers, Clearinghouses, and LECs.    Enter into any new
contractual
arrangements with Carriers, Clearinghouses, or LECs, or materially amend, modify, or extend existing contractual arrangements with Carriers, Clearinghouses, or LECs, if the effect in either case would
be to prohibit Lender from having a security interest in the rights of Borrower thereunder, to prohibit disclosure of the terms thereof to Lender (although disclosure may be conditioned on Lender's
agreement to reasonable confidentiality provisions), to grant a security interest to the Carrier, Clearinghouse, or LEC in any of the Collateral, to authorize any Carrier to withhold delivery of call
transaction record tapes other than after the occurrence of a default, or to authorize any Carrier to contact or directly bill customers of Borrower with respect to services provided by such Carrier
to Borrower for resale to Borrower's customers. 



8.    EVENTS OF DEFAULT.  


        Any one or more of the following events shall constitute an event of default (each, an "Event of Default") under
this Agreement: 


        8.1  If Borrower fails to pay when due and payable, or when declared due and payable, all or any portion of the Obligations
(whether of principal, interest (including any interest which, but for the provisions of the Bankruptcy Code, would have accrued on such amounts), fees and charges due Lender, reimbursement of Lender
Expenses, or other amounts constituting Obligations); 


        8.2  (a) If Borrower fails or neglects to perform, keep, or observe, in any material respect, any term, provision,
condition, covenant, or agreement contained in Sections 6.2 (Collateral Reporting), 6.9 (Location of Inventory and Equipment), 6.10 (Compliance with Laws), or 6.11 (Leases) of this Agreement
and such failure continues for a period of 5 days; (b) If Borrower fails or neglects to perform, keep, or observe, in any material respect, any term, provision, condition, covenant, or
agreement contained in Sections 6.1 (Accounting System), 6.3 (Financial Statements, Reports, Certificates), 6.6 (Chargebacks), or 6.8 (Maintenance of Properties) of this Agreement, or any term,
provision, condition, covenant, or agreement contained in any of the other Loan Documents and such failure continues for a period of 15 days; or (c) If Borrower fails or neglects to
perform, keep, or observe any other term, provision, condition, covenant, or agreement contained in this Agreement, or in any other present or future agreement between Borrower and Lender (giving
effect to any grace periods, if any, expressly provided for in such other agreements); in each case, other than any such 


40





 




term, provision, condition, covenant, or agreement that is the subject of another provision of this Section 8, in which event such other provision of this Section 8 shall govern);
provided that, during any period of time that any such failure or neglect of Borrower referred to in this paragraph exists, even if such failure or neglect is not yet an Event of Default by virtue of
the existence of a grace period, Lender shall not required during such period to make Advances to Borrower; 


        8.3  If any material portion of Borrower's or any of its Subsidiaries' assets is attached, seized, subjected to a writ or
distress warrant, levied upon, or comes into the possession of any third Person; 


        8.4  If an Insolvency Proceeding is commenced by Borrower, any of its Subsidiaries, Counsel, or Guarantor; 



        8.5  If an Insolvency Proceeding is commenced against Borrower, any of its Subsidiaries, Counsel, or Guarantor, and any of the
following events occur: (a) Borrower, the Subsidiary, Counsel, or Guarantor consents to the institution of such Insolvency Proceeding against it, (b) the petition commencing the
Insolvency Proceeding is not timely controverted, (c) the petition commencing the Insolvency Proceeding is not dismissed within 45 calendar days of the date of the filing thereof;  provided, however,
 that, during the pendency of such period, Lender shall be relieved of its obligations to extend credit hereunder, (d) an
interim trustee is appointed to take possession of all or any substantial portion of the properties or assets of, or to operate all or any substantial portion of the business of, Borrower, any of its
Subsidiaries, Counsel, or Guarantor or (e) an order for relief shall have been entered therein; 


        8.6  If Borrower, any of its Subsidiaries, Counsel, or Guarantor is enjoined, restrained, or in any way prevented by court
order from continuing to conduct all or any material part of its business affairs; 


        8.7  If a notice of Lien, levy, or assessment is filed of record with respect to any of Borrower's or any of its Subsidiaries'
assets by the United States, or any department, agency, or instrumentality thereof, or by any state, county, municipal, or governmental agency, or if any taxes or debts owing at any time hereafter to
any one or more of such entities becomes a Lien, whether choate or otherwise, upon any of Borrower's or any of its Subsidiaries' assets and the same is not paid before such payment is delinquent; 


        8.8  If a judgment or other claim becomes a Lien or encumbrance upon any material portion of Borrower's or any of its
Subsidiaries' assets; 


        8.9  If Borrower receives a written notice of default under any material Carrier Agreement; 



        8.10 If there is a default in any material agreement to which Borrower or any of its Subsidiaries is a party and such default
(a) occurs at the final maturity of the obligations thereunder, or (b) results in a right by the other party thereto, irrespective of whether exercised, to accelerate the maturity of
Borrower's or its Subsidiaries' obligations thereunder, to terminate such agreement, or to refuse to renew such agreement pursuant to an automatic renewal right therein; 


        8.11 If Borrower or any of its Subsidiaries makes any payment on account of Indebtedness that has been contractually
subordinated in right of payment to the payment of the Obligations, except to the extent such payment is permitted by the terms of the subordination provisions applicable to such Indebtedness; 


        8.12 If any material misstatement or misrepresentation exists now or hereafter in any warranty, representation, statement, or
Record made to Lender by Borrower, its Subsidiaries, or any officer, employee, agent, or director of Borrower or any of its Subsidiaries; 


        8.13 If the obligation of Guarantor under the Guaranty is limited or terminated by operation of law or by Guarantor
thereunder; or 


41





 



        8.14 If this Agreement or any other Loan Document that purports to create a Lien, shall, for any reason, fail or cease to
create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority Lien on or security interest in the Collateral covered hereby or thereby; or 


        8.15 Any provision of any Loan Document shall at any time for any reason be declared to be null and void, or the validity or
enforceability thereof shall be contested by Borrower, or a proceeding shall be commenced by Borrower, or by any Governmental Authority having jurisdiction over Borrower, seeking to establish the
invalidity or unenforceability thereof, or Borrower shall deny that Borrower has any liability or obligation purported to be created under any Loan Document. 


9.    LENDER'S RIGHTS AND REMEDIES.  


        9.1    Rights and Remedies.    Upon the occurrence, and during the continuation, of
an Event
of Default, Lender (at its election but without notice of its election and without demand) may do any one or more of the following, all of which are authorized by Borrower: 




        (a)  Declare
all Obligations, whether evidenced by this Agreement, by any of the other Loan Documents, or otherwise, immediately due and payable; 


        (b)  Cease
advancing money or extending credit to or for the benefit of Borrower under this Agreement, under any of the Loan Documents, or under any other agreement between
Borrower and Lender; 


        (c)  Terminate
this Agreement and any of the other Loan Documents as to any future liability or obligation of Lender, but without affecting any of the Lender's Liens in the
Collateral and without affecting the Obligations; 


        (d)  Settle
or adjust disputes and claims directly with Account Debtors for amounts and upon terms which Lender considers advisable, and in such cases, Lender will credit
Borrower's Loan Account with only the net amounts received by Lender in payment of such disputed Accounts after deducting all Lender Expenses incurred or expended in connection therewith; 



        (e)  Cause
Borrower to hold all returned Inventory in trust for Lender, segregate all returned Inventory from all other assets of Borrower or in Borrower's possession and
conspicuously label said returned Inventory as the property of Lender; 


        (f)    Without
notice to or demand upon Borrower, make such payments and do such acts as Lender considers necessary or reasonable to protect its security interests in the
Collateral. Borrower agrees to
assemble the Personal Property Collateral if Lender so requires, and to make the Personal Property Collateral available to Lender at a place that Lender may designate which is reasonably convenient to
both parties. Borrower authorizes Lender to enter the premises where the Personal Property Collateral is located, to take and maintain possession of the Personal Property Collateral, or any part of
it, and to pay, purchase, contest, or compromise any Lien that in Lender's determination appears to conflict with the Lender's Liens and to pay all expenses incurred in connection therewith and to
charge Borrower's Loan Account therefor. With respect to any of Borrower's owned or leased premises, Borrower hereby grants Lender a license to enter into possession of such premises and to occupy the
same, without charge, in order to exercise any of Lender's rights or remedies provided herein, at law, in equity, or otherwise; 


        (g)  Without
notice to Borrower (such notice being expressly waived), and without constituting a retention of any collateral in satisfaction of an obligation (within the
meaning of the Code), set off and apply to the Obligations any and all (i) balances and deposits of Borrower held by Lender (including any amounts received in the Cash Management 




42





 






Accounts), or (ii) Indebtedness at any time owing to or for the credit or the account of Borrower held by Lender; 


        (h)  Hold,
as cash collateral, any and all balances and deposits of Borrower held by Lender, and any amounts received in the Cash Management Accounts, to secure the full and
final repayment of all of the Obligations; 


        (i)    Ship,
reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell (in the manner provided for herein) the Personal Property
Collateral. Borrower hereby grants to Lender a license or other right to use, without charge, Borrower's labels, patents, copyrights, trade secrets, trade names, trademarks, service marks, and
advertising matter, or any property of a similar nature, as it pertains to the Personal Property Collateral, in completing production of, advertising for sale, and selling any Personal Property
Collateral and Borrower's rights under all licenses and all franchise agreements shall inure to Lender's benefit; 



        (j)    Sell
the Personal Property Collateral at either a public or private sale, or both, by way of one or more contracts or transactions, for cash or on terms, in such manner
and at such places (including Borrower's premises) as Lender determines is commercially reasonable. It is not necessary that the Personal Property Collateral be present at any such sale; 


        (k)  Lender
shall give notice of the disposition of the Personal Property Collateral as follows: 



        (i)    Lender
shall give Borrower a notice in writing of the time and place of public sale, or, if the sale is a private sale or some other disposition other than a public sale
is to be made of the Personal Property Collateral, then the time on or after which the private sale or other disposition is to be made; and 


        (ii)  The
notice shall be personally delivered or mailed, postage prepaid, to Borrower as provided in Section 12, at
least 10 days before the earliest time of disposition set forth in the notice; no notice needs to be given prior to the disposition of any portion of the Personal Property Collateral that is
perishable or threatens to decline speedily in value or that is of a type customarily sold on a recognized market; 




        (l)    Lender
may credit bid and purchase at any public sale; and 


        (m)  Lender
may seek the appointment of a receiver or keeper to take possession of all or any portion of the Collateral or to operate same and, to the maximum extent
permitted by law, may seek the appointment of such a receiver without the requirement of prior notice or a hearing; 


        (n)  Lender
shall have all other rights and remedies available at law or in equity or pursuant to any other Loan Document; and 



        (o)  Any
deficiency that exists after disposition of the Personal Property Collateral as provided above will be paid immediately by Borrower. Any excess will be returned,
without interest and subject to the rights of third Persons, by Lender to Borrower. 





        9.2    Remedies Cumulative.    The rights and remedies of Lender under this Agreement,
 the
other Loan Documents, and all other agreements shall be cumulative. Lender shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or in equity. No
exercise by Lender of one right or remedy shall be deemed an election, and no waiver by Lender of any Event of Default shall be deemed a continuing waiver. No delay by Lender shall constitute a
waiver, election, or acquiescence by it. 


43





 

10.  TAXES AND EXPENSES.  


        If Borrower fails to pay any monies (whether taxes, assessments, insurance premiums, or, in the case of leased properties or assets, rents or other amounts
payable under such leases) due to third Persons, or fails to make any deposits or furnish any required proof of payment or deposit, all as required under
the terms of this Agreement, then, Lender, in its sole discretion and without prior notice to Borrower, may do any or all of the following: (a) make payment of the same or any part thereof,
(b) set up such reserves in Borrower's Loan Account as Lender deems necessary to protect Lender from the exposure created by such failure, or (c) in the case of the failure to comply
with Section 6.8 hereof, obtain and maintain insurance policies of the type described in Section 6.8  and take any action with respect to such
policies as Lender deems prudent. Any such amounts paid by Lender shall constitute Lender Expenses and any such payments shall not
constitute an agreement by Lender to make similar payments in the future or a waiver by Lender of any Event of Default under this Agreement. Lender need not inquire as to, or contest the validity of,
any such expense, tax, or Lien and the receipt of the usual official notice for the payment thereof shall be conclusive evidence that the same was validly due and owing. 


11.  WAIVERS; INDEMNIFICATION.  


        11.1    Demand; Protest.    Borrower waives demand, protest, notice of protest,
notice of
default or dishonor, notice of payment and nonpayment, nonpayment at maturity, release, compromise, settlement, extension, or renewal of documents, instruments, chattel paper, and guarantees at any
time held by Lender on which Borrower may in any way be liable. 


        11.2    Lender's Liability for Collateral.    Borrower hereby agrees that:
(a) so long
as Lender complies with its obligations, if any, under the Code, Lender shall not in any way or manner be liable or responsible for: (i) the safekeeping of the Collateral, (ii) any loss
or damage thereto occurring or arising in any manner or fashion from any cause, (iii) any diminution in the value thereof, or (iv) any act or default of any carrier, warehouseman,
bailee, forwarding agency, or other Person, and (b) all risk of loss, damage, or destruction of the Collateral shall be borne by Borrower. 


        11.3    Indemnification.    Borrower shall pay, indemnify, defend, and hold the
Lender-Related
Persons, each Participant, and each of their respective officers, directors, employees, agents, and attorneys-in-fact (each, an "Indemnified
Person") harmless (to the fullest extent permitted by law) from and against any and all claims, demands, suits, actions, investigations, proceedings, and damages, and all
reasonable attorneys fees and disbursements and other costs and expenses actually incurred in connection therewith (as and when they are incurred and irrespective of whether suit is brought), at any
time asserted against, imposed upon, or incurred by any of them (a) in connection with or as a result of or related to the execution, delivery, enforcement, performance, or administration of
this Agreement, any of the other Loan Documents, or the transactions contemplated hereby or thereby, and (b) with respect to any investigation, litigation, or proceeding related to this
Agreement, any other Loan Document, or the use of the proceeds of the credit provided hereunder (irrespective of whether any Indemnified Person is a party thereto), or any act, omission, event, or
circumstance in any manner related thereto (all the foregoing, collectively, the "Indemnified Liabilities"). The foregoing to the contrary
notwithstanding, Borrower shall have no obligation to any Indemnified Person under this Section 11.3 with respect to any Indemnified Liability
that a court of competent jurisdiction finally determines to have resulted from the gross negligence or willful misconduct of such Indemnified Person. This provision shall survive the termination of
this Agreement and the repayment of the Obligations. If any Indemnified Person makes any payment to any other Indemnified Person with respect to an Indemnified Liability as to which
Borrower was required to indemnify the Indemnified Person receiving such payment, the Indemnified Person making such payment is entitled to be indemnified and reimbursed by Borrower with respect
thereto. WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT  


44





 



 TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON.


12.  NOTICES.  


        Unless otherwise provided in this Agreement, all notices or demands by Borrower or Lender to the other relating to this Agreement or any other Loan Document shall
be in writing and (except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by registered or
certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email addresses as Borrower or Lender, as applicable, may designate to each other in accordance
herewith), or telefacsimile to Borrower or Lender, as the case may be, at its address set forth below: 



	 	 	If to Borrower:	 	WORLDXCHANGE CORP.

9775 Business Park Avenue

San Diego, California 92131

Attn: Chief Financial Officer

Fax No. 858.547.5626
	

 	
 	

with copies to:	
 	
COUNSEL SPRINGWELL COMMUNICATIONS LLC

One Landmark Street

Stanford, Connecticut 06901

Attn: Managing Director

Fax No. 203.961.9001
	

 	
 	

If to Lender:	
 	
FOOTHILL CAPITAL CORPORATION

2450 Colorado Avenue

Suite 3000 West

Santa Monica, California 90404

Attn: Business Finance Division Manager

Fax No. 310.453.7443
	

 	
 	

with copies to:	
 	
BROBECK, PHLEGER & HARRISON LLP

550 South Hope Street, Suite 2100

Los Angeles, California 90071

Attn: John Francis Hilson, Esq.

Fax No. 213.745.3345





        Lender
and Borrower may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other party. All notices or demands
sent in accordance with this Section 12, other than notices by Lender in connection with enforcement rights against the Collateral under the
provisions of the Code, shall be deemed received on the earlier of the date of actual receipt or 3 Business Days after the deposit thereof in the mail. Borrower acknowledges and agrees that notices
sent by Lender in connection with the exercise of enforcement rights against Collateral under the provisions of the Code shall be deemed sent when deposited in the mail or personally delivered, or,
where permitted by law, transmitted by telefacsimile or any other method set forth above. 


13.  CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.  




        (a)  THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF
SUCH OTHER LOAN DOCUMENT), THE  




45





 


 CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR
THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.


        (b)  THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT LENDER'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE LENDER ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. BORROWER AND LENDER WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON
CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 13(b).



        (c)  BORROWER AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE
LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. BORROWER AND LENDER
REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.





14.  ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.  


        14.1    Assignments and Participations.    




        (a)  Lender
may assign and delegate to one or more assignees (each an "Assignee") all, or any ratable part of all, of the
Obligations and the other rights and obligations of Lender hereunder and under the other Loan Documents; provided, however, that Borrower may continue
to deal solely and directly with Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses,
and related information with respect to the Assignee, have been given to Borrower by Lender and the Assignee, and (ii) Lender and its Assignee have delivered to Borrower an appropriate
assignment and acceptance agreement. In the event that Lender assigns more than 50% of the Obligations and other rights and obligations of Lender hereunder and under the other Loan Documents (other
than in connection with the sale of all or a material portion of Lender's loan portfolio), and if Borrower has not consented to such assignment (which consent shall not be unreasonably withheld,
delayed, or conditioned, Borrower shall have the right, so long as no Event of Default has occurred and is continuing, for a period of 60 days from and after the date of such assignment, to
prepay the Obligations and terminate this Agreement without being obligated to pay the Applicable Prepayment Premium. 


        (b)  From
and after the date that Lender provides Borrower with such written notice and executed assignment and acceptance agreement, (i) the Assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it 




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pursuant to such assignment and acceptance agreement, shall have the assigned and delegated rights and obligations of Lender under the Loan Documents, and (ii) Lender shall, to the extent that
rights
and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such assignment and acceptance agreement, relinquish its rights (except with respect to  Section 11.3
hereof) and be released from its obligations under this Agreement (and in the case of an assignment and acceptance covering all or
the remaining portion of Lender's rights and obligations under this Agreement and the other Loan Documents, Lender shall cease to be a party hereto and thereto), and such assignment shall affect a
novation between Borrower and the Assignee. 


        (c)  Immediately
upon Borrower's receipt of such fully executed assignment and acceptance agreement, this Agreement shall be deemed to be amended to the extent, but only to
the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the rights and duties of Lender arising therefrom. 


        (d)  Lender
may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a
"Participant") participating interests in the Obligations and the other rights and interests of Lender hereunder and under the other Loan Documents;  provided,
however, that (i) Lender shall remain the "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant
receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's
obligations under this Agreement shall remain unchanged, (ii) Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower and Lender shall continue to
deal solely and directly with each other in connection with Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) Lender shall not transfer or grant any
participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent
such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such
Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or a material portion of
the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating,
(D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through Lender, or (E) change the amount or due dates of scheduled principal
repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder shall be determined as if Lender had not sold such participation, except that, if amounts outstanding
under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right
of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as
Lender under this Agreement. The rights of any Participant only shall be derivative through Lender and no Participant shall have any rights under this Agreement or the other Loan Documents or any
direct rights as to Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by
Lender. 


        (e)  In
connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or
hereafter may have relating to Borrower or Borrower's business. 




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        (f)    Any
other provision in this Agreement notwithstanding, Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and
interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.14, and
such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. 





        14.2    Successors.    This Agreement shall bind and inure to the benefit of the
respective
successors and assigns of each of the parties; provided, however, that Borrower may not assign this Agreement or any rights or duties hereunder without
Lender's prior written consent and any prohibited assignment shall be absolutely void ab initio. No consent to assignment by Lender shall release
Borrower from its Obligations. Lender may assign this Agreement and the other Loan Documents and its rights and duties hereunder and thereunder pursuant to Section 14.1  hereof and, except as
expressly required pursuant to Section 14.1 hereof, no consent or approval by Borrower is required
in connection with any such assignment. 



15.  AMENDMENTS; WAIVERS.  


        15.1    Amendments and Waivers.    No amendment or waiver of any provision of this
Agreement
or any other Loan Document, and no consent with respect to any departure by Borrower therefrom, shall be effective unless the same shall be in writing and signed by Lender and Borrower and then any
such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 


        15.2    No Waivers; Cumulative Remedies.    No failure by Lender to exercise any
right,
remedy, or option under this Agreement or any other Loan Document, or delay by Lender in exercising the same, will operate as a waiver thereof. No waiver by Lender will be effective unless it is in
writing, and then only to the extent specifically stated. No waiver by Lender on any occasion shall affect or diminish Lender's rights thereafter to require strict performance by Borrower of any
provision of this Agreement. Lender's rights under this Agreement and the other Loan Documents will be cumulative and not exclusive of any other right or remedy that Lender may have. 



16.  GENERAL PROVISIONS.  


        16.1    Effectiveness.    This Agreement shall be binding and deemed effective when
executed
by Borrower and Lender. 


        16.2    Section Headings.    Headings and numbers have been set forth herein for
convenience only. Unless the contrary is compelled by the context, everything contained in each Section applies equally to this entire Agreement. 



        16.3    Interpretation.    Neither this Agreement nor any uncertainty or ambiguity
herein
shall be construed against Lender or Borrower, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by all parties and shall be construed and
interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto. 


        16.4    Severability of Provisions.    Each provision of this Agreement shall be
severable
from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision. 


        16.5    Withholding Taxes.    All payments made by Borrower hereunder or under any
note will
be made without setoff, counterclaim, or other defense, except as required by applicable law other than for Taxes (as defined below). All such payments will be made free and clear of, and without
deduction 


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or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction (other than the United
States) or by any political subdivision or taxing authority thereof or therein (other than of the United States) with respect to such payments (but excluding, any tax imposed by any jurisdiction or by
any political subdivision or taxing authority thereof or therein (i) measured by or based on the net income or net profits of Lender, or (ii) to the extent that such tax results from a
change in the circumstances of Lender, including a change in the residence, place of organization, or principal place of business of Lender, or a change in the branch or lending office of Lender
participating in the transactions set forth herein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as "Taxes"). If any Taxes are so levied or imposed, Borrower agrees to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement or under any note, including any amount paid pursuant to this  Section 16.5 after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein;  provided, however, that Borrower shall not be required to increase any such
amounts payable to Lender
if the increase in such amount payable results from Lender's own willful misconduct or gross negligence. Borrower will furnish to Lender as promptly as possible after the date the payment of any Taxes
is due pursuant to applicable law certified copies of tax receipts evidencing such payment by Borrower. 


        16.6    Amendments in Writing.    This Agreement only can be amended by a writing
signed by
Lender and Borrower. 


        16.7    Counterparts; Telefacsimile Execution.    This Agreement may be executed in
any number
of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement by telefacsimile shall be equally as effective as delivery of an original executed counterpart of this
Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each other Loan Document mutatis
mutandis. 


        16.8    Revival and Reinstatement of Obligations.    If the incurrence or payment of
the
Obligations by Borrower or the transfer to Lender 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 Lender 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 Lender is required or elects to repay or restore, and as to all reasonable costs, expenses, and
attorneys fees of Lender related thereto, the liability of Borrower automatically shall be revived, reinstated, and restored and shall exist as though such Voidable Transfer had never been made. 


        16.9    Integration.    This Agreement, together with the other Loan Documents,
reflects the
entire understanding of the parties with respect to the transactions contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof. 


[Signature
page to follow.] 


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        IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written. 



	

 	
 	
WORLDXCHANGE CORP.
 a Delaware corporation
	

 	
 	

By:	
 	


	 	 	Title:	 	 
	

 	
 	
FOOTHILL CAPITAL CORPORATION,

a California corporation
	

 	
 	

By:	
 	


	 	 	Title:	 	 




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LOAN AND SECURITY AGREEMENT by and among WORLDXCHANGE CORP. as Borrower, and FOOTHILL CAPITAL CORPORATION as Lender Dated as of December 10, 2001