Exhibit 10.1





Exhibit 10.1



Execution Version




TERM LOAN AGREEMENT




by and among




ZAYO GROUP, LLC




and




ZAYO CAPITAL, INC.,

as Borrowers,




THE PERSONS PARTY HERETO FROM TIME TO TIME AS GUARANTORS,




THE FINANCIAL INSTITUTIONS PARTY HERETO

FROM TIME TO TIME AS LENDERS,




SUNTRUST BANK,

as Collateral Agent,




ROYAL BANK OF CANADA,

as Administrative Agent,




and




RBC CAPITAL MARKETS1, BARCLAYS CAPITAL and

SUNTRUST ROBINSON HUMPHREY, INC.,

as Joint Lead Arrangers,




RBC CAPITAL MARKETS and BARCLAYS CAPITAL,

as Joint Physical Bookrunners,




SUNTRUST ROBINSON HUMPHREY, INC.,

as Joint Bookrunning Manager,




and




BARCLAYS CAPITAL and

SUNTRUST BANK,

as Co-Syndication Agents




 







	 	 	 
	1	 	RBC Capital Markets is a brand name for the capital markets
activities of Royal Bank of Canada and its affiliates.



 












 









December 1, 2011



 


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TABLE
OF CONTENTS



	 	 	 	 	 
	 	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I. DEFINITIONS, ACCOUNTING PRINCIPLES AND OTHER INTERPRETIVE MATTERS

	 	 	2	 
	Section 1.1 Definitions
	 	 	2	 
	Section 1.2 Accounting Principles
	 	 	39	 
	Section 1.3 Other Interpretive Matters
	 	 	39	 
	ARTICLE II. THE LOANS
	 	 	39	 
	Section 2.1 Extension of Credit
	 	 	39	 
	Section 2.2 Manner of Borrowing and Disbursement of Loans
	 	 	40	 
	Section 2.3 Interest
	 	 	42	 
	Section 2.4 Fees
	 	 	43	 
	Section 2.5 Prepayment/Termination of Commitment
	 	 	43	 
	Section 2.6 Repayment
	 	 	46	 
	Section 2.7 Notes; Loan Accounts
	 	 	46	 
	Section 2.8 Manner of Payment
	 	 	46	 
	Section 2.9 Reimbursement
	 	 	49	 
	Section 2.10 Pro Rata Treatment
	 	 	50	 
	Section 2.11 Application of Payments
	 	 	50	 
	Section 2.12 Use of Proceeds
	 	 	51	 
	Section 2.13 All Obligations to Constitute One Obligation
	 	 	51	 
	Section 2.14 Maximum Rate of Interest
	 	 	51	 
	Section 2.15 Extensions of Loans
	 	 	52	 
	Section 2.16 Bank Products
	 	 	53	 
	Section 2.17 Incremental Loans
	 	 	54	 
	ARTICLE III. GUARANTY
	 	 	55	 
	Section 3.1 Guaranty
	 	 	55	 
	Section 3.2 Special Provisions Applicable to Subsidiary Guarantors
	 	 	58	 
	ARTICLE IV. CONDITIONS PRECEDENT
	 	 	59	 
	Section 4.1 Conditions Precedent to Initial Loan
	 	 	59	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	62	 
	Section 5.1 General Representations and Warranties
	 	 	62	 
	Section 5.2 Survival of Representations and Warranties, etc.
	 	 	70	 





 


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TABLE
OF CONTENTS 

(continued)




	 	 	 	 	 
	 	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VI. GENERAL COVENANTS
	 	 	71	 
	Section 6.1 Preservation of Existence and Similar Matters
	 	 	71	 
	Section 6.2 Compliance with Applicable Law
	 	 	71	 
	Section 6.3 Maintenance of Properties
	 	 	71	 
	Section 6.4 Accounting Methods and Financial Records
	 	 	71	 
	Section 6.5 Insurance
	 	 	72	 
	Section 6.6 Payment of Taxes and Claims
	 	 	72	 
	Section 6.7 Visits and Inspections
	 	 	72	 
	Section 6.8 Intentionally Omitted
	 	 	73	 
	Section 6.9 ERISA
	 	 	73	 
	Section 6.10 Lien Perfection
	 	 	73	 
	Section 6.11 Intentionally Omitted
	 	 	73	 
	Section 6.12 Intentionally Omitted
	 	 	73	 
	Section 6.13 Blocked Account Agreements
	 	 	73	 
	Section 6.14 Further Assurances
	 	 	74	 
	Section 6.15 Broker’s Claims
	 	 	74	 
	Section 6.16 Indemnity
	 	 	75	 
	Section 6.17 Environmental Matters
	 	 	75	 
	Section 6.18 Formation of Subsidiaries
	 	 	76	 
	Section 6.19 Required PUC Consents
	 	 	76	 
	Section 6.20 Designation of Subsidiaries
	 	 	76	 
	ARTICLE VII. INFORMATION COVENANTS
	 	 	77	 
	Section 7.1 Quarterly Financial Statements and Information
	 	 	77	 
	Section 7.2 Annual Financial Statements and Information; Certificate of No
Default
	 	 	78	 
	Section 7.3 Compliance Certificates
	 	 	78	 
	Section 7.4 Access to Accountants
	 	 	78	 
	Section 7.5 Additional Reports
	 	 	79	 
	Section 7.6 Notice of Litigation and Other Matters
	 	 	79	 





 


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TABLE
OF CONTENTS 

(continued)




	 	 	 	 	 
	 	 	 	Page	 
	 
	 	 	 	 
	ARTICLE
VIII. NEGATIVE COVENANTS
	 	 	81	 
	Section 8.1 Funded Debt
	 	 	81	 
	Section 8.2 Guaranties
	 	 	83	 
	Section 8.3 Liens
	 	 	83	 
	Section 8.4 Restricted Payments and Purchases
	 	 	83	 
	Section 8.5 Investments
	 	 	84	 
	Section 8.6 Affiliate Transactions
	 	 	85	 
	Section 8.7 Liquidation; Change in Ownership, Name, or Year; Disposition or
Acquisition of Assets; Etc.
	 	 	86	 
	Section 8.8 Financial Covenants
	 	 	87	 
	Section 8.9 Additional Fiber Optic
	 	 	87	 
	Section 8.10 Conduct of Business
	 	 	88	 
	Section 8.11 Sales and Leasebacks
	 	 	88	 
	Section 8.12 Amendment and Waiver
	 	 	88	 
	Section 8.13 ERISA Liability
	 	 	88	 
	Section 8.14 Prepayments
	 	 	88	 
	Section 8.15 Negative Pledge
	 	 	89	 
	Section 8.16 Inconsistent Agreements
	 	 	89	 
	Section 8.17 Senior Note Documents
	 	 	89	 
	ARTICLE IX. DEFAULT
	 	 	90	 
	Section 9.1 Events of Default
	 	 	90	 
	Section 9.2 Remedies
	 	 	92	 
	Section 9.3 Right to Cure
	 	 	93	 
	ARTICLE X. THE ADMINISTRATIVE AGENT
	 	 	94	 
	Section 10.1 Appointment and Authorization
	 	 	94	 
	Section 10.2 Interest Holders
	 	 	94	 
	Section 10.3 Consultation with Counsel
	 	 	94	 
	Section 10.4 Documents
	 	 	95	 
	Section 10.5 Administrative Agent and Affiliates
	 	 	95	 
	Section 10.6 Responsibility of the Administrative Agent
	 	 	95	 





 


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TABLE
OF CONTENTS 

(continued)




	 	 	 	 	 
	 	 	 	Page	 
	 
	 	 	 	 
	Section 10.7 Action by Administrative Agent
	 	 	95	 
	Section 10.8 Notice of Default
	 	 	96	 
	Section 10.9 Responsibility Disclaimed
	 	 	96	 
	Section 10.10 Indemnification
	 	 	96	 
	Section 10.11 Credit Decision
	 	 	97	 
	Section 10.12 Successor Administrative Agent
	 	 	97	 
	Section 10.13 Administrative Agent May File Proofs of Claim
	 	 	98	 
	Section 10.14 Collateral
	 	 	98	 
	Section 10.15 Release of Guarantees and Collateral
	 	 	99	 
	Section 10.16 Additional Agents
	 	 	99	 
	ARTICLE XI. MISCELLANEOUS
	 	 	100	 
	Section 11.1 Notices
	 	 	100	 
	Section 11.2 Expenses
	 	 	101	 
	Section 11.3 Waivers
	 	 	101	 
	Section 11.4 Set-Off
	 	 	102	 
	Section 11.5 Assignment
	 	 	102	 
	Section 11.6 Counterparts
	 	 	112	 
	Section 11.7 Under Seal; Governing Law
	 	 	112	 
	Section 11.8 Severability
	 	 	112	 
	Section 11.9 Headings
	 	 	112	 
	Section 11.10 Source of Funds
	 	 	112	 
	Section 11.11 Entire Agreement
	 	 	113	 
	Section 11.12 Amendments and Waivers
	 	 	113	 
	Section 11.13 Other Relationships; No Advisory or Fiduciary Responsibility
	 	 	114	 
	Section 11.14 Pronouns
	 	 	115	 
	Section 11.15 Disclosure
	 	 	115	 
	Section 11.16 Replacement of Lender
	 	 	115	 
	Section 11.17 Confidentiality
	 	 	115	 
	Section 11.18 Revival and Reinstatement of Obligations
	 	 	116	 
	Section 11.19 Electronic Transmissions
	 	 	116	 





 


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TABLE
OF CONTENTS 

(continued)




	 	 	 	 	 
	 	 	 	Page	 
	 
	 	 	 	 
	ARTICLE XII. YIELD PROTECTION
	 	 	117	 
	Section 12.1 Eurodollar Rate Basis Determination
	 	 	117	 
	Section 12.2 Illegality
	 	 	117	 
	Section 12.3 Increased Costs
	 	 	118	 
	Section 12.4 Intentionally Omitted
	 	 	119	 
	Section 12.5 Capital Adequacy
	 	 	119	 
	ARTICLE
XIII. JURISDICTION, VENUE AND WAIVER OF JURY TRIAL
	 	 	120	 
	Section 13.1 Jurisdiction and Service of Process
	 	 	120	 
	Section 13.2 Consent to Venue
	 	 	121	 
	Section 13.3 Waiver of Jury Trial
	 	 	121	 
	Section 13.4 All Obligations to Constitute Joint and Several Obligations
	 	 	121	 
	Section 13.5 The Administrative Borrower
	 	 	122	 






 


-v-









 







INDEX




	 	 	 	 	 	 	 
	EXHIBITS
	 	 	 	 	 	 
	 
	 	 	 	 	 
	Exhibit A

	 	—   
	 	Form of Assignment and Acceptance
	 	 
	Exhibit B

	 	—   
	 	Form of Compliance Certificate	 	 
	Exhibit C

	 	—   
	 	Form of Note	 	 
	Exhibit D

	 	—   
	 	Form of Notice of Conversion/Continuation	 	 
	Exhibit E

	 	—   
	 	Form of Request for Loan	 	 
	Exhibit F

	 	—   
	 	Form of Notice of Prepayment	 	 
	Exhibit G

	 	—   
	 	Guaranty Supplement	 	 
	Exhibit H

	 	—   
	 	Form of Voting Agreement	 	 
	Exhibit I

	 	—   
	 	Form of Acceptance and Purchase Notice	 	 
	Exhibit J

	 	—   
	 	Form of Discount Range Sale Offer	 	 
	Exhibit K

	 	—   
	 	Form of Discount Range Solicitation Notice	 	 
	Exhibit L

	 	—   
	 	Form of Solicited Discounted Sale Offer	 	 
	Exhibit M

	 	—   
	 	Form of Solicited Discounted Solicitation Notice	 	 
	Exhibit N

	 	—   
	 	Form of Specified Discount Purchase Notice	 	 
	Exhibit O

	 	—   
	 	Form of Specified Discount Purchase Response	 	 





 












 






	 	 	 	 	 	 	 
	SCHEDULES
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Schedule 1.1(a)

	 	—   
	 	Equity Group
	 	 
	Schedule 1.1(b)

	 	—   
	 	Liens	 	 
	Schedule 4.1(f)

	 	—   
	 	Surviving 360networks Funded Debt	 	 
	Schedule 5.1(c)-1

	 	—   
	 	Subsidiaries	 	 
	Schedule 5.1(c)-2

	 	—   
	 	Partnerships/Joint Ventures	 	 
	Schedule 5.1(d)

	 	—   
	 	Outstanding Capital Stock Ownership	 	 
	Schedule 5.1(i)

	 	—   
	 	Labor Matters	 	 
	Schedule 5.1(j)

	 	—   
	 	Taxes	 	 
	Schedule 5.1(m)

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

	 	—   
	 	Litigation	 	 
	Schedule 5.1(o)

	 	—   
	 	ERISA	 	 
	Schedule 5.1(p)

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

	 	—   
	 	Insurance	 	 
	Schedule 5.1(w)-1

	 	—   
	 	Leased Real Property	 	 
	Schedule 5.1(w)-2

	 	—   
	 	Owned Real Property	 	 
	Schedule 5.1(x)

	 	—   
	 	Environmental Matters	 	 
	Schedule 6.13

	 	—   
	 	Bank and Investment Accounts	 	 
	Schedule 6.19

	 	—   
	 	Required PUC Consents	 	 
	Schedule 8.1

	 	—   
	 	Outstanding Indebtedness as of the Agreement Date	 	 
	Schedule 8.5

	 	—   
	 	Existing Investments	 	 
	Schedule 8.6

	 	—   
	 	Affiliate Transactions	 	 






 


-ii-









 







TERM LOAN AGREEMENT




THIS TERM LOAN AGREEMENT, dated as of December 1, 2011 (as amended, restated, supplemented or
otherwise modified from time to time, this “Agreement”), is by and among ZAYO GROUP, LLC, a
Delaware limited liability company (“Zayo”), ZAYO CAPITAL, INC., a Delaware corporation
(“Zayo Capital”; and together with Zayo, each, individually as a “Borrower” and,
collectively, as the “Borrowers”), the Persons party hereto from time to time as
Guarantors, the financial institutions party hereto from time to time as Lenders, SUNTRUST BANK, as
the Collateral Agent, and ROYAL BANK OF CANADA, as the Administrative Agent.



W I T N E S S E T H:




WHEREAS, the Borrowers have requested that the Administrative Agent and the Lenders extend
credit to them in the form of Loans (as this and other capitalized terms used in these recitals are
defined in Section 1.1 below) in an aggregate principal amount of $315,000,000 (the
“Term Loan Facility”).



WHEREAS, the proceeds of the Loans shall be used to (i) finance the acquisition (the “360
Acquisition”), pursuant to the 360 Stock Purchase Agreement, by the Borrowers of all of the
Equity Interests of 360networks holdings (USA) inc., a Nevada corporation (“360networks”),
(ii) refinance certain existing Funded Debt of 360networks (the “Refinancing”) and (iii)
pay the fees and expenses incurred in connection with the 360 Acquisition, the Refinancing and the
incurrence of the Bridge Facility and the Term Loan Facility; and



WHEREAS, the Administrative Agent and the Lenders are willing to make the Loans available to
the Borrowers upon the terms and conditions set forth herein;



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




 


 









 





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



ARTICLE I.

DEFINITIONS, ACCOUNTING PRINCIPLES AND

OTHER INTERPRETIVE MATTERS





Definitions. For the purposes of this Agreement:




“360networks” shall have the meaning specified in the recitals hereto.




“360 Acquisition” shall have the meaning specified in the recitals hereto.



“360 Acquisition Note Indebtedness” shall mean all payment and performance obligations
as existing from time to time of the Borrower Parties to the holders of the 360 Acquisition Notes
and the trustee, or any of them, under the definitive documentation in respect of the 360
Acquisition Notes (including any interest, fees and expenses that, but for the provisions of the
Bankruptcy Code, would have accrued); provided that the 360 Acquisition Note Indebtedness
shall constitute Additional Loan and Notes Obligations (as defined in the Intercreditor Agreement)
and the trustee in respect of the 360 Acquisition Notes shall, as the Authorized Representative (as
defined in the Intercreditor Agreement) of the holders of 360 Acquisition Notes, accede to the
Intercreditor Agreement by delivering to the Joint Collateral Agent (as defined in the
Intercreditor Agreement) a Joinder Agreement (as defined in the Intercreditor Agreement) in
accordance with Section 7.17 thereof



“360 Acquisition Notes” shall mean senior secured notes, the proceeds of which are
used solely (x) to finance the 360 Acquisition and pay fees and expenses in connection with the 360
Transactions or (y) to repay the Funded Debt under this Agreement and the other Loan Documents.




“360 Corporation” shall mean 360networks Corporation, a British Columbia corporation.



“360 Stock Purchase Agreement” shall mean the Stock Purchase Agreement, dated as of
October 6, 2011, among Zayo, 360 Corporation, 360networks (fiber holdco) ltd. and 360networks
(fiber subco) ltd., together with all exhibits, schedules and disclosure letters thereto.



“360 Transactions” shall mean the 360 Acquisition, the VOIP Divestiture and the
incurrence of the Term Loan Indebtedness, the 360 Acquisition Note Indebtedness (if any), the
Bridge Facility and the Obligations.




“Acceptable Discount” shall have the meaning specified in Section 11.5(g).



“Acceptable Purchase Amount” shall have the meaning specified in Section
11.5(g).



“Acceptance and Purchase Notice” means a notice of the Borrower’s acceptance of the
Acceptable Discount in substantially the form of Exhibit I.



“Acceptance Date” shall have the meaning specified in Section 11.5(g).


 


2









 





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



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



“Acquired EBITDA” shall mean, with respect to any Converted Restricted Subsidiary for
any period, the amount of EBITDA for such period (including the portion thereof occurring prior to
the date such Subsidiary was designated as a Restricted Subsidiary) of such Converted Restricted
Subsidiary.




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




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




“Additional Lender” shall have the meaning specified in Section 2.17.



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



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



“Administrative Agent’s Office” shall mean the office of the Administrative Agent
located at 20 King Street West, 4th Floor, South Tower, Toronto, Ontario M5H 1C4, Attention:
Manager, Agency, or such other office as may be designated by the Administrative Agent pursuant to
the provisions of Section 11.1.




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



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



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



“Aggregate Commitment Ratio” shall mean, with respect to any Lender, the ratio,
expressed as a percentage, of (a) the outstanding Loans of such Lender, divided by (b) the sum of
the aggregate outstanding Loans of all Lenders.



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


 


3









 






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



“All-In Yield” shall mean, as to any Funded Debt, the yield thereon, whether in the
form of interest rate, margin, OID, up-front fees or a Eurodollar Rate floor or Base Rate floor
greater than 1.50% or 2.50% respectively (with such increased floor amount being equated to
interest margins solely for purposes of determining any increase to the Applicable Margin);
provided that OID and up-front fees shall be equated to interest rate assuming the shorter
of (i) the Weighted Average Life to Maturity and (ii) an assumed 4-year life to maturity; and
provided, further, that “All-in Yield” shall not include arrangement, commitment,
underwriting, structuring or similar fees paid to arrangers or any other fees that are not paid
ratably to the market for such Funded Debt.



“Annualized EBITDA” shall mean, with respect to any Person for any period, EBITDA for
the most recent fiscal quarter then ended, multiplied by 4.




“Applicable Discount” shall have the meaning specified in Section 11.5(g).



“Applicable Law” shall mean, in respect of any Person, all provisions of
constitutions, statutes, rules, regulations, and orders of governmental bodies or regulatory
agencies applicable, whether by law or by virtue of contract, to such Person, and all orders and
decrees of all courts and arbitrators in proceedings or actions to which the Person in question is
a party or by which it is bound.



“Applicable Margin” shall mean (a) 4.50% per annum, in the case of Base Rate Loans and
(ii) 5.50% per annum, in the case of Eurodollar Loans.



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



“Asset Fraction” shall mean, at any time, a fraction, the numerator of which is the
aggregate principal amount of Funded Debt under the Term Loan Facility and the denominator of which
is the sum of the aggregate principal amount of all Pari Passu Debt (other than Funded Debt in
respect of the Revolving Credit Facility, any other revolving credit facility or any other Pari
Passu Debt that does not include a mandatory prepayment or offer to redeem with respect to asset
sale proceeds) which is secured by Liens on the Collateral or any material portion thereof that are
not subordinated to the Liens on such portion of the Collateral securing the Obligations.



“Asset Sale” shall mean (a) the sale, lease, conveyance or other disposition (each, a
“Transfer”) including, without limitation, by way of condemnation or casualty event, of any
assets and (b) the issuance of Equity Interests by any Restricted Subsidiary or the Transfer by
either Borrower or any of their Restricted Subsidiaries of Equity Interests in any of their
respective Subsidiaries (other than directors’ qualifying shares and shares issued to foreign
nationals to the extent required by applicable law); provided, however, that none
of the following shall constitute Asset Sales: (i) any single transaction or series of related
transactions that involves assets or Equity Interests having a fair market value of less than
$5,000,000; (ii) a transaction with respect to a Borrower that is governed by Section
8.7(d)(iii); (iii) a Transfer of assets or Equity Interests between or among the Administrative
Borrower and the Restricted Subsidiaries; (iv) an issuance of Equity Interests by a Restricted
Subsidiary to the Administrative


 


4









 






Borrower or to a Restricted Subsidiary; (v) a Transfer of any assets in the ordinary course of
business, including the transfer, conveyance, sale, lease or other disposition of optical fiber
owned by the Administrative Borrower or any of its Restricted Subsidiaries in the ordinary course
of their business, provided that no such fiber asset sale shall, individually or in the aggregate
with all other fiber asset sales, impede the Administrative Borrower or any of its Restricted
Subsidiaries from conducting their businesses as conducted as of the Agreement Date and (as
determined in good faith by the board of directors of the Administrative Borrower, whose
determination shall be evidenced by a board resolution certified to the Administrative Agent by an
Authorized Signatory of the Administrative Borrower); (vi) a Transfer of Cash Equivalents; (vii) a
Transfer of accounts receivable in connection with the compromise, settlement or collection thereof
in the ordinary course of business or in bankruptcy or similar proceedings; (viii) a Transfer that
constitutes a Restricted Payment or Restricted Purchase that is permitted by Section 8.4 or
an Investment permitted by Section 8.5; (ix) a Transfer of any property or equipment that
has become damaged, worn out or obsolete or any property, equipment or other asset that, in the
reasonable good faith judgment of the Administrative Borrower or such Restricted Subsidiary, as the
case may be, is not used or useful in the business of the Administrative Borrower or such
Restricted Subsidiary, as the case may be; (x) the creation of a Lien not prohibited by this
Agreement (but not the sale of property subject to a Lien); (xi) a grant of a license to use the
Administrative Borrower’s or any Restricted Subsidiary’s patents, trade secrets, know-how or other
intellectual property to the extent that such license does not limit the licensor’s use of the
patent, trade secret, know-how or other intellectual property and (xii) the VOIP Divestiture.



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



“Auction Agent” means (a) the Administrative Agent or (b) any other financial
institution or advisor employed by the Borrowers (whether or not an Affiliate of the Administrative
Agent) to act as an arranger in connection with any Discounted Loan Purchase pursuant to
Section 11.5(g); provided that the Borrowers shall not designate the Administrative
Agent as the Auction Agent without the written consent of the Administrative Agent (it being
understood that the Administrative Agent shall be under no obligation to agree to act as the
Auction Agent); provided, further, that neither of the Borrowers nor any of their
Affiliates may act as the Auction Agent.



“Audited Financial Statements” shall mean the audited consolidated balance sheets of
each of Zayo and 360 Corporation as of, and the related statements of income, changes in equity and
cash flows for, the three fiscal years ended at least 90 days prior to the Agreement Date.



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



“Availability” shall mean, as of any date of determination, the unutilized portion of
all revolving credit commitments made to the Borrowers and their Restricted Subsidiaries
(including, without limitation, the Revolving Loan Commitments (as defined in the Revolving
Credit Agreement)).


 


5









 





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



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



“Bank Products” shall mean any one or more of the following types of services or
facilities extended to the Borrower Parties by a Person who at the time such services or facilities
were extended was a Lender or a Revolving Lender (or an Affiliate of any of the foregoing): (a)
credit cards; (b) ACH Transactions; (c) cash management, including controlled disbursement
services; and (d) the Lender Hedge Agreements.



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



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



“Base Rate” shall mean the higher of (i) the rate which the Administrative Agent
announces from time to time as its prime lending rate, as in effect from time to time, (ii) the
Federal Funds Rate, as in effect from time to time, plus one-half of one percent (1/2%) per annum
or (iii) the Eurodollar Rate determined on a daily basis for a period of one (1) month (any changes
in such rates to be effective as of the date of any change in such rate) plus one percent (1.00%)
per annum; provided, however, that during the period from the Agreement Date to the
date that is thirty (30) days following the Agreement Date (or such earlier date as shall be
specified by the Administrative Agent on which a Eurodollar Loan has become available), “Base Rate”
shall mean the rate per annum equal to the Eurodollar Basis for the Eurodollar Loan Period selected
by the Borrower as in effect on the Agreement Date plus 1.0%. The Administrative Agent’s prime
lending rate is a reference rate and does not necessarily represent the lowest or best rate of
interest actually charged to any customer of the Administrative Agent. The Administrative Agent
may make commercial loans or other loans at rates of interest at, above, or below the
Administrative Agent’s prime lending rate.



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


 


6









 





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



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



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




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



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




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



“Bridge Facility” shall mean the senior unsecured bridge loan facility incurred by the
Borrowers pursuant to the Bridge Loan Agreement, the proceeds of which are used solely to finance
the 360 Acquisition and pay fees and expenses in connection with the other 360 Transactions.



“Bridge Indebtedness” shall mean all payment and performance obligations as existing
from time to time of the Borrower Parties to the lenders and the administrative agent, or any of
them, under the definitive documentation in respect of the Bridge Facility (including any interest,
fees and expenses that, but for the provisions of the Bankruptcy Code, would have accrued), or as a
result of the making of loans thereunder.



“Bridge Loan Agreement” shall mean the bridge loan agreement, dated as of the
Agreement Date, among the Borrower Parties, Royal Bank of Canada as administrative agent and the
lenders and other financial institutions party thereto from time to time as lenders.



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



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


 


7









 





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



“Cash Equivalents” shall mean, collectively, (a) securities issued or directly and
fully guaranteed or insured by the US and its agencies and instrumentalities (provided that the
full faith and credit of the US is pledged in support thereof) maturing within three hundred
sixty-five (365) days of the date of purchase, (b) commercial paper and variable or fixed rate
notes issued or guaranteed by banks of the type described in the succeeding clause (c) (or by the
parent company thereof), or by domestic corporations, each of which domestic corporations shall
have a consolidated net worth of at least $500,000,000 and conduct substantially all of its
business in the United States, which commercial paper will mature within one hundred eighty (180)
days from the date of the original issue thereof and is rated “P-1” or better by Moody’s or “A-1”
or better by S&P, (c) certificates of deposit and time deposits maturing within three hundred
sixty-five (365) days of the date of purchase and issued by (i) any Revolving Lender, (ii) any US
national or state bank having capital and surplus totaling more than $500,000,000, or (iii) any
bank whose short-term commercial paper is rated “P-1” or better by Moody’s or “A-1” or better by
S&P, (d) up to $100,000 per institution and up to $1,000,000 in the aggregate in (i) short-term
obligations issued by any local commercial bank or trust company located in those areas where the
Borrowers conduct their business, whose deposits are insured by the Federal Deposit Insurance
Corporation, or (ii) commercial bank-insured money market funds, or any combination of the types of
investments described in this clause (d), (e) repurchase agreements entered into by any Person with
a bank or trust company (including any of the Revolving Lenders) or recognized securities dealer
having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the US in which such Person shall have a perfected first priority security interest
(subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at
least 100% of the amount of the repurchase obligations and (f) Investments, classified in
accordance with GAAP as current assets, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a) through (e).




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


 


8









 





“Change in Control” shall mean (a) the direct or indirect sale, transfer, conveyance
or other disposition, in one or a series of related transactions, of all or substantially all of
the properties or assets of the Borrower Parties, taken as a whole, to any “person” (as that term
is used in Section 13(d)(3) of the Exchange Act) other than the Equity Group or an entity of which
the Equity Group are the Beneficial Owners, directly or indirectly, of a majority in the aggregate
of the voting power of the Equity Interests, on a fully diluted basis, (b) the adoption of a plan
relating to the liquidation or dissolution of any Borrower, (c) prior to the first public offering
of common stock of any Borrower, (i) the Equity Group cease to be the Beneficial Owners, directly
or indirectly, of a majority in the aggregate of the total voting power of the Equity Interests of
each Borrower, on a fully diluted basis, whether as a result of issuance of securities of such
Borrower, any merger, consolidation, liquidation or dissolution of such Borrower, or any
direct or indirect transfer of securities by such Borrower or (ii) a majority of the members of the
board of directors of such Borrower are not Continuing Directors, (d) on and following the first
public offering of common stock of any Borrower, (i) any “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), other than the Equity Group, becomes the
Beneficial Owner, directly or indirectly, of 30% or more of the voting power of the Equity
Interests of such Borrower and (ii) either (A) the Equity Group are not the Beneficial Owners of a
larger percentage of the voting power of such Equity Interests than such person or group, or (B)
the majority of the members of the board of directors of such Borrower are not Continuing Directors
or (e) any Borrower consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into any Borrower, in any such event pursuant to a transaction
in which any of the outstanding Equity Interests of such Borrower is converted into or exchanged
for cash, securities or other property, other than any such transaction where (i) the Equity
Interests of such Borrower outstanding immediately prior to such transaction is converted into or
exchanged for Equity Interests of the surviving or transferee Person constituting a majority of the
voting power of the outstanding shares of such Equity Interests of such surviving or transferee
Person (immediately after giving effect to such issuance) and (ii) (A) prior to the first public
offering of common stock of such Borrower, immediately after such transaction, the Equity Group are
the Beneficial Owners, directly or indirectly, of a majority of the aggregate of the total voting
power of the Equity Interests of such surviving or transferee Person and (B) on and following the
first public offering of common stock of such Borrower, immediately after such transaction, no
“person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Exchange Act), other
than the Equity Group, becomes, directly or indirectly, the Beneficial Owner of 30% or more of the
voting power of the Equity Interests of the surviving or transferee Person.



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




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



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



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



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


 


9









 





“Commitment” shall mean as to each Lender, its obligation to make a Loan to the
Borrowers pursuant to Section 2.01.



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



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




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



“Consolidated Working Capital” means, at any date, the excess of (a) the sum of (i)
all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set
forth opposite the caption “total current assets” (or any like caption) on a consolidated balance
sheet of the Borrowers and their Restricted Subsidiaries at such date and (ii) long-term accounts
receivable of the Borrowers and their Restricted Subsidiaries over (b) the sum of (i) all amounts
that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities”
(or any like caption) on a consolidated balance sheet of the Borrowers and their Restricted
Subsidiaries on such date and (ii) long-term deferred revenue of the Borrowers and their Restricted
Subsidiaries, but excluding, without duplication, (a) the current portion of any Funded Debt of the
Borrowers and their Restricted Subsidiaries, (b) all Indebtedness of the Borrowers and their
Restricted Subsidiaries consisting of revolving loans, swing line loans and letter of credit
obligations to the extent otherwise included therein, (c) the current portion of interest owed by
the Borrowers and their Restricted Subsidiaries, (d) the current portion of current and deferred
income taxes owed by the Borrowers and their Restricted Subsidiaries, (e) the current portion of
any Capitalized Lease Obligations of the Borrowers and their Restricted Subsidiaries, (f) deferred
revenue of the Borrowers and their Restricted Subsidiaries arising from cash receipts that are
earmarked for specific projects and (g) the current portion of deferred acquisition costs of the
Borrowers and their Restricted Subsidiaries.



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



“Contract Consideration” shall have the meaning specified in the definition of “Excess
Cash Flow.”



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



“Converted Restricted Subsidiary” shall mean, for any period, any Unrestricted
Subsidiary which is designated as a Restricted Subsidiary during such period in accordance with
Section 6.20.


 


10









 





“Converted Unrestricted Subsidiaries” shall mean, for any period, any Restricted
Subsidiary which is designated as an Unrestricted Subsidiary during such period in accordance with
Section 6.20 and the definition of “Unrestricted Subsidiaries”.



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



“Co-Syndication Agents” shall mean Barclays Capital, the investment banking division
of Barclays Bank PLC, and SunTrust Bank.




“Cure Right” shall have the meaning specified in Section 9.3(a).



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



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



“Defaulting Lender” shall mean any Lender, as determined by the Administrative Agent,
that (a) has failed to fund any portion of its Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has notified the
Administrative Agent, any Lender and/or the Borrowers in writing that it does not intend to comply
with any of its funding obligations under this Agreement or has made a public statement to the
effect that it does not intend to comply with its funding obligations under this Agreement or under
other agreements in which it commits to extend credit, (c) has failed, within three Business Days
after request by the Administrative Agent prompted by any evidence of facts described in clause (b)
with respect to such Lender, to confirm in writing that it will comply with the terms of this
Agreement relating to its obligations to fund prospective Loans or (d) has otherwise failed to pay
over to the Administrative Agent or any other Lender any other amount required to be paid by it
hereunder within three Business Days of the date when due, unless the subject of a good faith
dispute.



“Discount Purchase Accepting Lender” shall have the meaning assigned to such term in
Section 11.5(g).



“Discount Range” shall have the meaning assigned to such term in Section
11.5(g).


 


11









 





“Discount Range Proration” shall have the meaning assigned to such term in Section
11.5(g).



“Discount Range Sale Offer” shall mean the irrevocable written offer by a Lender,
substantially in the form of Exhibit J, submitted in response to an invitation to submit
offers following the Auction Agent’s receipt of a Discount Range Solicitation Notice.



“Discount Range Sale Response Date” shall have the meaning assigned to such term in
Section 11.5(g).



“Discount Range Solicitation Amount” shall have the meaning assigned to such term in
Section 11.5(g).



“Discount Range Solicitation Notice” shall mean a written notice of a Solicitation of
Discount Range Sale Offers made pursuant to Section 11.5(g)(iii) substantially in the form
of Exhibit K.



“Discounted Loan Purchase” shall have the meaning assigned to such term in Section
11.5(g).



“Discounted Purchase Determination Date” shall have the meaning assigned to such term
in Section 11.5(g).



“Discounted Purchase Effective Date” shall mean in the case of an Offer of Specified
Discount Purchase, Solicitation of Discount Range Sale Offer or Solicitation of Discounted Sale
Offer, five (5) Business Days following the Specified Discount Purchase Response Date, the Discount
Range Sale Response Date or the Solicited Discounted Sale Response Date, as applicable, in
accordance with Section 11.5(g)(ii), Section 11.5(g)(iii) or Section
11.5(g)(iv), respectively, unless a different period is agreed to between the Borrower and the
Auction Agent acting in their reasonable discretion.



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



“Disposed EBITDA” shall mean, with respect to any Converted Unrestricted Subsidiary
for any period, the amount of EBITDA for such period (including the portion thereof occurring prior
to the date such Subsidiary was designated as an Unrestricted Subsidiary) of such Converted
Restricted Subsidiary.


 


12









 





“Disqualified Equity Interests” shall mean any Equity Interest which, by its terms (or
by the terms of any security or other Equity Interests into which it is convertible or for which it
is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily
redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund
obligation or otherwise (except as a result of a change of control or asset sale so long as any
rights of the holders thereof upon the occurrence of a change of control or asset sale event shall
be subject to the prior repayment in full of the Loans and all other Obligations that are accrued
and payable), (b) is redeemable at the option of the holder thereof (other than solely for
Qualified
Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends
in cash (except for cash payments that are expressly limited to the extent permitted by the senior
credit facility of the issuer of such Equity Interest including, without limitation, this Agreement
and the Revolving Credit Agreement) or (d) is or becomes convertible into or exchangeable for
Funded Debt or any other Equity Interests that would constitute Disqualified Equity Interests, in
each case, prior to the date that is ninety-one (91) days after the Latest Maturity Date;
provided that, if such Equity Interests are issued pursuant to a plan for the benefit of
employees of the Borrowers or any of their Subsidiaries or by any such plan to such employees, such
Equity Interests shall not constitute Disqualified Equity Interests solely because it may be
required to be repurchased by either Borrower or any of their Subsidiaries in order to satisfy
applicable statutory or regulatory obligations.



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




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



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




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



“EBITDA” shall mean, with respect any Person for any period, determined on a
consolidated basis in accordance with GAAP, the Net Income of such Person for such period,
plus, without duplication and to the extent deducted in determining Net Income of such
Person for such period, (i) income taxes, (ii) Interest Expense, (iii) depreciation and
amortization expense, (iv) non-cash charges or reserves, (v) restructuring charges and severance
costs in an aggregate amount not to exceed $15,000,000 in the aggregate in any four fiscal quarter
period, (vi) the Acquired EBITDA of Converted Restricted Subsidiaries in respect of such period and
(vii) charges or expenses attributed to any actual or proposed acquisitions or joint ventures,
equity offerings, issuances and retirement of debt and divestitures of assets; provided,
however, that if, at any time since the beginning of the four fiscal quarter period ending
as of the date of the most recent financial statements that are required to be delivered by the
Administrative Borrower pursuant to Section 7.1, an acquisition or sale of a Person or all
or substantially all of the assets of a Person occurred, then such calculation shall be made on a
Pro Forma Basis, and minus, without duplication, the Disposed EBITDA of Converted
Unrestricted Subsidiaries respect of such period.




“ECF Payment Date” shall have the meaning specified in Section 2.5(b).




“ECF Percentage” shall have the meaning specified in Section 2.5(b).



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


 


13









 





“Eligible Assignee” shall mean (a) a Lender; (b) an Affiliate of a Lender; (c) an
Approved Fund; or (d) any other Person (other than either Borrower, any of their respective
Subsidiaries or Affiliates (provided that the Borrowers and their Subsidiaries shall, for the
avoidance of doubt, be permitted to purchase Loans pursuant to and in accordance with Section
11.5(g)) or an individual) approved by the Administrative Agent and, unless an Event of Default
under Section 9.1(b), (g) or (h) has occurred and is continuing, the
Administrative Borrower, such approvals not to be unreasonably withheld or delayed;
provided, that the Administrative Borrower shall be deemed to have consented to any
assignment to an Eligible Assignee described in clause (d) of the definition thereof unless the
Administrative Borrower shall have objected thereto by written notice to the Administrative Agent
within five (5) Business Days after having received notice thereof.



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



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



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



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



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



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


 


14









 





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



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



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



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



“Eurodollar Loan Period” shall mean, for each Eurodollar Loan, a one (1), two (2),
three (3) or six (6) month period (or, if agreed by all the Lenders, a nine (9) or twelve (12)
month period), as selected by the Administrative Borrower pursuant to Section 2.2, during
which the applicable Eurodollar Rate shall remain unchanged. Notwithstanding the foregoing,
however: (a) any applicable Eurodollar Loan Period which would otherwise end on a day which is not
a Business Day shall be extended to the next succeeding Business Day, unless such Business Day
falls in another calendar month, in which case such Eurodollar Loan Period shall end on the next
preceding Business Day; (b) any applicable Eurodollar Loan Period which begins on a day for which
there is no numerically corresponding day in the calendar month during which such Eurodollar Loan
Period is to end shall (subject to clause (a) above) end on the last day of such calendar month;
and (c) no Eurodollar Loan Period shall extend beyond the Maturity Date for the applicable Tranche
of Loans or such earlier date as would interfere with the repayment obligations of the Borrowers
under Section 2.6.


 


15









 





“Eurodollar Rate” shall mean, for any Eurodollar Loan Period, the greater of (a) 1.50%
per annum and (b) the rate per annum quoted on the display designated on that page of the Bloomberg
reporting service, or similar service as determined by the Administrative Agent, that displays
British Banker’s Association Interest Settlement Rates for Dollar deposits as of 11:00 a.m.
(London, England time) two (2) Business Days prior to the applicable date of determination;
provided, however, that if no such quoted rate appears on such page, the rate used
for such Eurodollar Rate shall be the per annum rate of interest determined by the
Administrative Agent to be the rate at which Dollar deposits for such Eurodollar Loan Period are
offered to the Administrative Agent as of 11:00 a.m. (London, England time) two (2) business days
prior to such date of determination.



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



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




“Excess Cash Flow” means, for any period, an amount equal to the excess of:




(a) the sum, without duplication (including for purposes of determining Net Income), of:




(i) Net Income of the Borrowers and their Restricted Subsidiaries for such
period,




an amount equal to the amount of all non-cash charges (including depreciation
and amortization) to the extent deducted in arriving at such Net Income,




decreases in Consolidated Working Capital for such period (other than any such
decreases arising from acquisitions by the Borrowers and their Restricted
Subsidiaries completed during such period or the application of purchase
accounting), and




an amount equal to the aggregate net non-cash loss on dispositions by the
Borrowers and their Restricted Subsidiaries during such period (other than
dispositions in the ordinary course of business) to the extent deducted in arriving
at such Net Income; less



the sum, without duplication, of:


 


16









 






(i) an amount equal to the amount of all non-cash credits included in arriving
at such Net Income and cash charges included in clauses (a) through (d) of the
definition of Net Income,




without duplication of amounts deducted pursuant to clause (x) below in prior
fiscal years, the amount of Capital Expenditures or acquisitions of intellectual
property made in cash during such period, to the extent that such Capital
Expenditures or acquisitions were financed with internally generated cash flow of
the Borrowers or their Restricted Subsidiaries,




the aggregate amount of all principal payments of Funded Debt of the Borrowers
and their Restricted Subsidiaries (including (A) the principal component of payments
in respect of Capitalized Lease Obligations and (B) the amount of repayments of Term
Loans pursuant to Section 2.6(a) and any mandatory prepayment of Term Loans
pursuant to Section 2.5(b) to the extent required due to a disposition that
resulted in an increase to such Net Income and not in excess of the amount of such
increase but excluding (X) all other prepayments of Term Loans, (Y) all prepayments
under the Revolving Credit Facility and (Z) all prepayments in respect of any other
revolving credit facility, except, in the case of clauses (Y) and
(Z), to the extent there is an equivalent permanent reduction in commitments
thereunder) made during such period, except to the extent financed with the proceeds
of incurrence or issuance of other Indebtedness of any Borrower or any of their
Restricted Subsidiaries,




an amount equal to the aggregate net non-cash gain on dispositions by the
Borrowers and their Restricted Subsidiaries during such period (other than
dispositions in the ordinary course of business) to the extent included in arriving
at such Net Income,




increases in Consolidated Working Capital for such period (other than any such
increases arising from acquisitions by the Borrowers and their Restricted
Subsidiaries completed during such period or the application of purchase
accounting),




cash payments by the Borrowers and their Restricted Subsidiaries during such
period in respect of long term liabilities of the Borrowers and their Restricted
Subsidiaries other than Indebtedness (including such Indebtedness specified in
clause (b)(iii) above),




the amount of Investments and acquisitions made by the Borrowers and their
Restricted Subsidiaries during such period to the extent that such Investments and
acquisitions were financed with internally generated cash flow of the Borrowers and
their Restricted Subsidiaries,




the amount of Restricted Payments paid and Restricted Purchases made during
such period pursuant to Section 8.4 to the extent such Restricted Payments
and Restricted Purchases were financed with internally generated cash flow of
the Borrowers and their Restricted Subsidiaries,


 


17









 






the aggregate amount of any premium, make-whole or penalty payments actually
paid in cash by the Borrowers and their Restricted Subsidiaries during such period
that are required to be made in connection with any prepayment of Funded Debt,




the aggregate amount of expenditures actually made by the Borrowers and their
Restricted Subsidiaries in cash during such period (including expenditures for the
payment of financing fees) to the extent that such expenditures are not expensed
during such period,




the amount of cash taxes (including penalties, interest, costs and expenses
related to such taxes or arising from any tax examinations) paid by the Borrowers
and their Restricted Subsidiaries in such period to the extent they exceed the
amount of tax expense deducted in determining Net Income of the Borrowers and their
Restricted Subsidiaries for such period, and




without duplication of amounts deducted from Excess Cash Flow in prior periods,
at the election of the Administrative Borrower, the aggregate consideration required
to be paid in cash by the Borrowers or any of their Restricted Subsidiaries pursuant
to binding contracts (the “Contract Consideration”) entered into prior to or
during such period relating to Investments permitted by Section 8.5 or
acquisitions permitted by Section 8.7(c) or Capital Expenditures, in each
case, to be consummated or made during the four consecutive fiscal quarters of Zayo
following the end of such period; provided that to the extent the aggregate
amount of internally generated cash actually utilized to finance such Investments,
acquisitions or Capital Expenditures during such period of four consecutive fiscal
quarters is less than the Contract Consideration, the amount of such shortfall shall
be added to the succeeding calculation of Excess Cash Flow.



“Excluded Deposit Accounts” shall mean, collectively, (i) each disbursement account
that has a balance no greater than the amount necessary to cover outstanding checks drawn on such
account, (ii) petty cash deposit accounts for Borrower Parties that have an aggregate balance no
greater than $10,000, (iii) employee benefit trust accounts, so long as the balance therein does
not exceed as of any date of determination the Administrative Borrower’s estimate of employee
benefit claims to be paid in the remaining portion of such fiscal year (or, with respect to any
date of determination in the last fiscal month of any fiscal year, the Administrative Borrower’s
estimate of employee benefit claims to be paid in the remaining portion of such fiscal year and
during the next succeeding fiscal year) from such date of determination (provided, that at any time
that a Default exists, Borrower Parties shall not deposit additional funds into such account except
to the extent necessary to pay accrued and unpaid employee benefit claims that are then due and
payable) and (iv) other deposit accounts with balances not to exceed $500,000 in the aggregate.


 


18









 





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




“Extended Loans” shall have the meaning set forth in Section 2.15.




“Extending Lender” shall have the meaning set forth in Section 2.15.




“Extension” shall have the meaning set forth in Section 2.15.




“Extension Offer” shall have the meaning set forth in Section 2.15.



“FATCA” means Sections 1471 through 1474 of the Code, as amended, and any current or
future regulations or official interpretations thereof.



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



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



“Federal Funds Rate” shall mean, for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank on
the Business Day next succeeding such day; provided, that (a), if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
immediately preceding Business Day as so published on the next succeeding Business Day and (b) if
no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to the Administrative Agent on such day on such transactions
as determined by the Administrative Agent.



“Fee Letter” shall mean the fee letter, dated October 6, 2011, among Zayo, Royal Bank
of Canada, Barclays Bank PLC and SunTrust Bank.



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


 


19









 





“Fixed Charge Coverage Ratio” shall mean, with respect to the Borrowers and their
Restricted Subsidiaries on a consolidated basis for any calendar quarter ended, for the
twelve-month period then ended, the ratio of (a) Annualized EBITDA of the Borrowers and their
Restricted Subsidiaries for such period then ended minus Capital Expenditures for the twelve month
period then ended (excluding, without duplication, Capital Expenditures for the twelve-month period
then ended (i) that are directly related to new sales to, or made at the request of, Persons to
whom any Borrower Party has agreed to provide either goods or services (or both) pursuant to a
written agreement providing for the payment of aggregate compensation to a Borrower Party equal to
or greater than the amount of Capital Expenditures made in respect of such written agreement, (ii)
to the extent financed with Funded Debt for Borrowed Money (other
than Funded Debt incurred under a revolving credit facility), (iii) made with the proceeds of
a disposition permitted hereunder and (iv) made with the proceeds of an equity issuance permitted
hereunder), to (b) Interest Expense of the Borrowers and their Restricted Subsidiaries for the
twelve-month period then ended.




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



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



“Fund” shall mean any Person that is (or will be) engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary
course of its business.



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



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


 


20









 






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



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



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



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



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



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


 


21









 






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



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



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




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



“Holdings Pledge Agreement” shall mean that certain Holdings Pledge Agreement, dated
as of March 12, 2010, among Holdings and the Collateral Agent, on behalf of and for the benefit of,
the Secured Parties.



“Identified Participating Lenders” shall have the meaning specified in Section
11.5(g).




“Identified Qualifying Lender” has the meaning specified in Section 11.5(g).



“Immaterial Subsidiary” means, at any date of determination, each Subsidiary of any
Borrower that has been designated by the Administrative Borrower in writing to the Administrative
Agent as an “Immaterial Subsidiary” for purposes of this Agreement (and not redesignated as a
Material Subsidiary as provided below), provided that, (a) for purposes of this Agreement, at no
time shall (i) the Total Assets of all Immaterial Subsidiaries at the last day of the most recent
Test Period be equal to or exceed 2.0% of the Total Assets of the Borrowers and their respective
Subsidiaries at such date or (ii) the gross revenues for such Test Period of all Immaterial
Subsidiaries equal or exceed 2.0% of the consolidated gross revenues of the Borrower and its
Subsidiaries for such period, in each case determined in accordance with GAAP, (b) the
Administrative Borrower shall not designate any new Immaterial Subsidiary if such designation would
not comply with the provisions set forth in clause (a) above, and (c) if the Total Assets
or gross revenues of all Subsidiaries so designated by the Administrative Borrower as “Immaterial
Subsidiaries” (and not redesignated as “Material Subsidiaries”) shall at any time exceed the limits
set forth in clause (a) above, then all such Subsidiaries shall be deemed to be Material
Subsidiaries unless and until the Administrative Borrower shall redesignate one or more Immaterial
Subsidiaries as Material Subsidiaries, in each case in a written notice to the Administrative
Agent, and, as a result thereof, the total assets and gross revenues of all Subsidiaries still
designated as “Immaterial Subsidiaries” do not exceed such limits; and provided,
further that, the Administrative Borrower may designate and re-designate a Subsidiary as an
Immaterial Subsidiary at any time, subject to the terms set forth in this definition.



“Incremental Amendment” shall have the meaning specified in Section 2.17.


 


22









 






“Incremental Loan” shall have the meaning specified in Section 2.17.



“Indemnified Person” shall mean the Administrative Agent, the Joint Lead Arrangers,
the Co-Syndication Agents, each member of the Lender Group, each Affiliate of any of the foregoing
and each of their respective officers, directors, employees, affiliates, agents and controlling
persons.



“Indenture” shall mean that certain Indenture of Trust, dated as of March 12, 2010 (as
amended, amended and restated, supplemented or otherwise modified through the Agreement Date),
among the Borrowers, the Guarantors and the Trustee, pursuant to which the Senior Note Indebtedness
is issued.



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



“Intercreditor Agreement” shall mean that certain Collateral Agency and Intercreditor
Agreement, dated as of March 12, 2010, by and between the Revolving Facility Administrative Agent,
the Collateral Agent and the Trustee, and acknowledged by the Borrowers and the Guarantors, in form
and substance satisfactory to the parties thereto, as the same may be amended, supplemented or
otherwise modified from time to time and any annexes, exhibits, schedules to any of the foregoing.



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




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



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



“Joint Lead Arrangers” shall mean RBC Capital Markets, Barclays Capital, the
investment banking division of Barclays Bank PLC, and SunTrust Robinson Humphrey, Inc.



“Latest Maturity Date” means, at any date of determination, the latest maturity or
expiration date applicable to any Loan hereunder at such time, including the latest maturity or
expiration date of any Extended Loan, in each case as extended in accordance with this Agreement
from time to time.


 


23









 





“Lender Group” shall mean, collectively, the Administrative Agent and the Lenders. In
addition, if Royal Bank of Canada ceases to be the Administrative Agent, then for any Lender Hedge
Agreement entered into by any Borrower Party with Royal Bank of Canada while it was the
Administrative Agent, Royal Bank of Canada shall be deemed to be a member of the Lender Group for
purposes of determining the secured parties under any Security Documents.



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



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



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



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



“Loan” or “Loans” shall mean amounts of the Loans advanced by the Lenders to,
or on behalf of, the Borrowers pursuant to Section 2.1 on the Agreement Date, any Extended
Loans extended pursuant to Section 2.15 and any Incremental Loans made pursuant to
Section 2.17.




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



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


 


24









 





“Majority Lenders” shall mean, as of any date of calculation, Lenders having more than
fifty percent (50%) of the Total Facility Exposure; provided, however, that the
portion of the Total Outstandings held or deemed held by any Defaulting Lender shall be excluded
for purposes of making a determination of Majority Lenders; provided, further, that
as long as the Voting
Agreement is in effect, any amendment, waiver, modification or other vote hereunder requiring
the consent of the Majority Lenders shall be subject to the provisions of the Voting Agreement.




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



“Material Subsidiary” means, at any date of determination, each Subsidiary of the
Borrower that is not an Immaterial Subsidiary (but including, in any case, any Subsidiary that has
been designated as a Material Subsidiary as provided in, or has been designated as an Immaterial
Subsidiary in a manner that does not comply with, the definition of “Immaterial Subsidiary”).



“Materially Adverse Effect” shall mean, with respect to any event, act, condition or
occurrence of whatever nature (including any adverse determination in any litigation, arbitration
or governmental investigation or proceeding), a material adverse change in, or a material adverse
effect on: (a) the business, operations, prospects, properties or condition (financial or
otherwise) of the Borrower Parties, taken as a whole; (b) the ability of a Borrower Party to
perform its material obligations under this Agreement and the other Loan Documents to which it is a
party; or (c) (i) the validity, binding effect or enforceability of any Loan Document, (ii) the
rights or remedies available to the Administrative Agent or any Lender under the Loan Documents,
taken as a whole, or (iii) the attachment, perfection or priority of any Lien of the Collateral
Agent under the Security Documents on a material portion of the Collateral, except as a result of
the action or inaction of a member of the Lender Group. In determining whether any individual
event, act, condition or occurrence of the foregoing types would result in a Materially Adverse
Effect, notwithstanding that a particular event, act, condition or occurrence does not itself have
such effect, a Materially Adverse Effect shall be deemed to have occurred if the cumulative effect
of such event, act, condition or occurrence and all other events, acts, conditions or occurrences
of the foregoing types which have occurred would result in a Materially Adverse Effect.



“Maturity Date” shall mean (a) to the extent not extended pursuant to Section
2.15, the earlier of (i) the fifth anniversary of the Agreement Date or (ii) September 15, 2016
if any of the Senior Note Indebtedness is then outstanding and (b) with respect to any Tranche of
Extended Loans, the final maturity date as specified in the applicable Extension Offer accepted by
Extending Lenders in respect of such Tranche or, in any case, such earlier date as payment of the
Loans shall be due (whether by acceleration or otherwise).



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



“Minimum Extension Condition” shall have the meaning set forth in Section
2.15.




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



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


 


25









 





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



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



“Net Cash Proceeds from Asset Sales” shall mean the aggregate proceeds, including
payments in respect of deferred payment obligations (to the extent corresponding to the principal,
but not the interest component, thereof), received in cash or Cash Equivalents by the
Administrative Borrower or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash or Cash Equivalents received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of (a) the direct costs
relating to such Asset Sale, including, without limitation, legal, accounting, investment banking,
and brokerage fees, sales commissions, and any relocation expenses incurred as a result thereof,
(b) taxes paid or payable as a result thereof, in each case, after taking into account any
available tax credits or deductions and any tax sharing arrangements relating to such Asset Sale,
(c) in the case of any Asset Sale by a Restricted Subsidiary, payments to holders of Equity
Interests in such Restricted Subsidiary in such capacity (other than such Equity Interests held by
the Administrative Borrower or any Restricted Subsidiary) to the extent that such payment is
required to permit the distribution of such proceeds in respect of the Equity Interests in such
Restricted Subsidiary held by the Administrative Borrower or any of its Restricted Subsidiaries and
(d) appropriate amounts to be provided by the Administrative Borrower or the Restricted
Subsidiaries as a reserve against liabilities associated with such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations associated with such
Asset Sale, all as determined in accordance with GAAP; provided that (i) excess amounts set aside
for payment of taxes pursuant to clause (b) above remaining after such taxes have been paid in full
or the statute of limitations therefor has expired and (ii) amounts initially held in reserve
pursuant to clause (d) no longer so held, will, in the case of each of subclause (i) and (ii), at
that time become Net Cash Proceeds from Asset Sales.



“Net Cash Proceeds from Indebtedness” shall mean, with respect to the incurrence or
issuance of any Funded Debt by either Borrower or any Restricted Subsidiary, the excess, if any, of
(x) the sum of the cash received in connection with such incurrence or issuance over (y) the sum of
(A) the investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket
expenses and other customary expenses, incurred by such Borrower or such Restricted Subsidiary in
connection with such incurrence or issuance and (B) taxes paid or reasonably estimated to be
actually payable in connection therewith.



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


 


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“Note” shall mean a promissory note of the Borrowers payable to any Lender or its
assigns, in substantially the form of Exhibit C hereto, evidencing the aggregate Funded
Debt owed by the Borrowers to such Lender resulting from the Loans made by such Lender.



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



“Notice of Prepayment” shall mean a notice in substantially the form of Exhibit
F.



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



“OFAC” shall mean the Office of Foreign Assets Control of the United States Department
of the Treasury, or any successor agency.



“Offer of Specified Discount Purchase” means the offer by a Borrower Party to purchase
Loans at a specified discount to par pursuant to Section 11.5(g)(ii).




“Offered Amount” shall have the meaning specified in Section 11.5(g).




“Offered Discount” shall have the meaning specified in Section 11.5(g).




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




“Parent” shall mean Holdings.



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




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



“Participating Lender” shall have the meaning specified in Section 11.5(g).


 


27









 





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



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



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



“Permitted Asset Swap” shall mean one or more contemporaneous sales, by a Borrower
Party with an un-Affiliated third party of non-current assets in exchange for (a) non-current
assets that will be used or useful in a Permitted Business, (b) substantially all the assets of a
Permitted Business or (c) a majority of Equity Interests of any Person engaged in a Permitted
Business that will become on the date of the acquisition thereof a Subsidiary and comply with the
provisions of Section 6.18.



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



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




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



any Lien in favor of the Collateral Agent or any member of the Lender Group given to secure
the Secured Obligations;



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



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



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



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


 


28









 





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



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



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



with respect to Collateral consisting of real property, Liens that are exceptions to the
commitments for title insurance issued in connection with the Mortgage (subject, in the case of any
Mortgage entered into after the Agreement Date, to acceptance by the Administrative Agent in its
sole and absolute discretion);



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



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



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



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



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




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




Liens securing Permitted Secured Indebtedness;



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


 


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



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



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



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



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



“Plan” shall mean an employee benefit plan within the meaning of Section 3(3) of ERISA
that any Borrower Party (or, with respect to any Title IV Plan, any ERISA Affiliate) maintains,
contributes to or has an obligation to contribute to or has maintained, contributed to or had an
obligation to contribute to at any time within the past six (6) years on behalf of participants who
were employed by any Borrower Party (or, with respect to any Title IV Plan, any ERISA Affiliate).


 


30









 





“Pro Forma Basis” shall mean for purposes of determining compliance with either
Financial Covenant (and the defined terms relating thereto) or any other covenant in this
Agreement, for any period during which any acquisition or sale of a Person or all or substantially
all of the business or assets of a Person or the designation of a Converted Restricted Subsidiary
in accordance with Section 6.20 (each, a “Specified Transaction”), and any related
incurrence, repayment or refinancing of Funded Debt, Capital Expenditures or other related
transactions (“Related Transactions”) has occurred, the calculation of such Financial
Covenant or other covenant shall give effect to (a) the pro forma increase or decrease in Acquired
EBITDA or EBITDA, as the case may be, resulting from such Specified Transaction and its Related
Transactions that is factually supportable and is expected to have a continuing impact, in each
case determined on a basis consistent with Article 11 of Regulation S-X of the Securities Act, as
interpreted by the Securities and Exchange Commission, and (b) additional good faith pro forma
adjustments arising out of cost savings initiatives or synergies attributable to such Specified
Transaction and its Related Transactions and additional costs associated with the combination of
the operations of such acquired Person or Converted Restricted Subsidiary with the operations of
the Borrower and its Subsidiaries, in each case being given pro forma effect that (i) have been
realized or (ii) are supportable and quantifiable and expected to be implemented within one (1)
year following such Specified Transaction, taking into account, for purposes of determining such
compliance, the historical financial statements of such acquired Person or Converted Restricted
Subsidiary and the consolidated financial statements of the Borrower and its Subsidiaries, assuming
such Specified Transaction and all other Specified Transactions that have been consummated during
such period and all of their respective Related Transactions had been consummated, made, incurred
or repaid at the beginning of such period (and assuming that any Funded Debt to be incurred bears
interest during any portion of the applicable measurement period prior to the relevant Specified
Transaction at the interest rate which is or would be in effect with respect to such Funded Debt as
at the relevant date of determination); provided that, so long as such actions or synergies
are initiated or such costs incurred during the one (1) year period immediately following such
Specified Transaction, for purposes of projecting such pro forma increase or decrease to Acquired
EBITDA or EBITDA, as the case may be, it may be assumed that such cost savings or synergies will be
realizable, or such additional costs will be incurred, during the entirety of the period in respect
of which such Financial Covenant or other covenant is calculated; provided further
that any increase in Acquired EBITDA or EBITDA, as the case may be, as a result of the operation of
this clause (b) (other than as a result of an actual increase in revenues or an actual reduction in
costs) shall not exceed 15% of EBITDA for such period (giving pro forma effect, including as a
result of the operation of this clause (b) to all Specified Transactions and Related Transactions
occurring during such period).



“Pro Forma Financial Statements” shall mean pro forma consolidated balance sheets of
Zayo as of September 30, 2011 and as of the end of any interim quarterly period ended at least 45
days prior to the Agreement Date (excluding the fourth fiscal quarter of Zayo’s fiscal year), and
pro forma statements of operations of Zayo for the period ended on such dates and for any interim
quarterly period ended at least 45 days prior to the Agreement Date (excluding the fourth fiscal
quarter of each of Zayo’s and 360 Corporation’s respective fiscal year), in each case, as adjusted
to give effect to the 360 Transactions, the other transactions related thereto and such other
adjustments as are customary for similar financings or as otherwise reasonably agreed between the
Borrowers and the Joint Lead Arrangers.


 


31









 





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



“PUC” shall mean any state regulatory agency or body that exercises jurisdiction over
the intrastate rates or services or the ownership, construction or operation of any intrastate
network facility or telecommunications system or over Persons who own, construct or operate a
network facility or telecommunications system used to provide intrastate services, in each case, by
reason of the nature or type of the business subject to regulation and not pursuant to laws and
regulations of general applicability to Person conducting business in such state.



“Qualified Equity Interests” shall mean any Equity Interests that are not Disqualified
Equity Interests.




“Qualifying Lender” shall have the meaning specified in Section 11.5(g)




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




“Refinancing” shall have the meaning specified in the recitals hereto.



“Related Transactions” shall have the meaning assigned to such term in the definition
of “Pro Forma Basis.”



“Replacement Assets” means (a) non-current assets that will be used or useful in a
Permitted Business, (b) substantially all the assets of a Permitted Business, or (c) a majority of
the voting Equity Interests of any Person engaged in a Permitted Business that will become on the
date of acquisition thereof a Restricted Subsidiary.




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




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



“Request for Loan” shall mean a certificate signed by an Authorized Signatory of the
Administrative Borrower requesting a Loan to be made hereunder on the Agreement Date, which
certificate shall be in substantially the form of Exhibit E.



“Required PUC Consents” shall mean all consents, orders and approvals of the
applicable PUC required in connection with the consummation of the 360 Transactions.



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



“Restricted Subsidiary” shall mean any Subsidiary of a Borrower that is not an
Unrestricted Subsidiary.


 


32









 





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



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



“Revolving Credit Agreement” shall mean that certain Credit Agreement, dated as of
March 12, 2010 (as the same may be amended, amended and restated, refinanced, renewed, supplemented
or otherwise modified from time to time) among the Borrowers, the Guarantors, the Revolving
Facility Administrative Agent and the Revolving Lenders.



“Revolving Credit Facility” shall mean the senior revolving credit facility incurred
by the Borrowers pursuant to the Revolving Credit Agreement, the proceeds of which are used to
refinance certain Funded Debt of the Borrower Group, to fund permitted acquisitions, transaction
costs and working capital needs of the Borrowers and for other general corporate purposes of the
Borrowers and their Subsidiaries.



“Revolving Facility Administrative Agent” shall mean SunTrust Bank, in its capacity as
administrative agent for Revolving Lenders, and any successor appointed pursuant to the Revolving
Credit Agreement.



“Revolving Facility Indebtedness” shall mean all payment and performance obligations
as existing from time to time of the Borrower Parties to the Revolving Lenders and the Revolving
Facility Administrative Agent, or any of them, under the Revolving Credit Agreement (including any
interest, fees and expenses that, but for the provisions of the Bankruptcy Code, would have
accrued), or as a result of the making of loans thereunder, and the other Loan Documents (as
defined in the Revolving Credit Agreement).



“Revolving Lenders” shall mean shall mean the financial institutions from time to time
party to the Revolving Credit Agreement as lenders.



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



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


 


33









 





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



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



“Secured Obligations” shall mean, collectively, the Obligations, the Senior Note
Indebtedness, the Revolving Facility Indebtedness and any 360 Acquisition Note Indebtedness.



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



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



“Security Agreement” shall mean that certain Security Agreement, dated as of March 12,
2010, among the Borrower Parties and the Collateral Agent, on behalf of and for the benefit of, the
Secured Parties.



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



“Senior Note Documents” shall mean the Indenture and the Security Documents (as
defined in the Indenture).



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



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



“Solicitation of Discount Range Sale Offers” means the solicitation by a Borrower
Party of offers for a sale of Loans at a specified range of discounts to par and the corresponding
tender by a Lender, and purchase by such Borrower Party, of Loans pursuant to Section
11.5(g)(iii).


 


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“Solicitation of Discounted Sale Offers” means the solicitation by a Borrower Party of
offers for a sale of Loans at a discount to par and the subsequent tender by a Lender, and purchase
by such Borrower Party, of Loans pursuant to Section 11.5(g)(iv).



“Solicited Discount Proration” shall have the meaning specified in Section
11.5(g).



“Solicited Discounted Sale Offer” means the irrevocable written offer by each Lender,
substantially in the form of Exhibit L, submitted following the Administrative Agent’s
receipt of a Solicited Discounted Solicitation Notice.



“Solicited Discounted Sale Response Date” shall have the meaning specified in
Section 11.5(g).



“Solicited Discounted Solicitation Amount” shall have the meaning specified in
Section 11.5(g).



“Solicited Discounted Solicitation Notice” means a written notice of the Borrower of
Solicited Discounted Sale Offers made pursuant to Section 11.5(g)(iv) substantially in the
form of Exhibit M.




“Specified Discount” shall have the meaning specified in Section 11.5(g).



“Specified Discount Proration” shall have the meaning specified in Section
11.5(g).



“Specified Discount Purchase Amount” shall have the meaning specified in Section
11.5(g).



“Specified Discount Purchase Notice” means a written notice of the Offer of Specified
Discount Purchase made pursuant to Section 11.5(g)(ii) substantially in the form of
Exhibit N.



“Specified Discount Purchase Response” means the irrevocable written response by each
Lender, substantially in the form of Exhibit O, to a Specified Discount Purchase Notice.



“Specified Discount Purchase Response Date” shall have the meaning specified in
Section 11.5(g).



“Specified Equity Contribution” shall mean any cash contribution to the equity of Zayo
and/or any purchase or investment in Equity Interests of Zayo pursuant to Section 9.3 in
each case other than Disqualified Equity Interests, as evidenced by a certificate of an Authorized
Signatory of the Administrative Borrower delivered to the Administrative Agent.



“Specified Transaction” shall have the meaning specified in the definition of “Pro
Forma Basis.”



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


 


35









 





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




“Submitted Amount” shall have the meaning specified in Section 11.5(g).




“Submitted Discount” shall have the meaning specified in Section 11.5(g).



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



“Subsidiary Guarantors” shall mean all Subsidiaries of the Borrowers signatory to this
Agreement as a “Guarantor” and all Subsidiaries of the Borrowers that have executed and delivered a
Guaranty Supplement subject, in each case, to Section 10.15(b).




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



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



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




“Test Period” shall have the meaning specified in Section 9.3(a).



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



“Total Assets” shall mean, with respect to any Person the total assets of such Person
on a consolidated basis, as shown on the most recent balance sheet of Parent delivered pursuant to
Section 7.1 or 7.2 or, for the period prior to the time any such statements are so
delivered pursuant to Section 7.1 or 7.2, the Pro Forma Financial Statements.


 


36









 





“Total Facility Exposure” shall mean the sum of (a) Total Outstandings and (b)
aggregate unused Commitments.



“Total Outstandings” shall mean, on any date, the aggregate outstanding principal
amount of all Loans after giving effect to any prepayments or repayments of Loans on such date.



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




“Transfer” shall have the meaning specified in the definition of “Asset Sale.”




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



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



“Unaudited Financial Statements” shall mean the unaudited consolidated balance sheets
of each of Zayo and 360 Corporation as of, in the case of Zayo, each of its fiscal quarters ended
after June 30, 2011 and at least 45 days prior to the Agreement Date (other than the fourth fiscal
quarter of its fiscal year) and, in the case of 360 Corporation, each of its fiscal quarters ended
after December 31, 2010 and at least 45 days prior to the Agreement Date (other than the fourth
fiscal quarter of its fiscal year) and, in each case, the related statements of income, changes in
equity and cash flows of Zayo and 360 Networks for such fiscal quarters.



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


 


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“Unrestricted Subsidiary” shall mean (i) any Subsidiary of any Borrower designated by
the board of directors of such Borrower as an Unrestricted Subsidiary pursuant to Section
6.20 subsequent to the date hereof and (ii) any Subsidiary of an Unrestricted Subsidiary of any
Borrower; provided that the aggregate Annualized EBITDA of all Unrestricted Subsidiaries of
the Borrowers shall not exceed 5.0% of the aggregate Annualized EBITDA of the Borrowers and
all of their Subsidiaries; provided, further, that should such aggregate
Annualized EBITDA of Unrestricted Subsidiaries of the Borrowers exceed 5.0% of the aggregate
Annualized EBITDA of the Borrowers and all of their Subsidiaries, so long as the implementation of
such redesignation shall not cause the violation of any Applicable Law or agreement not entered
into in contemplation thereof, one or more of such Unrestricted Subsidiaries shall be redesignated
as a Restricted Subsidiary such that after giving effect to such redesignation, the Annualized
EBITDA of all Unrestricted Subsidiaries of the Borrowers at such time shall not exceed 5.0% of the
aggregate Annualized EBITDA of the Borrowers and all of their Subsidiaries; provided,
further, however, that the Borrowers shall not designate or acquire any new
Unrestricted Subsidiary if such designation would not comply with the provisions set forth in this
definition.



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



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




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



“VOIP Assets” shall mean the assets and liabilities associated with the VOIP business
of 360networks.



“VOIP Divestiture” shall mean the disposition or distribution of the VOIP Assets by
the Borrowers to Holdings or any of its Subsidiaries pursuant to Section 8.4(e) or clause
(xii) in the proviso to the definition of “Asset Sale.”



“Voting Agreement” shall mean the voting agreement, dated as of the Agreement Date,
among the Borrower Parties, the Administrative Agent and the Revolving Facility Administrative
Agent, substantially in the form of Exhibit H.



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




“Zayo” has the meaning specified in the preamble.




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


 


38









 





Accounting Principles. The classification, character and amount of all assets,
liabilities, capital accounts and reserves and of all items of income and expense to be determined,
and any consolidation or other accounting computation to be made, and the interpretation of any
definition containing any
financial term, pursuant to this Agreement shall be determined and made in accordance with
GAAP consistently applied, unless such principles are inconsistent with the express requirements of
this Agreement; provided that if because of a change in GAAP after the date of this
Agreement any Borrower or any of its Subsidiaries would be required to alter a previously utilized
accounting principle, method or policy in order to remain in compliance with GAAP, such
determination shall continue to be made in accordance with such Borrower’s or such Subsidiary’s
previous accounting principles, methods and policies. All accounting terms used herein without
definition shall be used as defined under GAAP. All financial calculations hereunder shall, unless
otherwise stated, be determined for the Borrowers on a consolidated basis with their Subsidiaries.
When reference is made to “the Borrowers and their Restricted Subsidiaries on a consolidated basis”
or similar language, such consolidation shall not include any Subsidiaries of the Borrower other
than Restricted Subsidiaries.



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



THE LOANS




Extension of Credit. Subject to the terms and conditions of, and in reliance upon the
representations and warranties made in, this Agreement and the other Loan Documents, each Lender
severally (and not jointly) agrees to make a single Loan in a principal amount equal to such
Lender’s Commitment on the Agreement Date. Amounts borrowed under this Section 2.1 and
repaid or prepaid may not be reborrowed.


 


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Manner of Borrowing and Disbursement of Loans.



Choice of Interest Rate, etc. The Loan shall, at the option of the Borrowers, be made
either as a Base Rate Loan or as a Eurodollar Loan; provided, however, that (i) if
the Administrative Borrower fails to give the Administrative Agent written notice specifying
whether a Eurodollar Loan is to be repaid, continued or converted on a Payment Date, such Loan
shall be converted to a Base Rate Loan on the Payment Date in accordance with Section
2.3(a)(iii) and (ii) the Administrative Borrower may not select a Eurodollar Loan (A) on the
Agreement Date or (B) if, at the time of such Loan or at the time of the continuation of, or
conversion to, a Eurodollar Loan pursuant to Section 2.2(c), a Default exists, and the
Administrative Agent has notified the Administrative Borrower that no Eurodollar Loans may be
selected by the Administrative Borrower during the continuance of such Default. Any notice given
to the Administrative Agent in connection with a requested Loan hereunder shall be given to the
Administrative Agent prior to 11:00 a.m. (New York, New York time) in order for such Business Day
to count toward the minimum number of Business Days required.




Base Rate Loans.



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



Repayments and Conversions. The Borrowers may (A) subject to Section 2.5, at
any time without prior notice repay a Base Rate Loan, or (B) upon at least three (3) Business Days’
irrevocable prior written notice by the Administrative Borrower to the Administrative Agent in the
form of a Notice of Conversion/Continuation, convert all or a portion of the principal thereof to
one or more Eurodollar Loans; provided, however, that the Borrowers may not elect
to convert any Base Rate Loans to Eurodollar Loans during the first thirty (30) days following the
Agreement Date (or such earlier date as shall be specified by the Administrative Agent in its sole
discretion by written notice to the Borrowers and the Lenders). Upon the date indicated by the
Administrative Borrower, such Base Rate Loan shall be so repaid or converted.




 


40









 





Eurodollar Loans.



Loans. The Administrative Borrower shall give the Administrative Agent, in the case
of Eurodollar Loans, irrevocable notice by telephone not later than 11:00 a.m. (New York, New York
time) three (3) days prior to the date of such Eurodollar Loan and shall immediately confirm any
such telephone notice with a written Request for Loan; provided, however, that the
failure by the Administrative Borrower to confirm any notice by telephone with a written Request
for Loan shall not invalidate any notice so given. Each
Eurodollar Loan shall be in a principal amount of no less than $5,000,000 and in an integral
multiple of $1,000,000 in excess thereof, and at no time shall the aggregate number of all
Eurodollar Loans then outstanding exceed ten (10).



Repayments, Continuations and Conversions. At least three (3) Business Days prior to
each Payment Date for a Eurodollar Loan, the Administrative Borrower shall give the Administrative
Agent written notice in the form of a Notice of Conversion/Continuation specifying whether all or a
portion of such Eurodollar Loan outstanding on such Payment Date is to be continued in whole or in
part as one or more new Eurodollar Loans and also specifying the new Eurodollar Loan Period
applicable to each such new Eurodollar Loan (and subject to the provisions of this Agreement, upon
such Payment Date, such Eurodollar Loan shall be so continued). Upon such Payment Date, any
Eurodollar Loan (or portion thereof) not so continued shall be converted to a Base Rate Loan or,
subject to Section 2.5, be repaid.



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



Disbursement. Prior to 3:00 p.m. (New York, New York time) on the date of a Loan
hereunder, the Administrative Agent shall, subject to the satisfaction of the conditions set forth
in Article 4, disburse the amounts made available to the Administrative Agent by the Lenders in
like funds by transferring the amounts so made available by wire transfer to the Disbursement
Account. Unless the Administrative Agent shall have received notice from a Lender prior to 12:00
noon (New York, New York time) on the date of any Loan that such Lender will not make available to
the Administrative Agent such Lender’s ratable portion of such Loan, the Administrative Agent may
assume that such Lender has made or will make such portion available to the Administrative Agent on
the date of such Loan and the Administrative Agent may, in its sole discretion and in reliance upon
such assumption, make available to the Borrowers on such date a corresponding amount. If and to
the extent such Lender shall not have so made such ratable portion available to the Administrative
Agent, such Lender agrees to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date such amount is made
available to the Borrowers until the date such amount is repaid to the Administrative Agent, (x)
for the first two (2) Business Days, at the Federal Funds Rate for such Business Days, and (y)
thereafter, at the Base Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender’s portion of the
applicable Loan for purposes of this Agreement and if both such Lender and the Borrowers shall pay
and repay such corresponding amount, the Administrative Agent shall promptly relend to the
Borrowers such corresponding amount. If such Lender does not repay such corresponding amount
immediately upon the Administrative Agent’s demand therefor, the Administrative Agent shall notify
the


 


41









 






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




Interest.



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



On Base Rate Loans. Interest on each Base Rate Loan, shall be computed (x) when the
Base Rate is calculated based on clause (i) of the definition thereof, for the actual number of
days elapsed on the basis of a hypothetical year of three hundred sixty five(365)/three hundred
sixty six (366) days and (y) in all other cases, for the actual number of days elapsed on the basis
of a hypothetical year of three hundred sixty (360) days and, in either case, shall be payable
quarterly in arrears on the last Business Day of each calendar quarter for the prior calendar
quarter. Interest on Base Rate Loans then outstanding shall also be due and payable on the
applicable Maturity Date for such Tranche of Loans (or the date of any earlier prepayment in full
of the Obligations). Interest shall accrue and be payable on each Base Rate Loan at the simple per
annum interest rate equal to the sum of (A) the Base Rate and (B) the Applicable Margin.



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


 


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If No Notice of Selection of Interest Rate. If the Administrative Borrower fails to
give the Administrative Agent timely notice of its selection of a Eurodollar Basis, or if for any
reason a determination of a Eurodollar Basis for any Loan is not timely concluded, the Base Rate
shall apply to such Loan. If the Administrative Borrower fails to elect
to continue any Eurodollar Loan then outstanding prior to the last Payment Date applicable
thereto in accordance with the provisions of Section 2.2, as applicable, the Base Rate
shall apply to such Loan commencing on and after such Payment Date.



Upon Default. Interest on the outstanding Obligations shall accrue at the Default
Rate (i) immediately upon an Event of Default under Section 9.1(b), (g) or
(h) or (ii) at the election of the Majority Lenders, upon any Event of Default other than
an Event of Default under Section 9.1(b), (g) or (h). Interest accruing at
the Default Rate shall be payable on demand and in any event on the Maturity Date (or the date of
any earlier prepayment in full of the Obligations) and shall accrue until the earliest to occur of
(i) waiver of the applicable Event of Default in accordance with Section 11.12, (ii)
agreement by the Majority Lenders to rescind the charging of interest at the Default Rate, or (iii)
payment in full of the Obligations. The Lenders shall not be required to accelerate the maturity
of the Loans or exercise any other rights or remedies under the Loan Documents in order to charge
interest hereunder at the Default Rate.




Computation of Interest.



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



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



Fees. Each Borrower agrees, jointly and severally, to pay the fees due to the
Administrative Agent as are set forth in the Fee Letter.




Prepayment/Termination of Commitment. 



Voluntary Prepayment. The principal amount of any Base Rate Loan may be prepaid in
full or in part at any time, upon delivery of a Notice of Prepayment to the Administrative Agent
not later than 11:00 a.m. (New York, New York time) one (1) Business Days prior to such prepayment.
The principal amount of any Eurodollar Loan may be prepaid prior to the applicable Payment Date,
upon delivery of a Notice of Prepayment to the Administrative Agent not later than 11:00 a.m. (New
York, New York time) three (3) Business Days prior to such prepayment. Each Notice of Prepayment
of any Eurodollar Loan shall be irrevocable. Upon receipt of any Notice of Prepayment or notice of
repayment, the Administrative Agent shall promptly notify each Lender of the contents thereof by
telephone or telecopy and of such Lender’s portion of the repayment or prepayment. Prepayments of
principal under this Section 2.5(a) shall be in minimum amounts of, with respect to Base
Rate Loans, $1,000,000 and integral multiples of $100,000 in excess thereof, and, with respect to
Eurodollar Loans, $5,000,000, and integral multiples of $1,000,000 in excess thereof, or, if less,
the entire outstanding amount of such Loan. Any (i) prepayment of Loans under this Section



 


43









 





2.5(a) with the proceeds of Funded Debt having a lower interest rate or All-In Yield
than the interest rate or All-In Yield applicable to the Loans and (ii) refinancing of Loans
(whether through an amendment of this Agreement or otherwise) at a lower interest rate or All-In
Yield than the interest rate or All-In Yield applicable to the Loans, in each case, prior to the
first anniversary of the Agreement Date (other than in connection with a Change of Control) shall
be accompanied by a premium of 1.0% of the aggregate principal amount of Loans so prepaid or
refinanced. Any prepayment of Loans shall not affect the Borrowers’ obligation to continue to make
payments under any swap agreement (as defined in 11 U.S.C. §101), including, without limitation,
any such swap agreement that is a Lender Hedge Agreement, which shall remain in full force and
effect notwithstanding such prepayment, subject to the terms of the applicable swap agreement. All
prepayments of Loans pursuant to this Section 2.5(a) shall be applied to the remaining
amortization payments under the Term Loan Facility as directed by the Borrower.




Mandatory Prepayment.



Within five (5) Business Days after financial statements have been delivered pursuant to
Section 7.2 and the related Compliance Certificate has been delivered pursuant to
Section 7.3(a) (the date of such prepayment, the “ECF Payment Date”), the Borrowers
shall cause to be prepaid an aggregate principal amount of Loans equal to (A) 50% (such percentage
as it may be reduced as described below, the “ECF Percentage”) of their Excess Cash Flow,
if any, for the fiscal year covered by such financial statements (commencing with the first full
fiscal year ending after the Closing Date) minus (B) at the Borrower’s option, the sum of all
prepayments of Loans made under Section 2.5(a) during such fiscal year and after the end of
such fiscal year and prior to the ECF Payment Date to the extent (1) such amounts were not deducted
from a previous mandatory prepayment under this Section 2.5(b)(i) in respect of a prior
period and (2) such prepayments are not funded with the proceeds of long term Funded Debt; provided
that (x) the ECF Percentage shall be 25% if the Leverage Ratio at the end of the fiscal year
covered by such financial statements is not greater than 3.00:1.0 and less than or equal to
2.00:1.0 and (y) the ECF Percentage shall be 0% if the Leverage Ratio at the end of the fiscal year
covered by such financial statements is not greater than 2.00:1.0.



(A) Subject to Section 2.5(b)(ii)(B), upon receipt by the Borrowers or any of their
Restricted Subsidiaries of any Net Cash Proceeds from Asset Sales in an aggregate amount, at any
one time and in respect of an individual Asset Sale or several Asset Sales, equal to or greater
than $25,000,000, the Borrowers shall make a prepayment, in accordance with Section
2.05(b)(ii)(C), of an aggregate principal amount of Loans equal to the product of the aggregate
amount of any such Net Cash Proceeds from Asset Sales realized or received multiplied by the Asset
Fraction; provided that no such prepayment shall be required pursuant to this Section
2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds from Asset Sales that the
Administrative Borrower shall have, on or prior to such date, given written notice to the
Administrative Agent of its intent to reinvest in accordance with Section 2.05(b)(ii)(B)
(which notice may only be provided if no Event of Default has occurred and is then continuing);


 


44









 





(B) Any Net Cash Proceeds from Asset Sales received by a Borrower from any Asset Sale may, at
the Borrowers’ option, be reinvested within 360 days in Replacement Assets; provided, that
(x) such newly acquired assets shall be subject to the
Security Documents and Sections 5.1(w) and 6.18 and (y) the purchase of the
Replacement Assets is consummated no later than (1) the 360th day after such Asset Sale or (2) so
long as a binding agreement with respect to the purchase of Replacement Assets is entered into
within 360 days after the Asset Sale, 90 days after the date of such binding agreement;
provided, however, that any Net Cash Proceeds from Asset Sales not applied (or, in
the case of the foregoing clause (B)(y)(2), committed to be applied) during the 360 day period
provided for in this subsection (B) shall, immediately upon expiration of such 360 day period,
constitute Net Cash Proceeds from Asset Sales which are required to be used to prepay Loans in
accordance with the foregoing subsection (A) and are not permitted to be retained pursuant to this
subsection (B);



(C) On each occasion that the Borrowers must make a prepayment of the Loans pursuant to this
Section 2.5(b)(ii), the Borrowers shall, within three (3) Business Days after the date of
realization or receipt of such Net Cash Proceeds from Asset Sales (or, in the case of prepayments
required pursuant to the proviso to Section 2.5(b)(ii)(B), within three (3) Business Days
of the deadline specified in such proviso or of the date the Borrowers reasonably determine that
such Net Cash Proceeds from Asset Sales are no longer intended to be or cannot be so reinvested, as
the case may be), make a prepayment of the principal amount of Loans in an amount equal to the
product of any such Net Cash Proceeds from Asset Sales realized or received multiplied by the Asset
Fraction.



If a Borrower or any Restricted Subsidiary incurs or issues any Funded Debt not expressly
permitted to be incurred or issued pursuant to Section 8.1, the Borrowers shall cause to be
prepaid an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds from
Indebtedness received therefrom on or prior to the date which is three (3) Business Days after the
receipt of such Net Cash Proceeds from Indebtedness.



Each prepayment of Loans pursuant to this Section 2.05(b) shall be applied
first, with respect to the Term Loans ratably based on the then aggregate outstanding
principal amounts thereof and to the installments thereof pro rata in direct order of maturity for
the twenty four (24) months immediately following the applicable prepayment event and
second, to the remaining installments thereof pro rata.



Interest and Funding Losses. All prepayments of Loans under this Section 2.5
shall be accompanied by all accrued interest thereon together with, in the case of any such
prepayment of a Eurodollar Loan on a date other than the last day of an Interest Period therefor,
any Funding Loss or reasonable out-of-pocket expenses incurred by the Lenders or the Administrative
Agent in connection with such prepayment, as set forth in Section 2.9. Each prepayment of
Loans under this Section 2.5 shall be paid to the Lenders in accordance with their
respective Aggregate Commitment Ratios



Commitment Termination. The Commitment of each Lender shall be automatically and
permanently reduced to $0 upon the making of Loans by such Lender pursuant to Section 2.1.


 


45









 





Repayment.



The Loans. The Borrowers shall repay to the Administrative Agent for the ratable
account of the Lenders (i) on the last Business Day of each March, June, September and December
commencing the last Business Day of March 2012, an annual aggregate principal amount equal to 1.00%
of the aggregate principal amount of all Loans outstanding on the Agreement Date (which payments
shall be reduced as a result of the application of prepayments in accordance with Section
2.05(a) and Section 2.05(b)(iv), in each case, solely to the extent of any such amounts
applied to the prepayment of the Term Loans) and (ii) on the Maturity Date, the aggregate principal
amount of all Loans of the applicable Tranche outstanding on such date.



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




Notes; Loan Accounts.



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



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




Manner of Payment.




When Payments Due.



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


 


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




No Deduction.



Any and all payments of principal and interest, or of any fees or indemnity or expense
reimbursements by the Borrowers hereunder or under any other Loan Documents (the “Borrower
Payments”) shall be made without setoff or counterclaim and free and clear of and without
deduction for any and all current or future taxes, levies, imposts, deductions, charges or
withholdings with respect to the Borrower Payments and all interest, penalties or similar
liabilities with respect thereto, excluding taxes imposed on the net income of any member of the
Lender Group by the jurisdiction under the laws of which such member of the Lender Group is
organized or conducts business or any political subdivision thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges or withholdings and liabilities collectively or individually
“Taxes”). If any Borrower shall be required to deduct any Taxes from or in respect of any
sum payable to any member of the Lender Group hereunder or under any other Loan Document, (i) the
sum payable shall be increased by the amount (an “additional amount”) necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section 2.8(b)(i)) such member of the Lender Group shall receive an amount equal
to the sum it would have received had no such deductions been made, (ii) such Borrower shall make
such deductions, and (iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with Applicable Law. If a payment made to a Lender under any
Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower
and the Administrative Agent at the time or times prescribed by law and at such time or times
reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by
applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by the Borrower or the Administrative Agent as may be
necessary for the Borrower and the Administrative Agent to comply with their obligations under
FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or
to determine the amount to deduct and withhold from such payment. Each Lender agrees that if any
form or certification it previously delivered pursuant to the immediately preceding sentence
expires or becomes obsolete or inaccurate in any respect, it shall update such form or
certification or promptly notify the Borrower and the Administrative Agent in writing of its legal
inability to do so.


 


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



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



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



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


 


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



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



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


 


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Pro Rata Treatment. Each payment and prepayment of the principal of the Loans and
each payment of interest on the Loans received from the Borrowers shall be made by the
Administrative Agent to the Lenders pro rata on the basis of their respective unpaid principal
amounts thereof outstanding immediately prior to such payment or prepayment (except in cases when a
Lender’s right to receive payments is restricted pursuant to Section 2.2(e)). If any
Lender shall obtain any payment (whether involuntary, through the exercise of any right of set-off
or otherwise) on account of the Loans in excess of its ratable share thereof (or in violation of
any restriction set forth in Section 2.2(e)), such Lender shall forthwith purchase from the
other Lenders such participation in the Loans made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such recovery without interest
thereon unless the Lender obligated to repay such amount is required to pay interest. Each
Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this
Section 2.10 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrowers in the amount of such participation. This
Section 2.10 shall not apply to any payments made on account of, or in connection with, an
assignment of, or the sale of a participation in, any rights and obligations hereunder, in each
case, in accordance with the provisions of Section 11.5, as such section may be amended
from time to time.



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



FIRST, pro rata, to the payment of out-of-pocket costs and expenses (including reasonable
attorneys’ fees) of the Administrative Agent and the Collateral Agent incurred in connection with
the enforcement of the rights of the Lender Group under the Loan Documents;



SECOND, to payment of any fees owed to the Administrative Agent hereunder or under any other
Loan Document;



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


 


50









 





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



FIFTH, pro rata, to (i) the payment of the principal of the Loans then outstanding and (ii)
the payment of any Obligation arising in respect of the Bank Products then due and payable;




SIXTH, to any other Obligations not otherwise referred to in this Section 2.11; and



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



Use of Proceeds. The proceeds of the Loans shall be used by the Borrowers solely to
finance the 360 Acquisition and the Refinancing and pay the fees and expenses incurred in
connection with the 360 Acquisition, the Refinancing and the incurrence of the Bridge Facility and
the Term Loan Facility.



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



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


 


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Extensions of Loans.



Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers
(each, an “Extension Offer”) made from time to time by the Borrowers to all Lenders of
Loans with a like Maturity Date on a pro rata basis (based on the aggregate outstanding principal
amount of the respective Loans with a like Maturity Date) and on the same terms to each such
Lender, the Borrowers are hereby permitted to consummate from time to time transactions with
individual Lenders that accept the terms contained in such Extension Offers to extend the Maturity
Date of each such Lender’s Loans and otherwise modify the terms of such Loans pursuant to the terms
of the relevant Extension Offer (including, without limitation, by increasing the interest rate or
fees payable in respect of such Loans and/or modifying the amortization schedule in respect of such
Lender’s Loans) (each, an “Extension”, and each group of Loans in each case as so extended,
as well as the original Loans (in each case not so extended), being a “Tranche”; any
Extended Loans (as defined below) shall constitute a separate Tranche of Loans from the Tranche of
Loans from which they were converted), so long as the following terms are satisfied: (i) no Event
of Default shall have occurred and be continuing at the time the offering document in respect of an
Extension Offer is delivered to the Lenders and no Event of Default shall exist immediately after
the effectiveness of any Extended Loans, (ii) except as to interest rates, fees and final maturity
(which shall be determined by the Borrowers and set forth in the relevant Extension Offer), the
Loans of any Lender that agrees to an extension with respect to such Loans (an “Extending
Lender”) extended pursuant to any Extension (“Extended Loans”) shall have the same
terms as the tranche of Loans subject to such Extension Offer (except for covenants or other
provisions contained therein applicable only to periods after the then Latest Maturity Date), (iv)
the amortization schedule applicable to any Extended Loans pursuant to Section 2.6 for the
periods prior to the original Maturity Date may not be increased, (v) the Weighted Average Life to
Maturity of any Extended Loans shall be no shorter than the remaining Weighted Average Life to
Maturity of the Loans extended thereby, (vi) any Extended Loans may participate on a pro rata basis
or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or
mandatory repayments or prepayments hereunder, in each case as specified in the applicable
Extension Offer, (vii) if the aggregate principal amount of Loans (calculated on the face amount
thereof) in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed
the maximum aggregate principal amount of Loans offered to be extended by the Borrowers pursuant to
such Extension Offer, then the Loans of such Lenders shall be extended ratably up to such maximum
amount based on the respective principal amounts (but not to exceed actual holdings of record) with
respect to which such Lenders have accepted such Extension Offer, (vii) all documentation in
respect of such Extension shall be consistent with the foregoing and (ix) any applicable Minimum
Extension Condition shall be satisfied unless waived by the Borrowers.


 


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With respect to all Extensions consummated by the Borrowers pursuant to this Section
2.15, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments
for purposes of Section 2.5 and (ii) each Extension Offer is required to be in a
minimum amount of $10,000,000, provided that the Borrowers may at their election
specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension
that a minimum amount (to be determined and specified in the relevant Extension Offer in the
Borrowers’ sole discretion and may be waived by the Borrowers) of Loans of any or all applicable
Tranches be tendered. The Administrative Agent and the Lenders hereby consent to the transactions
contemplated by this Section 2.15 (including, for the avoidance of doubt, payment of any
interest, fees or premium in respect of any Extended Loans on such terms as may be set forth in the
relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement
(including, without limitation, Sections 2.5 and 2.10) or any other Loan Document
that may otherwise prohibit any such Extension or any other transaction contemplated by this
Section 2.15.



No consent of any Lender or the Administrative Agent shall be required to effectuate any
Extension, other than the consent of each Lender agreeing to such Extension with respect to its
Loans (or a portion thereof). All Extended Loans and all obligations in respect thereof shall be
Obligations under this Agreement and shall be secured by the Collateral on a pari passu basis with
all other applicable Secured Obligations. The Lenders hereby irrevocably authorize the
Administrative Agent and the Collateral Agent to enter into amendments to this Agreement and the
other Loan Documents with the Borrowers as may be necessary in order to establish new Tranches or
sub-Tranches in respect of Loans so extended and such technical amendments as may be necessary or
appropriate in the reasonable opinion of the Administrative Agent and the Borrowers in connection
with the establishment of such new Tranches or sub-Tranches, in each case on terms consistent with
this Section 2.15.



In connection with any Extension, the Borrowers shall provide the Administrative Agent at
least five (5) Business Days’ (or such shorter period as may be agreed by the Administrative Agent)
prior written notice thereof.



This Section 2.15 shall supersede any provisions in Section 2.5, Section
2.10 or Section 11.12 to the contrary.



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


 


53









 






Incremental Loans.



The Borrowers may at any time or from time to time after the Agreement Date, upon not less
than five (5) Business Days written notice to the Administrative Agent (whereupon the
Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request
that an increase in the principal amount of Loans (the “Incremental Loans”) be made
available to the Borrowers, provided that, immediately prior to, and after giving effect to the
incurrence of such Incremental Loans and any transaction consummated in connection therewith, (i)
the representations and warranties contained in Article V and the other Loan Documents are
true and correct in all material respects, (ii) no Default or Event of Default shall have occurred
and be continuing and (iii) the Senior Secured Leverage Ratio is no greater, calculated on a pro
forma basis, than 3.50 to 1.00. Each incurrence of Incremental Loans shall be in an aggregate
principal amount that is not less than $5,000,000; provided, that the aggregate principal
amount of all Incremental Loans incurred hereunder shall not exceed $150,000,000 less the aggregate
amount of then outstanding Funded Debt incurred pursuant to Section 8.1(q)(ii) that is in
excess of $100,000,000. Incremental Loans (w) shall rank pari passu in right of payment and of
security with the Loans (though such Incremental Loans may be secured by less than all of the
Collateral), (x) shall not mature earlier than the Maturity Date with respect to the Tranche of
Loans being increased, (y) shall be treated substantially the same as the Tranche of Loans being
increased (including, without limitation, with respect to mandatory and voluntary prepayments) and
(z) shall have interest rates and amortization schedules as determined by the Borrowers and the
lenders thereof; provided further that, as of the date of the incurrence of any
Incremental Loan (1) the Weighted Average Life to Maturity of such Incremental Loan shall not be
shorter than that of the Tranche of Loans being increased and (2) in the event that the All-In
Yield applicable to such Incremental Loans exceeds the All-In Yield of the Tranche of Loans being
increased by more than 50 basis points, the interest rate margins for existing such Tranche of
Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to
the All-In Yield of the applicable Incremental Loans minus 50 basis points.



Each notice from the Borrowers pursuant to this Section 2.17 shall set forth the
requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be
made by any existing Lender (and each existing Lender will have the right, but not an obligation,
on terms permitted in this Section 2.17 and otherwise on terms reasonably acceptable to the
Administrative Agent, to make a portion of any Incremental Loan equal to the amount of Incremental
Loans so requested by the Borrowers multiplied by such Lender’s Aggregate Commitment Ratio) or by
any other bank or other financial institution reasonably acceptable to the Borrowers and the
Administrative Agent (any such other bank or other financial institution being called an
“Additional Lender”). Incremental Loans shall become Loans under this Agreement pursuant
to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the
other Loan Documents, executed by the Borrowers, each Lender agreeing to provide such Loans, if
any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may,
without the consent of any other Lenders, effect such amendments to this Agreement and the other
Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative
Agent and the Borrowers, to effect the provisions of this Section 2.17. The effectiveness
of any Incremental Amendment and the borrowings of Incremental Loans under this Agreement (as
amended by such Incremental Amendment) shall be subject to the satisfaction of such conditions as
the
parties thereto shall agree. The Borrowers will use the proceeds of any Incremental Loans for
any purposes not prohibited by this Agreement. No Lender shall be obligated to provide any
Incremental Loans unless it so agrees.


 


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This Section 2.17 shall supersede any provisions in Section 2.10 or
Section 11.12 to the contrary.



GUARANTY





Guaranty.



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



Regardless of whether any proposed guarantor or any other Person shall become in any other way
responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part
thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender
Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or
otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this
Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be
operative and binding until the Obligations shall have been indefeasibly paid in full in cash.



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



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


 


55









 





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



The Lender Group, or any of them, may, without demand or notice of any kind upon or to any
Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by
any Guarantor following and during the continuance of an Event of Default, if the Borrowers shall
not have timely paid any of the Obligations, set-off and appropriate and apply to any portion of
the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may
from time to time elect in accordance with this Agreement, any deposits, property, balances, credit
accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under
their respective control for any purpose. If and to the extent that any Guarantor makes any
payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty,
any claim which such Guarantor may have against any Borrower by reason thereof shall be subject and
subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender
Group.


 


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



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



Each Guarantor hereby absolutely, unconditionally and irrevocably expressly waives, except to
the extent such waiver would be expressly prohibited by Applicable Law, the following: (i) notice
of acceptance of this Guaranty, (ii) notice of the existence or creation of all or any of the
Obligations, (iii) presentment, demand, notice of dishonor, protest and all other notices
whatsoever (other than notices expressly required hereunder or under any other Loan Document to
which any Guarantor is a party), (iv) all diligence in collection or protection of or realization
upon the Obligations or any part thereof, any obligation hereunder, or any security for any of the
foregoing, (v) until the Obligations shall have been paid in full in cash, all rights to enforce
any remedy which the Lender Group, or any of them, may have against any Borrower and (vi) until the
Obligations shall have been paid in full in cash, all rights of subrogation, indemnification,
contribution and reimbursement from the Borrowers for amounts paid hereunder and any benefit of, or
right to participate in, any collateral or security now or hereinafter held by the Lender Group, or
any of them, in respect of the Obligations. If a claim is ever made upon any member of the Lender
Group for the repayment or recovery of any amount or amounts received by such Person in payment of
any of the Obligations and such Person repays all or part of such amount by reason of (A) any
judgment, decree or order of any court or administrative body having jurisdiction over such Person
or any of its property, or (B) any settlement or compromise of any such claim effected by such
Person with any such claimant, including any Borrower, then in such event each Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be binding upon such
Guarantor, notwithstanding any revocation hereof or the cancellation of any promissory note or
other instrument evidencing any of the Obligations, and such Guarantor shall be and remain
obligated to such Person hereunder for the amount so repaid or recovered to the same extent as if
such amount had never originally been received by such Person.


 


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



This is a guaranty of payment and not of collection. In the event the Administrative Agent
makes a demand upon any Guarantor in accordance with the terms of this Guaranty, such Guarantor
shall be held and bound to the Administrative Agent directly as debtor in respect of the payment of
the amounts hereby guaranteed. All costs and expenses, including, without limitation, reasonable
attorneys’ fees and expenses, incurred by the Administrative Agent in obtaining performance of or
collecting payments due under this Guaranty shall be deemed part of the Obligations guaranteed
hereby.



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



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



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


 


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CONDITIONS PRECEDENT




Conditions Precedent to Initial Loan. The obligations of the Lenders to make the
Loans hereunder on the Agreement Date are subject to the prior or concurrent fulfillment of each of
the following conditions:



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




This duly executed Agreement;



A duly executed Note to the order of each Lender requesting a promissory note in the amount of
such Lender’s Loan made on the Agreement Date;



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



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




[Reserved];




[Reserved];



The legal opinion of Kolesar & Leatham, Chtd., Nevada counsel to the Borrower Parties,
addressed to the Lender Group;



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


 


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Certificates of insurance with respect to the insurance policies of the Borrower Parties, in
each case, meeting the requirements of Section 6.5.



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



Payment of all accrued costs, fees and expenses and other compensation due and payable to the
Administrative Agent, the Joint Lead Arrangers, and the Lenders (including legal fees and expenses
and the fees and expenses of any of their respective advisors) in connection with the execution and
delivery of this Agreement that are, in the case of expenses, invoiced or estimated no later than
two (2) Business Days prior to the date hereof;



A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower
regarding the solvency and financial condition of the Borrower Parties, after giving effect to the
360 Transactions, including the Loans made hereunder;




A duly executed Request for Loan in respect of the Loans;



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



Supplements and joinders to the Security Documents duly executed by 360networks, together with
Uniform Commercial Code financing statements related thereto, certificates representing all of the
certificated Equity Interests of 360networks and all other original Collateral to be delivered to
the Collateral Agent pursuant to the Security Agreement, and transfer powers with respect thereto
duly endorsed in blank;



The Voting Agreement, duly executed by each Borrower Party, the Collateral Agent and the
Revolving Facility Administrative Agent; and



A Joinder Agreement (as defined in the Intercreditor Agreement), duly executed by each
Borrower Party, pursuant to which the Administrative Agent shall, as the Authorized Representative
(as defined in the Intercreditor Agreement) of the Lenders, accede to the Intercreditor Agreement.



Since December 31, 2010, there shall not have occurred any change, development, fact,
condition, event, occurrence or effect that, individually or in the aggregate, with all other
changes developments, facts, conditions, events, occurrences or effects (i) is or would reasonably
be expected to be materially adverse to the assets, business, properties, operations, financial
condition or results of operations of 360networks and its Subsidiaries, taken as a whole, or (ii)
prevents or materially delays or materially impairs, or would reasonably be expected to prevent or
materially delay or materially impair, the ability of the parties to the 360 Stock Purchase
Agreement (other than Zayo) and 360networks to consummate the transactions contemplated by the 360
Stock Purchase Agreement, except for any such changes, developments, facts, conditions, events,
occurrences or effects arising out of or relating to (1) the announcement or the existence of the
360 Stock Purchase Agreement and the transactions contemplated thereby, the identity of Zayo or
actions by Zayo, 360networks or its Subsidiaries that are required to be taken pursuant to he 360
Stock Purchase Agreement (including, in each


 


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case, any loss of customers, suppliers or employees or any disruption in business
relationships), (2) changes in general economic or political conditions or the financial, credit or
securities markets (to the extent 360networks and its Subsidiaries, taken as a whole, are not
disproportionately affected thereby), (3) changes in applicable laws, rules, regulations or orders
of any Governmental Authority or interpretations thereof by any Governmental Authority or changes
in accounting rules or principles (to the extent 360networks and its Subsidiaries, taken as a
whole, are not disproportionately affected thereby), (4) changes affecting generally the industries
in which 360networks and its Subsidiaries conduct business (to the extent 360networks and its
Subsidiaries, taken as a whole, are not disproportionately affected thereby), or (5) any outbreak
or escalation of hostilities or war or any act of terrorism (to the extent 360networks and its
Subsidiaries, taken as a whole, are not disproportionately affected thereby).



The representations and warranties made in the 360 Stock Purchase Agreement by 360networks or
any other party thereto that are material to the interests of the Lenders shall be true and correct
in all material respects (unless any such representation or warranty is qualified as to
materiality, in which case such representation and warranty shall be true and correct in all
respects), but only to the extent that the accuracy of such representations or warranties is a
condition to the Borrowers’ (or their Affiliates’) obligation to consummate the 360 Acquisition
thereunder.



The representations and warranties set forth in Section 5.1(a)(i), (a)(ii),
(b), (e)(i), (e)(ii) (with respect to material debt agreements, charter
documents and other organizational documents), (s), (t), (aa) and
(bb) hereof shall be true and correct in all material respects (unless any such
representation or warranty is qualified as to materiality, in which case such representation and
warranty shall be true and correct in all respects), both before and after giving effect to the
application of the proceeds of the Loans.



The 360 Acquisition shall have been consummated, or substantially simultaneously with the
making of the Loans hereunder shall be consummated, in accordance with the 360 Stock Purchase
Agreement (without waiver, amendment, supplement or other modification in a manner material and
adverse to the Lenders or the Joint Lead Arrangers).



The Joint Lead Arrangers shall have received (i) the Audited Financial Statements, (ii) the
Unaudited Financial Statements and (iii) the Pro Forma Financial Statements.



All Funded Debt of 360networks and its Subsidiaries, other than Funded Debt described on
Schedule 4.1(f), shall have been (or substantially simultaneously with the consummation of
the 360 Acquisition, shall be) paid in full, all commitments (if any) in respect thereof terminated
and all guarantees (if any) thereof and Liens (if any) in respect thereof discharged and released.



No later than five (5) Business Days prior to the date hereof, the Lender Group shall have
received all documentation and other information in respect of the Borrower Parties required by
regulatory authorities under the applicable “know your customer” rules and regulations, including
the USA Patriot Act, and requested no later than ten (10) days prior to the date hereof.


 


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REPRESENTATIONS AND WARRANTIES




General Representations and Warranties. In order to induce the Lender Group to enter
into this Agreement and to make the Loans on the Agreement Date, each Borrower Party hereby
represents, and warrants that:



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



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



Partnerships; Joint Ventures; Subsidiaries. Except as disclosed on Schedule
5.1(c)-1, as of the Agreement Date, no Borrower Party or any Subsidiary of a Borrower Party has
any Subsidiaries, which Subsidiaries are identified on such Schedule as Domestic Subsidiaries or
Foreign Subsidiaries. As of the Agreement Date, no Borrower Party or any Subsidiary of a Borrower
Party is a partner or joint venturer in any partnership or joint venture other than (i) the
Subsidiaries listed on Schedule 5.1(c)-1 and (ii) the partnerships and joint ventures (that
are not Subsidiaries) listed on Schedule 5.1(c)-2. Schedule 5.1(c)-1 and
Schedule 5.1(c)-2 set forth, for each Person set forth thereon, a complete and accurate
statement of (i) the percentage ownership of each such Person by the applicable Borrower Party or
Subsidiary of a Borrower Party as of the Agreement Date, (ii) the state or other jurisdiction of
incorporation or formation, as appropriate, of each such Person as of the Agreement Date, (iii)
each state in which the failure of such Person to be qualified to do business as of the Agreement
Date could
reasonably be expected to cause a Materially Adverse Effect and (iv) all of each such Person’s
trade names, trade styles or doing business forms which such Person has used or under which such
Person has transacted business during the five (5) year period immediately preceding the Agreement
Date.


 


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



Compliance with Law, Loan Documents, and Contemplated Transactions. The execution,
delivery, and performance of this Agreement and each of the other Loan Documents and the Bank
Products Documents in accordance with their respective terms and the consummation of the
transactions contemplated hereby and thereby do not and will not (i) violate any Applicable Law,
(ii) conflict with, result in a breach of, or constitute a default under the certificate of
incorporation or formation or by-laws, partnership agreement or operating agreement of any Borrower
Party or under any indenture, agreement, or other instrument to which any Borrower Party is a party
or by which any Borrower Party or any of its properties may be bound, or (iii) result in or require
the creation or imposition of any Lien upon or with any assets or property of any Borrower Party
except Permitted Liens.


 


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



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




Intentionally Omitted.



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


 


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Taxes. Except as set forth on Schedule 5.1(j), all federal, state and other
material tax returns of each Borrower Party and each Subsidiary of a Borrower Party required by law
to be filed have been duly filed, all such tax returns are true, complete and correct in all
material respects, and all federal, state, and other material taxes (including without limitation,
all real estate and personal property, income, franchise, transfer and gains taxes), all general or
special assessments, and other governmental charges or levies upon each Borrower Party and each
Subsidiary of a Borrower Party and any of their respective properties, income, profits, and assets,
which are shown thereon as due and payable, have been paid, except any payment of any of the
foregoing which such Borrower Party or such Subsidiary, as applicable, is currently contesting in
good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP
have been provided on the books of such Borrower Party or such Subsidiary, as the case may be. As
of the Agreement Date, no adjustment relating to any tax returns has been proposed formally or
informally by any Governmental Authority and, to the knowledge of each Borrower Party, no basis
exists for any such adjustment, except as reflected in the charges, accruals and reserves on the
books of the Borrower Parties and their Subsidiaries or except such as could not reasonably be
expected to have a Materially Adverse Effect. Except as described in Schedule 5.1(j), no
Borrower Party has executed or filed with the Internal Revenue Service or any other Governmental
Authority any agreement or other document extending, or having the effect of extending, the period
for assessment or collection of any taxes. Except as set forth on Schedule 5.1(j), as of
the Agreement Date, none of the Borrower Parties and their respective predecessors are liable for
any taxes: (i) under any agreement (including any tax sharing agreements) or (ii) to each Borrower
Party’s knowledge, as a transferee. As of the Agreement Date, no Borrower Party has agreed, or
been requested, to make any adjustment under Code Section 481(a), by reason of a change in
accounting method or otherwise, which would have a Materially Adverse Effect.



Financial Statements. The Borrowers have furnished, or have caused to be furnished,
to the Lenders (i) the Audited Financial Statements which are complete and correct in all material
respects and present fairly in accordance with GAAP the respective financial positions of Zayo and
360 Corporation for the fiscal years covered thereby and the results of operations for the fiscal
years then ended, (ii) the Unaudited Financial Statements which are complete and correct in all
material respects and present fairly in accordance with GAAP, subject to normal year end
adjustments, the respective financial positions of Zayo and 360 Corporation for the periods covered
thereby, and the results of operations for the respective twelve-month periods then ended and (iii)
the Pro Forma Financial Statements which have been prepared in good faith, based on assumptions
believed by the Borrowers to be reasonable as of the date hereof, and present fairly in all
material respects on a Pro Forma Basis the estimated financial position of Zayo and its
Subsidiaries as at September 30, 2011 and the estimated results of operations for the periods
covered thereby, assuming that the 360 Transactions had actually occurred at the beginning of the
periods covered thereby.



No Adverse Change. Since June 30, 2011, there has occurred no event which has had or
could reasonably be expected to have a Materially Adverse Effect.


 


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



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



ERISA. Schedule 5.1(o) lists (i) all ERISA Affiliates and (ii) all Plans and
separately identifies all Title IV Plans, Multiemployer Plans, and Retiree Welfare Plans. Copies
of all such listed Plans, together with a copy of the latest IRS/DOL 5500-series form for each such
Plan, have been delivered to the Administrative Agent. Except with respect to Multiemployer Plans,
each Plan intended to be qualified under Code Section 401 has been determined by the Internal
Revenue Service to qualify under Section 401 of the Code, the trusts created thereunder have been
determined to be exempt from tax under the provisions of Sections 501 of the Code, and nothing has
occurred that would reasonably be expected to cause the loss of such qualification or tax-exempt
status. Except any such failure to comply which has not, and could not reasonably be expected to
have, a Materially Adverse Effect, each Borrower Party and each ERISA Affiliate and each of their
respective Plans are in compliance in all material respects with ERISA and the Code. No Borrower
Party nor any of its ERISA Affiliates has incurred any accumulated funding deficiency with respect
to any such Plan within the meaning of ERISA or the Code. No Borrower Party or, to each Borrower
Party’s knowledge, any of its ERISA Affiliates has made any promises of retirement or other
benefits to employees, except (i) as set forth in the Plans and (ii) that could reasonably be
expected to have a Materially Adverse Effect. No Borrower Party or ERISA Affiliate has incurred
any material liability to the PBGC in connection with any such Plan (other than the payment of
premiums that are not past due). No Title IV Plan has any Unfunded Pension Liability. No ERISA
Event or event described in Section 4062(e) of ERISA that could reasonably be expected to have a
Materially Adverse Effect has occurred and is continuing with respect to any such Plan. Except as
could not reasonably be expected to have a Materially Adverse Effect, there are no pending, or to
the knowledge of any Borrower Party, threatened claims (other than claims for benefits in the
normal course), sanctions, actions or lawsuits, asserted or instituted against any Plan or any
Person as fiduciary (as defined in Section 3(21) of ERISA) or sponsor of any Plan. Except as could
not reasonably be expected to have a Materially Adverse Effect, no such Plan or trust created
thereunder, or party in interest (as defined in Section 3(14) of ERISA), or any fiduciary (as
defined in Section 3(21) of ERISA), has engaged in a non-exempt “prohibited transaction” (as such
term is defined
in Section 406 of ERISA or Section 4975 of the Code) which would subject such Plan or any
other Plan of any Borrower Party or any of its ERISA Affiliates, any trust created thereunder, or
any such party in interest or fiduciary, or any party dealing with any such Plan or any such trust
to any material penalty or tax on “prohibited transactions” imposed by Section 502 of ERISA or
Section 4975 of the Code.


 


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Intellectual Property; Licenses; Certifications. As of the Agreement Date, except as
set forth on Schedule 5.1(p), no Borrower Party or any Subsidiary of a Borrower Party owns
any registered patents, trademarks, service marks, copyrights, franchises, licenses and other
intellectual property (collectively, “IP Rights”) and has no pending registration
applications with respect to any of the foregoing. No other IP Rights are necessary for the
operation of the business of the Borrower Parties and their Subsidiaries, except for such IP
Rights, the failure to obtain which could not reasonably be expected to have a Materially Adverse
Effect. No claim has been asserted and is pending by any Person challenging or questioning the use
of any IP Rights or the validity or effectiveness of any IP Rights, nor does any Borrower Party
have knowledge of any such claim, and, to the knowledge of the Borrower Parties, the use of any IP
Rights by any Borrower Party or any Subsidiary or the granting of a right or license in respect of
any IP Rights from any Borrower Party or any Subsidiary does not infringe on the rights of any
Person, except, in each case, for such claims, and such infringements, as could not reasonably be
expected to have a Materially Adverse Effect. Except as set forth on Schedule 5.1(p), (a)
none of the IP Rights owned by any of the Borrower Parties is subject to any licensing agreement or
similar arrangement and (b) no material licenses or certifications are necessary for the operation
of the Borrower Parties’ and their Subsidiaries’ business, except, in each case, for such
agreements and arrangements and such licenses and certifications, the failure to obtain which,
could not reasonably be expected to have a Materially Adverse Effect.



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



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


 


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Compliance with Regulations T, U, and X. No Borrower Party or any Subsidiary of a
Borrower Party is engaged principally in the business of or has as one of its important activities
in the business of extending credit for the purpose of purchasing or carrying, and no Borrower
Party or any Subsidiary of a Borrower Party owns or presently intends to
acquire, any “margin security” or “margin stock” as defined in Regulations T, U and X of the
Board of Governors of the Federal Reserve System (herein called “Margin Stock”). None of
the proceeds of the Loans will be used, directly or indirectly, for the purpose of purchasing or
carrying any Margin Stock or for the purpose of reducing or retiring any Funded Debt which was
originally incurred to purchase or carry Margin Stock or for any other purpose which might
constitute this transaction a “purpose credit” within the meaning of said Regulations T, U and X.
None of any Borrower Party, any Subsidiary of a Borrower Party or any bank acting on its behalf has
taken or will take any action which might cause this Agreement or any other Loan Documents to
violate Regulation T, U or X or any other regulation of the Board of Governors of the Federal
Reserve System or to violate the SEA, in each case as now in effect or as the same may hereafter be
in effect. If so requested by the Administrative Agent, the Borrower Parties and their
Subsidiaries will furnish the Administrative Agent with (i) a statement or statements in conformity
with the requirements of Federal Reserve Form U-1 referred to in Regulation U of said Board of
Governors and (ii) other documents evidencing its compliance with the margin regulations reasonably
requested by the Administrative Agent, including without limitation an opinion of counsel in form
and substance reasonably satisfactory to the Administrative Agent. Neither the making of the Loans
nor the use of proceeds thereof will violate, or be inconsistent with, the provisions of Regulation
T, U or X of said Board of Governors.



Solvency. As of the Agreement Date and after giving effect to the 360 Transactions
(i) the property of the Borrower Parties, on a consolidated basis, at a fair valuation on a going
concern basis, will exceed its debt; (ii) the capital of the Borrower Parties, on a consolidated
basis, will not be unreasonably small to conduct their business; and (iii) the Borrower Parties, on
a consolidated basis, will not have incurred debts, or have intended to incur debts, beyond their
ability to pay such debts as they mature. For purposes of this Section 5.1(t), “debt”
shall mean any liability on a claim, and “claim” shall mean (A) the right to payment, whether or
not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, undisputed, legal, equitable, secured or unsecured, or (B) the right to an equitable
remedy for breach of performance if such breach gives rise to a right to payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
undisputed, secured or unsecured.



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



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


 


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Real Property. All real property leased by each Borrower Party and each Subsidiary of
a Borrower Party constituting a material collocation and interconnection data center location as of
the Agreement Date for which the annual rent expense is greater than $300,000, and the name of the
lessor of such real property, is set forth in Schedule 5.1(w)-1. The
leases of each Borrower Party and each Subsidiary of a Borrower Party are valid, enforceable
and in full force and effect, and, as of the Agreement Date, have not been modified or amended,
except as otherwise set forth in Schedule 5.1(w)-1 or as could not reasonably be expected
to have a Materially Adverse Effect. All real property owned by each Borrower Party or a
Subsidiary of a Borrower Party as of the Agreement Date with a value in excess of $500,000 is set
forth in Schedule 5.1(w)-2. The Administrative Borrower shall provide notice to the
Administrative Agent upon the purchase by any Borrower Party of any real property with a value in
excess of $500,000 and, upon the request of the Collateral Agent, the applicable Borrower Party
shall deliver a Mortgage with respect to such real property and all other documentation reasonably
requested by the Collateral Agent, including, without limitation, one or more opinions of counsel.




Environmental Matters.



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



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



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


 


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Intentionally Omitted.




Intentionally Omitted.



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



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



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



Survival of Representations and Warranties, etc. All representations and warranties
made under this Agreement and the other Loan Documents shall be deemed to be made, and shall be
true and correct, at and as of the Agreement Date. All representations and warranties made under
this Agreement and the other Loan Documents shall survive, and not be waived by, the execution
hereof by the Lender Group, or any of them, any investigation or inquiry by any member of the
Lender Group, or the making of the Loans under this Agreement.


 


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GENERAL COVENANTS




Until the date the Obligations are repaid in full and unless the Majority Lenders shall
otherwise give their prior consent in writing:



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



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



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



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


 


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Insurance. Each Borrower Party will, and will cause each of its Restricted
Subsidiaries to, maintain insurance including, but not limited to, property insurance, public
liability, comprehensive general liability with respect to losses and claims in excess of
$1,000,000 individually, or $2,000,000 in the aggregate during any policy year, business
interruption and fidelity coverage insurance, in such amounts and against such risks as would be
customary for companies in the same industry and of comparable
size as the Borrower Parties and the Restricted Subsidiaries, from financially sound and
reputable insurance companies having and maintaining an A.M. Best rating of “A minus” or better and
being in a size category of VI or larger or otherwise acceptable to the Administrative Agent. In
addition to the foregoing, each Borrower Party further agrees to maintain and pay for insurance
upon all goods constituting Collateral wherever located, in storage or in transit in vehicles,
vessels or aircraft, including goods evidenced by documents, covering casualty, hazard, public
liability and such other risks and in such amounts as would be customary for companies in the same
industry and of comparable size as the Borrower Parties and not less than replacement costs, from
financially sound and reputable insurance companies having and maintaining an A.M. Best rating of
“A minus” or better and being in a size category of VI or larger or otherwise acceptable to the
Administrative Agent to insure the Lender Group’s interest in such Collateral. All such property
insurance policies covering goods that constitute Collateral shall name the Collateral Agent as
loss payee and all liability insurance policies shall name the Administrative Agent and the
Collateral Agent as additional insured. Each Borrower Party shall deliver certificates of
insurance evidencing that the required insurance is in force together with satisfactory lender’s
loss payable and additional insured, as applicable, endorsements. Each policy of insurance or
endorsement shall contain a clause requiring the insurer to give not less than thirty (30) days’
prior written notice to the Administrative Agent in the event of cancellation or material
modification of the policy for any reason whatsoever (other than non-payment of premiums, which
notice may be less than thirty (30) days but shall be at least ten (10) days). If any Borrower
Party fails to provide and pay for such insurance, the Administrative Agent may, at the Borrowers’
expense, procure the same, but shall not be required to do so. Each Borrower Party agrees to
deliver to the Administrative Agent, promptly as rendered, true copies of all reports made in any
reporting forms to insurance companies.



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



Visits and Inspections. Each Borrower Party will, and will cause each of its
Restricted Subsidiaries to, permit representatives of the Administrative Agent, including, without
limitation, any consultant engaged by the Administrative Agent who has agreed with the Borrower
Parties to comply with Section 11.17, upon reasonable advance notice to the Borrower
Parties and, unless an Event of Default has occurred and is continuing, not more than two (2) times
each calendar year, to (a) visit and inspect the properties of the Borrower Parties and their
Restricted Subsidiaries during normal business hours, (b) inspect and make extracts from and copies
of the Borrower Parties’ and their Restricted Subsidiaries’ books and records and (c) discuss with
the Borrower Parties’ and their Restricted Subsidiaries’ respective principal officers such
Borrower Parties’ or such Restricted Subsidiaries’ businesses, assets, liabilities, financial
positions, results of operations,


 


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and business prospects relating to such Borrower Parties or such Restricted Subsidiaries. Any
other member of the Lender Group may, at its expense (unless an Event of Default has occurred and
is continuing), accompany the Administrative Agent on any regularly scheduled visit (or at any time
that a Default exists any visit regardless of whether it is regularly scheduled) to the Borrower
Parties’ and their Restricted Subsidiaries’ properties. In addition, the Borrowers shall permit
the Administrative Agent and the Lenders to conduct an annual meeting, upon reasonable advance
notice to the Administrative Borrower and at a time reasonably convenient to the Administrative
Borrower, at the Administrative Borrower’s corporate headquarters which may also be conducted
telephonically or at another location to be mutually agreed upon by the Administrative Agent and
the Administrative Borrower; provided, for the avoidance of doubt, the Borrower Parties
shall not be responsible for the costs and expenses of the Administrative Agent and the Lenders
with respect to such annual meeting.




Intentionally Omitted.



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



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




Intentionally Omitted.




Intentionally Omitted.




Blocked Account Agreements.



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


 


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



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



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



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


 


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



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


 


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



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




Designation of Subsidiaries.



Subject to Section 6.20(b) below, the board of directors of the Borrowers may at any
time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted
Subsidiary as a Restricted Subsidiary; provided, however, that any Subsidiary which
is designated as an Unrestricted Subsidiary and subsequently redesignated as a Restricted
Subsidiary may not thereafter be redesignated as an Unrestricted Subsidiary. The designation of
any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by such
Borrower therein at the date of designation in an amount equal to the net book value of such
Borrower’s investment therein. The designation of any Unrestricted Subsidiary as a Restricted
Subsidiary shall constitute an incurrence at the time of designation of any Indebtedness or Liens
of such Subsidiary existing at such time.


 


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The Borrowers may not designate (x) any Restricted Subsidiary as an Unrestricted Subsidiary or
(y) any Unrestricted Subsidiary as a Restricted Subsidiary, in each case unless:




no Default or Event of Default exists or would result therefrom; and



in case of clause (x) only, (A) the Restricted Subsidiary to be so designated does not
(directly, or indirectly through its own Subsidiaries) own any Equity Interests or Indebtedness of,
or own or hold any Lien on any property of, any Borrower and (B) neither the Borrowers nor any
Restricted Subsidiary shall at any time be directly or indirectly liable for any Indebtedness that
provides that the holder thereof may (with the passage of time or notice or both) declare a default
thereon or cause the payment thereof to be accelerated or payable prior to its stated maturity upon
the occurrence of a default with respect to any Indebtedness, Lien or other obligation of any
Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted
Subsidiary).



INFORMATION COVENANTS




Until the date the Obligations are repaid in full and unless the Majority Lenders shall
otherwise give their prior consent in writing, the Borrower Parties will furnish or cause to be
furnished to each member of the Lender Group; provided, however, that the
Administrative Borrower, at its option, may deliver such items described in Sections 7.1,
7.2, 7.3, 7.5 and 7.6 to the Administrative Agent with instructions
to post such items on “IntraLinks” or any similar website for viewing by the Lenders or to send
such items to the Lenders via electronic mail and the Administrative Agent shall post or send via
electronic mail such items within a reasonable period of time after delivery thereby by the
Administrative Borrower to it and such posting or sending via electronic mail shall constitute
delivery of such items to the Lenders:



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


 


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




Compliance Certificates.



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



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



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



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



Describing each event, condition or circumstance during the last fiscal quarter covered by
such Compliance Certificate requiring a prepayment under Section 2.5(b).



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


 


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Additional Reports.



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



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




Intentionally Omitted;



If there is a material change in GAAP after September 30, 2011, that affects the presentation
of the financial statements referred to in Section 7.1 or 7.2, then, in addition to
delivery of such financial statements, and on the date such financial statements are required to be
delivered, the Borrower Parties shall furnish the adjustments and reconciliations necessary to
enable the Borrowers and each Lender to determine compliance with the Financial Covenants, all of
which shall be determined in accordance with GAAP consistently applied; and



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




Notice of Litigation and Other Matters.



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


 


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



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



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



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



Promptly upon (and in any event within three (3) Business Days of) any officer of any Borrower
becoming aware of any (i) Default under any Loan Document, any Senior Note Document, the Revolving
Credit Agreement or the Bridge Loan Agreement, (ii) breach under any lease under which any Borrower
Party makes rental payments in excess of $500,000 in any year, or (iii) default under any other
agreement (other than those referenced in clause (i) of this Section 7.6(f) or in
Section 7.6(b)) to which any Borrower Party or any Subsidiary of a Borrower Party is a
party or by which any Borrower Party’s or any such Subsidiary’s properties is bound which could
reasonably be expected to have a Materially Adverse Effect, then the Borrower Parties shall notify
the Lender Group of the occurrence thereof giving in each case the details thereof and specifying
the action proposed to be taken with respect thereto;



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


 


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



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



Promptly (but in any event within two (2) Business Days) (i) notify the Administrative Agent
of any material communications with the applicable PUC with respect to the Required PUC Consents,
to the extent such communications concern a potential loss or revocation of any Required PUC
Consent, and (ii) provide the Administrative Agent with copies of all written applications,
notices, information requests, or orders received or sent in writing to or from any PUC with
respect to such consents and any other consents with respect to the financings contemplated hereby.



NEGATIVE COVENANTS




Until the date the Obligations are repaid in full and unless the Majority Lenders shall
otherwise give their prior consent in writing:



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




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




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



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



Funded Debt of a Borrower Party or any of their Restricted Subsidiaries that is secured by
Permitted Liens described in clause (f) of the definition of Permitted Liens (including, without
limitation, Capitalized Lease Obligations), not to exceed an aggregate principal amount equal to
the sum of (i) $70,000,000 and (ii) 2.50% of the consolidated total assets of the Borrower Parties,
determined as of the end of the most recent fiscal quarter of the Borrowers for which internal
financial statements are available, at any time;




Guaranties permitted by Section 8.2;



unsecured Funded Debt of any Borrower Party owed to another Borrower Party;


 


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obligations under Hedge Agreements not entered into for speculative purposes;




the Senior Note Indebtedness in the original aggregate principal amount of $350,000,000;




intentionally omitted;



other unsecured Funded Debt of any Borrower Party so long as (i) such Funded Debt has no
mandatory sinking fund, redemption or amortization, or maturity earlier than one year and one day
prior to the Latest Maturity Date, (ii) the Leverage Ratio, on a pro forma basis for the issuance
of such Funded Debt, is not greater than 4.25:1.00 as of the last day of the immediately preceding
fiscal quarter for which financial statements are available (and the Administrative Borrower shall
provide to the Administrative Agent a certificate from an Authorized Signatory of the
Administrative Borrower certifying such compliance) and (iii) at the time of and immediately after
giving effect to the incurrence of such Funded Debt and the application of the proceeds thereof, on
a pro forma basis, no Default or Event of Default is in existence;



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



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



Funded Debt in respect of bid, performance or surety bonds or letters of credit issued in the
ordinary course of business, including letters of credit supporting lease obligations or supporting
(or in lieu of) such bid, performance or surety bonds or in respect of workers’ compensation
claims, or other Funded Debt with respect to reimbursement obligations regarding workers’
compensation claims;



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



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



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


 


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(i) Permitted Secured Indebtedness existing on the Agreement Date and (ii) other Permitted
Secured Indebtedness of the Borrower Parties in an aggregate amount outstanding at any time not to
exceed $250,000,000 less the aggregate principal amount of Incremental Loans then outstanding,
provided, that at the time of incurrence of any Permitted Secured Indebtedness under this
clause (ii), the Senior Secured Leverage Ratio for the most recent fiscal quarter then ended is no
greater, calculated on a pro forma basis, than 3.50 to 1.00;




Bridge Indebtedness in an aggregate principal amount not to exceed $40,000,000;



Revolving Facility Indebtedness in an aggregate principal amount not to exceed $100,000,000;
and



360 Acquisition Note Indebtedness in an aggregate principal amount not to exceed $315,000,000
less the aggregate principal amount of the Loans.



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



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



Restricted Payments and Purchases. No Borrower Party shall, or shall permit any of
its Restricted Subsidiaries to, directly or indirectly declare or make any Restricted Payment or
Restricted Purchase, or set aside any funds for any such purpose, other than Dividends on common
stock which accrue (but are not paid in cash) or are paid-in-kind or Dividends on preferred stock
which accrue (but are not paid in cash) or are paid-in-kind; provided, however,
that (a) any Restricted Subsidiary may make Restricted Payments to any Borrower or any other
Restricted Subsidiary, (b) the Borrower Parties may repurchase, redeem or otherwise acquire or
retire for value of any Equity Interests of Zayo, or declare or pay dividends or make other
distributions, directly or indirectly, to CII, to fund the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of CII, in each case held by any
current or former employee or director of the Borrower Parties (or any Subsidiaries thereof)
pursuant to the terms of any employee equity subscription agreement, stock option agreement or
similar agreement entered into in the ordinary course of business; or, prior to Zayo’s initial
public offering, declare or pay dividends or make other distributions, directly or indirectly, to
any of Zayo’s direct or indirect parent companies for the purpose of enabling CII to effect a
repurchase, redemption or other acquisition or retirement


 


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of the Equity Interests in CII from one or more of its equity investors that fail to comply
with their funding commitments under the CII Limited Liability Company Agreement; provided that the
aggregate price paid, or distributed or paid out as a dividend under this subsection (b) in any
calendar year will not exceed $5,000,000, (c) any Borrower may make additional Restricted Payments
and Restricted Purchases in the following amounts after the Agreement Date, so long as both before
and after giving effect to such Restricted Payment or Restricted Purchase, no Default has occurred
and is continuing or would result from the making of such Restricted Payment or Restricted
Purchase: (i) if minimum Availability is greater than or equal to $65,000,000 and the Leverage
Ratio, on a pro forma basis, is less than 4.00 to 1.00 but greater than or equal to 3.50 to 1.00 at
the time of the proposed payment of the Restricted Payments or the proposed Restricted Purchase,
$20,000,000 less the aggregate amount of Restricted Payments and Restricted Purchases made under
this clause (c) after the Agreement Date and (ii) if minimum Availability is greater than or equal
to $32,500,000 and (A) if the Leverage Ratio, on a pro forma basis, is less than 3.50 to 1.00 but
greater than or equal to 2.50 to 1.00 at the time of the proposed payment of the Restricted
Payments or the proposed Restricted Purchase, $50,000,000 less the aggregate amount of Restricted
Payments and Restricted Purchases made under this clause (c) after the Agreement Date, (B) if the
Leverage Ratio, on a pro forma basis, is less than 2.50 to 1.00 but greater than or equal to 1.50
to 1.00 at the time of the proposed payment of the Restricted Payments or the proposed Restricted
Purchase, $70,000,000 less the aggregate amount of Restricted Payments and Restricted Purchases
made under this clause (c) after the Agreement Date, and (C) if the Leverage Ratio, on a pro forma
basis, is less than 1.50 to 1.00 at the time of the proposed payment of the Restricted Payments or
the proposed Restricted Purchase, $90,000,000 less the aggregate amount of Restricted Payments and
Restricted Purchases made under this clause (c) after the Agreement Date, (d) the Borrowers may,
within 180 days of any acquisition permitted by Section 8.7(c), distribute any assets or
liabilities so acquired by the Borrowers that are determined by the Administrative Borrower to be
non-core to the business of the Borrowers and their Subsidiaries; provided, that the fair
market value of any assets and liabilities so distributed in respect of any such acquisition shall
not exceed 5.0% of the Annualized EBITDA of Zayo based on the most recent fiscal quarter of Zayo
then ended in respect of which financial statements are available (and the Administrative Borrower
shall provide to the Administrative Agent a certificate from an Authorized Signatory of the
Administrative Borrower certifying as to compliance with this clause (d)) and (e) the VOIP
Divestiture shall be permitted to be consummated on or after the 360 Acquisition Closing Date. With
respect to Restricted Payments and Restricted Purchases permitted under subsection (c), the
Administrative Borrower, on behalf of the Borrower Parties, shall deliver to the Administrative
Agent prior to the making of any Restricted Payment or Restricted Purchase a certificate, together
with supporting documents in form and substance reasonably satisfactory to the Administrative
Agent, executed by an Authorized Signatory of the Administrative Borrower certifying that as of the
date of such proposed Restricted Payment or Restricted Purchase the Leverage Ratio is at the
applicable level for such Restricted Payment or Restricted Purchase.



Investments. No Borrower Party will, or will permit any of its Restricted
Subsidiaries to, make Investments, except that (a) the Borrower Parties may purchase or otherwise
acquire and own and may permit any of their Restricted Subsidiaries to purchase or otherwise
acquire and own Cash Equivalents; (b) the Borrower Parties may hold the Investments in existence on
the Agreement Date and described on Schedule 8.5; (c) any Borrower Party may make
Investments constituting accounts receivable created,


 


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acquired or made and trade credit extended in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms , and may convert any of its accounts that
are in excess of ninety (90) days past due into notes or Equity Interests from the applicable
Account Debtor so long as the Collateral Agent is granted a first priority security interest in
such Equity Interests or notes which Lien is perfected contemporaneously with the conversion of
such Account to Equity Interests or notes; (d) the Borrower Parties and their Subsidiaries may hold
the Equity Interests of their respective Subsidiaries in existence as of the Agreement Date and
their Subsidiaries created after the Agreement Date in accordance with Section 6.18 and
Section 8.7(g); (e) without limiting Section 8.2, any Borrower Party may make
Investments in any other Borrower Party; (f) the Borrower Parties may hold Investments arising out
of Hedge Agreements not entered into for speculative purposes; (g) the Borrower Parties may make
short term loans to employees in the ordinary course of business in an aggregate amount not to
exceed $100,000 at any time; (h) the Borrower Parties may make Permitted Asset Swaps; (i) the
Borrower Parties may make Investments in the Equity Interests of CoBank, ACB pursuant to CoBank,
ACB’s Patronage Program so long as such Investments are not acquired through the expenditure of any
cash or other assets of any Borrower Party, other than a one time membership fee in an amount not
to exceed $1,000; (j) the Borrower Parties may make additional Investments after the Agreement Date
in an aggregate amount, (i) not to exceed $20,000,000 during the term of this Agreement, so long as
both before and after giving effect to such Investment, (A) no Default or Event of Default has
occurred and is continuing or would result from the making of such Investment, (B) minimum
Availability is greater than or equal to $32,500,000 and (C) the Leverage Ratio is greater than or
equal to 2.50 to 1.00, or (ii) not to exceed $50,000,000 during the term of this Agreement, so long
as both before and after giving effect to such Investment, (A) no Default or Event of Default has
occurred and is continuing or would result from the making of such Investment, (B) minimum
Availability is greater than or equal to $32,500,000 and (C) the Leverage Ratio is less than 2.50
to 1.00; (k) the Borrower Parties may make additional Investments in an aggregate amount not to
exceed $500,000 in any fiscal year of the Borrowers; (l) the Borrower Parties may acquire assets or
properties to the extent otherwise permitted under this Agreement and may give deposits therefor to
the extent permitted by clause (n) of the definition of Permitted Liens; (m) the Borrower Parties
may make Guaranties permitted by Section 8.2; (n) the Borrower Parties may make additional
Investments, to the extent that, giving effect to such additional Investments, the Available Amount
Utilization as of such date shall not exceed the Available Amount as of such date. With respect to
Investments permitted under clause (j), the Administrative Borrower, on behalf of the Borrower
Parties, shall deliver to the Administrative Agent a certificate, together with supporting
documents in form and substance reasonably satisfactory to the Administrative Agent, executed by an
Authorized Signatory certifying that as of the date of such proposed Investment the Leverage Ratio
is at the applicable level for such Investment.



Affiliate Transactions. No Borrower Party shall, or shall permit any of its
Restricted Subsidiaries to, enter into or be a party to any agreement or transaction with any
Affiliate (other than a Borrower Party or their Restricted Subsidiaries) except (a) as described on
Schedule 8.6, (b) upon terms that are no less favorable to such Borrower Party or such
Restricted Subsidiary than it would obtain in a comparable arms length transaction with a Person
not an Affiliate of such Borrower Party or such Restricted Subsidiary or (c) as permitted by
Sections 8.4 and Section 8.5.


 


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



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



Consummate an Asset Sale unless (x) such Asset Sale shall be for fair market value as
reasonably determined by the applicable Borrower or the applicable Restricted Subsidiary in good
faith based on sales of similar assets, if available, (y) at least 75% of the consideration
therefore received by the Borrowers and their Restricted Subsidiaries is in the form of (1) cash or
Cash Equivalents (including any cash or Cash Equivalents received from the conversion within 90
days of such Asset Sale of any securities, notes or other obligations received in consideration of
such Asset Sale), (2) Replacement Assets or (3) any combination of the consideration specified in
the foregoing clauses (1) and (2) and (z) the Borrowers comply with the applicable provisions of
Section 2.5;



Acquire (i) any Person, (ii) all or any substantial part of the assets, property or business
of a Person, or (iii) any assets that constitute a division or operating unit of the business of
any Person; provided, however, that the Borrower Parties and their Restricted
Subsidiaries shall be permitted to consummate an acquisition described above if, (i) before and
after giving effect to such acquisition, no Default has occurred and is continuing or would result
from the making of such acquisition and (ii) the Administrative Borrower, on behalf of the Borrower
Parties, delivers to the Administrative Agent a certificate, together with supporting documents in
form and substance reasonably satisfactory to the Administrative Agent, executed by an Authorized
Signatory certifying that as of such date of such proposed acquisition, both before and after
giving effect to such acquisition: (A) the Leverage Ratio does not exceed 4.25 to 1.00, and (B)
Availability shall be equal to or greater than $15,000,000; provided, further,
that, notwithstanding the foregoing, if Availability is equal to or greater than $15,000,000, the
Borrower Parties and their Restricted Subsidiaries shall be permitted to consummate an acquisition
described above (x) to the extent constituting a Permitted Asset Swap, or (y) to the extent that,
giving effect to such acquisition, the Available Amount Utilization as of such date shall not
exceed the Available Amount as of such date; provided, further, that
notwithstanding the foregoing or anything to the contrary contained herein, the Borrower Parties
shall be permitted to consummate the 360 Acquisition on the Agreement Date;



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


 


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



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



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




Financial Covenants.



Senior Secured Leverage Ratio. The Borrower Parties shall not permit, at the end of
each applicable fiscal quarter, the Senior Secured Leverage Ratio for the immediately preceding
twelve (12) month period then ended to be greater than the required amount for the applicable
period set forth below:



	 	 	 	 	 
	Applicable Period	 	Applicable Ratio	 
	For the twelve-month periods ending December 31, 2011 and March 31, 2012
	 	 	4.50 to 1.00	 
	For the twelve-month periods ending June 30, 2012, September 30, 2012,
December 31, 2012, March 31, 2013, June 30, 2013 and September 30, 2013
	 	 	4.00 to 1.00	 
	For the twelve-month periods ending December 31, 2013 and for each
fiscal quarter thereafter
	 	 	3.50 to 1.00	 






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



	 	 	 	 	 
	Applicable Period	 	Applicable Ratio	 
	For the twelve-month periods ending December 31, 2011, March 31, 2011, June
30, 2012, September 30, 2012 and December 31, 2012
	 	 	2.25 to 1.00	 
	For the twelve-month periods ending March 31, 2013 and June 30, 2013
	 	 	2.50 to 1.00	 
	For the twelve-month periods ending September 30, 2013 and December 31, 2013
	 	 	2.75 to 1.00	 
	For the twelve-month periods ending March 31 2014, June 30, 2014 and
September 30, 2014
	 	 	3.00 to 1.00	 
	For the twelve-month periods ending December 31, 2014 and for each fiscal
quarter thereafter
	 	 	3.25 to 1.00	 






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


 


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



Sales and Leasebacks. No Borrower Party shall, or shall permit any of their
Restricted Subsidiaries to, enter into any arrangement, directly or indirectly, with any third
party whereby such Borrower Party or such Restricted Subsidiary, as applicable, shall sell or
transfer any property, real or personal, whether now owned or hereafter acquired, and whereby such
Borrower Party or such Restricted Subsidiary, as applicable, shall then or thereafter rent or lease
as lessee such property or any part thereof or other property which such Borrower Party or such
Restricted Subsidiary intends to use for substantially the same purpose or purposes as the property
sold or transferred, except in an aggregate amount to the exceed $10,000,000.



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



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



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


 


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Negative Pledge. No Borrower Party shall, or shall permit any Subsidiary of any
Borrower Party to, directly or indirectly, enter into any agreement with any Person that prohibits
or restricts or limits the ability of any Borrower Party or any such Subsidiary to create, incur,
pledge, or suffer to exist any Lien upon any of its respective assets, or restricts the ability of
any Subsidiary of a Borrower to pay Dividends to such Borrower except prohibitions or conditions
(a) under the Loan Documents, (b) under the definitive documentation in respect of the Revolving
Credit Facility, (c) under the definitive documentation in respect of the Bridge Facility, (d)
under the definitive documentation in respect of any 360 Acquisition Notes, (e) under the
definitive documentation in respect of any Funded Debt permitted by Section 8.1(d) solely
to the extent that the agreement or instrument governing such Funded Debt or Capitalized Lease
Obligation prohibits a Lien on the property acquired with the proceeds of such Indebtedness or the
property subject to such Capitalized Lease Obligation, respectively, (f) existing by reason of
customary provisions restricting pledges, assignments, subletting or other transfers contained in
leases, licenses and similar agreements entered into in the ordinary course of business;
provided, that such restrictions are limited to the property or assets subject to such
leases, licenses or similar agreements, as the case may be, (g) with respect to a Subsidiary
imposed pursuant to an agreement that has been entered into in connection with the disposition of
all or substantially all of the Equity Interests or assets of such Subsidiary, (h) imposed by any
amendments or refinancings that are otherwise permitted by the Loan Documents or the contracts,
instruments or obligations referred to in clause (e) or (g) above; provided that such
amendments or refinancings are no more materially restrictive with respect to such prohibitions and
limitations than those in effect prior to such amendment or refinancing (as determined in good
faith and, if requested by the Administrative Agent, certified in writing to the Administrative
Agent by an Authorized Signatory of the Administrative Borrower or (i) under any Funded Debt of a
Person outstanding on the date such Person first becomes a Subsidiary of a Borrower;
provided, that the agreements imposing such prohibitions or conditions were not entered
into solely in contemplation of such Person becoming a Subsidiary of a Borrower.



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



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


 


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DEFAULT




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



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



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



Any Borrower Party shall default in the performance or observance of any agreement or covenant
contained in Sections 2.12, 6.1, 6.5, 6.7, 6.10,
6.15 or in Article 7 or Article 8 or any material (as determined by
Administrative Agent in its Permitted Discretion) agreement or covenant in any Security Document
(other than any Mortgage);



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



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



There shall occur any Change in Control;


 


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



Any Borrower Party or any of their Restricted Subsidiaries which is a Material Subsidiary
shall (i) commence an Insolvency Proceeding, (ii) consent to the institution of an Insolvency
Proceeding or to the appointment or taking of possession of a receiver, liquidator, assignee,
trustee, custodian, sequestrator, or other similar official of such Borrower Party or any of their
Restricted Subsidiaries which is a Material Subsidiary or of any substantial part of its
properties, (iii) fail generally to pay its debts as they become due or (iv)l take any action in
furtherance of any of the foregoing;



A final judgment (other than a money judgment or judgments fully covered (except for customary
deductibles or copayments not to exceed $5,000,000 in the aggregate) by insurance as to which the
insurance company has acknowledged coverage) shall be entered by any court against any Borrower
Party or any of their Restricted Subsidiaries for the payment of money which exceeds, together with
all such other judgments of the Borrower Parties and their Restricted Subsidiaries, $20,000,000 in
the aggregate, or a warrant of attachment or execution or similar process shall be issued or levied
against property of any Borrower Party or any of their Restricted Subsidiaries pursuant to a final
judgment which, together with all other such property of the Borrower Parties and their Restricted
Subsidiaries subject to other such process, exceeds in value $20,000,000 in the aggregate, and if,
within thirty (30) days after the entry, issue, or levy thereof, such judgment, warrant, or process
shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any
such stay, such judgment, warrant, or process shall not have been paid or discharged;



There shall be at any time (i) any “accumulated funding deficiency,” as defined in ERISA or in
Section 412 of the Code, with respect to any Plan maintained by any Borrower Party or any ERISA
Affiliate of a Borrower Party, or to which any Borrower Party or any of its ERISA Affiliates has
any liabilities; (ii) a trustee shall be appointed by a United States District Court to administer
any Plan maintained by any Borrower Party or any ERISA Affiliate of a Borrower Party, or to which
any Borrower Party or any of its ERISA Affiliates has any liabilities; (iii) the PBGC shall
institute proceedings to terminate any such Plan; (iv) any Borrower Party or any ERISA Affiliate of
any Borrower Party shall incur any liability to the PBGC in connection with the termination of any
such Plan; (v) any Plan or trust created under any Plan of any Borrower Party or any ERISA
Affiliate of any Borrower Party shall engage in a non-exempt “prohibited transaction” (as such term
is defined in Section 406 of ERISA or Section 4975 of the Code) which would subject any such Plan,
any trust created thereunder, any trustee or administrator thereof, or any party dealing with any
such Plan or trust to any tax or penalty on


 


91









 





“prohibited transactions” imposed by Section 502 of ERISA or Section 4975 of the Code; (vi)
any Borrower Party or any ERISA Affiliate of any Borrower Party shall enter into or become
obligated to contribute to a Multiemployer Plan; (vii) there shall be at any time a Lien imposed
against the assets of a Borrower Party or ERISA Affiliate under Code Section 430, or ERISA Sections
302 or 4068; or (viii) there shall occur at any time an ERISA Event; provided, however that no
Event of Default shall occur as a result of an event described in clauses (i), (ii), (iii), (iv),
(v), (vii) or (viii) of this Section 9.1(j) unless such event either individually or in the
aggregate with other events described therein could reasonably be expected result in an aggregate
liability greater than $20,000,000 or otherwise have a Materially Adverse Effect;



(i) There shall occur any default (after the expiration of any applicable grace or cure
period) under any indenture, agreement, or instrument evidencing Funded Debt of any Borrower Party
or any of their Restricted Subsidiaries in an aggregate principal amount exceeding $20,000,000
(determined singly or in the aggregate with other Funded Debt) which entitles the holders thereof
to cause such debt to become due prior to its stated maturity, (ii) there shall occur any default
under any Hedge Agreement (after the expiration of any applicable cure period set forth therein)
with a termination value in excess of $20,000,000 (measured at the time of such default) or (iii)
any event of default shall occur under the Indenture;



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




Intentionally Omitted; or



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



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


 


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With the exception of an Event of Default specified in Section 9.1(g) or (h),
the Administrative Agent may in its discretion (unless otherwise instructed by the Majority
Lenders) or shall at the direction of the Majority Lenders declare the principal of and interest on
the Loans and all other Obligations (other than any Obligations existing from time to time of any
Borrower Party to its counterparty under any Bank Products Documents) to be forthwith due and
payable without presentment, demand, protest, or notice of any kind, all of which are hereby
expressly waived, anything in this Agreement or in any other Loan Document to the contrary
notwithstanding, or both.



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



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




Intentionally Omitted.




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




Right to Cure.



Notwithstanding anything to the contrary contained in Section 9.1(c), in the event
that the Borrowers fail to comply with either of the Financial Covenants, until the expiration of
the tenth day after the date on which financial statements are required to be delivered pursuant to
Section 7.1 with respect to the fiscal quarter ending on the last day of the twelve-month
period in respect of which such Financial Covenant is being measured (the “Test Period”),
if Zayo receives a Specified Equity Contribution, Zayo may apply the amount of the net proceeds of
such Specified Equity Contribution to increase its Annualized EBITDA with respect to such
applicable fiscal quarter (the “Cure Right”) and the Financial Covenants shall be
recalculated, giving effect to a pro forma increase in Zayo’s Annualized EBITDA for
such Test Period in an amount equal to such net cash proceeds; provided that such pro
forma adjustment to Zayo’s Annualized EBITDA shall be given solely for the purpose of
determining the existence of a Default or an Event of Default under the Financial Covenants with
respect to any Test Period that includes the fiscal quarter for which such Cure Right was exercised
and not for any other purpose under any Loan Document.


 


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If, after the exercise of the Cure Right and the recalculations pursuant to subsection (a)
above, the Borrowers shall then be in compliance Financial Covenants during such Test Period, the
Borrower shall be deemed to have satisfied the requirements of the Financial Covenants as of the
relevant date of determination with the same effect as though there had been no failure to comply
therewith at such date, and the applicable Default or Event of Default under Section 9.1(c)
that had occurred shall be deemed cured; provided that (i) in each four-fiscal quarter period,
there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) there
shall be no more than four Specified Equity Contributions during the term of this Agreement, (iii)
with respect to any exercise of the Cure Right, the Specified Equity Contribution shall be no
greater than the amount required to cause the Borrowers to be in compliance with the Financial
Covenants and (iv) all Specified Equity Contributions will be disregarded for purposes of
determining the Available Amount or the availability of any baskets or carve-outs with respect to
the covenants contained in Article 8 hereof.



THE ADMINISTRATIVE AGENT




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



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



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


 


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Documents. The Administrative Agent shall not be under any duty to examine, inquire
into, or pass upon the validity, effectiveness, or genuineness of this Agreement, any other Loan
Document, or any instrument, document, or communication furnished pursuant hereto or in connection
herewith, and the Administrative Agent shall be entitled to assume that they are valid, effective,
and genuine, have been signed or sent by the proper parties, and are what they purport to be.



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



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




Action by Administrative Agent.



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


 


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



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



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



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



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



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



Indemnification. The Lenders agree to indemnify (to the extent not reimbursed by the
Borrowers) and hold harmless the Administrative Agent and each of its Affiliates, employees,
representatives, officers and directors (each an “Administrative Agent Indemnified Person”)
pro rata in accordance with their


 


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



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



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



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



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



Successor Administrative Agent. Subject to the appointment and acceptance of a
successor Administrative Agent as provided below, the Administrative Agent may resign at any time
by giving written notice thereof to the Lenders and the Administrative Borrower. Upon any such
resignation, the Majority Lenders shall have the right to appoint a successor Administrative Agent
(with the consent of the Administrative Borrower if no Event of Default then exists). If no
successor Administrative Agent shall have been so appointed by the Majority Lenders, and shall


 


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have accepted such appointment within thirty (30) days after the retiring Administrative
Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent which shall be any Lender or a Person
organized under the laws of the US, a State or any political subdivision thereof which has combined
capital and reserves in excess of $250,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers, privileges, duties,
and obligations of the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. After any retiring Administrative Agent’s
resignation hereunder as Administrative Agent, the provisions of this Article 10 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by it while it was
acting as the Administrative Agent.



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



Collateral. The Collateral Agent is hereby authorized to hold all Collateral pledged
pursuant to any Loan Document and to act on behalf of the Lender Group, in its own capacity and
through other agents appointed by it, under the Security Documents; provided, that the
Collateral Agent shall not agree to the release of any Collateral except in accordance with the
terms of this Agreement. The Lender Group acknowledges that the Loans, all Obligations with
respect to Bank Products Documents and all interest, fees and expenses hereunder constitute one
Funded Debt, secured by all of the Collateral. The Collateral Agent hereby appoints each Lender as
its agent (and each Lender hereby accepts such appointment) for the purpose of perfecting the
Collateral Agent’s Liens in assets which, in accordance with the UCC, can be perfected by
possession. Should any Lender obtain possession of any such Collateral, subject to the limitations
set forth in the Blocked Account Agreements, promptly upon the Collateral Agent’s request therefor
shall deliver such Collateral to the Collateral Agent or in accordance with the Collateral Agent’s
instructions.


 


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Release of Guarantees and Collateral.



Each Lender hereby directs, in accordance with the terms of this Agreement, the Administrative
Agent, and the Administrative Agent agrees, to instruct the Collateral Agent to release any Lien
held by the Collateral Agent for the benefit of the Lender Group:



against all of the Collateral, upon final and indefeasible payment in full of the Obligations;
or



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



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



Each Lender hereby directs, in accordance with the terms of this Agreement, the Administrative
Agent, and the Administrative Agent agrees, (i) to release any Guarantor from its obligations
hereunder (including, without limitation, its obligations with respect to the Guaranty) in
connection with (1) any sale or other disposition, including by merger or otherwise, of Equity
Interests in such Guarantor after which such Guarantor is no longer a Subsidiary of any Borrower,
if such sale or disposition complies with the applicable provisions of this Agreement or is
otherwise consented to by the applicable Lenders for such release as set forth in Section
11.12, as certified to the Administrative Agent by the Administrative Borrower or (2) the
designation of such Guarantor as an Unrestricted Subsidiary pursuant to Section 6.20 and in
accordance with the definition of “Unrestricted Subsidiary”, and (ii) to execute and deliver or
file or authorize the filing of such documents, statements and instruments and do such other things
as are necessary to release such Guarantor from such obligations pursuant to this Section
10.15 promptly upon the effectiveness of any such release. Upon request by the Administrative
Agent at any time, the Lenders shall confirm in writing the Administrative Agent’s authority to
release the applicable Guarantor pursuant to this Section 10.15.



Additional Agents. None of the Lenders or other entities identified on the facing
page of this Agreement as a “Joint Lead Arranger”, a “Joint Physical Bookrunner”, a “Joint
Bookrunning Manager” or a “Co-Syndication Agent” shall have any right, power, obligation,
liability, responsibility or duty under this Agreement or any other Loan Document other than those
applicable to all Lenders as such if


 


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such entity is also a Lender. Without limiting the foregoing, none of the Lenders or other
entities so identified shall have or be deemed to have any fiduciary relationship with any other
Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders
or other entities so identified in deciding to enter into this Agreement or any other Loan Document
or in taking or not taking action hereunder or thereunder.



MISCELLANEOUS





Notices.



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




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


Zayo Group, LLC

400 Centennial Parkway, Suite 200

Louisville, CO 80027

Attn: Ken desGarennes, Chief Financial Officer

Telecopy No.: (303) 226-5942

Email: kdesgarennes@zayo.com



with a copy to:

Gibson Dunn & Crutcher LLP

200 Park Avenue

New York, New York 10166-0193

Attn: Aaron F. Adams

Telecopy: (212) 351-6245

Email: afadams@gibsondunn.com



If to the Administrative Agent, to it at:



Royal Bank of Canada

20 King Street West

4th Floor, South Tower

Toronto, Ontario M5H 1C4

Attention: Manager, Agency



Agency Service Group



Facsimile: (416) 842-4023; and



 


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If to the Lenders, to them at the addresses set forth on the signature pages of this
Agreement.



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



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



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



All reasonable and documented or invoiced out-of-pocket expenses of the Administrative Agent
associated with the administration of this Agreement and the other Loan Documents and any amendment
or waiver with respect thereto (including, without limitation, the reasonable fees, disbursements
and other charges of one counsel to the Administrative Agent and any necessary local or regulatory
counsel as may be retained with the consent of the Administrative Borrower (such consent not to be
unreasonably withheld, delayed or conditioned));



All reasonable and documented or invoiced out-of-pocket expenses of the Administrative Agent
and the Lenders (including, without limitation, the fees, disbursements and other charges of one
counsel and any reasonably necessary local or regulatory counsel and, in the case of an actual or
perceived conflict, one additional counsel to all such Persons similarly situated) in connection
with the enforcement of this Agreement and the other Loan Documents; and



All taxes, assessments, general or special, and other charges levied on, or assessed, placed
or made against any Note or the Obligations.



Waivers. The rights and remedies of the Lender Group under this Agreement, the other
Loan Documents and the Bank Products Documents shall be cumulative and not exclusive of any rights
or remedies which they would otherwise have. No failure or delay by the Lender Group, or any of
them, or the Majority Lenders in exercising any right shall operate as a waiver of such right. The
Lender Group expressly reserves the right to require strict compliance with the terms of this
Agreement in connection with any funding of a request for an Loan. In the event the Lenders decide
to fund a request for an Loan at a time when the Borrowers are not in strict compliance with the
terms of this Agreement, such decision by the Lenders shall not be deemed to constitute an
undertaking


 


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by the Lenders to fund any further requests for Loans or preclude the Lenders from exercising
any rights available to the Lenders under the Loan Documents or at law or equity. Any waiver or
indulgence granted by the Lenders or by the Majority Lenders shall not constitute a modification of
this Agreement, except to the extent expressly provided in such waiver or indulgence, or constitute
a course of dealing by the Lenders at variance with the terms of the Agreement such as to require
further notice by the Lenders of the Lenders’ intent to require strict adherence to the terms of
the Agreement in the future. Any such actions shall not in any way affect the ability of the
Lenders, in their discretion, to exercise any rights available to them under this Agreement or
under any other agreement, whether or not the Lenders are party, relating to the Borrowers.



Set-Off. In addition to any rights now or hereafter granted under Applicable Law and
not by way of limitation of any such rights, except to the extent limited by Applicable Law, at any
time that an Event of Default exists, each member of the Lender Group and each subsequent holder of
the Obligations and each of their respective Affiliates is hereby authorized by the Borrower
Parties at any time or from time to time, without notice to the Borrower Parties or to any other
Person, any such notice being hereby expressly waived, to set-off and to appropriate and apply any
and all deposits (general or special, time or demand, including, but not limited to, Funded Debt
evidenced by certificates of deposit, in each case whether matured or unmatured, but not including
any amounts held by any member of the Lender Group or any of its Affiliates in any escrow account)
and any other Funded Debt at any time held or owing by any member of the Lender Group or any such
holder to or for the credit or the account of any Borrower Party, against and on account of the
obligations and liabilities of the Borrower Parties, to any member of the Lender Group, any such
holder under this Agreement or any such Affiliate, Notes, any other Loan Document and any Bank
Products Documents, including, but not limited to, all claims of any nature or description arising
out of or connected with this Agreement, any Notes, any other Loan Document or any Bank Products
Document, irrespective of whether or not (a) the Lender Group shall have made any demand hereunder
or (b) the Lender Group shall have declared the principal of and interest on the Loans and any
Notes and other amounts due hereunder to be due and payable as permitted by Section 9.2 and
although said obligations and liabilities, or any of them, shall be contingent or unmatured. Any
sums obtained by any member of the Lender Group or by any subsequent holder of the Obligations
shall be subject to the application of payments provisions of Article 2.




Assignment.



The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that no Borrower Party
may assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by any Borrower Party
without such consent shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the
Affiliates of the Administrative Agent) any legal or equitable right, remedy or claim under or by
reason of this Agreement. Notwithstanding anything else in this Section 11.5, no
assignments, participations or other transfers of rights under this Agreement
shall be permitted to any Person that is a competitor, or an Affiliate of a competitor, of any
Borrower Party or any of its Subsidiaries.


 


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Any Lender may assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of the Loans at the time owing to it
and excluding rights and obligations with respect to Bank Products Documents); provided that (i)
except in the case of an assignment of the entire remaining amount of the Loans at the time owing
to the assigning Lender or in the case of an assignment to a Lender or an Affiliate of a Lender or
an Approved Fund with respect to a Lender, the aggregate amount of the Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall not be less than
$1,000,000, unless each of the Administrative Agent and, so long as no Event of Default under
Section 9.1(b), (g) or (h) has occurred and is continuing, the
Administrative Borrower otherwise consents (each such consent not to be unreasonably withheld), and
(ii) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of $3,500 (unless such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund), and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Subject to acceptance and recording thereof by the Administrative Agent pursuant to
Section 11.5(c), from and after the effective date specified in each Assignment and
Acceptance, the Eligible Assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.8(b), 2.9, 6.18, 12.3
and 12.5). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
paragraph (d) of this Section 11.5.



The Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall
maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the portion of
the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary; provided, that failure
to make any such recordation, or any error in such recordation, shall not affect the Commitment of
any Lender. The Register shall be available for inspection by the Borrowers and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


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Any Lender may, without the consent of, or notice to, the Borrowers or the Administrative
Agent, sell participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this Agreement (including
all or a portion of its portion of the Loans owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) the
Borrowers and the Lender Group shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in Section 11.12(a)(i)(A), (B), (C) or
(E) that affects such Participant. Subject to paragraph (e) of this Section, the Borrowers
agree that each Participant shall be entitled to the benefits of Sections 2.8(b),
2.9, 6.18 and 12.3 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to Section 11.5(b). To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 11.4 as though
it were a Lender, provided such Participant agrees to be subject to Section 2.10 as
though it were a Lender.



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



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




 


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Notwithstanding anything in this Agreement (including but not limited to Sections 2.6
and 2.10 (which provisions shall not be applicable to this Section 11.5(g)) or in
any other Loan Document to the contrary, any Borrower Party may purchase the outstanding Loans on
the following basis:



Any Borrower Party shall have the right to purchase Loans at a discount to par pursuant to an
Offer of Specified Discount Purchase, Solicitation of Discount Range Sale Offers or Solicitation of
Discounted Sale Offers (any such purchase, a “Discounted Loan Purchase”), in each case made
in accordance with this Section 11.5(g); provided that, no
Borrower Party shall initiate any action under this Section 11.5(g) in order to make a
Discounted Loan Purchase unless (I) at least ten (10) Business Days shall have passed since the
consummation of the most recent Discounted Loan Purchase as a result of a purchase made by a
Borrower Party on the applicable Discounted Purchase Effective Date; or (II) at least three (3)
Business Days shall have passed since the date the Borrower Party was notified that no Lender was
willing to sell any Loan at the Specified Discount, within the Discount Range or at any discount to
par value, as applicable, or in the case of Solicitation of Discounted Sale Offers, the date of any
Borrower Party’s election not to accept any Solicited Discounted Sale Offers; provided
further that, none of the Borrower Parties shall initiate any process to effect a Discounted Loan
Purchase that shall coincide with any prepayment of Loans pursuant to Section 2.5(a) or
(b), and any scheduled repayment of Loans pursuant to Section 2.6.



(1) Subject to the proviso to subsection (i) above, any Borrower Party may from time to time
offer to make a Discounted Loan Purchase by providing the Auction Agent notice in the form of a
Specified Discount Purchase Notice; provided that (I) any such offer shall be made
available, at the sole discretion of the Borrower Party, to (x) each Lender and/or (y) each Lender
with respect to any Tranche of Loans on an individual Tranche basis, (II) any such offer shall
specify the aggregate principal amount offered to be purchased (the “Specified Discount
Purchase Amount”) with respect to each applicable tranche, the tranche or tranches of Loans
subject to such offer and the specific percentage discount to par (the “Specified
Discount”) of such Loans to be purchased (it being understood that different Specified
Discounts and/or Specified Discount Purchase Amounts may be offered with respect to different
Tranches of Loans and, in such event, each such offer will be treated as a separate offer pursuant
to the terms of this Section), (III) the Specified Discount Purchase Amount shall be in an
aggregate amount not less than $5,000,000 and whole increments of $500,000 in excess thereof and
(IV) each such offer shall remain outstanding through the Specified Discount Purchase Response
Date. The Auction Agent will promptly provide each Lender holding Loans in respect of which an
Offer of Specified Discount Purchase is made with a copy of such Specified Discount Purchase Notice
and a form of the Specified Discount Purchase Response to be completed and returned by each such
Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time, on the
third Business Day after the date of delivery of such notice to such Lenders (which date may be
extended for a period not exceeding three Business Days upon notice by the applicable Borrower
Party to the Auction Agent (and the Auction Agent shall promptly notify the applicable Lenders))
(the “Specified Discount Purchase Response Date”).




(2) Each Lender receiving such offer shall notify the Auction Agent (or its delegate)
by the Specified Discount Purchase Response Date whether or not it agrees to sell any of its
applicable then outstanding Loans at the Specified Discount and, if so (such accepting
Lender, a “Discount Purchase Accepting Lender”), the amount and the tranches of such
Lender’s Loans to be sold at such offered discount. Each acceptance of a Discounted Loan
Purchase by a Discount Purchase Accepting Lender shall be irrevocable. Any Lender whose
Specified Discount Purchase Response is not received by the Auction Agent by the Specified
Discount Purchase Response Date shall be deemed to have declined to accept the applicable
Offer of Specified Discount Purchase.


 


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(3) If there is at least one Discount Purchase Accepting Lender, the relevant Borrower
Party will purchase the outstanding Loans of each Discount Purchase Accepting Lender on the
Discounted Purchase Effective Date in accordance with the respective outstanding amount and
tranches of Loans specified in such Lender’s Specified Discount Purchase Response given
pursuant to subsection (2) above; provided that, if the aggregate principal amount
of Loans tendered for sale by all Discount Purchase Accepting Lenders exceeds the Specified
Discount Purchase Amount, such purchase shall be made pro rata among the Discount Purchase
Accepting Lenders in accordance with the respective principal amounts tendered to be sold by
each such Discount Purchase Accepting Lender and the Auction Agent (in consultation with
such Borrower Party and subject to rounding requirements of the Auction Agent made in its
reasonable discretion) will calculate such proration (the “Specified Discount
Proration”). The Auction Agent shall promptly, and in any case within three (3)
Business Days following the Specified Discount Purchase Response Date, notify (I) the
relevant Borrower Party of the respective Lenders’ responses to such offer, the Discounted
Purchase Effective Date and the aggregate principal amount of the Discounted Loan Purchase
and the Tranches to be prepaid, (II) each Lender of the Discounted Purchase Effective Date,
and the aggregate principal amount and the Tranches of Loans to be prepaid at the Specified
Discount on such date and (III) each Discount Purchase Accepting Lender of the Specified
Discount Proration, if any, and confirmation of the principal amount, Tranche and Type of
Loans of such Lender to be prepaid at the Specified Discount on such date. Each
determination by the Auction Agent of the amounts stated in the foregoing notices to the
Borrower Party and such Lenders shall be conclusive and binding for all purposes absent
manifest error. The payment amount specified in such notice to the Borrower Party shall be
due and payable by such Borrower Party on the Discounted Purchase Effective Date in
accordance with subsection (iv) below (subject to subsection (x) below).



(1) Subject to the proviso to subsection (i) above, any Borrower Party may from time to time
solicit Discount Range Sale Offers by providing the Auction Agent with notice in the form of a
Discount Range Solicitation Notice; provided that (I) any such solicitation shall be
extended, at the sole discretion of such Borrower Party, to (x) each Lender and/or (y) each Lender
with respect to any Tranche of Loans on an individual Tranche basis, (II) any such notice shall
specify the maximum aggregate principal amount of the relevant Loans (the “Discount Range
Solicitation Amount”), the Tranche or Tranches of Loans subject to such offer and the maximum
and minimum percentage discounts to par (the “Discount Range”) of the principal amount of
such Loans with respect to each relevant Tranche or Tranches of Loans willing to be purchased by
such Borrower Party (it being understood that different Discount Ranges and/or Discount Range
Solicitation Amounts may be offered with respect to different Tranches of Loans and, in such event,
each such offer will be treated as separate offer pursuant to the terms of this Section), (III) the
Discount Range Solicitation Amount shall be in an aggregate amount not less than $5,000,000 and
whole increments of $500,000 in excess thereof and (IV) each such solicitation by the Borrower
shall remain outstanding through the Discount Range Sale Response Date. The Auction Agent will
promptly provide each Appropriate Lender with a copy of such Discount Range Solicitation Notice and
a form of the Discount Range Sale Offer to be submitted by a responding Lender to the Auction Agent
(or its delegate) by no later than 5:00 p.m.,


 


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 New York time, on the third Business Day after the
date of delivery of such notice to such Lenders (which date may be extended for a period not exceeding three Business
Days upon notice by the Borrower Party to the Auction Agent (and the Auction Agent shall promptly
notify the applicable Lenders)) (the “Discount Range Sale Response Date”). Each Lender’s
Discount Range Sale Offer shall be irrevocable until the Discounted Purchase Effective Date (at
which time such Discount Range Sale Offer shall be deemed to have been automatically revoked by
such Lender as to any of such Lender’s Loans not purchased by such Borrower Party on or prior to
such date) and shall specify one or more (but no more than three for any Lender) discounts to par
within the Discount Range (the “Submitted Discount”) at which such Lender is willing to
sell any or all of its then outstanding Loans of the applicable Tranche or Tranches and the maximum
aggregate principal amount and tranches of such Lender’s Loans (the “Submitted Amount”)
such Lender is willing to sell at the Submitted Discount. Any Lender whose Discount Range Sale
Offer is not received by the Auction Agent by the Discount Range Sale Response Date shall be deemed
to have declined to accept a Discounted Loan Purchase of any of its Loans at any discount to their
par value within the Discount Range.




(2) The Auction Agent shall review all Discount Range Sale Offers received on or
before the applicable Discount Range Sale Response Date and shall determine (in consultation
with such Borrower Party and subject to rounding requirements of the Auction Agent made in
its sole reasonable discretion) the Applicable Discount and Loans to be purchased at such
Applicable Discount in accordance with this subsection (iii). The relevant Borrower Party
agrees to accept on the Discount Range Sale Response Date all Discount Range Sale Offers
received by Auction Agent within the Discount Range by the Discount Range Sale Response
Date, in the order from the Submitted Discount that is the largest discount to par to the
Submitted Discount that is the smallest discount to par, up to and including the Submitted
Discount that is the smallest discount to par within the Discount Range (such Submitted
Discount that is the smallest discount to par within the Discount Range being referred to as
the “Applicable Discount”) which yields a Discounted Loan Purchase in an aggregate
principal amount equal to the lower of (I) the Discount Range Solicitation Amount and (II)
the sum of all Submitted Amounts. Each Lender that has submitted a Discount Range Sale
Offer to sell Loans at a discount to par that is larger than or equal to the Applicable
Discount shall be deemed to have offered to sell Loans equal to its Submitted Amount
(subject to any required proration pursuant to the following subsection (3)) to such
Borrower Party its at the Applicable Discount (each such Lender, a “Participating
Lender”), which offer shall be irrevocable until the Discounted Purchase Effective Date
(at which time such Discount Range Sale Offer shall be deemed to have been automatically
revoked by such Lender as to any of such Lender’s Loans not purchased by such Borrower Party
on or prior to such date).




(3) If there is at least one Participating Lender, the relevant Borrower Party will
accept such Participating Lender’s Discount Range Sale Offer and purchase the respective
outstanding Loans of each Participating Lender on the Discounted Purchase Effective Date in
the aggregate principal amount and of the Tranches specified in such Lender’s Discount Range
Sale Offer at the Applicable Discount; provided that if the Submitted Amount by all
Participating Lenders offered at a discount to par greater than the Applicable Discount
exceeds the Discount Range Solicitation Amount, the purchase of the principal amount of the
relevant Loans for those


 


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Participating Lenders whose Submitted Discount is a discount to par greater than or
equal to the Applicable Discount (the “Identified Participating Lenders”) shall be
made pro rata among the Identified Participating Lenders in accordance with the Submitted
Amount of each such Identified Participating Lender and the Auction Agent (in consultation
with such Borrower Party and subject to rounding requirements of the Auction Agent made in
its sole reasonable discretion) will calculate such proration (the “Discount Range
Proration”). The Auction Agent shall promptly, and in any case within five (5) Business
Days following the Discount Range Sale Response Date, notify (I) the relevant Borrower Party
of the respective Lenders’ responses to such solicitation, the Discounted Purchase Effective
Date, the Applicable Discount, and the aggregate principal amount of the Discounted Loan
Purchase and the tranches to be prepaid, (II) each Lender of the Discounted Purchase
Effective Date, the Applicable Discount, and the aggregate principal amount and tranches of
Loans to be prepaid at the Applicable Discount on such date, (III) each Participating Lender
of the aggregate principal amount and tranches of such Lender to be prepaid at the
Applicable Discount on such date, and (IV) if applicable, each Identified Participating
Lender of the Discount Range Proration. Each determination by the Auction Agent of the
amounts stated in the foregoing notices to the relevant Borrower Party and Lenders shall be
conclusive and binding for all purposes absent manifest error. The payment amount specified
in such notice to the Borrower Party shall be due and payable by such Borrower Party on the
Discounted Purchase Effective Date in accordance with subsection (iv) below (subject to
subsection (x) below).



(1) Subject to the proviso to subsection (i) above, any Borrower Party may from time to time
solicit Solicited Discounted Sale Offers by providing the Auction Agent with notice in the form of
a Solicited Discounted Solicitation Notice; provided that (I) any such solicitation shall
be extended, at the sole discretion of such Borrower Party, to (x) each Lender and/or (y) each
Lender with respect to any Tranche of Loans on an individual Tranche basis, (II) any such notice
shall specify the maximum aggregate amount of the Loans (the “Solicited Discounted Solicitation
Amount”) and the tranche or tranches of Loans the Borrower is willing to purchase at a discount
(it being understood that different Solicited Discounted Solicitation Amounts may be offered with
respect to different Tranches of Loans and, in such event, each such offer will be treated as
separate offer pursuant to the terms of this Section), (III) the Solicited Discounted Solicitation
Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $500,000 in
excess thereof and (IV) each such solicitation by the Borrower shall remain outstanding through the
Solicited Discounted Sale Response Date. The Auction Agent will promptly provide each Appropriate
Lender with a copy of such Solicited Discounted Solicitation Notice and a form of the Solicited
Discounted Sale Offer to be submitted by a responding Lender to the Auction Agent (or its delegate)
by no later than 5:00 p.m., New York time on the third Business Day after the date of delivery of
such notice to such Lenders (which date may be extended for a period not exceeding three Business
Days upon notice by the Borrower Party to the Auction Agent (and the Auction Agent shall promptly
notify the applicable Lenders)) (the “Solicited Discounted Sale Response Date”). Each
Lender’s Solicited Discounted Sale Offer shall (x) be irrevocable, (y) remain outstanding until the
Acceptance Date, and (z) specify both one or more (but no more than three) discounts to par (the
“Offered Discount”) at which such Lender is willing to sell its then outstanding Loan and
the maximum aggregate principal amount and Tranches of such Loans (the “Offered Amount”)
such Lender is
willing to sell the Offered Discount. Any Lender whose Solicited Discounted Sale Offer is not
received by the Auction Agent by the Solicited Discounted Sale Response Date shall be deemed to
have declined to sell any of any of its Loans at any discount.


 


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(2) The Auction Agent shall promptly provide the relevant Borrower Party with a copy
of all Solicited Discounted Sale Offers received on or before the Solicited Discounted Sale
Response Date. Such Borrower Party shall review all such Solicited Discounted Sale Offers
and select the largest of the Offered Discounts specified by the relevant responding Lenders
in the Solicited Discounted Sale Offers that is acceptable to the Borrower Party in its sole
discretion (the “Acceptable Discount”), if any. If the Borrower Party elects, in
its sole discretion, to accept any Offered Discount as the Acceptable Discount, in no event
later than by the third Business Day after the date of receipt by such Borrower Party from
the Auction Agent of a copy of all Solicited Discounted Sale Offers pursuant to the first
sentence of this subsection (2) (the “Acceptance Date”), the Borrower Party may
submit an Acceptance and Purchase Notice to the Auction Agent setting forth the Acceptable
Discount. If the Auction Agent shall fail to receive an Acceptance and Purchase Notice from
the Borrower Party by the Acceptance Date, such Borrower Party shall be deemed to have
rejected all Solicited Discounted Sale Offers.




(3) Based upon the Acceptable Discount and the Solicited Discounted Sale Offers
received by Auction Agent by the Solicited Discounted Sale Response Date, within three (3)
Business Days after receipt of an Acceptance and Purchase Notice (the “Discounted
Purchase Determination Date”), the Auction Agent will determine (in consultation with
such Borrower Party and subject to rounding requirements of the Auction Agent made in its
sole reasonable discretion) the aggregate principal amount and the Tranches of Loans (the
“Acceptable Purchase Amount”) to be purchased by the relevant Borrower Party at the
Acceptable Discount in accordance with this Section 11.5(g)(iv)(3). If the Borrower
Party elects to accept any Acceptable Discount, then the Borrower Party agrees to accept all
Solicited Discounted Sale Offers received by the Auction Agent by the Solicited Discounted
Sale Response Date, in the order from largest Offered Discount to smallest Offered Discount,
up to and including the Acceptable Discount. Each Lender that has submitted a Solicited
Discounted Sale Offer with an Offered Discount that is greater than or equal to the
Acceptable Discount shall be deemed to have irrevocably agreed to sell Loans equal to its
Offered Amount (subject to any required pro-rata reduction pursuant to the following
sentence) at the Acceptable Discount (each such Lender, a “Qualifying Lender”). The
Borrower Party may purchase outstanding Loans pursuant to this subsection (iv) from each
Qualifying Lender in the aggregate principal amount and of the tranches specified in such
Lender’s Solicited Discounted Sale Offer at the Acceptable Discount; provided that
if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater
than or equal to the Acceptable Discount exceeds the Solicited Discounted Solicitation
Amount, purchases of the principal amount of the Loans for those Qualifying Lenders whose
Offered Discount is greater than or equal to the Acceptable Discount (the “Identified
Qualifying Lenders”) shall be made pro rata among the Identified Qualifying Lenders in
accordance with the Offered Amount of each such Identified Qualifying Lender and the Auction
Agent (in


 


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consultation with such Borrower Party and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration
(the “Solicited Discount Proration”). On or prior to the Discounted Purchase
Determination Date, the Auction Agent shall promptly notify (I) the relevant Borrower Party
of the Discounted Purchase Effective Date and Acceptable Purchase Amount comprising the
Discounted Loan Purchase and the tranches to be purchased, (II) each Lender of the
Discounted Purchase Effective Date, the Acceptable Discount, and the Acceptable Purchase
Amount of all Loans and the Tranches to be purchased at the Applicable Discount on such
date, (III) each Qualifying Lender of the aggregate principal amount and the tranches of
such Lender to be purchased at the Acceptable Discount on such date, and (IV) if applicable,
each Identified Qualifying Lender of the Solicited Discount Proration. Each determination
by the Auction Agent of the amounts stated in the foregoing notices to such Borrower Party
and Lenders shall be conclusive and binding for all purposes absent manifest error. The
payment amount specified in such notice to such Borrower Party shall be due and payable by
such Borrower Party on the Discounted Purchase Effective Date in accordance with subsection
(iv) below (subject to subsection (x) below).



In connection with any Discounted Loan Purchase, the Borrower Parties and the Lenders
acknowledge and agree that the Auction Agent may require as a condition to any Discounted Loan
Purchase, the payment of customary fees and expenses from a Borrower Party in connection therewith.



If any Loan is purchased in accordance with subsections (ii) through (iv) above, a Borrower
Party shall purchase such Loans on the Discounted Purchase Effective Date without premium or
penalty. The relevant Borrower Party shall make payment in respect of its purchase of such Loans
to the Administrative Agent, for the account of the Discount Purchase Accepting Lenders,
Participating Lenders, or Qualifying Lenders, as applicable, at the Administrative Agent’s Office
in immediately available funds not later than 1:00 p.m. (New York time) on the Discounted Purchase
Effective Date and all such purchases shall be applied to the remaining principal installments of
the relevant tranche of Loans on a pro-rata basis across such installments. The Loans so purchased
shall be accompanied by all accrued and unpaid interest on the par principal amount so prepaid up
to, but not including, the Discounted Purchase Effective Date. The consideration for each purchase
of outstanding Loans pursuant to this Section 11.5(g) shall be paid to the Discount
Purchase Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, and shall
be applied to the relevant Loans of such Lenders in accordance with their respective Aggregate
Commitment Ratio. The aggregate principal amount of the tranches and installments of the relevant
Loans outstanding shall be deemed reduced by the full par value of the aggregate principal amount
of the tranches of Loans prepaid on the Discounted Purchase Effective Date in any Discounted Loan
Purchase.



To the extent not expressly provided for herein, each Discounted Loan Purchase shall be
consummated pursuant to procedures consistent with the provisions in this Section 11.5(g)
or as otherwise established by the Auction Agent acting in its reasonable discretion and as
reasonably agreed by the Borrower.


 


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Notwithstanding anything in any Loan Document to the contrary, for purposes of this
Section 11.5(g), to the extent the Administrative Agent is the Auction Agent,
each notice or other communication required to be delivered or otherwise provided to the
Auction Agent (or its delegate) shall be deemed to have been given upon Auction Agent’s (or its
delegate’s) actual receipt during normal business hours of such notice or communication;
provided that any notice or communication actually received outside of normal business
hours shall be deemed to have been given as of the opening of business on the next Business Day.



Each of the Borrower Parties and the Lenders acknowledge and agree that the Auction Agent may
perform any and all of its duties under this Section 11.5(g) by itself or through any
Affiliate of the Auction Agent and expressly consents to any such delegation of duties by the
Auction Agent to such Affiliate and the performance of such delegated duties by such Affiliate.
The exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction
Agent and its respective activities in connection with any Discounted Loan Purchase provided for in
this Section 11.5(g) as well as activities of the Auction Agent.



Each Borrower Party shall have the right, by written notice to the Auction Agent, to revoke or
modify its offer to make a Discounted Loan Purchase and rescind the applicable Specified Discount
Purchase Notice, Discount Range Solicitation Notice or Solicited Discounted Solicitation Notice
therefor at its discretion at any time on or prior to the applicable Specified Discount Purchase
Response Date.



Any failure by a Borrower Party to purchase Loans from a Lender pursuant to this Section
11.5(g) shall not constitute a Default or Event of Default under Section 9.1 or
otherwise.



To the extent the Auction Agent is required to deliver notices or communicate such other
information to the Lenders pursuant to this Section 11.5(g), the Auction Agent will work
with the Administrative Agent (and the Administrative Agent will cooperate with the Auction Agent)
in order to procure the delivery of such notices and/or the communication of such information to
the applicable Lenders.



Nothing in this Section 11.5(g) shall require the Borrower to undertake any Discounted
Loan Purchase.




Each Discounted Loan Purchase shall be subject to the following conditions:




Borrower Parties will not receive information provided solely to Lenders by the
Administrative Agent or any Lender and will not be permitted to attend or participate in
meetings attended solely by the Lenders and the Administrative Agent;




no Default or Event of Default shall have occurred or be continuing;




no proceeds of loans under the Revolving Credit Facility shall be used to purchase
Loans under this Section 11.5(g);


 


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any Loans acquired by any Borrower Party shall automatically be cancelled immediately
upon acquisition thereof;




the Borrower Party making such Discounted Loan Purchase shall represent to the Discount
Purchase Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable,
that as of the applicable Discounted Purchase Effective Date, such Borrower Party does not
possess any material non-public information with respect to the Borrowers or any of their
Subsidiaries or any of their respective securities that has not been disclosed to the
Lenders generally (other than to Lenders who have elected not to receive such information);
and




the aggregate principal amount of Loans acquired by the Borrower Parties shall not
exceed 15% of the original aggregate principal amount of Loans made under this Agreement on
the Agreement Date.



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



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



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



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



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


 


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




Amendments and Waivers.



Neither this Agreement, any other Loan Document nor any term hereof or thereof may be amended
orally, nor may any provision hereof be waived orally but only by an instrument in writing signed
by the Majority Lenders, or in the case of Loan Documents executed by the Administrative Agent (and
not the other members of the Lender Group), signed by the Administrative Agent and approved by the
Majority Lenders and, in the case of an amendment, also by the Borrowers, except that: (i) the
consent of each of the Lenders (or in the case of clause (C) and clause (E), each of the directly
affected Lenders) and, in the case of an amendment, the Borrowers, shall be required for (A) any
sale or release of, or the subordination of the Administrative Agent’s or the Collateral Agent’s
security interest in, any material Collateral except in conjunction with sales or transfers of
Collateral permitted hereunder, (B) except in conjunction with transactions permitted hereunder,
any release of all or substantially all of the value of the Guaranty of the Obligations, (C)
subject to Section 2.15, any extensions, postponements or delays of the Maturity Date or
the scheduled date of payment of interest or principal or fees, or any reduction of principal
(without a corresponding payment with respect thereto), or reduction in the rate of interest or
fees due to the Lenders hereunder or under any other Loan Documents, (D) any amendment of this
Section 11.12 or of the definition of “Majority Lenders” or any other provision of the Loan
Documents specifying the number or percentage of Lenders required to waive, amend or modify any
rights thereunder or make any determination or grant any consent thereunder; (E) any amendment
increasing the Commitments (it being understood and agreed that a waiver of any Default or Event of
Default or modification of any of the defined terms contained herein (other than those defined
terms specifically addressed in this Section 11.12) shall not constitute a change in the
terms of any portion of the Commitment held by any Lender); (F) any amendment to the definition of
“Availability” and the defined terms used therein; and (G) any amendment to Section 2.11;
(ii) the consent of the Administrative Agent, the Majority Lenders and the Borrowers shall be
required for any amendment to Article 10; (iii) the consent of the Guarantors and the
Majority Lenders shall be required for any amendment to Article 3 and (iv) any amendment, waiver or
other modification of any term or condition of the Fee Letter shall require the consent of the
Administrative Agent and the Borrowers only. In addition to the required consents set forth above,
if Royal Bank of Canada or any Affiliate thereof has entered into a Lender Hedge Agreement with any
Borrower Party and Royal Bank of Canada is no longer the Administrative Agent or a Lender, the
consent of Royal Bank of Canada or such Affiliate shall be required for any amendment to
Section 2.11 or any amendment described in Section 11.12(a)(i)(A). Any amendment,
modification, waiver, consent, termination or release of any Bank Products Documents may be
effected by the parties
thereto without the consent of the Lender Group. Notwithstanding anything to the contrary
contained in this Section 11.12, pursuant to the terms of an Incremental Amendment, the
Borrowers, the Administrative Agent, any Additional Lenders in respect thereof and any Lenders
party thereto may, without the input or consent of any other Lender, effect amendments (including
amendments and restatements), supplements or other modifications to this Agreement and the other
Loan Documents as may be necessary or appropriate to effect the provisions of Section 2.17
and such Incremental Amendment.


 


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



Notwithstanding anything to the contrary contained herein, the Lenders hereby authorize the
Administrative Agent and the Collateral Agent to enter into amendments to the Intercreditor
Agreement and the Security Agreement (each in form satisfactory to the Administrative Agent) for
the purpose of allowing the Obligations and any 360 Acquisition Notes to be secured by less than
all of the collateral which secures the Revolving Credit Facility.



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


 


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



Disclosure. The Borrower Parties agree that the Administrative Agent, and the
Administrative Agent agrees that the Borrower Parties, shall each have the right, with the consent
of the other (such consent not to be unreasonably withheld), to issue press releases regarding the
making of the Loans to the Borrowers pursuant to the terms of this Agreement.



Replacement of Lender. In the event that a Replacement Event occurs and is continuing
with respect to any Lender, the Administrative Borrower may designate another financial institution
(such financial institution being herein called a “Replacement Lender”) acceptable to the
Administrative Agent, and which is not a Borrower or an Affiliate of any Borrower, to purchase the
Loans and participations of such Lender and such Lender’s rights hereunder, without recourse to or
representation or warranty by, or expense to, such Lender for a purchase price equal to the
outstanding principal amount of the Loans payable to such Lender plus any accrued but unpaid
interest on such Loans and accrued but unpaid fees owing to such Lender, and upon such assumption,
purchase and substitution, and subject to the execution and delivery to the Administrative Agent by
the Replacement Lender of documentation satisfactory to the Administrative Agent (pursuant to which
such Replacement Lender shall assume the obligations of such original Lender under this Agreement),
the Replacement Lender shall succeed to the rights and obligations of such Lender hereunder and
such Lender shall no longer be a party hereto or have any rights hereunder provided that the
obligations of the Borrowers to indemnify such Lender with respect to any event occurring or
obligations arising before such replacement shall survive such replacement. “Replacement
Event” shall mean, with respect to any Lender, (a) the commencement of or the taking of
possession by, a receiver, custodian, conservator, trustee or liquidator of such Lender, or the
declaration by the appropriate regulatory authority that such Lender is insolvent or such Lender
shall become a Defaulting Lender, (b) the making of any claim by any Lender under Section
2.8(b), 12.3 or 12.5, unless the changing of the lending office by such Lender
would obviate the need of such Lender to make future claims under such Sections or (c) a refusal by
such Lender to execute any amendment, waiver or consent which requires to the written consent of
all of the Lenders or each of the directly affected Lenders and to which the Majority Lenders, the
Administrative Agent and the Borrowers have agreed.



Confidentiality. No member of the Lender Group shall disclose any non-public
confidential information regarding the Borrower Parties (“Confidential Information”; which
shall include all information received from any Borrower Party or any of its Subsidiaries relating
to any Borrower Party or any of its Subsidiaries or any of their respective businesses, other than
any such information that is available to or in the possession of the Lender Group (or any intended
recipient) on a non-confidential basis prior to disclosure by any Borrower Party or any of its
Subsidiaries, provided that, such information was or is clearly identified at the time of


 


115









 






 delivery
as confidential) to any other Person without the consent of the Borrowers, other than (i) to such member of the Lender
Group’s Affiliates and their officers, directors, employees, agents and advisors, to other members
of the Lender Group and, as contemplated by Section 11.5, to actual or prospective
assignees and participants, and then only on a confidential basis, with instructions to keep such
Confidential Information confidential, and provided that such parties agree to be bound by
confidentiality provisions substantially similar to those hereunder, (ii) as required by any law,
rule or regulation or judicial process, (iii) to any nationally recognized rating agency when
required by it, provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information relating to the Borrower
Parties received by it from such member of the Lender Group, (iv) as requested or required by any
state, federal or foreign authority or examiner regulating banks or banking and (v) in connection
with the exercise of any remedy hereunder or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder.



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



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



Separate Agreements. All uses of an E-System shall be governed by and subject to, in
addition to the terms and conditions of this Agreement, separate terms and conditions posted or
referenced in such E-System and related contractual obligations executed by Borrower Parties or the
members of the Lender Group in connection with the use of such E-System.


 


116









 





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



YIELD PROTECTION




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



Illegality. If any change in Applicable Law, any change in the interpretation or
administration of any Applicable Law by any Governmental Authority, central bank, or comparable
agency charged with the interpretation or administration thereof, or any change in compliance with
Applicable Law as a result of any request or directive (whether or not having the force of law) of
any such authority, central bank, or comparable agency after the Agreement Date, shall make it
unlawful for any Lender to make, maintain, or fund its Eurodollar Loans, such Lender shall so
notify the Administrative Agent, and the Administrative Agent shall forthwith give notice thereof
to the other Lenders and the Administrative Borrower. Before giving any notice to the
Administrative Agent pursuant to this Section 12.2, such Lender shall designate a different
lending office if such designation will avoid the need for giving such notice and will not, in the
good faith judgment of such Lender, be otherwise disadvantageous to such Lender. Upon receipt of
such notice, notwithstanding anything contained in Article 2, the Borrowers shall repay in
full the then outstanding principal amount of each affected Eurodollar Loan of such Lender,
together with accrued interest thereon, either (a) on the last day of the then current Eurodollar
Loan Period applicable to such Eurodollar Loan if such Lender may lawfully continue to maintain and
fund such Eurodollar Loan to such day or (b) immediately if such Lender may not lawfully continue
to fund and maintain such Eurodollar Loan to such day.


 


117









 






Increased Costs.



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



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



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



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


 


118









 





A certificate of any Lender claiming compensation under this Section 12.3 and setting
forth the additional amount or amounts to be paid to it hereunder and calculations
therefor shall be conclusive in the absence of manifest error. In determining such amount,
such Lender may use any reasonable averaging and attribution methods. If any Lender demands
compensation under this Section 12.3, the Borrowers may at any time, upon at least five (5)
Business Days’ prior notice to such Lender, prepay in full the then outstanding affected Eurodollar
Loans of such Lender, together with accrued interest thereon to the date of prepayment, along with
any reimbursement required under Section 2.9.




Intentionally Omitted.



Capital Adequacy. If after the Agreement Date, any Lender (or any Affiliate of the
foregoing) shall have reasonably determined that the adoption of any Applicable Law, governmental
rule, regulation or order regarding the capital adequacy of banks or bank holding companies, or any
change therein, or any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Lender (or any Affiliate of the foregoing) with any request or
directive regarding capital adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency (but only if such adoption, change,
request or directive occurs after the Agreement Date), has or would have the effect of reducing the
rate of return on such Lender’s (or any Affiliate of such Lender’s) capital as a consequence of
such Lender’s portion of the Commitment or obligations hereunder to a level below that which it
could have achieved but for such adoption, change or compliance (taking into consideration such
Lender’s (or any Affiliate of such Lender’s) policies with respect to capital adequacy immediately
before such adoption, change or compliance and assuming that such Lender’s (or any Affiliate of
such Lender’s) capital was fully utilized prior to such adoption, change or compliance), then,
promptly upon demand by such Lender, the Borrowers shall immediately pay to such Lender such
additional amounts as shall be sufficient to compensate such Lender for any such reduction actually
suffered; provided, however, that there shall be no duplication of amounts paid to
a Lender pursuant to this sentence and Section 12.3; provided, further,
that notwithstanding anything to the contrary contained herein, for the purposes of this
Section 12.5, the following shall be deemed to have occurred after the Agreement Date: (i)
the adoption of the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests,
rules, guidelines or directives promulgated by the Bank for International settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States
regulatory authorities, in each case pursuant to Basel III. A certificate of such Lender setting
forth the amount to be paid to such Lender by the Borrowers as a result of any event referred to in
this paragraph shall, absent manifest error, be conclusive. Such Lender will designate a different
lending office if such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole judgment of such Lender, be otherwise disadvantageous to
such Lender. Failure or delay on the part of any Lender to demand compensation pursuant to this
Section 12.5 shall not constitute a waiver of such Lender’s right to demand such
compensation; provided that, other than in respect of matters covered by the second proviso
to the first sentence of this Section 12.5, the Borrowers shall not be required to
compensate a Lender pursuant to this Section 12.5 for any reductions in rate of return
incurred more than 270 days prior to the date that such Lender notifies the Borrowers of the change
in Applicable Law or other occurrence giving rise to such reductions and of such Lender’s intention
to claim compensation therefore.


 


119









 





JURISDICTION, VENUE AND WAIVER OF JURY TRIAL




Jurisdiction and Service of Process. FOR PURPOSES OF ANY LEGAL ACTION OR PROCEEDING
BROUGHT BY ANY PARTY HERETO WITH RESPECT TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY BANK
PRODUCTS DOCUMENT, EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF THE
FEDERAL AND STATE COURTS SITTING IN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND EACH BORROWER
PARTY HEREBY IRREVOCABLY DESIGNATES AND APPOINTS, AS ITS AUTHORIZED AGENT FOR SERVICE OF PROCESS IN
THE STATE OF NEW YORK, THE ADMINISTRATIVE BORROWER, OR SUCH OTHER PERSON AS SUCH BORROWER PARTY
SHALL DESIGNATE HEREAFTER BY WRITTEN NOTICE GIVEN TO THE ADMINISTRATIVE AGENT. THE CONSENT TO
JURISDICTION HEREIN SHALL NOT BE EXCLUSIVE. THE LENDER GROUP SHALL FOR ALL PURPOSES AUTOMATICALLY,
AND WITHOUT ANY ACT ON THEIR PART, BE ENTITLED TO TREAT SUCH DESIGNEE OF EACH BORROWER PARTY AS THE
AUTHORIZED AGENT TO RECEIVE FOR AND ON BEHALF OF SUCH BORROWER PARTY SERVICE OF WRITS, OR SUMMONS
OR OTHER LEGAL PROCESS IN THE STATE OF NEW YORK, WHICH SERVICE SHALL BE DEEMED EFFECTIVE PERSONAL
SERVICE ON SUCH BORROWER PARTY SERVED WHEN DELIVERED, WHETHER OR NOT SUCH AGENT GIVES NOTICE TO
SUCH BORROWER PARTY; AND DELIVERY OF SUCH SERVICE TO ITS AUTHORIZED AGENT SHALL BE DEEMED TO BE
MADE WHEN PERSONALLY DELIVERED OR THREE (3) BUSINESS DAYS AFTER MAILING BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO SUCH AUTHORIZED AGENT. EACH PARTY HERETO FURTHER IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL TO SUCH PARTY AT THE ADDRESS SET FORTH IN SECTION 11.1 ABOVE, SUCH SERVICE
TO BECOME EFFECTIVE THREE (3) BUSINESS DAYS AFTER SUCH MAILING. IN THE EVENT THAT, FOR ANY REASON,
SUCH AGENT OR ITS SUCCESSORS SHALL NO LONGER SERVE AS AGENT OF EACH BORROWER PARTY TO RECEIVE
SERVICE OF PROCESS IN THE STATE OF NEW YORK, EACH BORROWER PARTY SHALL SERVE AND ADVISE THE
ADMINISTRATIVE AGENT THEREOF SO THAT AT ALL TIMES EACH BORROWER PARTY WILL MAINTAIN AN AGENT TO
RECEIVE SERVICE OF PROCESS IN THE STATE OF NEW YORK ON BEHALF OF SUCH BORROWER PARTY WITH RESPECT
TO THIS AGREEMENT, ALL OTHER LOAN DOCUMENTS AND THE BANK PRODUCTS DOCUMENTS. IN THE EVENT THAT,
FOR ANY REASON, SERVICE OF LEGAL PROCESS CANNOT BE MADE IN THE MANNER DESCRIBED ABOVE, SUCH SERVICE
MAY BE MADE IN SUCH MANNER AS PERMITTED BY LAW.


 


120









 





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



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




All Obligations to Constitute Joint and Several Obligations.



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


 


121









 





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



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



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



[remainder of page intentionally left blank]




 


122









 







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



	 	 	 	 	 
	BORROWERS: 	

 ZAYO GROUP, LLC

ZAYO CAPITAL, INC.

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



CREDIT AGREEMENT




 


 









 





	 	 	 	 	 
	GUARANTORS:	 ZAYO COLOCATION, INC.

AMERICAN FIBER SYSTEMS, INC.

AMERICAN FIBER SYSTEMS HOLDING CORP.

FIBERNET TELECOM, INC.

LOCAL FIBER, LLC

360NETWORKS HOLDINGS (USA) INC.

360NETWORKS (USA) INC.

360NETWORKS LLC

360NETWORKS ILLINOIS LLC

360NETWORKS IOWA LLC

360NETWORKS KENTUCKY LLC

360NETWORKS LOUISIANA LLC

360NETWORKS MICHIGAN LLC

360NETWORKS MISSISSIPPI LLC

360NETWORKS TENNESSEE LLC

NORTHERN COLORADO

TELECOMMUNICATIONS
LLC (TA-CO)


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



CREDIT AGREEMENT




 


 









 





	 	 	 	 	 
	AGENT AND LENDERS:	ROYAL BANK OF CANADA,

as the Administrative Agent

 	 
	 	By:  	/s/ Susan Khokher
 	 
	 	 	Name:  	Susan Khokher 	 
	 	 	Title:  	Manager, Agency 	 



 


 









 





	 	 	 	 	 
	 	ROYAL BANK OF CANADA,

as a Lender

 	 
	 	By:  	/s/ Mark S. Gronich
 	 
	 	 	Name:  	Mark S. Gronich 	 
	 	 	Title:  	Authorized Signatory 	 


 


 









 





	 	 	 	 	 



	 	 	 	 	 
	 	SUNTRUST BANK,

as Collateral Agent

 	 
	 	By:  	/s/ David Fournier
 	 
	 	 	Name:  	David Fournier 	 
	 	 	Title:  	Vice President 	 







 


 









 










	 	 	 	 	 
	 	COBANK,

as a Lender

 	 
	 	By:  	/s/ Ted Koerner
 	 
	 	 	Name:  	Ted Koerner 	 
	 	 	Title:  	Vice President 	 
	 	
Address for Notices:

5500 South Quebec Street

Greenwood Village, CO 80111

 	 
	 	 	 
	 	 	 
	 	 	 



 


 









 





	 	 	 	 	 
	 	CIT Bank,

as a Lender

 	 
	 	By:  	/s/ Benjamin Haslam
 	 
	 	 	Name:  	Benjamin Haslam 	 
	 	 	Title:  	Authorized Signatory 	 
	 	
Address for Notices:

CIT Lending Services Corporation

One CIT Dr.

Livingston NJ 07039

Att: CME Portfolio Manager

Facsimile: 973-535-3760

 	 
	 	 	 
	 	 	 
	 	 	 


 


 









 





	 	 	 	 	 



	 	 	 	 	 
	 	Raymond James Bank, FSB,

as a Lender

 	 
	 	By:  	/s/ Alex L. Rody
 	 
	 	 	Name:  	Alex L. Rody 	 
	 	 	Title:  	Senior Vice President 	 
	 	
Address for Notices:

Mike Pelletier

Raymond James Bank FSB

710 Carillon Parkway

St. Petersburg, FL 33716

 	 
	 	 	 
	 	 	 
	 	 	 


 


 









 





	 	 	 	 	 
	 	CAPITALSOURCE BANK,

as a Lender

 	 
	 	By:  	/s/ Robert Dailey
 	 
	 	 	Name:  	Robert Dailey 	 
	 	 	Title:  	Senior Vice President 	 
	 	
Address for Notices:

CapitalSource Bank

5404 Wisconsin Ave, 2nd Floor

Chevy Chase, MD 20815

Attn: Portfolio Management

 	 
	 	 	 
	 	 	 
	 	 	 



 


 








 




Schedule 1.1(a)




Equity Group




Columbia Capital Equity Partners IV (QP), L.P.



Columbia Capital Equity Partners IV (QPCO), L.P.




Columbia Capital Equity Investors IV, L.P.




Columbia Capital Equity Partners III (QP), L.P.




Columbia Capital Equity Partners III (Caymen), L.P.




Columbia Capital Equity Partners III (AI), L.P.




Columbia Capital Investors III, L.L.C.




Columbia Capital Employee Investors III, L.L.C.




M/C Venture Partners VI, L.P.




M/C Venture Investors, L.L.C




M/C Venture Partners V, L.P.




Chestnut Venture Partners, L.P.




Oak Investment Partners XII, Limited Partnership




Battery Ventures VII, L.P.




Battery Investment Partners VII, LLC




Battery Ventures VIII, L.P.




Centennial Ventures VII, L.P.




Centennial Entrepreneurs Fund VII, L.P.




Bear Equity, LLC




Bear Investments, LLLP




ESU Investments, LLC




Tablerock Investments, LLC




VP Holdings, LLC




Charlesbank Equity Fund VI, Limited Partnership




CB Offshore Equity Fund VI




Charlesbank Equity Coinvestment Fund VI, LP




Charlesbank Equity Coinvestment Partners, LP




Universal Telecommunications, Inc.




Yawlbreak& Co FTBO GTB Capital Partners LP




Morgan Stanley Private Markets Fund IV LP




Stormbay& Co FTBO VijverpoortHuizen C.V.




Nextone, LLC




Independent Director, Rick Connor




Mango Holdings, LLC



 


 









 





Schedule 1.1(b)




Liens




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Jurisdiction of	 	Search	 	 	 	 	 	 	 
	 	 	 	 	Incorporation/	 	Report As of	 	 	 	File	 	 	 
	No.	 	Obligor	 	Formation	 	Date	 	Filing Office	 	Number(s)	 	Filing Date
	1.
	 	American Fiber Systems Holding Corp.	 	Delaware	 	10/21/2011	 	Delaware Secretary of State	 	04111401	 	 	11/22/2010	 
	 
	 	 	 	 	 	 	 		 	 	 	 	 	 
	2.
	 	American Fiber Systems, Inc.	 	Delaware	 	10/21/2011	 	Delaware Secretary of State	 	04111435	 	 	11/22/2010	 
	3.
	 	Zayo Capital, Inc.	 	Delaware	 	10/21/2011	 	Delaware Secretary of State	 	00854616	 	 	03/12/2010	 
	4.
	 	Zayo Colocation, Inc.	 	Delaware	 	10/21/2011	 	Delaware Secretary of State	 	00855324	 	 	03/12/2010	 
	5.
	 	Zayo Group, LLC	 	Delaware	 	10/21/2011	 	Delaware Secretary of State	 	1. 81796059
2. 82964219
3. 82964417
4. 00854384
5. 134952912	 	1. 05/16/2008
(amended 08/20/2008)
2. 09/02/2008
3. 09/02/2008
4. 03/12/2010
5. 09/12/2011
	6.
	 	Zayo Group Holdings, Inc.	 	Delaware	 	10/21/2011	 	Delaware Secretary of State	 	1. 00855464

2. 03112087	 	 	1. 03/12/2010

2. 09/07/2010	 
	7.
	 	FiberNet Telecom, Inc.	 	Delaware	 	10/21/2011	 	Delaware Secretary of State	 	00855399	 	 	03/12/2010	 
	8.
	 	Local Fiber, LLC	 	New York	 	11/10/2011	 	New York	 	201003120130225	 	 	03/12/2010	 
	 
	 	 	 	 	 	 	 	Secretary of State	 	 	 	 	 	 






 






	 	 	 
	2	 	Termination statement filed 11/30/11.



 


 









 









Schedule 4.1(f) 




Surviving 360networks Funded Debt




Capital leases in the amount of approximately $124,803.63. See Schedule 8.1




Irrevocable Letter of Credit in the undrawn amount of $257,500.00. See Schedule 8.1


 


 









 





Schedule 5.1(c)-1 




Subsidiaries




	 	 	 	 	 	 	 	 	 
	 	 	Jurisdiction of	 	 	 	Other	 	 
	 	 	Incorporation	 	Qualified Business	 	Business	 	 
	Name	 	or Formation	 	States	 	Names	 	Equity Holders
	Zayo Capital, Inc.

	 	Delaware
	 	Delaware
	 	None
	 	Zayo Group, LLC
	Zayo Colocation, Inc.

	 	Delaware
	 	Delaware, California, Illinois, New Jersey, New York, Pennsylvania
	 	Formerly Fibernet Telecom Group, Inc.
	 	Zayo Group, LLC
	FiberNet Telecom, Inc.

	 	Delaware
	 	Delaware, California, Illinois, New Jersey, New York
	 	None
	 	Zayo Colocation, Inc.
	Local Fiber, LLC

	 	New York
	 	New York, Illinois, New Jersey
	 	None
	 	FiberNet Telecom, Inc.
	American Fiber Systems Holding Corp.

	 	Delaware
	 	Delaware, New York
	 	None
	 	Zayo Group, LLC
	American Fiber Systems, Inc.

	 	Delaware
	 	Delaware, Connecticut, Georgia, Idaho, Kansas, Minnesota, Missouri, Nevada, New York, Ohio, Tennessee, Utah
	 	None
	 	American Fiber Systems Holding Corp.
	360networks holdings (USA) inc.

	 	Nevada
	 	Nevada
	 	None
	 	Zayo Group, LLC
	360networks (USA), inc.

	 	Nevada
	 	Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, D.C., Florida, Georgia, Hawaii,
Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota,
Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah,
Vermont, Washington, West Virginia, Wisconsin, Wyoming
	 	None
	 	360networks holdings (USA), Inc.





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	Jurisdiction of	 	 	 	Other	 	 
	 	 	Incorporation	 	Qualified Business	 	Business	 	 
	Name	 	or Formation	 	States	 	Names	 	Equity Holders
	360networks LLC

	 	Delaware
	 	Delaware, Illinois
	 	None
	 	360networks (USA) inc.
	360networks Illinois LLC

	 	Delaware
	 	Delaware, Illinois
	 	None
	 	360networks LLC
	360networks Iowa LLC

	 	Delaware
	 	Delaware, Iowa
	 	None
	 	360networks LLC
	360networks Kentucky LLC

	 	Delaware
	 	Delaware, Kentucky
	 	None
	 	360networks LLC
	360networks Louisiana LLC

	 	Delaware
	 	Delaware, Louisiana
	 	None
	 	360networks LLC
	360networks Michigan LLC

	 	Delaware
	 	Delaware
	 	None
	 	360networks LLC
	360networks Mississippi LLC

	 	Delaware
	 	Delaware, Mississippi
	 	None
	 	360networks LLC
	360networks Tennessee LLC

	 	Delaware
	 	Delaware, Tennessee
	 	None
	 	360networks LLC
	Northern Colorado Telecommunications, LLC

	 	Colorado
	 	Colorado
	 	None
	 	360networks (USA) inc.
	360networks Vancouver Ltd.

	 	British Columbia
	 	British Columbia
	 	None
	 	360networks holdings (USA) inc.





 


 









 





Schedule 5.1(c)-2




Partnerships/Joint Ventures




Investments in the Equity Interests of CoBank, ACB to the extent permitted by Section 8.5(i) of the
Credit Agreement.


 


 









 





5.1(d)




Outstanding Capital Stock Ownership




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount Issued	 	Authorized	 	 
	Issuer	 	Owner(s)	 	and Outstanding	 	Equity	 	Restrictions
	Zayo Group, LLC

	 	Zayo Group Holdings, Inc.
	 	1,000 membership interest units
	 	1,000 membership interest units
	 	None
	Zayo Capital, Inc.

	 	Zayo Group, LLC
	 	100 shares of common stock
	 	100 shares of common stock
	 	None
	Zayo Colocation, Inc.

	 	Zayo Group, LLC
	 	1,000 shares of common stock
	 	1,000 shares of common stock
	 	None
	FiberNet Telecom, Inc.

	 	Zayo Colocation, Inc.
	 	1,000 shares of common stock
	 	1,000 shares common stock
	 	None
	Local Fiber, LLC

	 	FiberNet Telecom, Inc.
	 	1,000 membership interest units
	 	1,000 membership interest units
	 	None
	American Fiber Systems Holding Corp.

	 	Zayo Group, LLC
	 	1,000 shares of common stock
	 	1,000 shares of common stock
	 	None
	American Fiber Systems, Inc.

	 	American Fiber Systems Holding Corp.
	 	100 shares of common stock
	 	100 shares of common stock
	 	None
	360networks holdings (USA) inc.

	 	Zayo Group, LLC
	 	6,170 shares of common stock
	 	25,000 shares of common stock


228,000 shares of preferred stock
	 	None
	360networks (USA) inc.

	 	360networks holdings (USA) inc.
	 	203 shares of common stock
	 	25,000 shares of common stock
	 	None
	360networks LLC

	 	360networks (USA) inc.
	 	100 units
	 	100 units
	 	None
	360networks Illinois LLC

	 	360networks LLC
	 	100 units
	 	100 units
	 	None





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount Issued	 	Authorized	 	 
	Issuer	 	Owner(s)	 	and Outstanding	 	Equity	 	Restrictions
	360networks Iowa LLC

	 	360networks LLC
	 	100 units
	 	100 units
	 	None
	360networks Kentucky LLC

	 	360networks LLC
	 	100 units
	 	100 units
	 	None
	360networks Louisiana LLC

	 	360networks LLC
	 	100 units
	 	100 units
	 	None
	360networks Michigan LLC

	 	360networks LLC
	 	100 units
	 	100 units
	 	None
	360networks Mississippi LLC

	 	360networks LLC
	 	100 units
	 	100 units
	 	None
	360networks Tennessee LLC

	 	360networks LLC
	 	100 units
	 	100 units
	 	None
	Northern Colorado Telecommunications, LLC

	 	360networks (USA) inc.
	 	N/A
	 	N/A
	 	None
	360networks Vancouver Ltd.

	 	360networks holdings (USA) inc.
	 	100 shares of A voting non-participating common stock 


100 shares of B non-voting participating common stock
	 	Unlimited number of Class A voting non-participating shares of common stock 


Unlimited number of Class B non-voting participating shares of common stock
	 	Holders of Class B shares are not entitled to vote or attend shareholders meetings.





 


 









 





Schedule 5.1(i)




Labor Matters




None.


 


 









 





Schedule 5.1(j)




Taxes




None.


 


 









 





Schedule 5.1(m)




Investments/Guarantees as of the Agreement Date





The CoBank, ACB investment listed on Schedule 5.1(c)-2.



Investment in US Carrier Telecom, LLC listed on Schedule 8.5


 


 









 





Schedule 5.1(n)




Litigation




None



 


 









 







Schedule 5.1(o)




ERISA




Title IV Plans



None



Multiemployer Plans



ADP TotalSource Retirement Savings Plan



Welfare Plans



ADP TotalSource Inc. Health and Welfare Plan



Retiree Welfare Plans



None


 


 









 





Schedule 5.1(p)




Intellectual Property; Licenses and Certifications




U.S. Trademarks:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Application Serial	 	Registration Number/
	Registered Owner	 	Trademark Description	 	Number/Filing Date	 	Registration Date
	360Networks Corporation *

	 	THE BACKBONE TO COMMUNICATIONS
	 	78966155

September 1, 2006
	 	3490666

August 19, 2008
	360Networks Corporation *

	 	THE BACKBONE TO COMMUNICATIONS
	 	78966157

September 1, 2006
	 	3464595

July 8, 2008
	360Networks Corporation *

	 	360NETWORKS
	 	76171118 

November 26, 2000
	 	2821982

March 16, 2004
	360Networks Corporation *

	 	360	 	 	76171119 

November 26, 2000
	 	2950775

May 17, 2005
	360Networks Corporation *

	 	360NETWORKS
	 	76122960

September 6, 2000
	 	2911912

December 21, 2004
	Zayo Group, LLC

	 	ZAYO FIBER SOLUTIONS
	 	85308155

April 29, 2011
	 	Application Still Pending
	Zayo Group, LLC

	 	ZAYO ENTERPRISE NETWORKS
	 	85308157

April 29, 2011
	 	Application Still Pending
	Zayo Group, LLC

	 	ZAYO BANDWIDTH
	 	77245166

August 2, 2007
	 	3500859

September 16, 2008
	Zayo Group, LLC

	 	ZAYO
	 	77244680 

August 1, 2007
	 	3500857

September 16, 2008
	Zayo Group, LLC

	 	ZCOLO
	 	77825058 

September 11, 2009
	 	3971264

May 31, 2011
	Zayo Bandwidth 

Tennessee, LLC

	 	MEMPHIS NETWORX & Design
	 	75873249 

December 17, 1999
	 	2572278

May 21, 2002
	Zayo Bandwidth 

Tennessee, LLC

	 	MEMPHIS NETWORX
	 	75873248

December 17, 1999
	 	2545349

March 5, 2002
	Zayo Colocation, Inc.

	 	
	 	78693888

August 16, 2005
	 	3395986

March 11, 2008





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Application Serial	 	Registration Number/
	Registered Owner	 	Trademark Description	 	Number/Filing Date	 	Registration Date
	Zayo Colocation, Inc.

	 	
	 	77044317

November 15, 2006
	 	3361370

January 1, 2008
	Zayo Colocation, Inc.

	 	
	 	77037993 

November 6, 2006
	 	3350844

December 11, 2007
	Zayo Colocation, Inc.

	 	
	 	78750871

November 9, 2005
	 	3198383

January 16, 2007






Canadian
Trademarks:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Application	 	Registration Number/
	Registered Owner	 	Trademark Description	 	Number/Filing Date	 	Registration Date
	360Networks Corporation *

	 	360	 	 	1060809

May 26, 2000
	 	TMA583,538

June 11, 2003
	360Networks Corporation *

	 	360NETWORKS
	 	1060810

May 26, 2000
	 	TMA583,519

June 11, 2003
	360Networks Corporation *

	 	360NETWORKS
	 	1049887

March 8, 2000
	 	TMA576,857

March 4, 2003








	 	 	 
	*	 	360networks Corporation is transferring ownership of these trademarks to 360networks (USA) inc.
in conjunction with the terms of the Stock Purchase Agreement.






U.S. Patents:




None issued or pending.




Foreign Patents:




None issued or pending.




US Copyright Registrations:




None issued or pending.




Foreign Copyright Registrations:




None issued or pending.




License Agreements:




None.


 


 









 





Schedule 5.1(u)




Insurance




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Expiration	 	 	 	 	 	 	 
	Carrier	 	Policy Number	 	Date	 	Type	 	Amount	 	Deductibles	 
	St. Paul Travelers
	 	H-630-512N520-IND-09	 	8/1/12	 	Deluxe Property	 	$4,727,999 building,

	 	$	5,000	 
	 
	 	 	 	 	 	 	 	$11,091,164 blanket business personal property,	 	 	 	 
	 
	 	 	 	 	 	 	 	
$125,713,856 EDP	 	 	 	 
	St. Paul Travelers
	 	H-630-512N520-IND-09	 	8/1/12	 	General Liability	 	$1,000,000 each claim

	 	$	0	 
	 
	 	 	 	 	 	 	 	$2,000,000 general aggregate

	 	 	 	 
	 
	 	 	 	 	 	 	 	$2,000,000 products/completed operations aggregate	 	 	 	 
	 
	 	 	 	 	 	 	 	
$1,000,000 personal & advertising injury
	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	$300,000 premises damage

	 	 	 	 
	 
	 	 	 	 	 	 	 	$10,000 medical expenses

	 	 	 	 
	 
	 	 	 	 	 	Employee Benefits Liability	 	$3,000,000 aggregate limit 

	 	$	1,000	 
	 
	 	 	 	 	 	 	 	$1,000,000 each claim	 	 	 	 
	St. Paul Travelers
	 	TE08302421	 	8/1/12	 	Errors & Omissions	 	$5,000,000 each claim
 
	 	$	50,000	 
	 
	 	 	 	 	 	 	 	$5,000,000 aggregate annual limit	 	 	 	 
	St. Paul Travelers
	 	HSM-CUP-5121N520-TIL-09	 	8/1/12	 	Umbrella Excess Liability	 	$10,000,000 each claim

	 	$	10,000	 
	 
	 	 	 	 	 	 	 	$10,000,000 annual aggregate	 	 	 	 
	St. Paul Travelers
	 	BA-5121N520-TCT-09	 	8/1/12	 	Automobile Liability	 	$1,000,000 per accident

	 	 	 	 
	 
	 	 	 	 	 	 	 	$10,000 medical payments per person
	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Automobile Physical Damage	 	$15,000 limit	 	$	1,000	 






 


 









 





Schedule 5.1(w)-1




Leased Real Property (Material Collocation and Interconnection Data Centers)




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Lessor	 	Lessee	 	Property Address	 	City	 	State	 	Zip
	60 Hudson Owner, LLC

	 	Zayo Colocation, Inc.
	 	60 Hudson Suite 0106 

MMR, 1903, 1211
	 	New York
	 	NY
	 	 	10013	 
	Market Halsey Urban Renewal, LLC

	 	Zayo Colocation, Inc.
	 	165 Halsey Street
	 	Newark
	 	NJ
	 	 	07102	 
	111 Chelsea Commerce LP

	 	Zayo Colocation, Inc.
	 	111 8th Avenue
	 	New York
	 	NY
	 	 	10011	 
	Digital Printers Square

	 	Zayo Colocation, Inc.
	 	600 S. Federal Street
	 	Chicago
	 	IL
	 	 	60605	 
	707 Wilshire Fee, LLC

	 	Zayo Colocation, Inc.
	 	707 Wilshire Blvd.
	 	Los Angeles
	 	CA
	 	 	90064	 
	Broadview Networks, Inc.

	 	Zayo Bandwidth Northeast, LLC
	 	401 N Broad St.
	 	Philadelphia
	 	PA
	 	 	19108	 
	XO Communications, Inc.

	 	Zayo Bandwidth Northeast, LLC
	 	2401 Locust St., Ste. 405
	 	Philadelphia
	 	PA
	 	 	19103	 
	REA Associates LLC

	 	Zayo Bandwidth, LLC
	 	900 Second St., NE Railway Express Building
	 	Washington
	 	DC
	 	 	20002	 
	Matrix Realty Group, Inc.

	 	Zayo Group, LLC
	 	1525 Rockwell Ave. 4th Fl., Bldg 2
	 	Cleveland
	 	OH
	 	 	44114	 
	Mahrdt Properties, Inc.

	 	Zayo Bandwidth, LLC
	 	701 West Henry Street, Ste. 201
	 	Indianapolis
	 	IN
	 	 	46225	 
	Townview 56th Street, LLC

	 	Zayo Bandwidth Central, LLC
	 	334 Gest Street, Ste. 100
	 	Cincinnati
	 	OH
	 	 	45202	 
	Alleghany Center Associates

	 	Zayo Bandwidth Central, LLC
	 	100 South Commons, Ste 138
	 	Pittsburgh
	 	PA
	 	 	15212	 
	Telx

	 	Zayo Colocation, Inc.
	 	60 Hudson
	 	New York
	 	NY
	 	 	10013	 
	Switch Communications

	 	Zayo Group, LLC
	 	2475 Arden St.
7135 


S. Decature Blvd
	 	Las Vegas
	 	NV
	 	 	89118	 





 


 









 





Schedule 5.1(w)-2




Owned Real Property




None.




 


 











 




Schedule 5.1(x)




Environmental Matters




None.


 


 









 





Schedule 6.13




Bank and Investment Accounts




	 	 	 	 	 	 	 	 	 
	 	 	Name in which	 	Account	 	 
	Depository Institution	 	account is held	 	Number	 	Purpose
	Wells Fargo Bank NA

1700 Lincoln St.,
8th Floor

Denver, CO 80203

	 	Zayo Group, LLC
	 	 	2000031004646	 	 	Operating
	 
	 	 	 	 	 	 	 	 
	Wells Fargo Bank NA

1700 Lincoln St.,
8th Floor

Denver, CO 80203

	 	Zayo Bandwidth, LLC
	 	 	2000031004688	 	 	Operating
	 
	 	 	 	 	 	 	 	 
	Wells Fargo Bank NA

1700 Lincoln St.,
8th Floor

Denver, CO 80203

	 	Zayo Bandwidth BTOP
	 	 	2000038468861	 	 	Operating
	 
	 	 	 	 	 	 	 	 
	Wells Fargo Bank NA

1700 Lincoln St.,
8th Floor

Denver, CO 80203

	 	Zayo Colocation, Inc.
	 	 	2000038468829	 	 	Operating
	 
	 	 	 	 	 	 	 	 
	Wells Fargo Bank NA

1700 Lincoln St.,
8th Floor

Denver, CO 80203

	 	Zayo Fiber Solutions
	 	 	2000038469747	 	 	Operating





 


 









 





Schedule 6.19




Required PUC Consents





	1.	 	Arizona Corporation Commission

	 
	2.	 	Consents, orders, waivers, and approvals of, and notices or other filings with, the
applicable PUC required in connection with the transfer of immaterial VOIP Assets to Holdings
or any of its Subsidiaries after the Agreement Date.




 


 









 










Schedule 8.1




Outstanding Indebtedness as of the Agreement Date





	1.	 	Fiber Lease Agreement, dated as of November 3, 2000, by and between Zayo Bandwidth Northeast,
LLC (aka PPL Telcom, LLC successor in interest to Cambrian Communications, LLC) and AboveNet,
Inc., a Delaware corporation, as amended by Amendment #1 to Fiber Lease Agreement, dated
December 17, 2001. As of October 31, 2011, the amount outstanding was approximately
$8,329,842.94.







	2.	 	Sub Capacity Use and Service Agreement between First Energy Telecom Services,
successor-in-interest to GPU Telcom and Zayo Bandwidth Central, LLC successor-in-interest to
AFN Fiber, LLC. As of October 31, 2011 the amount outstanding was approximately $1,109,066.06.







	3.	 	Master Facilities Agreement between Fiber Technology Network, LLC and Zayo Bandwidth Central,
LLC. As of October 31, 2011 the amount outstanding was approximately $323,962.38.







	4.	 	Master Lease Service Agreement between Enterprise Fleet Management and Zayo Bandwidth LLC.
As of October 31, 2011 the amount outstanding was approximately $257,827.91.







	5.	 	Capital Lease Agreements between various vendors and Zayo Bandwidth LLC. As of October 31,
2011 the amount outstanding was $7,377.00.







	6.	 	Agreement for the License of Fiber Optic Facilities and Services between Minnesota Power and
Light Company and Zayo Bandwidth, LLC. As of October 31, 2011 the amount outstanding was
$697,742.83.







	7.	 	Letter of Credit 74004-01-2007-08-23 for Zayo Bandwidth Central, LLC issued by Centra Bank,
Inc. in favor of Embarq Corp., secured by CD#10284850 in the amount of $2,988.42 on deposit
with Centra Bank, Inc.







	8.	 	Letter of Credit 74004-03-2007-09-05 for Zayo Bandwidth Central, LLC issued by Centra Bank,
Inc. in favor of Embarq Corp., secured by CD# 10285369 in the amount of $2859.03 on deposit
with Centra Bank, Inc.







	9.	 	Letter of Credit 57568-08-2007-07-03 for Zayo Bandwidth Central, LLC issued by Centra Bank,
Inc. in favor of Virginia Electric, secured by CD# 10284745 in the amount of $12,202.83 on
deposit with Centra Bank, Inc.







	10.	 	Letter of Credit SFX 5051, 5052, 5064, 5065, 5066, 7648 for Zayo Fiber Solutions, LLC issued
by Mutual Savings Credit Union in favor of the cities of Chandler, Glendale, Tempe, Mesa,
Scottsdale and Phoenix, respectively, in the aggregate amount of $538,600.17







	11.	 	Master Lease Service Agreement between Enterprise Fleet Management and Zayo Fiber Solutions,
LLC. As of October 31, 2011 the amount outstanding was approximately $246,882.11.







	12.	 	Purchaser Holdback agreement dated as of October 12, 2006 by and between American Fiber
Systems, Inc. and IDACORP, Inc., a Idaho Corporation. As of October 31, 2011 the amount
outstanding was approximately $2,750,965.81




 


 









 











	13.	 	Subordinated Promissory Note dated as of October 1, 2010, by and between Zayo Group, LLC and
Robert E. Ingalls, Jr. As of October 31, 2011, the amount outstanding was approximately
$4,500,000.







	14.	 	Master Lease Service Agreement between Enterprise Fleet Management and 360networks(USA). As
of November 30, 2011 the amount outstanding is approximately $124,803.63.







	15.	 	Irrevocable Letter of Credit for 360networks (USA) inc. issued by Wells Fargo Bank in favor
of Fidelity Deposit Company of Maryland secured by bond #8755048942 in the amount of
$257,500.00 on deposit with Wells Fargo Bank.




 


 









 










Schedule 8.5




Existing Investments




Zayo Group, LLC currently has 55% ownership in the class A units and 34% ownership in the class B
units of US Carrier Telecom, LLC. As of October 31, 2011, the total value of the investment was
approximately $15,075,555.78.


 


 









 





Schedule 8.6




Affiliate Transactions




None.




 


 









 







EXHIBIT A 




FORM OF ASSIGNMENT AND ACCEPTANCE




Reference is made to that certain Term Loan Agreement, dated as of December 1, 2011 (as
amended, restated, supplemented or otherwise modified from time to time, the “Loan
Agreement”; capitalized terms used herein without definitions shall have the meanings ascribed
thereto in the Loan Agreement), by and among Zayo Group, LLC, Zayo Capital, Inc., the Persons party
thereto from time to time as Guarantors, the financial institutions party thereto from time to time
as Lenders, SunTrust Bank, as the Collateral Agent, and Royal Bank of Canada, as the Administrative
Agent.




The “Assignor” and the “Assignee” referred to on Schedule 1 agree as follows:



The Assignor hereby sells and assigns to the Assignee without recourse, and the Assignee
hereby purchases and assumes from the Assignor, an interest in and to the Assignor’s rights and
obligations under the Loan Agreement as of the date hereof equal to the percentage interest
specified on Schedule 1 of all outstanding rights and obligations under the Loan Agreement.
After giving effect to such sale and assignment, the amount of the Loans owing to the Assignee
will be as set forth on Schedule 1.



The Assignor (a) represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim, (b) makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any other instrument or document furnished pursuant thereto, and (c) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrowers or the performance or observance by the Borrowers of any of its obligations under the
Loan Documents or any other instrument or document furnished pursuant thereto.



The Assignee (a) confirms that it has received a copy of the Loan Agreement, together with
copies of the most recent financial statements delivered thereunder and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance, (b) agrees that it will, independently and without reliance upon
the Administrative Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Agreement, (c) confirms that it is an Eligible Assignee,
(d) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Loan Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto, (e) agrees that it will perform in accordance with their terms all
of the obligations that by the terms of the Loan Agreement are required to be performed by it as a
Lender, and (f) attaches any U.S. Internal Revenue Service forms required under Section 2.8(b)(v)
of the Loan Agreement.


 


 









 





Following the execution hereof, the Assignor and the Assignee shall deliver this Assignment
and Acceptance, along with (a) a processing and recordation fee of $3,500 payable by the Assignee
to the Administrative Agent (unless such assignment is to a Lender, an Affiliate of a Lender or an
Approved Fund) and (b) if the Assignee is not a Lender, a completed Administrative Questionnaire,
for acceptance and recording by the Administrative Agent. Unless otherwise indicated on
Schedule 1, the
effective date for this Assignment and Acceptance (the “Effective Date”) shall be the
date of acceptance hereof by the Administrative Agent.



Upon such acceptance and recording by the Administrative Agent, as of the Effective Date, (a)
the Assignee shall be a party to the Loan Agreement and, to the extent provided in this Assignment
and Acceptance and the Loan Agreement, shall have the rights and obligations of a Lender
thereunder, and (b) the Assignor shall, to the extent provided in this Assignment and Acceptance
and the Loan Agreement, relinquish its rights and be released from its obligations under the Loan
Agreement.



Upon such acceptance and recording by the Administrative Agent, from and after the Effective
Date, the Administrative Agent shall make all payments under the Loan Agreement in respect of the
interest assigned hereby (including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Loan Agreement for periods prior to the Effective
Date directly between themselves.



This Assignment and Acceptance shall be governed by, and construed in accordance with, the
laws of the State of New York.



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



[Remainder of this page intentionally left blank]



 


 









 





IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Assignment and Acceptance
to be executed by their authorized signatory as of the date specified thereon.



	 	 	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR], as the Assignor	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Date: _________ __, 20__	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE], as the Assignee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Date: _________ __, 20__	 	 






ACCEPTED [AND APPROVED]1 THIS                      DAY

OF                     , 20_____:




	 	 	 	 	 	 	 
	ROYAL BANK OF CANADA, as the	 	 
	Administrative Agent	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	[ZAYO GROUP, LLC, as Administrative
	 	 
	Borrower, on behalf of the Borrowers	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:
	 	 	 	]2
	 

	 	 	 	 

	 	 





 






	 	 	 
	1	 	If required under the definition of Eligible Assignee and
Section 11.5(b) of the Loan Agreement.

	 
	2	 	If required under the definition of Eligible Assignee and
Section 11.5(b) of the Loan Agreement.




 


 









 





SCHEDULE 1

ASSIGNMENT AND ACCEPTANCE




	 	 	 	 	 
	Loans of Assignor prior to assignment:
	 	$	                                        	 
	 
	 	 	 	 
	Loans assigned to Assignee:
	 	$	                                        	1
	 
	 	 	 	 
	Loans of Assignor after assignment:
	 	$	                                        	 
	 
	 	 	 	 
	Aggregate Commitment Ratio of Assignee after assignment:
	 	 	                                        	%
	 
	 	 	 	 
	The Assignee’s Domestic Lending Office:
	 	 	                                        	 
	 
	 	 	                                        	 
	 
	 	 	                                        	 
	 
	 	 	 	 
	The Assignee’s Eurodollar Lending Office:
	 	 	                    
	 
	 
	 	 	                    
	 
	 
	 	 	                    
	 
	 
	 	 	 	 
	Effective Date (if other than date of acceptance by the
Administrative Agent):
	 	 	                
           , 20___	 





 






	 	 	 
	1	 	Except in the case of an assignment of the entire remaining amount
of the Loans currently owing to the Assignor, or in the case of an assignment
to a Lender, Affiliate of a Lender or an Approved Fund, such amount shall not
be less than $1,000,000, unless each of the Administrative Agent and, so long
as no Event of Default under Section 9.1(b), (g) or (h)
of the Loan Agreement has occurred and is continuing, the Administrative
Borrower otherwise consents (which consents shall not unreasonably withheld).



 


 









 









EXHIBIT B




FORM OF COMPLIANCE CERTIFICATE




The undersigned hereby certifies that he or she is an Authorized Signatory of ZAYO
GROUP, LLC, a Delaware limited liability company (the “Administrative Borrower”).
In connection with that certain Term Loan Agreement, dated as of December 1, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Loan Agreement”;
capitalized terms used herein without definitions shall have the meanings ascribed thereto in the
Loan Agreement), by and among Zayo Group, LLC, Zayo Capital, Inc., the Persons party thereto from
time to time as Guarantors, the financial institutions party thereto from time to time as Lenders,
SunTrust Bank, as the Collateral Agent, and Royal Bank of Canada, as the Administrative Agent., the
undersigned does hereby further certify that:




	 	1.	 	To the extent applicable, true and correct calculations demonstrating
compliance with Section 8.8 of the Loan Agreement for the fiscal period ended [DATE]
are set forth on Schedule 1 attached hereto;







	 	2.	 	No material change in GAAP or the application thereof has occurred since the
date of the Borrower Parties’ audited financial statements delivered on the Agreement
Date for the fiscal year ended September 30, 2011 [, except as set forth on
Schedule 2 (which schedule describes the effect of such change on the
financial statements accompanying this Compliance Certificate)];







	 	3.	 	To the best of my knowledge, no Default or Event of Default has occurred
during the period ended [DATE] [, except as described on Schedule 3 attached
hereto (which Schedule describes the nature of such Default/Event of Default and when
it occurred and whether it is continuing)]; and







	 	4.	 	The Leverage Ratio for the fiscal period ended [DATE] is [____]:1.00, as
calculated on Schedule 4 attached hereto.







	 	5.	 	Attached hereto as Schedule 5 is a description of each event,
condition or circumstance during the last fiscal quarter covered by this Compliance
Certificate requiring a mandatory prepayment under Section 2.5(b) of the Loan
Agreement.






[remainder of page intentionally left blank]



 


 









 





IN WITNESS WHEREOF, I have executed this Compliance Certificate as of
 _________ ___,
20_.



	 	 	 	 	 	 	 
	 	 	ZAYO GROUP, LLC, as the Administrative Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







Schedule 1




Compliance Calculation Section 8.8(a) — Senior Secured Leverage Ratio



	 	 	 	 	 
	Funded Debt for Borrowed Money of the Borrowers and their
Restricted Subsidiaries on a consolidated basis, and without
duplication, as of the applicable date of determination,
constituting senior debt that is not subordinated in right of
payment to the Obligations, and is secured by Liens on the
Collateral or any material portion thereof that are not
subordinated to the Liens on such portion of the Collateral
securing the Obligations
	 	$	                    	 
	 
	 	 	 	 
	Net Income6
	 	$	                    	 
	 
	 	 	 	 
	To the extent deducted in determining Net Income, income taxes
	 	$	                    	 
	 
	 	 	 	 
	To the extent deducted in determining Net Income, Interest
Expense
	 	$	                    	 
	 
	 	 	 	 
	To the extent deducted in determining Net Income,
depreciation and amortization expense
	 	$	                    	 
	 
	 	 	 	 
	To the extent deducted in determining Net Income, non-cash
charges or reserves
	 	$	                    	 
	 
	 	 	 	 
	To the extent deducted in determining Net Income,
restructuring charges and severance costs in an aggregate
amount not to exceed $15,000,000
	 	$	                    	 
	 
	 	 	 	 
	To the extent deducted in determining Net Income, the
Acquired EBITDA of Converted Restricted Subsidiaries in
respect of such period
	 	$	                    	 
	 
	 	 	 	 
	To the extent deducted in determining Net Income, charges or
expenses attributed to any actual or proposed acquisitions or
joint ventures, equity offerings, issuances and retirement of
debt and divestitures of assets
	 	$	                    	 





 






	 	 	 
	6	 	Provided, however, that if, at any time since the
beginning of the four fiscal quarter period ending as of the date of the most
recent financial statements that are required to be delivered by the
Administrative Borrower pursuant to Section 7.1 of the Loan Agreement,
an acquisition or sale of a Person or all or substantially all of the assets of
a Person occurred, then such calculation shall be made on a Pro Forma Basis.




 


 









 





	 	 	 	 	 
	Without duplication, the Disposed EBITDA of Converted
Unrestricted Subsidiaries in respect of such period
EBITDA ((b) + (c) + (d) + (e) + (f) + (g)
+ (h) + (i) – (j))
	 	$	                    	 
	 
	 	 	 
	Annualized EBITDA (EBITDA for the most recently ended fiscal
quarter, multiplied by 4)
	 	$	                    	 
	 
	 	 	 	 
	Senior Secured Leverage Ratio for the immediately proceeding
twelve (12) month period: (a) : (l)
	 	 	____:____	 
	 
	 	 	 	 
	In compliance?
	 	o Yes      o No	 






 


 









 





Compliance Calculation Section 8.8(b) — Fixed Charge Coverage Ratio



	 	 	 	 	 
	Annualized EBITDA for the
immediately proceeding twelve
(12) month period: Item (l)
from the previous section
(“Compliance Calculation
Section 8.8(a) — Senior
Secured Leverage Ratio”)
	 	 	 	 
	 
	 	 	 	 
	Capital Expenditures for the
immediately proceeding twelve
(12) month period
	 	$	                    	 
	 
	 	 	 	 
	Capital Expenditures directly
related to new sales to, or
made at the request of,
Persons to whom any Borrower
Party has agreed to provide
goods and/or services pursuant
to a written agreement, for
the immediately proceeding
twelve (12) month period
	 	$	                    	 
	 
	 	 	 	 
	Capital Expenditures, to the
extent financed with Funded
Debt for Borrowed Money (other
than Funded Debt incurred
under the Loan Agreement), for
the immediately proceeding
twelve (12) month period
	 	$	                    	 
	 
	 	 	 	 
	Capital Expenditures made with
the proceeds of dispositions
permitted under the Loan
Agreement for the immediately
proceeding twelve (12) month
period
	 	$	                    	 
	 
	 	 	 	 
	Capital Expenditures made with
the proceeds of equity
issuances permitted under the
Loan Agreement for the
immediately proceeding twelve
(12) month period
	 	$	                    	 
	 
	 	 	 	 
	(b) –
(c) – (d) – (e) – (f)
	 	$	                    	 
	 
	 	 	 	 
	(a) – (g)
	 	$	                    	 
	 
	 	 	 	 
	Interest Expense for the
immediately proceeding twelve
(12) month period:
	 	$	                    	 
	 
	 	 	 	 
	Fixed Charge Coverage Ratio
the immediately proceeding
twelve (12) month period: (h)
: (i)
	 	 	____:____	 
	 
	 	 	 	 
	In compliance?
	 	o Yes      o No	 






 


 









 







Schedule 4




Leverage Ratio



	 	 	 	 	 
	(a) Funded Debt for Borrowed Money of the
Borrowers and their Restricted
Subsidiaries on a consolidated basis, and
without duplication, as of the applicable
date of determination
	 	$	                    	 
	 
	 	 	 	 
	EBITDA: Item (l) from Section A of the
previous schedule (“Compliance
Calculation Section 8.8(a) — Senior
Secured Leverage Ratio”)
	 	$	                    	 
	 
	 	 	 	 
	Annualized EBITDA (EBITDA for the most
recently ended fiscal quarter, multiplied
by 4)
	 	$	                    	 
	 
	 	 	 	 
	Leverage Ratio for the immediately
proceeding twelve (12) month period: (a)
: (c)
	 	 	____:____	 





 


 









 





Schedule 5




 


 









 







EXHIBIT C




FORM OF TERM NOTE




			
	 	 	 
	Lender:_____ 

	 	Dated:
	                    ,
	 	2011

	$                    	 	 






FOR VALUE RECEIVED, the undersigned, Zayo Group, LLC, a Delaware limited liability company
(“Zayo”), and Zayo Capital, Inc., a Delaware corporation (“Zayo Capital”; and
together with Zayo, each individually as a “Borrower” and, collectively, the
“Borrowers”), HEREBY PROMISES TO PAY
 _____ 
or its registered assigns (the
“Lender”) for the account of its applicable lending office the principal amount of the Loan
(as defined in the Loan Agreement referred to below; terms defined therein, unless otherwise
defined herein, being used herein as therein defined) on the dates and in the amounts specified in
the Loan Agreement owing to the Lender by the Borrowers pursuant to the Term Loan Agreement dated
as of December 1, 2011 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Loan Agreement”) among the Borrowers, the other Borrower
Parties party thereto, the Lender and certain other Lenders from time to time party thereto,
SunTrust Bank, as the Collateral Agent and Royal Bank of Canada, as the Administrative Agent for
the Lender and for such other Lenders and the other agents party thereto.



The Borrower promises to pay interest on the unpaid principal amount of the Loan from the date
of such Loan until such principal amount is paid in full, at such interest rates, and payable at
such times, as are specified in the Loan Agreement.



Both principal and interest are payable in lawful money of the United States of America to
Royal Bank of Canada, as Administrative Agent, at such office and in the manner specified in the
Loan Agreement. The Loan owing to the Lender by the Borrower and the maturity thereof, and all
payments made on account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto, which is part of this Note; provided,
however, that the failure of the Lender to make any such recordation or endorsement shall not
affect the Obligations of the Borrower under this Note.



This Note is one of the Notes referred to in, and is entitled to the benefits of, the Loan
Agreement. The Loan Agreement, among other things, (i) provides for the making of the Loan by the
Lender to the Borrower in an amount not to exceed the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from such Loan being evidenced by this Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the maturity hereof upon
the terms and conditions therein specified. The Obligations of the Borrower under this Note and
the other Loan Documents, and the Obligations of the other Borrower Parties under the Loan
Documents, are secured by the Collateral as provided in the Loan Documents.


 


 









 





The Borrower, for itself and its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



This Note may not be transferred or assigned by the Lender to any Person except in compliance
with the terms of the Loan Agreement. The rights evidenced by this Note to receive principal and
interest may only be transferred if the transfer is registered on a record of ownership and the
transferee is identified as the owner of an interest in the obligation pursuant to Section
11.5 of the Loan Agreement. This Note may not at any time be endorsed to, or to the order of,
bearer.



This Note shall be governed by, and construed in accordance with, the laws of the State of New
York.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	ZAYO GROUP, LLC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	ZAYO CAPITAL, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







EXHIBIT D




FORM OF NOTICE OF CONVERSION/CONTINUATION




I,
 _______________________, the
 _____________________________ 
and an Authorized Signatory of ZAYO
GROUP, LLC, a Delaware corporation (the “Administrative Borrower”), do hereby certify
pursuant to the provisions of that certain Term Loan Agreement, dated as of December 1, 2011 (as
amended, restated, supplemented or otherwise modified from time to time, the “Loan
Agreement”; capitalized terms used herein without definition shall have the meanings ascribed
thereto in the Loan Agreement), by and among the Administrative Borrower, Zayo Capital, Inc., the
Persons party thereto from time to time as Guarantors, the financial institutions party thereto
from time to time as Lenders, SunTrust Bank, as the Collateral Agent, and Royal Bank of Canada, as
the administrative agent, that, with respect to the existing outstanding [Base Rate / Eurodollar]
Loan in the original principal amount of $[_______], that such [Base Rate / Eurodollar] Loan be
converted or continued as follows:



1. $[           
         ] of such amount shall be [converted to / continued as] a Eurodollar Loan with
a Eurodollar Loan Period of [_____] months, effective [_____,
 _____] and




2. $[           
         ] of such amount shall be repaid on [_____,  _____].



The foregoing instructions shall be irrevocable. This Notice of Conversion/Continuation shall
be a Loan Document for all purposes.



[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]



 


 









 






Dated as of this
 _____ 
day of _______________, 20_.



	 	 	 	 	 	 	 
	 	 	ZAYO GROUP, LLC, a Delaware limited liability	 	 
	 	 	company, as the Administrative Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





 


 









 







EXHIBIT E




FORM OF REQUEST FOR LOAN






			
	 	 	 
	Royal Bank of Canada 	 	

[Date]







			
	 	 	 
	3 World Financial Center	 	 
	200 Vesey Street, 12th Floor	 	 
	New York, NY 10281	 	 
	Attention:
	 	Scott Johnson
	Facsimile:
	 	(212)428-6460






Ladies and Gentlemen:



The undersigned, ZAYO GROUP, LLC, refers to the Term Loan Agreement dated as of December 1,
2011 (as amended, restated, amended and restated, supplemented or otherwise modified from time to
time, the “Loan Agreement”; capitalized terms used herein without definitions shall have
the meanings ascribed thereto in the Loan Agreement), by and among Zayo Group, LLC, Zayo Capital,
Inc., the Persons party thereto from time to time as Guarantors, the financial institutions party
thereto from time to time as Lenders, SunTrust Bank, as the Collateral Agent, and Royal Bank of
Canada, as the Administrative Agent and hereby gives you notice, irrevocably, pursuant to
Section 2.2 of the Loan Agreement that the undersigned hereby requests a [Base
Rate][Eurodollar] Loan under the Loan Agreement, in the principal aggregate amount of
$[_____]1 [and with a Eurodollar Loan Period equal to [_____]
months.]2



Delivery of an executed counterpart of this Request for Loan by telecopier shall be effective
as delivery of an original executed counterpart of this Request for Loan.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	ZAYO GROUP, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





 






	 	 	 
	1	 	Shall be, in the case of a Base Rate Loan, in a principal amount
of no less than $1,000,000 and integral multiples of $100,000 in excess thereof
and in the case of a Eurodollar Loan, in a principal amount of no less than
$5,000,000 and integral multiples of $1,000,000 in excess thereof.

	 
	2	 	To be included only in the case of a Eurodollar Loan.




 


 









 





EXHIBIT F




FORM OF NOTICE OF PREPAYMENT




	 	 	 
	Royal Bank of Canada,
	     as Administrative Agent under the Loan Agreement
	     referred to below
	20 King Street West
	4th Floor, South Tower
	Toronto, Ontario M5H 1C4
	Attention:

	 	Manager, Agency
	 

	 	Agency Service Group
	Facsimile:

	 	(416) 842-4023 






Ladies and Gentlemen:



The undersigned, ZAYO GROUP, LLC, refers to the Term Loan Agreement dated as of December 1,
2011 (as amended, restated, amended and restated, supplemented or otherwise modified from time to
time, the “Loan Agreement”; capitalized terms used herein without definitions shall have
the meanings ascribed thereto in the Loan Agreement), by and among Zayo Group, LLC, Zayo Capital,
Inc., the Persons party thereto from time to time as Guarantors, the financial institutions party
thereto from time to time as Lenders, SunTrust Bank, as the Collateral Agent, and Royal Bank of
Canada, as the Administrative Agent, and hereby gives you notice that, pursuant to Section
2.5(a) of the Loan Agreement, on [_____], 201[_], the undersigned intends to make a
prepayment of Loans comprising [Base Rate Loans][Eurodollar Loans], in the aggregate principal
amount of $[_____]1.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	ZAYO GROUP, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





 






	 	 	 
	1	 	Any prepayment of Base Rate Loans shall be in a principal amount
of $1,000,000 or a whole multiple of $100,000 in excess thereof, any prepayment
of Eurodollar Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 thereof or, in each case, if less, the entire principal
amount thereof then outstanding.



 


 









 









EXHIBIT G




FORM OF GUARANTY SUPPLEMENT




Reference is made to that Term Loan Agreement, dated as of December 1, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Loan Agreement”;
capitalized terms used herein without definitions shall have the meanings ascribed thereto in the
Loan Agreement), by and among Zayo Group, LLC (the “Administrative Borrower”), Zayo
Capital, Inc. (“Zayo Capital”; and together with the Administrative Borrower, each
individual a “Borrower” and, collectively, the “Borrowers”), the Persons party
thereto from time to time as Guarantors, the financial institutions party thereto from time to time
as Lenders, SunTrust Bank, as Collateral Agent, and Royal Bank of Canada, as the Administrative
Agent.



Whereas, pursuant to Section 6.18 of the Loan Agreement, a new (whether by
acquisition, creation or designation) Restricted Subsidiary which is a Domestic Subsidiary of the
Borrowers is required to join the Loan Agreement as a Guarantor and become a Borrower Party by
executing and delivering in favor of the Administrative Agent this Guaranty Supplement. Upon the
execution and delivery of this Guaranty Supplement by such Subsidiary, such Subsidiary shall become
a Guarantor of the Obligations and become a Borrower Party under the Loan Agreement with the same
force and effect as if originally named as a Guarantor therein.




The undersigned (the “New Guarantor”) hereby agrees as follows:



In accordance with Section 6.18 of the Loan Agreement, the New Guarantor, by its
signature below, becomes a “Guarantor” and a “Borrower Party” under the Loan Agreement with the
same force and effect as if originally named therein as a “Guarantor” and as a “Borrower Party”,
and the New Guarantor hereby agrees to all of the terms and provisions of the Loan Agreement
applicable to it as a “Guarantor” and as a “Borrower Party” thereunder. In furtherance of the
foregoing, the New Guarantor, as security for the payment and performance in full of the
Obligations, does hereby guarantee, subject to the limitations set forth in Section 3.1(g)
of the Loan Agreement, to the Administrative Agent, for the benefit of the Lender Group, the full
and prompt payment of the Obligations, including, without limitation, any interest thereon
(including, without limitation, interest, as provided in the Loan Agreement, accruing after the
filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or
is recoverable against the Borrowers after the filing of such petition for purposes of the
Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and
expenses if the obligations represented by the Loan Agreement are collected by law, through an
attorney-at-law, or under advice therefrom. Each reference to a “Guarantor” and “Borrower Party”
in the Loan Agreement shall be deemed to include the New Guarantor. The Loan Agreement is
incorporated herein by reference.



The New Guarantor represents and warrants to the Administrative Agent and the other members of
the Lender Group that this Guaranty Supplement has been duly executed and delivered by the New
Guarantor and constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, or similar laws affecting the enforcement of
creditors’ rights generally or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).


 


 









 





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



Except as expressly supplemented hereby, the Loan Agreement shall remain in full force and
effect.



THIS GUARANTY SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.




This Guaranty Supplement shall be considered a Loan Document for all purposes.



[remainder of this page intentionally left blank]



 


 









 





IN WITNESS WHEREOF, the New Guarantor has duly executed this Guaranty Supplement as of the day
and year first above written.



	 	 	 	 	 	 	 	 	 
	NEW GUARANTOR:	 	[NAME OF NEW GUARANTOR]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






 


 









 







EXHIBIT H




FORM OF VOTING AGREEMENT




[Distributed under separate cover.]



 


 









 







EXHIBIT I




FORM OF ACCEPTANCE AND PURCHASE NOTICE




Date: ________, 20__




To: [_______________], as Auction Agent




Ladies and Gentlemen:



This Acceptance and Purchase Notice is delivered to you pursuant to (a) Section 11.5(g)(iv)(2)
of that certain Term Loan Agreement dated as of December 1, 2011 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the “Loan Agreement”;
capitalized terms used herein without definitions shall have the meanings ascribed thereto in the
Loan Agreement), by and among Zayo Group, LLC, Zayo Capital, Inc., the Persons party thereto from
time to time as Guarantors, the financial institutions party thereto from time to time as Lenders,
SunTrust Bank, as the Collateral Agent, and Royal Bank of Canada, as the Administrative Agent and
(b) that certain Solicited Discounted Solicitation Notice, dated
 _____, 20
 _____, from the applicable
Borrower Party (the “Solicited Discounted Solicitation Notice”).



Pursuant to Section 11.5(g)(iv)(2) of the Loan Agreement, the undersigned Borrower
Party hereby irrevocably notifies you that it accepts offers delivered in response to the Solicited
Discounted Solicitation Notice having an Offered Discount equal to or greater than [•]% in respect
of the [Loans][[                  
  ]1 Tranche[(s)] of Loans] (the “Acceptable
Discount”) in an aggregate amount not to exceed the Solicited Discounted Solicitation Amount.



The undersigned Borrower Party expressly agrees that this Acceptance and Purchase Notice shall
be irrevocable and is subject to the provisions of Section 11.5(g) of the Loan Agreement.



The undersigned Borrower Party hereby represents and warrants to the Auction Agent and [the
Lenders][each Lender of the [             
       ]2 Tranche[s] of Loans] as follows:



(1) No Event of Default has occurred and is continuing or shall have occurred and be
continuing upon any Discounted Loan Purchase.



(2) No proceeds of Loans under the Revolving Credit Agreement are being used to fund this
Discounted Loan Purchase.



(3) All of the Loans acquired by the Borrower Party pursuant to this Discounted Loan Purchase
shall be automatically cancelled immediately upon acquisition thereof.



(4) The undersigned Borrower Party does not possess any material non-public information with
respect to the Borrowers or any of their Subsidiaries or any of their respective securities that
has not been disclosed to the Lenders generally (other than to Lenders who have elected not to
receive such information).


 






	 	 	 
	1	 	List multiple Tranches if applicable.

	 
	2	 	List multiple Tranches if applicable.




 


 









 





(5) The Loans acquired pursuant to this Discounted Loan Purchase, together with all Loans
acquired by Borrower Parties prior to the date of the Discounted Purchase Effective Date relating
to this Discounted Loan Purchase, do not exceed 15% of the original aggregate principal of Loans
made under the Loan Agreement on the Agreement Date.



(6) [At least ten (10) Business Days have passed since the consummation of the most recent
Discounted Loan Purchase as a result of a purchase made by a Borrower Party on the applicable
Discounted Purchase Effective Date.][At least three (3) Business Days have passed since the date
the Borrower Party was notified that no Lender was willing to sell any Loan at the Specified
Discount, within the Discount Range or at any discount to par value, as applicable, or in the case
of Solicitation of Discounted Sale Offers, the date of any Borrower Party’s election not to accept
any Solicited Discounted Sale Offers.]3



(7) This Discounted Loan Purchase does not coincide with any prepayment of Loans pursuant to
Section 2.5(a) or (b) of the Loan Agreement, or any scheduled repayment of Loans
pursuant to Section 2.6 of the Loan Agreement.



The undersigned Borrower Party acknowledges that the Auction Agent and the relevant Lenders
are relying on the truth and accuracy of the foregoing representations and warranties in connection
with the sale of any Loans made in connection with a Solicited Discounted Sale Offer.



The undersigned Borrower Party requests that the Auction Agent promptly notify each Lender
party to the Loan Agreement of this Acceptance and Purchase Notice.



[Remainder of this page intentionally left blank]



 






	 	 	 
	3	 	Insert applicable representation.




 


 









 





IN WITNESS WHEREOF, the undersigned has executed this Acceptance and Purchase Notice as of the
date first above written.



	 	 	 	 	 	 	 
	 	 	[NAME OF APPLICABLE BORROWER PARTY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







EXHIBIT J




FORM OF DISCOUNT RANGE SALE OFFER




Date: _________, 20__




To: [_________________], as Auction Agent




Ladies and Gentlemen:



Reference is made to (a) that certain Term Loan Agreement dated as of December 1, 2011 (as
amended, restated, amended and restated, supplemented or otherwise modified from time to time, the
“Loan Agreement”), by and among Zayo Group, LLC, Zayo Capital, Inc., the Persons party
thereto from time to time as guarantors, the financial institutions party thereto from time to time
as lenders (the “Lenders”), SunTrust Bank, as the collateral agent and Royal Bank of
Canada, as the administrative agent, and (b) that certain Discount Range Solicitation Notice, dated
 _____, 20_____, from [_______]1 (the “Discount Range Solicitation Notice”).
Capitalized terms used herein and not otherwise defined herein shall have the meaning ascribed to
such terms in the Discount Range Solicitation Notice or, to the extent not defined therein, in the
Loan Agreement.



The undersigned Lender hereby gives you irrevocable notice, pursuant to Section 11.5(g)(iii)
of the Loan Agreement, that it is hereby offering to accept a Discounted Loan Purchase on the
following terms:



1. This Discount Range Sale Offer is available only for purchase of
the [Loans][[            
        ]2
Tranche[s] of Loans] held by the undersigned.



2. The maximum aggregate principal amount of the Discounted Loan Purchase that may be made in
connection with this offer shall not exceed (the “Submitted Amount”):




[Loans — $[•]]



[            
        ]3 Tranche[s]
of Loans — $[•]]


 






	 	 	 
	1	 	Insert name of Borrower Party.

	 
	2	 	List multiple Tranches if applicable.

	 
	3	 	List multiple Tranches if applicable.




 


 









 





3. The percentage discount to par value at which such Discounted Loan Purchase may be made is
[•]%4 in respect
of the [Loans][[               
     ] Tranche[(s)] of Loans] (the
“Submitted Discount”).



The undersigned Lender hereby expressly and, subject to Section 11.5(g) of the Loan Agreement,
irrevocably consents and agrees to sell the [Loans][[     
             
  ]5 Tranche[s] of
Loans] indicated above pursuant to Section 11.5(g)(iii) of the Loan Agreement at a price equal to
the Applicable Discount and in an aggregate outstanding amount not to exceed the Submitted Amount,
as such amount may be reduced in accordance with the Discount Range Proration, if any, and as
otherwise determined in accordance with and subject to the requirements of the Loan Agreement.



[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]



 






	 	 	 
	4	 	List one or more (but no more than three) discounts.

	 
	5	 	List multiple Tranches if applicable.




 


 









 





IN WITNESS WHEREOF, the undersigned has executed this Discount Range Sale Offer as of the date
first above written.



	 	 	 	 	 	 	 
	 	 	[NAME OF LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





 


 









 







EXHIBIT K




FORM OF DISCOUNT RANGE SOLICITATION NOTICE




Date:                     , 20__




To: [      
                         
         ], as Auction Agent



Ladies and Gentlemen:



This Discount Range Solicitation Notice is delivered to you pursuant to Section
11.5(g)(iii) of that certain Term Loan Agreement, dated as of December 1, 2011 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to time, the “Loan
Agreement”; capitalized terms used herein without definitions shall have the meanings ascribed
thereto in the Loan Agreement), by and among Zayo Group, LLC, Zayo Capital, Inc., the Persons party
thereto from time to time as Guarantors, the financial institutions party thereto from time to time
as Lenders, SunTrust Bank, as the Collateral Agent, and Royal Bank of Canada, as the Administrative
Agent.



Pursuant to Section 11.5(g)(iii) of the Loan Agreement, the undersigned Borrower Party
hereby requests that [each Lender] [each Lender of the [              
      ]1 Tranche[s]
of Loans] submit a Discount Range Sale Offer. Any Discounted Loan Purchase made in connection with
this solicitation shall be subject to the following terms:




1. This Discount Range Solicitation Notice is extended at the sole discretion of the
undersigned Borrower Party to [each Lender][each Lender of the [          
          ]2
Tranche[s] of Loans].




2. The maximum aggregate principal amount of the Discounted Loan Purchase that will be
made in connection with this solicitation is [$[•] of Loans] [$[•] of the
[                 
   ]3 Tranche[(s)] of Loans] (the “Discount Range Solicitation
Amount”).4




3. The undersigned Borrower Party is willing to make Discounted Loan Purchases at a
percentage discount to par value greater than or equal to [[•]% but less than or equal to
[•]% in respect of the Loans] [[•]% but less than or equal to [•]% in respect of
the [                    ]5 Tranche[(s)] of Loans] (the “Discount Range”).



To make an offer in connection with this solicitation, you are required to deliver to the
Auction Agent a Discount Range Sale Offer by no later than 5:00 p.m., New York time, on the date
that is the third Business Day following the date of delivery of this notice pursuant to
Section 11.5(g)(iii) of the
Loan Agreement.



 






	 	 	 
	1	 	List multiple Tranches if applicable.

	 
	2	 	List multiple Tranches if applicable.

	 
	3	 	List multiple Tranches if applicable.

	 
	4	 	Such amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $500,000 in excess thereof.

	 
	5	 	List multiple Tranches if applicable.




 


 









 







The undersigned Borrower Party hereby represents and warrants to the Auction Agent and [the
Lenders][each Lender of the [                    ]6 Tranche[s] of Loans] as follows:



(8) No Event of Default has occurred and is continuing or shall have occurred and be
continuing upon any Discounted Loan Purchase.



(9) No proceeds of Loans under the Revolving Credit Agreement are being used to fund this
Discounted Loan Purchase.



(10) All of the Loans acquired by the undersigned Borrower Party pursuant to this Discounted
Loan Purchase shall be automatically cancelled immediately upon acquisition thereof.



(11) The undersigned Borrower Party does not possess any material non-public information with
respect to the Borrowers or any of their Subsidiaries or any of their respective securities that
has not been disclosed to the Lenders generally (other than to Lenders who have elected not to
receive such information).



(12) The Loans acquired pursuant to this Discounted Loan Purchase, together with all Loans
acquired by Borrower Parties prior to the date of the Discounted Purchase Effective Date relating
to this Discounted Loan Purchase, do not exceed 15% of the original aggregate principal of Loans
made under the Loan Agreement on the Agreement Date.



(13) [At least ten (10) Business Days have passed since the consummation of the most recent
Discounted Loan Purchase as a result of a purchase made by a Borrower Party on the applicable
Discounted Purchase Effective Date.][At least three (3) Business Days have passed since the date
the Borrower Party was notified that no Lender was willing to sell any Loan at the Specified
Discount, within the Discount Range or at any discount to par value, as applicable, or in the case
of Solicitation of Discounted Sale Offers, the date of any Borrower Party’s election not to accept
any Solicited Discounted Sale Offers.]7



(14) This Discounted Loan Purchase does not coincide with any prepayment of Loans pursuant to
Section 2.5(a) or (b) of the Loan Agreement, or any scheduled repayment of Loans
pursuant to Section 2.6 of the Loan Agreement.



The undersigned Borrower Party acknowledges that the Auction Agent and the relevant Lenders
are relying on the truth and accuracy of the foregoing representations and warranties in connection
with any Discount Range Sale Offer made in response to this Discount Range Solicitation Notice and
the sale of any Loans made in connection with this Discount Range Solicitation Notice.



The undersigned Borrower Party requests that the Auction Agent promptly notify each Lender
party to the Loan Agreement of this Discount Range Solicitation Notice.


 






	 	 	 
	6	 	List multiple Tranches if applicable.

	 
	7	 	Insert applicable representation.



 


 









 







IN WITNESS WHEREOF, the undersigned has executed this Discount Range Solicitation Notice as of
the dale first above written.




	 	 	 	 	 	 	 
	 	 	[NAME OF APPLICABLE BORROWER PARTY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Enclosure: Form of Discount Range Sale Offer




 


 









 







EXHIBIT L




FORM OF SOLICITED DISCOUNTED SALE OFFER




Date: __________, 20__




To: [_________________], as Auction Agent




Ladies and Gentlemen:



Reference is made to (a) that certain Term Loan Agreement dated as of December 1, 2011 (as
amended, restated, amended and restated, supplemented or otherwise modified from time to time, the
“Loan Agreement”), by and among Zayo Group, LLC, Zayo Capital, Inc., the Persons party
thereto from time to time as guarantors, the financial institutions party thereto from time to time
as lenders (the “Lenders”), SunTrust Bank, as the collateral agent and Royal Bank of
Canada, as the administrative agent, and (b) that certain Solicited Discounted Solicitation Notice,
dated  _____, 20_____, from [_____]1 (the “Solicited Discounted Solicitation
Notice”). Capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms in the Solicited Discounted Solicitation Notice or, to the extent
not defined therein, in the Loan Agreement.



To accept the offer set forth herein, you must submit an Acceptance and Purchase Notice by or
before no later than 5:00 p.m. New York time on the third Business Day following your receipt of
this notice.



The undersigned Lender hereby gives you irrevocable notice, pursuant to Section
11.5(g)(iv) of the Loan Agreement, that it is hereby offering to accept a Discounted Loan
Purchase on the following terms:



1. This Solicited Discounted Sale Offer is available only for purchase of the [Loans][[                    ]2 Tranche[s] of Loans] held by the undersigned.



2. The maximum aggregate principal amount of the Discounted Loan Purchase that may be made in
connection with this offer shall not exceed (the “Offered Amount”):




[Loans — $[•]]




[[                    ]3 Tranche[s] of Loans — $[•]]



3. The percentage discount to par value at which such Discounted Loan Purchase may be made is
[•]%4 in respect of the [Loans][[                    ]5 tranche[(s)] of Loans] (the
“Offered Discount”).


 






	 	 	 
	1	 	Insert name of Borrower Party.

	 
	2	 	List multiple Tranches if applicable.

	 
	3	 	List multiple Tranches if applicable.

	 
	4	 	List one or more (but no more than three) discounts.

	 
	5	 	List multiple Tranches if applicable.



 


 









 









The undersigned Lender hereby expressly and, subject to Section 11.5(g)(iv) of the
Loan Agreement, irrevocably consents and agrees to a sale of its [Loans] [[                    ]6 Tranche[s]
of Loans] pursuant to Section 11.5(g)(iv) of the Loan
Agreement at a price equal to the Acceptable Discount (provided that the Acceptable Discount is
equal to or less than such Lender’s Offered Discount) and in an aggregate outstanding amount not to
exceed such Lender’s Offered Amount as such amount may be reduced in accordance with the Solicited
Discount Proration, if any, and as otherwise determined in accordance with and subject to the
requirements of the Loan Agreement.



[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]



 






	 	 	 
	[Footnote continued
from previous page]

	 
	6	 	List multiple Tranches if applicable.




 


 









 





IN WITNESS WHEREOF, the undersigned has executed this Solicited Discounted Sale Offer as of
the dale first above written.



	 	 	 	 	 	 	 
	 	 	[NAME OF LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







EXHIBIT M




FORM OF SOLICITED DISCOUNTED SOLICITATION NOTICE




Date: __________, 20__




To: [________________], as Auction Agent




Ladies and Gentlemen:



This Solicited Discounted Solicitation Notice is delivered to you pursuant to Section
11.5(g)(iv) of that certain Term Loan Agreement dated as of December 1, 2011 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to time, the “Loan
Agreement”; capitalized terms used herein without definitions shall have the meanings ascribed
thereto in the Loan Agreement), by and among Zayo Group, LLC, Zayo Capital, Inc., the Persons party
thereto from time to time as Guarantors, the financial institutions party thereto from time to time
as Lenders, SunTrust Bank, as the Collateral Agent, and Royal Bank of Canada, as the Administrative
Agent.



Pursuant to Section 11.5(g)(iv) of the Loan Agreement, the undersigned Borrower Party
hereby requests that [each Lender][each Lender of the [                    ]1 Tranche[s]
of Loans] submit a Solicited Discounted Sale Offer. Any Discounted Loan Purchase made in
connection with this solicitation shall be subject to the following terms:



1. This Solicitation of Discounted Sale Offers is extended at the sole discretion of the
undersigned Borrower Party to [each Lender] [each Lender of the [                    ]2
Tranche[s] of Loans].



2. The maximum aggregate amount of the Discounted Loan Purchase that will be made in
connection with this solicitation is (the “Solicited Discounted Solicitation
Amount”):3




[Loans — $[•]]




[[                    ]4 Tranche[s] of Loans — $[•]]



To make an offer in connection with this solicitation, you are required to deliver to the
Auction Agent a Solicited Discounted Sale Offer by no later than 5:00 p.m., New York time on the
date that is the third Business Day following delivery of this notice pursuant to Section
11.5(g)(iv) of the Loan Agreement.


 






	 	 	 
	1	 	List multiple Tranches if applicable.

	 
	2	 	List multiple Tranches if applicable.

	 
	3	 	Such amount shall not be in an aggregate amount less than
$5,000,000 or whole increments of $500,000 in excess thereof.

	 
	4	 	List multiple Tranches if applicable.



 


 









 









The undersigned Borrower Party requests that the Auction Agent promptly notify each Lender
party to the Loan Agreement of this Solicited Discounted Solicitation Notice.



IN WITNESS WHEREOF, the undersigned has executed this Solicited Discounted Solicitation Notice
as of the date first above written.



	 	 	 	 	 	 	 
	 	 	[NAME OF
APPLICABLE BORROWER PARTY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Enclosure: Form of Solicited Discounted Sale Offer




 


 









 







EXHIBIT N




FORM OF SPECIFIED DISCOUNT PURCHASE NOTICE




Date: __________, 20__




To: [_________________], as Auction Agent




Ladies and Gentlemen:



This Specified Discount Purchase Notice is delivered to you pursuant to Section
11.5(g)(ii) of that certain Term Loan Agreement dated as of December 1, 2011 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to time, the “Loan
Agreement”; capitalized terms used herein without definitions shall have the meanings ascribed
thereto in the Loan Agreement), by and among Zayo Group, LLC, Zayo Capital, Inc., the Persons party
thereto from time to time as Guarantors, the financial institutions party thereto from time to time
as Lenders, SunTrust Bank, as the Collateral Agent, and Royal Bank of Canada, as the Administrative
Agent.



Pursuant to Section 11.5(g)(ii) of the Loan Agreement, the undersigned Borrower Party
hereby offers to make a Discounted Loan Purchase [to each Lender][to each Lender of the [                    ]1 Tranche[s] of Loans] on the following terms:



(15) 1. This offer of Specified Discount Purchase is available only [to each Lender][to each
Lender of the [                    ]2 Tranche[s] of Loans].



(16) The aggregate principal amount of the Discounted Loan Purchase that will be made in
connection with this offer shall not exceed [$[•] of Loans] [$[•] of the [                    ]3 Tranche[(s)] of Loans] (the “Specified Discount Purchase
Amount”).4



(17) The percentage discount to par value at which such Discounted Loan Purchase will be made
is [•]% in respect of the [Loans][[                    ]5 Tranche[(s)] Loans] (the
“Specified Discount”).



To accept this offer, you are required to submit to the Auction Agent a Specified Discount
Purchase Response by no later than 5:00 p.m., New York time, on the date that is the third
Business Day following the date of delivery of this notice pursuant to Section
11.5(g)(ii) of the Loan Agreement.


 






	 	 	 
	1	 	List multiple Tranches if applicable.

	 
	2	 	List multiple Tranches if applicable.

	 
	3	 	List multiple Tranches if applicable.

	 
	4	 	Such amount shall not be in an aggregate amount less than
$5,000,000 and whole increments of $500,000 in excess thereof.

	 
	5	 	List multiple Tranches if applicable.




 


 









 





The undersigned Borrower Party hereby represents and warrants to the Auction Agent and [the
Lenders][each Lender of the [                    ]6 Tranche[s] of Loans] as follows:



(18) No Event of Default has occurred and is continuing or shall have occurred and be
continuing upon any Discounted Loan Purchase.



(19) No proceeds of Loans under the Revolving Credit Agreement are being used to fund this
Discounted Loan Purchase.



(20) All of the Loans acquired by the undersigned Borrower Party pursuant to this Discounted
Loan Purchase shall be automatically cancelled immediately upon acquisition thereof.



(21) The undersigned Borrower Party does not possess any material non-public information with
respect to the Borrowers or any of their Subsidiaries or any of their respective securities that
has not been disclosed to the Lenders generally (other than to Lenders who have elected not to
receive such information).



(22) The Loans acquired pursuant to this Discounted Loan Purchase, together with all Loans
acquired by Borrower Parties prior to the date of the Discounted Purchase Effective Date relating
to this Discounted Loan Purchase, do not exceed 15% of the original aggregate principal of Loans
made under the Loan Agreement on the Agreement Date.



(23) [At least ten (10) Business Days have passed since the consummation of the most recent
Discounted Loan Purchase as a result of a purchase made by a Borrower Party on the applicable
Discounted Purchase Effective Date.][At least three (3) Business Days have passed since the date
the Borrower Party was notified that no Lender was willing to sell any Loan at the Specified
Discount, within the Discount Range or at any discount to par value, as applicable, or in the case
of Solicitation of Discounted Sale Offers, the date of any Borrower Party’s election not to accept
any Solicited Discounted Sale Offers.]7



(24) This Discounted Loan Purchase does not coincide with any prepayment of Loans pursuant to
Section 2.5(a) or (b) of the Loan Agreement, or any scheduled repayment of Loans
pursuant to Section 2.6 of the Loan Agreement.



The undersigned Borrower Party acknowledges that the Auction Agent and the relevant Lenders
are relying on the truth and accuracy of the foregoing representations and warranties in connection
with their decision whether or not to accept the offer set forth in this Specified Discount
Purchase Notice and the sale of any Loans made in connection with this Specified Discount Purchase
Notice.



The undersigned Borrower Party requests that the Auction Agent promptly notify each Lender
party to the Loan Agreement of this Specified Discount Purchase Notice.


 






	 	 	 
	6	 	List multiple tranches if applicable.

	 
	7	 	Insert applicable representation.




 


 









 





IN WITNESS WHEREOF, the undersigned has executed this Specified Discount Purchase Notice as of
the date first above written.



	 	 	 	 	 	 	 
	 	 	[NAME OF
APPLICABLE BORROWER PARTY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Enclosure: Form of Specified Discount Purchase Response



 


 









 





IN WITNESS WHEREOF, the undersigned has executed this Solicited Discounted Sale Offer as of
the date first above written.



	 	 	 	 	 	 	 
	 	 	[NAME OF LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







EXHIBIT O




FORM OF SPECIFIED DISCOUNT PURCHASE RESPONSE




Date: __________, 20__




To: [__________________], as Auction Agent




Ladies and Gentlemen:



Reference is made to (a) that certain Term Loan Agreement dated as of December 1, 2011 (as
amended, restated, amended and restated, supplemented or otherwise modified from time to time, the
“Loan Agreement”), by and among Zayo Group, LLC, Zayo Capital, Inc., the Persons party
thereto from time to time as guarantors, the financial institutions party thereto from time to time
as lenders (the “Lenders”), SunTrust Bank, as the collateral agent and Royal Bank of
Canada, as the administrative agent, and (b) that certain Specified Discount Purchase Notice, dated
 _____, 20_____, from the applicable Borrower Party (the “Specified Discount Purchase
Notice”). Capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms in the Specified Discount Purchase Notice or, to the extent not
defined therein, in the Loan Agreement.



The undersigned Lender hereby gives you irrevocable notice, pursuant to Section
11.5(g)(ii) of the Loan Agreement, that it is willing to accept a sale of the following [Loans]
[[                    ]42 Tranche[s] of Loans] held by such Lender at the Specified
Discount in an aggregate outstanding amount as follows:




[Loans — $[•]]




[[                    ]43 Tranche[s] of Loans — $[•]]



The undersigned Lender hereby expressly and, subject to Section 11.5(g)(ii) of the
Loan Agreement, irrevocably consents and agrees to a sale of its
[Loans][[                    ]44 Tranche[s] of Loans] pursuant to Section 11.5(g)(ii) of the Loan
Agreement at a price equal to the [applicable] Specified Discount in the aggregate outstanding
amount not to exceed the amount set forth above, as such amount may be reduced in accordance with
the Specified Discount Proration, and as otherwise determined in accordance with and subject to the
requirements of the Loan Agreement.



[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]



 






	 	 	 
	42	 	List multiple Tranches if applicable.

	 
	43	 	List multiple Tranches if applicable.

	 
	44	 	List multiple Tranches if applicable.




 


 









 





IN WITNESS WHEREOF, the undersigned has executed this Specified Discount Purchase Response as
of the date first above written.



	 	 	 	 	 	 	 
	 	 	[NAME OF LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title: