exv10w8



 





EXHIBIT 10.8




EXECUTION COPY




$25,000,000

CREDIT AGREEMENT




dated as of August 23, 2006,

by and among




BROADVIEW NETWORKS HOLDINGS, INC.,

BROADVIEW NETWORKS, INC.,

BROADVIEW NETWORKS OF MASSACHUSETTS, INC.,

BROADVIEW NETWORKS OF VIRGINIA, INC., and

BRIDGECOM INTERNATIONAL, INC.,

as Borrowers,




VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS FROM TIME TO TIME

PARTIES HERETO,

as Lenders,




JEFFERIES & COMPANY, INC.,

as Syndication Agent,




and




THE CIT GROUP/BUSINESS CREDIT, INC.,

as Administrative Agent, Collateral Agent and Documentation Agent




 




JEFFERIES FINANCE LLC

as Sole Lead Arranger and Sole Book Runner



 









 





	 	 	 	 	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Other Definitions and Provisions
	 	 	27	 
	Section 1.3 Accounting Terms
	 	 	28	 
	Section 1.4 UCC Terms
	 	 	28	 
	Section 1.5 Rounding
	 	 	28	 
	Section 1.6 References to Agreement and Laws
	 	 	28	 
	Section 1.7 Times of Day
	 	 	28	 
	Section 1.8 Letter of Credit Amounts
	 	 	28	 
	ARTICLE II REVOLVING CREDIT FACILITY
	 	 	28	 
	Section 2.1 Revolving Credit Loans
	 	 	28	 
	Section 2.2 Swingline Loans
	 	 	29	 
	Section 2.3 Procedure for Advances of Revolving Credit Loans and Swingline Loans
	 	 	30	 
	Section 2.4 Repayment and Prepayment of Revolving Credit and Swingline Loans
	 	 	31	 
	Section 2.5 Permanent Reduction of the Revolving Credit Commitment
	 	 	32	 
	Section 2.6 Termination of Revolving Credit Facility
	 	 	33	 
	ARTICLE III LETTER OF CREDIT FACILITY
	 	 	33	 
	Section 3.1 L/C Commitment
	 	 	33	 
	Section 3.2 Procedure for Issuance of Letters of Credit
	 	 	34	 
	Section 3.3 Commissions and Other Charges
	 	 	34	 
	Section 3.4 L/C Participations
	 	 	35	 
	Section 3.5 Reimbursement Obligation of the Borrowers
	 	 	35	 
	Section 3.6 Obligations Absolute
	 	 	36	 
	Section 3.7 Effect of Letter of Credit Application
	 	 	36	 
	ARTICLE IV GENERAL LOAN PROVISIONS
	 	 	36	 
	Section 4.1 Interest
	 	 	36	 
	Section 4.2 Notice and Manner of Conversion or Continuation of Loans
	 	 	38	 
	Section 4.3 Fees
	 	 	38	 
	Section 4.4 Manner of Payment
	 	 	39	 
	Section 4.5 Evidence of Indebtedness
	 	 	39	 
	Section 4.6 Adjustments
	 	 	40	 






 i





 









 








	 	 	 	 	 
	Section 4.7 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent
	 	 	40	 
	Section 4.8 Changed Circumstances
	 	 	41	 
	Section 4.9 Indemnity
	 	 	42	 
	Section 4.10 Increased Costs
	 	 	42	 
	Section 4.11 Taxes
	 	 	44	 
	Section 4.12 Mitigation Obligations; Replacement of Lenders
	 	 	46	 
	Section 4.13 Security
	 	 	47	 
	ARTICLE V CONDITIONS OF CLOSING AND BORROWING
	 	 	47	 
	Section 5.1 Conditions to Closing and Initial Extensions of Credit
	 	 	47	 
	Section 5.2 Conditions to All Extensions of Credit
	 	 	52	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
	 	 	53	 
	Section 6.1 Representations and Warranties
	 	 	53	 
	Section 6.2 Survival of Representations and Warranties, Etc.
	 	 	61	 
	ARTICLE VII FINANCIAL INFORMATION AND NOTICES
	 	 	61	 
	Section 7.1 Financial Statements and Projections
	 	 	61	 
	Section 7.2 Collateral Reporting
	 	 	63	 
	Section 7.3 Other Reports
	 	 	64	 
	Section 7.4 Notice of Litigation and Other Matters
	 	 	64	 
	Section 7.5 Accuracy of Information
	 	 	65	 
	ARTICLE VIII AFFIRMATIVE COVENANTS
	 	 	66	 
	Section 8.1 Preservation of Corporate Existence and Related Matters
	 	 	66	 
	Section 8.2 Maintenance of Property
	 	 	66	 
	Section 8.3 Insurance
	 	 	66	 
	Section 8.4 Accounting Methods and Financial Records
	 	 	66	 
	Section 8.5 Payment and Performance of Taxes and Other Governmental
Charges
	 	 	67	 
	Section 8.6 Compliance With Laws and Approvals
	 	 	67	 
	Section 8.7 Environmental Laws
	 	 	67	 
	Section 8.8 Compliance with ERISA
	 	 	67	 
	Section 8.9 Compliance With Agreements
	 	 	68	 
	Section 8.10 Visits and Inspections
	 	 	68	 






ii




 









 








	 	 	 	 	 
	Section 8.11 Additional Subsidiaries: Real Property
	 	 	68	 
	Section 8.12 Use of Proceeds
	 	 	69	 
	Section 8.13 Further Assurances
	 	 	69	 
	Section 8.14 Post-Closing Obligation
	 	 	69	 
	ARTICLE IX NEGATIVE COVENANTS
	 	 	70	 
	Section 9.1 Limitations on Indebtedness
	 	 	70	 
	Section 9.2 Limitations on Liens
	 	 	71	 
	Section 9.3 Limitations on Loans, Advances, Investments and
Acquisitions
	 	 	73	 
	Section 9.4 Limitations on Mergers and Liquidation
	 	 	73	 
	Section 9.5 Limitations on Asset Dispositions
	 	 	74	 
	Section 9.6 Limitations on Dividends and Distributions
	 	 	74	 
	Section 9.7 Limitations on Issuance of Capital Stock
	 	 	75	 
	Section 9.8 Transactions with Affiliates
	 	 	75	 
	Section 9.9 Certain Accounting Changes; Organizational Documents;
Equity Holder Agreements
	 	 	75	 
	Section 9.10 Amendments; Prepayments and Optional Redemptions of
Senior Secured Notes
	 	 	75	 
	Section 9.11 Restrictive Agreements
	 	 	76	 
	Section 9.12 Nature of Business
	 	 	76	 
	Section 9.13 Impairment of Security Interests
	 	 	77	 
	ARTICLE X DEFAULT AND REMEDIES
	 	 	77	 
	Section 10.1 Events of Default
	 	 	77	 
	Section 10.2 Remedies
	 	 	80	 
	Section 10.3 Rights and Remedies Cumulative; Non-Waiver; etc.
	 	 	81	 
	Section 10.4 Crediting of Payments and Proceeds
	 	 	82	 
	Section 10.5 Administrative Agent May File Proofs of Claim
	 	 	82	 
	ARTICLE XI THE ADMINISTRATIVE AGENT
	 	 	83	 
	Section 11.1 Appointment and Authority
	 	 	83	 
	Section 11.2 Rights as a Lender
	 	 	83	 
	Section 11.3 Exculpatory Provisions
	 	 	84	 
	Section 11.4 Reliance by the Administrative Agent
	 	 	84	 
	Section 11.5 Delegation of Duties
	 	 	85	 
	Section 11.6 Resignation of Administrative Agent
	 	 	85	 






iii




 









 








	 	 	 	 	 
	Section 11.7 Non-Reliance on Administrative Agent and Other Lenders
	 	 	86	 
	Section 11.8 No Other Duties, etc.
	 	 	86	 
	Section 11.9 Collateral and Guaranty Matters
	 	 	86	 
	ARTICLE XII MISCELLANEOUS
	 	 	87	 
	Section 12.1 Notices
	 	 	87	 
	Section 12.2 Amendments, Waivers and Consents
	 	 	88	 
	Section 12.3 Expenses; Indemnity
	 	 	90	 
	Section 12.4 Right of Set-off
	 	 	92	 
	Section 12.5 Governing Law
	 	 	93	 
	Section 12.6 Waiver of Jury Trial
	 	 	93	 
	Section 12.7 Reversal of Payments
	 	 	94	 
	Section 12.8 Injunctive Relief; Punitive Damages
	 	 	94	 
	Section 12.9 Accounting Matters
	 	 	94	 
	Section 12.10 Successors and Assigns; Participations
	 	 	94	 
	Section 12.11 Confidentiality
	 	 	98	 
	Section 12.12 Administrative Borrower
	 	 	99	 
	Section 12.13 Performance of Duties
	 	 	99	 
	Section 12.14 All Powers Coupled with Interest
	 	 	99	 
	Section 12.15 Survival of Indemnities
	 	 	99	 
	Section 12.16 Titles and Captions
	 	 	100	 
	Section 12.17 Severability of Provisions
	 	 	100	 
	Section 12.18 Counterparts
	 	 	100	 
	Section 12.19 Integration
	 	 	100	 
	Section 12.20 Term of Agreement
	 	 	100	 
	Section 12.21 Advice of Counsel, No Strict Construction
	 	 	100	 
	Section 12.22 USA Patriot Act
	 	 	100	 
	Section 12.23 Inconsistencies with Other Documents; Independent Effect
of Covenants
	 	 	100	 






iv




 









 








EXHIBITS




	 	 	 	 	 	 	 
	Exhibit A-1
	 	 	—	 	 	Form of Revolving Credit Note
	Exhibit A-2
	 	 	—	 	 	Form of Swingline Note
	Exhibit B
	 	 	—	 	 	Form of Notice of Borrowing
	Exhibit C
	 	 	—	 	 	Form of Notice of Account Designation
	Exhibit D
	 	 	—	 	 	Form of Notice of Prepayment
	Exhibit E
	 	 	—	 	 	Form of Notice of Conversion/Continuation
	Exhibit F
	 	 	—	 	 	Form of Borrowing Base Certificate
	Exhibit G
	 	 	—	 	 	Form of Assignment and Assumption
	Exhibit H
	 	 	—	 	 	Form of Guaranty Agreement
	Exhibit I
	 	 	—	 	 	Form of Collateral Agreement
	Exhibit J
	 	 	—	 	 	Form of Intercreditor Agreement
	Exhibit K
	 	 	—	 	 	Form of Closing Date Certificate






SCHEDULES




	 	 	 	 	 	 	 
	Schedule 6.1(a)
	 	 	—	 	 	Jurisdictions of Organization and Qualification
	Schedule 6.1(b)
	 	 	—	 	 	Subsidiaries and Capitalization
	Schedule 6.1(f)
	 	 	—	 	 	Tax Returns and Payments
	Schedule 6.1(i)
	 	 	—	 	 	ERISA Plans
	Schedule 6.1(1)
	 	 	—	 	 	Licenses
	Schedule 6.1(m)
	 	 	—	 	 	Labor and Collective Bargaining Agreements
	Schedule 6.1(r)
	 	 	—	 	 	Real Property
	Schedule 6.1(u)
	 	 	—	 	 	Litigation
	Schedule 9.1
	 	 	—	 	 	Indebtedness and Guaranty Obligations
	Schedule 9.2
	 	 	—	 	 	Existing Liens
	Schedule 9.3
	 	 	—	 	 	Existing Loans, Advances and Investments
	Schedule 9.8
	 	 	—	 	 	Transactions with Affiliates






 v




 









 








     CREDIT AGREEMENT, dated as of August 23, 2006 by and among BROADVIEW NETWORKS HOLDINGS,
INC., a Delaware corporation (“Holdings”), BROADVIEW NETWORKS, INC., a Delaware corporation
(“Broadview Networks”), BROADVIEW NETWORKS OF MASSACHUSETTS, INC., a Delaware corporation
(“Broadview MA”), BROADVIEW NETWORKS OF VIRGINIA, INC., a Virginia corporation (“Broadview
VA”), BRIDGECOM INTERNATIONAL, INC., a Delaware corporation (“Bridgecom International”
and, together with Holdings, Broadview Networks, Broadview MA, Broadview VA, and Bridgecom
International, the “Borrowers”), the various financial institutions and other Persons from time to
time parties hereto (collectively, the “Lenders”), JEFFERIES & COMPANY, INC., as sole syndication
agent (in such capacity, the “Syndication Agent”), and THE CIT GROUP/BUSINESS CREDIT, INC. (“CIT”),
as administrative agent (in such capacity, the “Administrative Agent”), collateral agent
and documentation agent for the Lenders.



STATEMENT OF PURPOSE




     The Borrowers have requested, and the Lenders have agreed, to extend certain credit
facilities to the Borrowers on the terms and conditions of this Agreement.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, such parties hereby agree as follows:



ARTICLE I




DEFINITIONS




     Section 1.1 Definitions. The following terms when used in this Agreement shall have
the meanings assigned to them below:



     “Access Lines” means each of those telephone lines (both residential and commercial) for voice
and data equivalents activated and in service of Holdings or any of its Subsidiaries (without
duplication).



     “Additional Reserves” means such reserves as the Administrative Agent may reasonably
deem proper and necessary from time to time (but without duplication of exclusions of Receivables
(or portions of Receivables) or other amounts from the Borrowing Base Amount pursuant to the
definition of “Eligible Receivables” in this Article I.



     “Administrative Agent” means CIT, in its capacity as Administrative Agent hereunder,
and any successor thereto appointed pursuant to Section 11.6.



     “Administrative Agent’s Office” means the office of the Administrative Agent specified
in or determined in accordance with the provisions of Section 12.1(c).



     “Administrative Borrower” is defined in Section 12.12.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.



 









 





     “Advance Rate” has the meaning assigned thereto in clause (a) of the
definition of the term “Borrowing Base Amount”.



     “Affiliate” means, with respect to any Person, any other Person (other than a
Subsidiary of such Person) which directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such first Person or any of its
Subsidiaries. As used in this definition, the term “control” means (a) the power to vote ten
percent (10%) or more of the securities or other equity interests of a Person having ordinary
voting power, or (b) the possession, directly or indirectly, of any other power to direct or cause
the direction of the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.



     “Agreement” means this Credit Agreement, as amended, restated, supplemented or
otherwise modified from time to time.



     “Applicable Law” means all applicable provisions of constitutions, laws, statutes,
ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders
of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.



     “Applicable Margin” means 2.75% per annum with respect to LIBOR Rate Loans and 1.75%
per annum with respect to Base Rate Loans.



     “Approved Fund” means any Person (other than a natural Person), including any special
purpose entity, that (a) is (or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary course and (b) is
administered, managed or underwritten by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an
entity or an Affiliate of an entity that administers or manages a Lender.



     “Arranger” means Jefferies Finance, as sole lead arranger and sole book runner.



     “Asset Disposition” means the disposition of any or all of the assets (including the
Capital Stock of a Subsidiary or any ownership interest in a joint venture) of any Credit Party or
any Subsidiary thereof to any Person (other than another Credit Party) whether by sale, lease,
transfer or otherwise. The term “Asset Disposition” shall not include any Equity Issuance or Debt
Issuance.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 12.10), and accepted by the Administrative Agent, in substantially the form of
Exhibit G or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, in respect of any Capital Lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP.



     “ATX” has the meaning assigned thereto in the definition of the term “ATX Acquisition
Agreement”.



(Credit Agreement)




2









 








     “ATX Acquisition” means the acquisition by Holdings of all of the issued and
outstanding Capital Stock of ATX pursuant to the ATX Acquisition Agreement (without any
modification or waiver of the terms or provisions thereof in any material respect unless consented
to by the Required Lenders) solely with the Escrowed Funds that are released from the Escrow
Account.



     “ATX Acquisition Agreement” means the Stock Purchase Agreement, dated as of June 26,
2006, among ATX Communications, Inc., a Delaware corporation (“ATX”), its shareholders and, for the
limited purposes set forth therein, Leucadia National Corporation.



     “Base Rate” means, at any time, the higher of (a) the Prime Rate and (b) the Federal Funds
Rate plus 1/2 of 1%; each change in the Base Rate shall take effect simultaneously with the
corresponding change or changes in the Prime Rate or the Federal Funds Rate.



     “Base Rate Loan” means any Loan bearing interest at a rate based upon the Base Rate as
provided in Section 4.1(a).



     “Borrowers” has the meaning assigned thereto in the introductory paragraph hereto.



     “Borrowing Base Amount” means, as of any date of determination, an amount equal to the
excess of:




     (a) 85% (the “Advance Rate”) of Eligible Receivables reflected in the most
recent Borrowing Base Certificate delivered on or prior to such date (provided, that
Eligible Receivables resulting from any Permitted Acquisition shall only be included to the
extent they have been subject to a collateral audit in form and substance satisfactory to
the Administrative Agent),



over





     (b) the sum of:




     (i) the Tax Reserves, if any;



     plus




     (ii) the Additional Reserves, if any, then in effect.



     “Borrowing Base Certificate” means a certificate duly executed by a Responsible
Officer of each Borrower appropriately completed and in substantially the form of Exhibit
F.



     “Business Day” means (a) for all purposes other than as set forth in clause (b) below,
any day other than a Saturday, Sunday or legal holiday on which banks in New York, New York are
open for the conduct of their commercial banking business, and (b) with respect to all notices and
determinations in connection with, and payments of principal and interest on, any LIBOR Rate Loan,
any day that is a Business Day described in clause (a) and that is also a day for trading by and
between banks in Dollar deposits in the London interbank market.



(Credit Agreement)




3









 








     “Capital Asset” means, with respect to Holdings and its Subsidiaries, any asset
that should, in accordance with GAAP, be classified and accounted for as a capital asset on a
Consolidated balance sheet of Holdings and its Subsidiaries.



     “Capital Lease” means any lease of any property by any Credit Party, as lessee,
that should, in accordance with GAAP, be classified and accounted for as a capital lease on a
Consolidated balance sheet of Holdings and its Subsidiaries.



     “Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case
of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of capital stock, (c) in the case of a partnership,
partnership interests (whether general or limited), (d) in the case of a limited liability company,
membership interests and (e) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.



     “Cash Equivalents” means, at any time:




     (a) marketable direct obligations issued or unconditionally guaranteed by the United
States or any agency thereof maturing within one hundred twenty (120) days from the date of
acquisition thereof,




     (b) commercial paper maturing no more than one hundred twenty (120) days from the date
of creation thereof and currently having the highest rating obtainable from either S&P or
Moody’s,




     (c) certificates of deposit maturing no more than one hundred twenty (120) days from
the date of creation thereof issued by commercial banks incorporated under the laws of the
United States, each having combined capital, surplus and undivided profits of not less than
$500,000,000 and having a rating of “A” or better by a nationally recognized rating agency;
provided, that the aggregate amount invested in such certificates of deposit shall
not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000
for any one such bank,




     (d) time deposits maturing no more than thirty (30) days from the date of creation
thereof with commercial banks or savings banks or savings and loan associations each having
membership either in the FDIC or the deposits of which are insured by the FDIC,




     (e) investments in money market funds which invest substantially all of their assets in
securities of the types described in clauses (a) through (d) above.



     “Change in Control” means (a) the occurrence of any event (whether in one or more
transactions) which results in a transfer of control of any Borrower to a Person who is not one of
the Permitted Holders; (b) less than forty percent (40%) of any class of the Voting Stock of
Holdings is owned and controlled by (including for the purposes of the calculation of percentage
ownership, any shares of Voting Stock into which any Voting Stock of Holdings is convertible or for
which any such shares of the Voting Stock of Holdings may be exchanged and any shares of Voting
Stock issuable upon exercise of any warrants, options or similar rights which may at the



(Credit Agreement)




4









 







time of calculation be held by any Person) the Permitted Holders; (c) any merger or consolidation
of or with Holdings pursuant to which Holdings is not the surviving Person or sale of all or
substantially all of the property or assets of Holdings; (d) the failure of Holdings to own and
control 100% of the Capital Stock of each Borrower; or (e) the occurrence under any indenture
(including the Senior Secured Notes Indenture) or other instrument evidencing any Indebtedness in
excess of $1,000,000 of any “change of control” or similar provision (as set forth in any such
indenture, agreement or other evidence of such Indebtedness). For purposes of clause (a) of this
definition, “control of Holdings” shall mean the power, direct or indirect (x) to vote 50% or more
of the Voting Stock of Holdings or (y) to direct or cause the direction of the management and
policies of Holdings by contract or otherwise.




     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “CIT Fee Letter” means the fee letter dated as of the Closing Date executed by
Holdings and the Administrative Agent.



     “Closing Date” means the date of this Agreement.



     “Code” means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or modified from time to time.



     “Collateral” means the collateral security for the Obligations pledged or granted
pursuant to the Security Documents; provided that in no event shall the Collateral include
the Excluded Collateral.



     “Collateral Agent” means the Trustee, in its capacity as collateral agent.



     “Collateral Agreement” means the collateral agreement, dated as of the date hereof,
executed by the Credit Parties in favor of the Administrative Agent for the benefit of the Secured
Parties (as defined therein), substantially in the form of Exhibit I, as amended, restated,
supplemented or otherwise modified from time to time.



     “Commitment Percentage” means, as to any Lender at any time, the ratio of (a) the
amount of the Revolving Credit Commitment of such Lender to (b) the aggregate Revolving Credit
Commitment of all Lenders.



     “Communications Act” means, 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, as from time to time in effect.



     “Competitor” means any Person (a) which either itself or whose controlled Affiliates
shall have control over, or control over the voting rights of, issued and outstanding Voting Stock
representing a majority of the voting power of any Restricted Telecom Operator or (b) which is a
Restricted Telecom Operator or in which a Restricted Telecom Operator, or any of its Controlled



(Credit Agreement)




5









 







Affiliates, shall have a direct or indirect voting interest greater than 50% or whose board of
directors is otherwise controlled by a Restricted Telecom Operator;
provided, however, that
in no event shall any commercial bank, savings and loan association or savings bank or any other
entity which is an “accredited investor” (as defined in Regulation D under the Securities Act of
1933, as amended) which extends credit or buys loans as one of its businesses, including insurance
companies, mutual funds, lease financing companies and commercial finance companies, in each case,
which has (i) at least $5,000,000,000 in assets and (ii) a rating of “A” or higher from S&P and a
rating of Baal or higher from Moody’s, be a Competitor.




     “Consolidated” means, when used with reference to financial statements or financial
statement items of any Person, such statements or items on a consolidated basis in accordance with
applicable principles of consolidation under GAAP.



     “Conversion” means the conversion of all Existing Subordinated Notes that are not
redeemed pursuant to the Refinancing into preferred stock of Holdings that (a) will be Qualified
Capital Stock of Holdings, (b) will not provide for the payment of cash dividends prior to the
Maturity Date, and (c) will be issued to the holders of such Existing Subordinated Notes.



     “Core Markets” means all current and future markets in which Holdings and its
Subsidiaries provide retail products (residential or business) including: Massachusetts, New
Hampshire, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland,
Virginia and the District of Columbia.



     “Credit Facility” means, collectively, the Revolving Credit Facility, the
Swingline Facility and the L/C Facility.



     “Credit Parties” means, collectively, the Borrowers and the Guarantors.



     “Customer” means the account debtor with respect to any Receivable and/or the
prospective purchaser of goods, services or both with respect to any contract or contract right,
and/or any party who enters into or proposes to enter into any contract or other arrangement with
any Credit Party, pursuant to which such Credit Party is to deliver any personal property or
perform any services.



     “Debt Issuance” means the issuance of any Indebtedness for borrowed money by any
Credit Party, excluding any Indebtedness of any Credit Party permitted to be incurred pursuant to
Section 9.1. For the avoidance of doubt, “Debt Issuance” does not include the issuance of
Disqualified Capital Stock or debt securities by a Credit Party
pursuant to Section 9.1.



     “Debt Rating” means, as of any date of determination, the rating as determined by
either S&P or Moody’s of Holdings’ non-credit-enhanced, senior secured long-term debt.



     “Default” means any of the events specified in Section 10.1 which with the
passage of time, the giving of notice or any other condition, would constitute an Event of Default.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Revolving Credit Loans, participations in L/C Obligations or participations in Swingline Loans
required to be funded by it hereunder within one Business Day of the date required to be funded



(Credit Agreement)




6









 







by it hereunder, (b) 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 one Business Day of the date
when due, unless such amount is the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.




     “Disqualified Capital Stock” means that portion of any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which it is exchangeable
at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option
of the holder thereof on or prior to the first anniversary of the date specified in clause (a)
of the definition of the term “Maturity Date” for cash or is convertible into or exchangeable
for debt securities of Holdings or its Subsidiaries at any time prior to such anniversary.



     “Disputes” means any dispute, claim or controversy arising out of, connected with or
relating to this Agreement or any other Loan Document, between or among parties hereto and to the
other Loan Documents.



     “Dollars” and the symbol “$” mean, unless otherwise qualified, dollars in
lawful currency of the United States.



     “Domestic Subsidiary” means any Subsidiary organized under the laws of any political
subdivision of the United States.



     “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved
Fund, and (d) any other Person (other than a natural person) approved by the Administrative Agent,
the Swingline Lender, each Issuing Bank and, unless a Default or Event of Default has occurred and
is continuing, the Administrative Borrower (each such approval not to be unreasonably withheld or
delayed); provided, however, that notwithstanding the foregoing, (i) no such
consent of the Administrative Agent, the Swingline Lender, any Issuing Bank or the Administrative
Borrower shall be required if the assignment is being made to any Person (except a Person referred
to in item (A) or (B) below) by the Syndication Agent or an Affiliate of the Syndication Agent
during the Primary Syndication Period and (ii) “Eligible Assignee” shall in any event not include
(A) a Credit Party or any Affiliate or Subsidiary of a Credit Party or (B) any Competitor.



     “Eligible Receivables” means, with respect to each Credit Party, each Receivable of
such Credit Party arising in the ordinary course of such Credit Party’s business and which the
Administrative Agent, in the good faith exercise of its reasonable judgment, shall deem to be an
Eligible Receivable, based on such considerations as the Administrative Agent may from time to time
deem appropriate. A Receivable shall not be deemed eligible unless such Receivable is subject to
the Administrative Agent’s first priority perfected security interest and no other Lien (other than
Permitted Liens described in clauses (a), (j) and (k) of Section 9.2 that
in each case (other than with respect to clause (j)) are subordinate to the Lien of the
Administrative Agent), and is evidenced by an invoice or other documentary evidence satisfactory to
the Administrative Agent. In addition, no Receivable shall be an Eligible Receivable if:



(Credit Agreement)




7









 









     (a) it arises out of a sale made by any Credit Party to a Subsidiary, another Credit Party or
an Affiliate of any Credit Party or to a Person controlled by a Subsidiary or an Affiliate of any
Credit Party;




     (b) it is due or unpaid more than sixty (60) days after the original due date, not to exceed
ninety (90) days after the original invoice date;




     (c) fifty percent (50%) or more of the Receivables owing to any Credit Party or to the Credit
Parties in the aggregate from such Customer are not deemed Eligible Receivables hereunder;




     (d) any covenant, representation or warranty contained in this Agreement with respect to such
Receivable has been breached;




     (e) the applicable Customer shall (i) apply for, suffer, or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a
substantial part of its property, (ii) admit in writing its inability, or be generally unable, to
pay its debts as they become due or cease operations of its present business, (iii) make a general
assignment for the benefit of creditors, (iv) commence a voluntary case under any state, federal or
foreign bankruptcy laws (as now or hereafter in effect), (v) be adjudicated a bankrupt or
insolvent, (vi) file a petition seeking to take advantage of any other law providing for the relief
of debtors, (vii) acquiesce to, or fail to have dismissed, any petition which is filed against it
in any involuntary case under such bankruptcy laws, or (viii) take any action for the purpose of
effecting any of the foregoing;




     (f) the underlying sale is to a Customer outside the United States, unless such sale is on
letter of credit, guaranty, acceptance terms or supported by credit insurance, in each case
acceptable to the Administrative Agent in its reasonable discretion;




     (g) the underlying sale to the Customer is on a bill-and-hold basis or is a guaranteed sale or
is on a sale-and-return, sale on approval, consignment or any other repurchase or return basis or
is evidenced by chattel paper; provided, however, that Receivables that arise from
bill-and-hold sales with no more than four (4) Customers at any one time (in a maximum aggregate
amount of $1,000,000 for such four (4) Customers taken in the aggregate) shall not be excluded from
Eligible Receivables under this clause (g) if, with respect to such Receivables, the
applicable Credit Party provides the Administrative Agent with a letter to such Credit Party and
the Administrative Agent from the applicable Customer which sets forth the agreement of such
Customer to pay such Receivables in form and substance satisfactory to the Administrative Agent in
its sole discretion;




     (h) the Administrative Agent believes, in the good faith exercise of its
reasonable judgment, that collection of such Receivable is insecure or that such Receivable
may not be paid by reason of the Customer’s financial inability to pay;




     (i) the applicable Customer is the United States, any State thereof, the District of
Columbia or any federal or state department, agency or instrumentality, unless (x) in



(Credit Agreement)




8









 









the case of the United States or any agency or instrumentality thereof, the applicable Credit Party
assigns its right to payment of such Receivable to the Administrative Agent pursuant to the
Assignment of Claims Act of 1940, as amended (31 U.S.C. Section 3727 et seq. and 41
U.S.C. Section 15 et seq.) and (y) in any other case, the applicable Credit Party
complies with any other applicable statutes or ordinances;




     (j) the goods giving rise to such Receivable have not been shipped and delivered to and
accepted by the Customer or the services giving rise to such Receivable have not been performed by
the applicable Credit Party and accepted by the Customer (provided that (x) the
Administrative Agent may in its discretion include such Receivables as “Eligible Receivables” and
(y) if the Administrative Agent does not include such Receivables as “Eligible Receivables,” then
an amount equal to the amount that has been earned by the Credit Parties in respect of services
performed but not yet billed shall be included in the calculation of the amount of “Eligible
Receivables”) or the Receivable otherwise does not represent a final sale;




     (k) such Receivable is subject to any offset, deduction, defense, dispute, or
counterclaim, the Customer is also a creditor or supplier of any Credit Party or such Receivable is
contingent in any respect or for any reason;




     (l) the applicable Credit Party has made any agreement with any Customer for any
deduction therefrom, except for discounts or allowances made in the ordinary course of business for
prompt payment, all of which discounts or allowances are reflected in the calculation of the face
value of each respective invoice related thereto;




     (m) any return, rejection or repossession of the applicable merchandise has occurred;




     (n) such Receivable is not payable to the applicable Credit Party;




     (o) (i) such Receivables are with respect to a Customer located in New Jersey,
Minnesota, or any other state denying creditors access to its courts in the absence of a Notice of
Business Activities Report or other similar filing, unless the applicable Credit Party is
incorporated under the laws of such state or has either qualified as a foreign corporation
authorized to transact business in such state or has filed a Notice of Business Activities Report
or similar filing with the applicable state agency for the then current year or the Administrative
Agent is not in fact denied access to the courts of such jurisdiction and (ii) the Administrative
Agent, in its good faith exercise of its reasonable discretion, deems such Receivables to not be
Eligible Receivables;




     (q) any portion thereof represents a late fee, finance charge or similar charge, but only
the portion of such Receivable that represents such a charge shall not constitute an Eligible
Receivable pursuant to this clause (q);




     (r) the applicable Credit Party has received an attempted payment in respect of such
Receivable by a check that has been returned for insufficient funds;




     (s) service to the Customer that owes such Receivable has been terminated;



(Credit Agreement)




9









 

\







     (t) such Receivable is subject to a reserve created by the applicable
Credit Party, but only the portion of such Receivable equal to the amount of such reserve
shall not constitute an Eligible Receivable pursuant to this
clause (t);




     (u) such Receivable is owed to a Credit Party that became a Credit Party after
the date of this Agreement (including ATX and its Subsidiaries) prior to the time that (x)
each of the Lenders shall have received the results of a collateral audit (reasonably
satisfactory to the Required Lenders for, in the case of ATX and its subsidiaries, an audit
confirming the results of the audit hereto performed with regards to ATX) of the Receivables
of such Credit Party and (y) this definition of “Eligible Receivables” shall have been
amended to reflect the results of such collateral audit pursuant to an amendment reasonably
satisfactory to the Required Lenders; or




     (v) such Receivable is not otherwise satisfactory to the Administrative Agent as
determined in good faith by the Administrative Agent in the exercise of its reasonable
judgment.



     “Employee Benefit Plan” means any employee benefit plan within the meaning of Section
3(3) of ERISA which (a) is maintained for employees of any Credit Party or any ERISA Affiliate or
(b) has at any time within the preceding six (6) years been maintained for the employees of any
Credit Party or any current or former ERISA Affiliate.



     “Environmental Claims” means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, accusations, allegations, notices of
noncompliance or violation, investigations (other than internal reports prepared by any Person in
the ordinary course of business and not in response to any third party action or request of any
kind) or proceedings relating in any way to any actual or alleged violation of or liability under
any Environmental Law or relating to any permit issued, or any approval given, under any such
Environmental Law, including any and all claims by Governmental Authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages, contribution, indemnification
cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from
alleged injury or threat of injury to human health or the environment.



     “Environmental Laws” means any and all federal, foreign, state, provincial and local
laws, statutes, ordinances, codes, rules, standards and regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to the protection of
human health or the environment, including requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.



     “Equity Holder Agreements” means the Amended and Restated Shareholders Agreement,
dated as of July 20, 2006 among Holdings, MCG Capital Corporation and the Banks, Existing Broadview
Stockholders and BridgeCom Management Stockholders party thereto, as amended in accordance with
Section 9.9.



(Credit Agreement)




10









 








     “Equity Issuance” means any issuance by a Credit Party to any Person which is not
a Credit Party of (a) its Capital Stock, (b) its Capital Stock pursuant to the exercise of options
or warrants or (c) its Capital Stock pursuant to the conversion of any debt securities to equity.



     “ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and
regulations thereunder, each as amended or modified from time to time.



     “ERISA Affiliate” means any Person who together with any Credit Party is treated as a
single employer within the meaning of
Section 414(b), (c), (m) or (o) of the Code or Section
4001(b) of ERISA.



     “Escrowed Funds” has
the meaning assigned thereto in clause (h) of the definition of
the term “Excluded Collateral”.



     “Eurodollar Reserve Percentage” means, for any day, the percentage (expressed as a
decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for
such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including any basic, supplemental or emergency
reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City.



     “Event of Default” means
any of the events specified in Section 10.1; provided
that any requirement for passage of time, giving of notice, or any other condition, has been
satisfied.



     “Excluded Collateral” means, collectively:




     (a) Voting Stock of any Subsidiary that is not a Domestic Subsidiary to the extent that
such Voting Stock would exceed 65% of all of the Voting Stock of such Subsidiary;




     (b) motor vehicles and other goods covered by a certificate of title;




     (b) leasehold interests in real property with respect to which any Credit Party is a
tenant or subtenant;




     (c) rights under any contracts that contain a valid and enforceable prohibition on
assignment of such rights (other than to the extent that any such prohibition would be
rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform
Commercial Code of any relevant jurisdiction or any other applicable law or principles of
equity), but only for so long as such prohibition exists and is effective and valid;




     (d) property and assets owned by any Credit Party that are the subject of any Permitted
Lien described in clause (h)(i) or (ii) of Section 9.2 for so long as such Permitted
Liens are in effect and the Indebtedness secured thereby otherwise prohibits any other Liens
thereon;




     (e) any deposit account for which of which all or a substantial portion of the funds on
deposit are used for funding (i) payroll accounts, (ii) 401(k) and other retirement



(Credit Agreement)




11









 









plans and employee benefits, including rabbi trusts for deferred compensation, (iii) health
care benefits, and (iv) escrow arrangements (e.g., environmental indemnity accounts);




     (f) Permitted LC Cash Collateral Accounts;




     (g) property and assets owned by any Credit Party in which a Lien may not be granted
without governmental approval or consent (but only for so long as such Credit Party has not
obtained such approval or consents);




     (h) the Escrow Account (as defined in the Senior Secured Notes Indenture (as in
effect on the date hereof)), all funds and investment property deposited therein or credited
thereto on the date hereof and all funds and investment property on deposit therein or
credited thereto that consist of any interest on, proceeds of or investment made with any of
the foregoing (collectively, the “Escrowed Funds”);




     (i) property and assets owned by any Credit Party to the extent the cost of
obtaining a Lien thereon would be excessive in relation to the benefit thereof in the
Administrative Agent’s reasonable judgment after consultation with such Credit Party;




     (j) assets sold in compliance with this Agreement to a Person that is not a
Credit Party;




     (k) assets owned by a Guarantor after the sale of such Guarantor pursuant to
Section 9.5 of this Agreement; and




     (l) any Letter of Credit Rights for a specified purpose to the extent a Credit
Party is required by Applicable Law to apply the proceeds of such Letter of Credit Rights
for such specified purpose.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
any Borrower hereunder, (a) taxes imposed on or measured by its overall net income or profits
(however denominated), and franchise taxes imposed on it (in lieu of net income or profits taxes),
by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient
is constituted or organized or is resident or carries on business through a permanent establishment
or by any jurisdiction in which such recipient is deemed to be doing business or in which its
principal office is located or, in the case of any Lender, in which its applicable Lending Office
is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by
any other jurisdiction in which such Borrower is located and (c) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrowers under
Section 4.12(b), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such
Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with
4.11(e), except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment), to receive additional
amounts from such Borrower with respect to such withholding tax pursuant to Section 4.11
(a).



(Credit Agreement)




12









 








     “Existing Facility” means the credit facility provided under the Amended and Restated
Credit Agreement, dated as of January 14, 2005, by and among Holdings, the Subsidiaries thereof
designated as “Credit Parties” thereunder, the lenders parties thereto, NTFC Capital Corporation,
as administrative agent, and Wachovia Bank, National Association, as syndication agent, as amended
from time to time prior to the date hereof.



     “Existing Subordinated Notes” means, collectively, Holdings’ senior
unsecured subordinated notes due 2007 and senior unsecured subordinated notes due 2009.



     “Extensions of Credit” means, as to any Lender at any time and as the context may
require, (a) an amount equal to the sum of (i) the aggregate principal amount of all Revolving
Credit Loans made by such Lender then outstanding, (ii) such Lender’s Commitment Percentage of the
L/C Obligations then outstanding, and (iii) such Lender’s Commitment Percentage of the Swingline
Loans then outstanding or (b) the making of any Revolving Credit Loan (or, in the case where such
Lender is (A) the Swingline Lender, the making of any Swingline Loan or (B) an Issuing Bank, the
issuance of any Letter of Credit by such Lender) or participation in any Letter of Credit or
Swingline Loan by such Lender.



     “FCC” means the Federal Communications Commission, or any successor thereto.



     “FDIC” means the Federal Deposit Insurance Corporation, or any successor
thereto.



     “Federal Funds Rate” means, 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 (or, if such day is not a Business Day, for
the immediately preceding Business Day), as published by the Federal Reserve Bank of New York on
the Business Day next succeeding such day, provided that if such rate is not so published
for any day which is a Business Day, the average of the quotation for such day on such transactions
received by the Administrative Agent from three Federal Funds brokers of recognized standing
selected by the Administrative Agent.



     “Fee Letters” means, collectively, the CIT Fee Letter and the Jefferies Fee Letter.



     “Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on
December 31.



     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which any Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



     “GAAP” means generally accepted accounting principles, as recognized by the American
Institute of Certified Public Accountants and the Financial Accounting Standards Board,
consistently applied and maintained on a consistent basis (except for changes in which Holding’s
independent auditors concur) for Holdings and its Subsidiaries throughout the period indicated and
(subject to Section 12.9) consistent with the prior financial practice of Holdings and its
Subsidiaries.



(Credit Agreement)




13









 








     “Governmental Approvals” means all authorizations, consents, approvals,
permits, licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including the FCC, any applicable PUC and including any supra-national bodies such as
the European Union or the European Central Bank).



     “Granting
Lender” has the meaning assigned thereto in Section 12.10(g).



     “Guarantors” means each direct or indirect Domestic Subsidiary of Holdings in existence on the
Closing Date (other than any such Subsidiary that is a Borrower) or which becomes a party to the
Guaranty Agreement pursuant to Section 8.11.



     “Guaranty Agreement” means the unconditional guaranty agreement, dated as of the date
hereof, executed by the Guarantors in favor of the Administrative Agent for the ratable benefit of
the Secured Parties (as defined therein), substantially in the form
of Exhibit H, as amended,
restated, supplemented or otherwise modified from time to time.



     “Guaranty Obligation” means, with respect to Holdings and its Subsidiaries, without
duplication, any obligation, contingent or otherwise, of any such Person pursuant to which such
Person has directly or indirectly guaranteed any Indebtedness of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of any such Person (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness (whether arising by virtue of partnership arrangements, by
agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part);
provided, that the term
Guaranty Obligation shall not include endorsements for collection or deposit in the ordinary course
of business.



     “Hazardous Materials” means any substances or materials (a) which are or become
defined as hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or
mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive,
corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to
human health or the environment and are or become regulated by any Governmental Authority, (c) the
presence of which require investigation or remediation under any Environmental Law or common law,
(d) the discharge or emission or release of which requires a permit or license under any
Environmental Law or other Governmental Approval, (e) which are deemed to constitute a nuisance or
a trespass which pose a health or safety hazard to Persons or neighboring properties, (f) which
consist of underground or aboveground storage tanks, whether empty, filled or partially filled with
any substance, or (g) which contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum



(Credit Agreement)




14









 







hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel, natural gas
or synthetic gas.




     “Hedging Agreement” means any agreement with respect to any Interest Rate Contract,
forward rate agreement, commodity swap, forward foreign exchange agreement, currency swap
agreement, cross-currency rate swap agreement, currency option agreement or other agreement or
arrangement designed to alter the risks of any Person arising from fluctuations in interest rates,
currency values or commodity prices, all as amended, restated, supplemented or otherwise modified
from time to time.



     “Hedging Obligations” means all existing or future payment and other obligations owing
by any Credit Party under any Hedging Agreement (which such Hedging Agreement is permitted
hereunder) with any Person that is a Lender or an Affiliate of a Lender at the time such Hedging
Agreement is executed.



     “Holdings” has the meaning assigned thereto in the introductory paragraph hereto.



     “Indebtedness” means, with respect to Holdings and its Subsidiaries at any date and
without duplication, the sum of the following calculated in accordance with GAAP:




     (a) all liabilities, obligations and indebtedness for borrowed money including
obligations evidenced by bonds, debentures, notes or other similar instruments of any such
Person;




     (b) all obligations to pay the deferred purchase price of property or services of any
such Person (including all obligations under non-competition, earn-out or similar
agreements), except trade payables arising in the ordinary course of business not more than
ninety (90) days past due;




     (c) the Attributable Indebtedness of such Person with respect to such Person’s
obligations in respect of Capital Leases (regardless of whether accounted for as
indebtedness under GAAP);




     (d) all Indebtedness of any other Person secured by a Lien on any asset owned or being
purchased by such Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;




     (e) all Guaranty Obligations of any such Person;




     (f) all obligations, contingent or otherwise, of any such Person relative to the face
amount of letters of credit, whether or not drawn, including any Reimbursement Obligation,
and banker’s acceptances issued for the account of any such Person;




     (g) all Disqualified Capital Stock issued by such Person with the amount of
Indebtedness represented by such Disqualified Capital Stock being equal to the greater of
its voluntary or involuntary liquidation preference and its maximum fixed repurchase price,
but excluding accrued dividends, if any; and



(Credit Agreement)




15









 









     (h) all Net Hedging Obligations


provided that, notwithstanding the foregoing, obligations or amounts in dispute with Verizon on the
date hereof shall not constitute “Indebtedness.”



For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any other
Person (including any partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person’s ownership interest in or other relationship
with such Person, except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with
the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant to this Agreement,
and if such price is based upon, or measured by, the fair market value of such Disqualified Capital
Stock, such Fair Market Value shall be determined reasonably and in good faith by the board of
directors of the issuer of such Disqualified Capital Stock.




     “Indemnified Taxes” means Taxes and Other Taxes other than Excluded Taxes.



     “Insurance or Condemnation Event” means the receipt by any Credit Party of any cash
insurance proceeds or condemnation award payable by reason of theft, loss, physical destruction or
damage, taking or similar event with respect to any of their respective property or assets.



     “Intercreditor Agreement” means the intercreditor agreement, dated as of the date
hereof, executed by and among the Credit Parties, the Administrative Agent, the Trustee and the
Collateral Agent, substantially in the form of Exhibit J, as amended, restated, supplemented or
otherwise modified from time to time.



     “Interest
Period” has the meaning assigned thereto in
Section 4.1(b).



     “Interest Rate Contract” means any interest rate swap agreement, interest rate cap
agreement, interest rate floor agreement, interest rate collar agreement, interest rate option or
any other agreement regarding the hedging of interest rate risk exposure executed in connection
with hedging the interest rate exposure of any Person and any confirming letter executed pursuant
to such agreement, all as amended, restated, supplemented or otherwise modified from time to time.



     “ISP98” means the International Standby Practices (1998 Revision, effective January 1,
1999), International Chamber of Commerce Publication No. 590.



     “Issuing Bank” means JPMorgan Chase Bank, N.A. and any other bank selected by the
Administrative Agent (with the consent of the Administrative Borrower).



     “Jefferies Fee Letter” means the fee letter dated the Closing Date executed by
Jefferies Finance LLC and CIT.



(Credit Agreement)




16









 








     “L/C Commitment” means the lesser of (a) $15,000,000 (and, in excess of $15,000,000 to
the extent such excess L/C Obligations are fully cash-collateralized) and (b) the Revolving Credit
Commitment.



     “L/C Facility” means the letter of credit facility established pursuant to
Article III.



     “L/C Obligations” means at any time, an amount equal to the sum of (a) the aggregate
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit which have not then been reimbursed pursuant to Section
3.5.



     “L/C Participants” means the collective reference to all the Lenders other than
the applicable Issuing Bank.



     “Lender” means each Person executing this Agreement as a Lender (including each
Issuing Bank and the Swingline Lender unless the context otherwise requires) set forth on the
signature pages hereto and each Person that hereafter becomes a party to this Agreement as a Lender
pursuant to Section 12.11.



     “Lending Office” means, with respect to any Lender, the office of such
Lender maintaining such Lender’s Extensions of Credit.



     “Letter of Credit Application” means an application, in the form specified by the
applicable Issuing Bank from time to time, requesting such Issuing Bank to issue a Letter of
Credit.



     “Letters of Credit” means the letters of credit issued pursuant to Section
3.1.



     “LIBOR” means the rate of interest per annum determined on the basis of the rate for
deposits in Dollars in an amount substantially equal to the principal amount of the applicable
LIBOR Rate Loan for a period equal to the applicable Interest Period which appears on the Telerate
Page 3750 at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of
the applicable Interest Period (rounded upward, if necessary, to the nearest 1/100th of 1 %). If,
for any reason, such rate does not appear on Telerate Page 3750, then “LIBOR” shall be determined
by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in
Dollars in an amount substantially equal to the principal amount of the applicable LIBOR Rate Loan
would be offered by first class banks in the London interbank market to the Administrative Agent at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period. Each calculation by the
Administrative Agent of LIBOR shall be conclusive and binding for all purposes, absent manifest
error.



     “LIBOR Rate” means a rate per annum (rounded upwards, if necessary, to the next higher
1/100th of 1%) determined by the Administrative Agent pursuant to the following formula:



	 	 	 	 	 	 	 
	 

	 	LIBOR Rate =
	 	LIBOR
 

1.00-Eurodollar Reserve Percentage
	 	 






(Credit Agreement)




17









 








     “LIBOR Rate Loan” means any Loan bearing interest at a rate based upon the
LIBOR Rate as provided in Section 4.1 (a).



     “License” means, as to any Credit Party, any license, permit, consent, certificate of
need, authorization, certification, accreditation, franchise, approval, or grant of rights by, or
any filing or registration with, any Governmental Authority or third Person (including the FCC or
any applicable PUC) necessary for such Person to own, build, maintain, or operate its business or
property.



     “Lien” means, with respect to any asset, any mortgage, leasehold mortgage, lien, pledge,
charge, security interest, hypothecation or encumbrance of any kind in respect of such asset. For
the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any asset which
it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or other title retention agreement relating to such asset.



     “Loan Documents” means, collectively, this Agreement, each Note, the Letter of Credit
Applications, the Guaranty Agreement, the Security Documents, the Intercreditor Agreement and each
other document, instrument, certificate and agreement executed and delivered by any Credit Party in
connection with this Agreement or otherwise referred to herein or contemplated hereby (excluding
any Hedging Agreement), all as may be amended, restated, supplemented or otherwise modified from
time to time.



     “Loans” means the collective reference to the Revolving Credit Loans and the Swingline Loans,
and “Loan” means any of such Loans.



     “Material Adverse Effect” means a material adverse effect on (a) the condition
(financial or otherwise), results of operation, assets, liabilities (contingent or otherwise),
properties, solvency, business, management or value of Holdings and its Subsidiaries, taken as a
whole, (b) the ability of any Credit Party to perform its obligations under any Loan Document to
which it is a party in any material respect or (c) the rights and remedies of any Lender or any
Secured Party (as defined in any applicable Loan Document) under any Loan Document in any material
respect.



     “Material Contract” means (a) any contract or other agreement, written or oral, of any
Credit Party involving monetary liability of or to any such Person in an amount in excess of
$1,000,000 per annum, or (b) any other contract or agreement, written or oral, of any Credit Party
the failure to comply with which or the termination of which could reasonably be expected to have a
Material Adverse Effect.



     “Maturity Date” means the earliest to occur of (a) August 23, 2011, (b) the date that
the Revolving Credit Commitment is reduced to $0 pursuant to Section 2.5, or (c) the date
of termination of the Revolving Credit Commitment by the Administrative Agent on behalf of the
Lenders pursuant to Section 10.2(a).



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Mortgages” means the collective reference to each mortgage, deed of trust or other
real property security document, encumbering all material (as determined by the Administrative



(Credit Agreement)




18









 







Agent in its sole discretion) real property now or hereafter owned in fee by any Credit Party,
including such documentation as may be necessary to obtain a security interest under Right-of-Way
Agreements, in each case, in form and substance reasonably satisfactory to the Administrative Agent
and executed by such Credit Party in favor of the Administrative Agent, for the ratable benefit of
the Secured Parries (as defined therein), as any such document may be amended, restated,
supplemented or otherwise modified from time to time.




     “Multiemplover Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which any Credit Party or any ERISA Affiliate is making, or is accruing an obligation to
make, or has accrued an obligation to make contributions within the preceding six (6) years.



     “Net Cash Proceeds” means, as applicable, (a) with respect to any Asset Disposition by
any Credit Party, the gross cash proceeds received by such Credit Party from such sale less
the sum of (i) all income taxes and other taxes payable as a result of such sale and any other fees
and expenses incurred in connection therewith and (ii) the principal amount of, premium, if any,
and interest on any Indebtedness secured by a Lien on the asset (or a portion thereof) sold, which
Indebtedness is required to be repaid in connection with such sale, (b) with respect to any Debt
Issuance, the gross cash proceeds received by any Credit Party therefrom less all legal,
underwriting and other fees and expenses incurred in connection therewith and (c) with respect to
any Insurance or Condemnation Event, the gross cash proceeds received by any Credit Party from an
insurance company or Governmental Authority, as applicable, less the sum of (i) all fees
and expenses in connection therewith, and (ii) the principal amount of, premium, if any, and
interest on any Indebtedness secured by a Lien on the asset (or a portion thereof) subject to such
loss or condemnation proceeding, which Indebtedness is required to be repaid in connection with
such loss or condemnation proceeding.



     “Net Hedging Obligations” means, as of any date, the Termination Value of any such
Hedging Agreement on such date.



     “Network Regions” means fiber networks and colocations outside the Core
Markets. 


     “Non-Core Markets” means all markets other than Core Markets.



     “Notes” means the collective reference to the Revolving Credit Notes and the Swingline Note.



     “Notice of Account Designation” has the meaning assigned thereto in Section
2.3(b). 


     “Notice of Borrowing” has the meaning assigned thereto in Section
2.3 (a) .



     “Notice of Conversion/Continuation” has the meaning assigned thereto in Section
4.2. 


     “Notice
of Prepayment” has the meaning assigned thereto in Section 2.4(c).



     “Obligations” means, in each case, whether now in existence or hereafter arising: (a)
the principal of and interest on (including interest accruing after the filing of any bankruptcy or
similar petition) the Loans, (b) the L/C Obligations, (c) all Hedging Obligations and (d) all other
fees and commissions (including attorneys’ fees), charges, indebtedness, loans, liabilities,



(Credit Agreement)




19









 







financial accommodations, obligations, covenants and duties owing by any Credit Party to the
Lenders or the Administrative Agent, in each case under any Loan Document or otherwise, with
respect to any Loan or Letter of Credit of every kind, nature and description, direct or indirect,
absolute or contingent, due or to become due, contractual or tortious, liquidated or unliquidated,
and whether or not evidenced by any note.




     “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets
Control.



     “Officer’s Compliance Certificate” means a certificate of the chief
financial or accounting officer of Holdings substantially in the form of Exhibit
K.



     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



     “Participant” has the meaning assigned thereto in Section 12.11(d).



     “Patriot Act” means the USA PATRIOT Improvement and Reauthorization Act, Pub. L. No.
109-177 (Mar. 9, 2006).



     “PBGC” means the Pension Benefit Guaranty Corporation or any successor agency.



     “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which
is subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is
maintained for the employees of any Credit Party or any ERISA Affiliates or (b) has at any time
within the preceding six (6) years been maintained for the employees of a Credit Party or any of
its current or former ERISA Affiliates.



     “Permitted Acquisition” means, other than with respect to the ATX Acquisition,
any investment by any Credit Party in the form of acquisitions of all or substantially all of
the business or a line of business (whether by the acquisition of Capital Stock, assets or any
combination thereof) of any other Person if each such acquisition meets all of the following
requirements:




     (a) no less than fifteen (15) Business Days prior to the proposed closing date of such
acquisition, the Administrative Borrower shall have delivered written notice of such
acquisition to the Administrative Agent and the Lenders, which notice shall include the
proposed closing date of such acquisition;




     (b) Holdings shall have certified on or before the closing date of such acquisition, in
writing and in a form reasonably acceptable to the Administrative Agent, that such
acquisition has been approved by the board of directors or equivalent governing body of the
Person to be acquired;




     (c) the Person or business to be acquired (i) shall be organized under the laws of the
United States, (ii) shall be in a substantially similar line of business as the Credit
Parties pursuant to Section 9.12 and shall operate in the Credit Parties’ existing
or



(Credit Agreement)




20









 











contiguous markets, and (ii) shall have no outstanding Indebtedness after giving
effect to such acquisition on a pro forma basis other than Indebtedness permitted
pursuant to Section 9.1;




     (d) no Change of Control shall have been effected thereby;




     (e) the Administrative Borrower shall have delivered to the Administrative Agent such
documents reasonably requested by the Administrative Agent or the Required Lenders (through
the Administrative Agent) pursuant to Section 8.11 to be delivered at the time
required pursuant to Section 8.11;




     (f) no later than five (5) Business Days prior to the proposed closing date of such
acquisition, the Administrative Borrower, to the extent requested by the Administrative
Agent, (i) shall have delivered to the Administrative Agent promptly upon the finalization
thereof copies of substantially final Permitted Acquisition Documents, and (ii) shall have
delivered to, or made available for inspection by, the Administrative Agent substantially
complete Permitted Acquisition Diligence Information;




     (g) no Event of Default shall have occurred and be continuing both before and after
giving effect to such acquisition;




     (h) after giving effect to any such acquisition, Holdings shall be able to
borrow at least $8,000,000 in Loans; and




     (i) Holdings shall provide such other documents and other information as may be
reasonably requested by the Administrative Agent or the Required Lenders (through the
Administrative Agent) in connection with the acquisition.



     “Permitted Acquisition Consideration” means the aggregate amount of the purchase price
(including any assumed debt, earn-outs (valued at the maximum amount payable thereunder), deferred
payments, or Qualified Capital Stock of Holdings, net of the applicable acquired company’s cash
balance as shown on its most recent financial statements delivered in connection with the
applicable Permitted Acquisition) to be paid on a singular basis in connection with any applicable
Permitted Acquisition as set forth in the applicable Permitted Acquisition Documents executed by
any Credit Party in order to consummate the applicable Permitted Acquisition.



     “Permitted Acquisition Diligence Information” means with respect to any acquisition
proposed by any Credit Party, to the extent applicable, all material financial information, all
material contracts, all material customer lists, all material supply agreements, and all other
material information, in each case, reasonably requested to be delivered to the Administrative
Agent in connection with such acquisition (except to the extent that any such information is (a)
subject to any confidentiality agreement, unless mutually agreeable arrangements can be made to
preserve such information as confidential, (b) classified or (c) subject to any attorney-client
privilege).



     “Permitted Acquisition Documents” means with respect to any acquisition proposed by
any Credit Party, final copies or substantially final drafts if not executed at the required
time of delivery of the purchase agreement, sale agreement, merger agreement or other agreement



(Credit Agreement)




21









 







evidencing such acquisition, including all legal opinions and each other material document
executed, delivered, contemplated by or prepared in connection therewith and any amendment,
modification or supplement to any of the foregoing.




     “Permitted Holders” means each of MCG Capital Corporation, Baker Communications Fund,
L.P., Baker Communications Fund II (QP) L.P., New Enterprise Associates VII, L.P., New Enterprise
Associates 9, L.P., NEA Ventures 1998, L.P. and their respective controlled Affiliates.



     “Permitted LC Cash Collateral Accounts” means the accounts in which cash and cash
equivalents are deposited to secure Permitted LCs in accordance with clauses (c)(ii) and
(d)(iii) of Section 9.1 pursuant to Permitted Liens of the type described in clause (i) of
Section 9.2.



     “Permitted
LCs” has the meaning assigned thereto in clause (d)
of Section 9.1.



      “Permitted Liens” means the Liens permitted pursuant to
Section 9.2.



     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, governmental authority or other entity.



     “Primary Syndication Period” means the period commencing on or prior to the Closing
Date and ending on the earlier of (a) the date that is 30 days following the Closing Date and (b)
the date that the Syndication Agent has notified the Administrative Agent and the Borrowers that
the primary syndication of the Revolving Credit Commitments has ended.



     “Prime Rate” means, at any time, a variable rate of interest per annum equal to the
rate of interest from time to time published by the Board of Governors of the Federal Reserve
System in Federal Reserve statistical release H. I5 (519) entitled “Selected Interest Rates” as the
Bank Prime Loan Rate, such rate to be adjusted automatically, without notice, on the effective date
of any change in such rate. Prime Rate also includes rates published in any successor publications
of the Federal Reserve System reporting the Bank Prime Loan Rate or its equivalent. The statistical
release generally sets forth a Bank Prime Loan Rate for each Business Day. The applicable Bank
Prime Loan Rate for any date not set forth in such statistical release or equivalent document shall
be the rate set forth for the last preceding date. In the event the Board of Governors of the
Federal Reserve System ceases to publish a Bank Prime Loan Rate or equivalent, the term “Prime
Rate” shall mean a variable rate of interest per annum equal to the highest of the “prime rate,”
“reference rate,” “base rate” or other similar rate as determined by the Administrative Agent
announced from time to time by any of the three largest banks (based on combined capital and
surplus) headquartered in New York, New York (with the understanding that any such rate may merely
be a reference rate and may not necessarily represent the lowest or best rate actually charged to
any customer by such bank).



     “PUC” means any state regulatory agency or body that exercises jurisdiction over the
rates or services or the ownership, construction or operation of any network facility or long
distance telecommunications systems or over Persons who own, construct or operate a network
facility or long distance telecommunications systems, 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 Persons conducting business in such state.



(Credit Agreement)




22









 








     “Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital
Stock.



     “Receivables” means, as to each Credit Party, all of such Credit Party’s accounts,
contract rights, instruments, documents, chattel paper (whether tangible or electronic), drafts and
acceptances, general intangibles and all other forms of obligations owing to such Credit Party, in
each case arising out of or in connection with the sale, lease or other disposition of inventory or
the rendition of services, all guarantees and other security therefor, whether secured or
unsecured, now existing or hereafter created, and whether or not specifically sold or assigned to
the Administrative Agent hereunder.



     “Register” has the meaning assigned thereto in Section 12.10(c).



     “Refinancing” means the repayment in full and termination of the Existing Facility in
an aggregate principal amount not exceeding $81,500,000 and the redemption of certain Existing
Subordinated Notes of Holdings in an aggregate principal amount not exceeding $1,800,000, in each
case, with a portion of the proceeds of the Senior Secured Notes Issuance.



     “Reimbursement Obligation” means the joint and several obligation of the Borrowers
to reimburse the applicable Issuing Bank pursuant to Section 3.5 for amounts drawn under
Letters of Credit issued by such Issuing Bank.



     “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
directors, trustees, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.



     “Required Lenders” means, at any date, any combination of Lenders having more than
fifty percent (50%) of the aggregate amount of the Revolving Credit Commitment; provided
that the Revolving Credit Commitment of, held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, president, vice-president,
chief financial officer, controller, treasurer or assistant treasurer of a Credit Party or any
other officer of a Credit Party reasonably acceptable to the Administrative Agent. Any document
delivered hereunder that is signed by a Responsible Officer of a Credit Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or other action on the
part of such Credit Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Credit Party.



     “Restricted Telecom Operator” means any Person that is a provider of
telecommunication, information and data services and the majority of whose revenues are
derived from the provision of such services.



     “Revolving Credit Commitment” means (a) as to any Lender, the obligation of such
Lender to make Revolving Credit Loans to the account of the Borrowers hereunder in an aggregate
principal amount at any time outstanding not to exceed the amount set forth opposite the name of
such Lender on the signature pages hereto (and thereafter opposite such Lender’s name on the
Register), as such amount may be reduced or modified at any time or from time to time pursuant to
the terms hereof and (b) as to all Lenders, the aggregate commitment of all



(Credit Agreement)




23









 







Lenders to make Revolving Credit Loans, as such amount may be reduced at any time or from
time to time pursuant to the terms hereof. The Revolving Credit Commitment of all Lenders on the
Closing Date shall be $25,000,000.




     “Revolving Credit Facility” means the revolving credit facility established pursuant
to Article II.



     “Revolving Credit Loans” means any revolving loan made to the Borrowers pursuant to
Section 2.1, and all such revolving loans collectively as the context requires.



     “Revolving Credit Note” means a promissory note made, jointly and severally, by the
Borrowers in favor of a Lender evidencing the Revolving Credit Loans made by such Lender,
substantially in the form of Exhibit A-1, and any amendments, supplements and modifications
thereto, any substitutes therefor, and any replacements, restatements, renewals or extension
thereof, in whole or in part.



     “Right-of-Way Agreements” means agreements, documents or instruments that secure or
evidence access to real property or rights-of-way for the purpose of constructing, installing,
obtaining or operating facilities in connection with the conduct of business by Holdings or any
Subsidiary.



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.



     “Sanctioned Entity” means (i) an agency of the government of, (ii) an organization
directly or indirectly controlled by, or (iii) a person resident in a country that is subject to a
sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/enforcement/ofac/programs/index.shtml, or as otherwise published from
time to time as such program may be applicable to such agency, organization or person.



     “Sanctioned Person” means a person named on the list of Specially Designated Nationals
or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/enforcement/ofac/sdn/index.shtml, or as otherwise published from time to time.



     “Security Documents” means the collective reference to the Collateral Agreement, the
Guaranty Agreement, the Mortgages, and each other agreement or writing pursuant to which any Credit
Party purports to pledge or grant a security interest in any property or assets securing the
Obligations or any such Person purports to guaranty the payment and/or performance of the
Obligations, in each case, as amended, restated, supplemented or otherwise modified from time to
time.



     “Senior Secured Notes” means the Holdings’ 11 3/8% senior secured notes due 2012
issued in an aggregate principal amount of $210,000,000, together with any exchange notes issued in
exchange therefor, pursuant to the Senior Secured Notes Indenture.



     “Senior Secured Notes Indenture” means the indenture, dated as of the date hereof,
executed by and among the Credit Parties parties thereto, the Trustee and the Collateral Agent.



(Credit Agreement)





24









 





     “Senior Secured Notes Issuance” means the issuance by Holdings of the Senior
Secured Notes pursuant to the Senior Secured Notes Indenture for gross proceeds of $210,000,000.



     “Solvent” means, as to any Person on a particular date, that any such Person (a) has
capital sufficient to carry on its business and transactions and all business and transactions in
which it is about to engage and is able to pay its debts as they mature, (b) has assets having a
value, both at fair valuation and at present fair saleable value, greater than the amount required
to pay its probable liabilities (including contingencies), and (c) does not believe that it will
incur debts or liabilities beyond its ability to pay such debts or liabilities as they mature.



     “SPC” has the meaning assigned thereto in Section 12.10(g).



     “Subordinated Indebtedness” means the collective reference to any Indebtedness of any
Credit Party subordinated in right and time of payment to the Obligations and containing such other
terms and conditions, in each case as are satisfactory to the Required Lenders.



     “Subsidiary” means as to any Person, any corporation, partnership, limited liability
company or other entity of which more than fifty percent (50%) of the outstanding Capital Stock
having ordinary voting power to elect a majority of the board of directors or other managers of
such corporation, partnership, limited liability company or other entity is at the time owned by or
the management is otherwise controlled by such Person (irrespective of whether, at the time,
Capital Stock of any other class or classes of such corporation, partnership, limited liability
company or other entity shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified references to “Subsidiary” or “Subsidiaries” herein shall
refer to those of Holdings.



     “Swingline Commitment” means the lesser of (a) $3,000,000 and (b) the Revolving
Credit Commitment.



     “Swingline Facility” means the swingline facility established pursuant to
Section 2.2.



     “Swingline Lender” means CIT or if CIT is no longer a Lender, any other Lender
selected by the Administrative Agent who agrees to act as the Swingline Lender hereunder.



     “Swingline Loan” means any swingline loan made by the Swingline Lender to the
Borrowers pursuant to Section 2.2, and all such swingline loans collectively as the
context requires.



     “Swingline Note” means a promissory note made, jointly and severally, by the Borrowers
in favor of the Swingline Lender evidencing the Swingline Loans made by the Swingline Lender,
substantially in the form of Exhibit A-2, and any amendments, supplements and modifications
thereto, any substitutes therefor, and any replacements, restatements, renewals or extension
thereof, in whole or in part.



     “Syndication Agent” has the meaning assigned thereto in the introductory
paragraph hereto.



(Credit Agreement)




25









 





     “Tax Reserves” means, as of any date of determination, but only if any federal, state,
local or other taxes, assessments or other governmental charges (including any Universal Service
Fund charges) or levies upon any Credit Party or any of their respective properties, income,
profits or assets is then delinquent, the amount of all such taxes, assessments and governmental
charges or levies that is due and payable as of such date.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority,
including any interest, additions to tax or penalties applicable thereto.



     “Termination Event” means except for any such event or condition that could not
reasonably be expected to have a Material Adverse Effect: (a) a “Reportable Event” described in
Section 4043 of ERISA for which the notice requirement has not been waived by the PBGC, or (b) the
withdrawal of any Credit Party or any ERISA Affiliate from a Pension Plan during a plan year in
which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, or (c) the
termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan
assets are not sufficient to pay all plan liabilities, or (d) the institution of proceedings to
terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e)
any other event or condition which would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan, or (f) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302 of ERISA, or (g) the
partial or complete withdrawal of any Credit Party of any ERISA Affiliate from a Multiemployer Plan
if withdrawal liability is asserted by such plan, or (h) any event or condition which results in
the reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA, or
(i) any event or condition which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.



     “Termination Value” means, in respect of any one or more Hedging Agreements, after
taking into account the effect of any legally enforceable netting agreement relating to such
Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed
out and termination value(s) determined in accordance therewith, such termination value(s), and (b)
for any date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such Hedging
Agreements (which may include a Lender or any Affiliate of a Lender).



     “Transactions” means, collectively, the ATX Acquisition, the Senior Secured Notes
Issuance, the Refinancing and the Conversion.



     “Transaction Documents” means, collectively, the ATX Acquisition Agreement, the Senior
Secured Notes Indenture, the Equity Holder Agreements and all other material agreements,
instruments, certificates and other documents relating to the Transactions, in each case, as
amended, supplemented, amended and restated or otherwise modified from time to time in accordance
with Section 9.10.



(Credit Agreement)




26









 








     “Trigger Event” means the occurrence of any of the following:




     (a) any Event of Default shall continue unremedied for at least three (3) Business
Days,




     (b) any Default of the type described in Section 10.1(k) shall occur,




     (c) on any day, the Borrowing Base Amount as of such day minus the aggregate
amount of Extensions of Credit outstanding on such day is an amount less than $5,000,000, or




     (d) for more than 15 consecutive days, the Borrowers are not able to borrow Loans in an
aggregate amount at least equal to $5,000,000.



     “Trustee” means The Bank of New York, in its capacity as the trustee under the
Senior Secured Notes Indenture.



     “UCC” means the Uniform Commercial Code as in effect in the State of New York, as amended
or modified from time to time.



     “Uniform Customs” means the Uniform Customs and Practice for Documentary Credits (1993
Revision), effective January, 1994 International Chamber of Commerce Publication No. 500.



     “United States” means the United States of America.



     “Verizon”
means, collectively, Verizon Communications Inc. and its
affiliates.

     “Verizon Permitted LCs” has the meaning assigned thereto in clause (d) of
Section 9.1.



     “Voting Stock” means any class or classes of Capital Stock pursuant to which the
holders thereof have the general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees (or Persons performing similar functions)
of any Person (irrespective of whether or not, at the time, Capital Stock of any other class or
classes shall have, or might have, voting power by reason of the happening of any contingency).



     “Wholly-Owned” means, with respect to a Subsidiary, that all of the shares of Capital
Stock of such Subsidiary are, directly or indirectly, owned or controlled by Holdings and/or one or
more of its Wholly-Owned Subsidiaries (except for directors’ qualifying shares or other shares
required by Applicable Law to be owned by a Person other than Holdings or any other Subsidiary).



     Section 1.2 Other Definitions and Provisions. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) the
definitions of terms herein shall apply equally to the singular and plural forms of the terms
defined, (b) whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms, (c) the words “include”, “includes” and “including” shall be
deemed to be followed by the phrase “without limitation”, (d) the word


(Credit Agreement)





27









 







“will” shall be construed to have the same meaning and effect as the word “shall”, (e) any
definition of or reference to any agreement, instrument or other document herein shall be construed
as referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (f) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (g) the words “herein”, “hereof and “hereunder”, and
words of similar import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (h) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, (i) the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights, (j) the term “documents” includes any and all
instruments, documents, agreements, certificates, notices, reports, financial statements and other
writings, however evidenced, whether in physical or electronic form, (k) in the computation of
periods of time from a specified date to a later specified date, the word “from” means “from and
including;” the words “to “ and “until” each mean “to but excluding;” and the word “through” means
“to and including”, and (1) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.




     Section 1.3 Accounting Terms. All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to this Agreement shall
be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time,
applied in a manner consistent with that used in preparing the audited financial statements
required by Section 7.1(b), except as otherwise specifically prescribed herein.



     Section 1.4 UCC Terms. Terms defined in the UCC in effect on the Closing Date and not
otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided
by those definitions. Subject to the foregoing, the term “UCC” refers, as of any date of
determination, to the UCC then in effect.



     Section 1.5 Rounding. Any financial ratios required to be satisfied by the Borrowers
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).



     Section 1.6 References to Agreement and Laws. Unless otherwise expressly provided
herein, (a) references to formation documents, governing documents, agreements (including the Loan
Documents) and other contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only to the extent that
such amendments, restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Applicable Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or interpreting such
Applicable Law.


(Credit Agreement)




28









 





     Section 1.7 Times of Day. Unless otherwise specified, all references herein to times
of day shall be references to Eastern time (daylight or standard, as applicable).



     Section 1.8 Letter of Credit Amounts. Unless otherwise specified, all references
herein to the amount of a Letter of Credit at any time shall be deemed to mean the maximum face
amount of such Letter of Credit after giving effect to all increases thereof contemplated by such
Letter of Credit or the Letter of Credit Application therefor, whether or not such maximum face
amount is in effect at such time.



ARTICLE II




REVOLVING CREDIT FACILITY




     Section 2.1 Revolving Credit Loans. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations and warranties set forth herein, each Lender
severally agrees to make Revolving Credit Loans to the Borrowers from time to time after the
Closing Date to, but not including, the Maturity Date as requested by the Borrowers in accordance
with the terms of Section 2.3; provided that (a) the aggregate principal amount of
all outstanding Revolving Credit Loans (after giving effect to any amount requested) shall not
exceed (i) the lesser of (x) the Revolving Credit Commitment and (y) the Borrowing Base Amount less
(ii) the sum of all outstanding Swingline Loans and L/C Obligations and (b) the principal amount of
outstanding Revolving Credit Loans from any Lender to the Borrowers shall not at any time exceed
such Lender’s Revolving Credit Commitment less such Lender’s Commitment Percentage of
outstanding L/C Obligations and outstanding Swingline Loans. Each Revolving Credit Loan by a Lender
shall be in a principal amount equal to such Lender’s Commitment Percentage of the aggregate
principal amount of Revolving Credit Loans requested on such occasion. Subject to the terms and
conditions hereof, the Borrowers may, jointly and severally, borrow, repay and reborrow Revolving
Credit Loans hereunder until the Maturity Date.



     Section 2.2
Swingline Loans. (a) Availability. Subject to the terms and
conditions of this Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrowers
from time to time from the Closing Date to, but not including, the Maturity Date; provided,
that the aggregate principal amount of all outstanding Swingline Loans (after giving effect to any
amount requested), shall not exceed the lesser of (i) (A) the lesser of (x) the Revolving Credit
Commitment and (y) the Borrowing Base Amount less (B) the sum of all outstanding Revolving Credit
Loans and the L/C Obligations and (ii) the Swingline Commitment.



     (b) Refunding.




     (i) Swingline Loans shall be refunded by the Lenders on demand by the wingline
Lender. Such refundings shall be made by the Lenders in accordance with their respective
Commitment Percentages and shall thereafter be reflected as Revolving Credit Loans of the
Lenders on the books and records of the Administrative Agent. Each Lender shall fund its
respective Commitment Percentage of Revolving Credit Loans as required to repay Swingline
Loans outstanding to the Swingline Lender upon demand by the Swingline Lender but in no
event later than 1:00 p.m. on the next succeeding




(Credit Agreement)




29









 







Business Day after such demand is made. No Lender’s obligation to fund its respective
Commitment Percentage of a Swingline Loan shall be affected by any other Lender’s failure
to fund its Commitment Percentage of a Swingline Loan, nor shall any Lender’s Commitment
Percentage be increased as a result of any such failure of any other Lender to fund its
Commitment Percentage of a Swingline Loan.




     (ii) The Borrowers shall, jointly and severally, pay to the Swingline Lender on
demand the amount of such Swingline Loans to the extent amounts received from the Lenders
are not sufficient to repay in full the outstanding Swingline Loans requested or required to
be refunded. In addition, the Borrowers hereby authorize the Administrative Agent to charge
any account maintained by any Borrower with the Swingline Lender (up to the amount available
therein) in order to immediately pay the Swingline Lender the amount of such Swingline Loans
to the extent amounts received from the Lenders are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be refunded. If any portion of any such
amount paid to the Swingline Lender shall be recovered by or on behalf of any Borrower from
the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall
be ratably shared among all the Lenders in accordance with their respective Commitment
Percentages (unless the amounts so recovered by or on behalf of such Borrower pertain to a
Swingline Loan extended after the occurrence and during the continuance of an Event of
Default of which the Administrative Agent has received notice in the manner required
pursuant to Section 11.3 and which such Event of Default has not been waived by the
Required Lenders or the Lenders, as applicable).




     (iii) Each Lender acknowledges and agrees that its obligation to refund Swingline
Loans in accordance with the terms of this Section is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including non-satisfaction of the conditions
set forth in Article V. Further, each Lender agrees and acknowledges that if prior
to the refunding of any outstanding Swingline Loans pursuant to this Section, one of the
events described in Section 10.1(j) or (k) shall have occurred, each Lender will, on
the date the applicable Revolving Credit Loan would have been made, purchase an undivided
participating interest in the Swingline Loan to be refunded in an amount equal to its
Commitment Percentage of the aggregate amount of such Swingline Loan. Each Lender will
immediately transfer to the Swingline Lender, in immediately available funds, the amount of
its participation and upon receipt thereof the Swingline Lender will deliver to such Lender
a certificate evidencing such participation dated the date of receipt of such funds and for
such amount. Whenever, at any time after the Swingline Lender has received from any Lender
such Lender’s participating interest in a Swingline Loan, the Swingline Lender receives any
payment on account thereof, the Swingline Lender will distribute to such Lender its
participating interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender’s participating interest
was outstanding and funded).



     Section 2.3 Procedure for Advances of Revolving Credit Loans and Swingline Loans. (a)
Requests for Borrowing. The Administrative Borrower shall give the Administrative Agent
irrevocable prior written notice substantially in the form of Exhibit B (a “Notice of
Borrowing”) not later than 11:00 a.m. (i) on the same Business Day as each Base Rate Loan and
each



(Credit Agreement)




30









 







Swingline Loan and (ii) at least three (3) Business Days before each LIBOR Rate Loan, of its
intention to borrow, specifying (A) the date of such borrowing, which shall be a Business Day, (B)
the amount of such borrowing, which shall be, (x) with respect to Base Rate Loans (other than
Swingline Loans) in an aggregate principal amount of $50,000 or a whole multiple of $10,000 in
excess thereof, (y) with respect to LIBOR Rate Loans in an aggregate principal amount of $1,000,000
or a whole multiple of $1,000,000 in excess thereof and (z) with respect to Swingline Loans in an
aggregate principal amount of $50,000 or a whole multiple of $10,000 in excess thereof, (C) whether
such Loan is to be a Revolving Credit Loan or Swingline Loan, (D) in the case of a Revolving Credit
Loan whether the Loans are to be LIBOR Rate Loans or Base Rate Loans, and (E) in the case of a
LIBOR Rate Loan, the duration of the Interest Period applicable thereto. A Notice of Borrowing
received after 11:00 a.m. shall be deemed received on the next Business Day. The Administrative
Agent shall promptly notify the Lenders of each Notice of Borrowing.





     (b) Disbursement of Revolving Credit and Swingline Loans. Not later than 1:00
p.m. on the proposed borrowing date, (i) each Lender will make available to the Administrative
Agent, for the account of the Borrowers, at the office of the Administrative Agent in funds
immediately available to the Administrative Agent, such Lender’s Commitment Percentage of the
Revolving Credit Loans to be made on such borrowing date and (ii) the Swingline Lender will make
available to the Administrative Agent, for the account of the Borrowers, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent, the Swingline
Loans to be made on such borrowing date. The Borrowers hereby irrevocably authorize the
Administrative Agent to disburse the proceeds of each borrowing requested pursuant to this Section
in immediately available funds by crediting or wiring such proceeds to the deposit account of the
Borrowers identified in the most recent notice substantially in the form of Exhibit C (a
“Notice of Account Designation”) delivered by the Administrative Borrower to the
Administrative Agent or as may be otherwise agreed upon by the Borrowers and the Administrative
Agent from time to time. Subject to Section 4.7 hereof, the Administrative Agent shall not
be obligated to disburse the portion of the proceeds of any Revolving Credit Loan requested
pursuant to this Section to the extent that any Lender has not made available to the
Administrative Agent its Commitment Percentage of such Loan. Revolving Credit Loans to be made for
the purpose of refunding Swingline Loans shall be made by the Lenders as provided in Section
2.2(b).



     Section 2.4 Repayment and Prepayment of Revolving Credit and Swingline Loans. (a)
Repayment on Maturity Date. The Borrowers hereby, jointly and severally, agree to repay the
outstanding principal amount of (i) all Revolving Credit Loans in full on the Maturity Date and
(ii) all Swingline Loans in accordance with Section 2.2(b) and, in any event, in full on
the Maturity Date, together, in each case, with all accrued but unpaid interest thereon.




     (b) Mandatory Prepayments. If at any time the outstanding principal amount of
all Revolving Credit Loans plus the sum of all outstanding Swingline Loans and L/C
Obligations exceeds the lesser of (x) the Revolving Credit Commitment and (y) the Borrowing Base
Amount, the Borrowers, jointly and severally, agree to repay immediately, by payment to the
Administrative Agent for the account of the Lenders, Extensions of Credit in an amount equal to
such excess with each such repayment applied first to the principal amount of outstanding
Swingline Loans, second to the principal amount of outstanding Revolving Credit Loans and




(Credit Agreement)




31









 







third, with respect to any Letters of Credit then outstanding, a payment of cash
collateral into a cash collateral account opened by the Administrative Agent, for the benefit of
the Lenders in an amount equal to 105% of the aggregate then undrawn and unexpired amount of such
Letters of Credit (such cash collateral to be applied in accordance with Section 10.2(b)).




     (c) Optional Prepayments. The Borrowers may at any time and from time to time prepay
Revolving Credit Loans and Swingline Loans, in whole or in part, with irrevocable prior written
notice from the Administrative Borrower to the Administrative Agent substantially in the form of
Exhibit D (a “Notice of Prepayment”) given not later than 11:00 a.m. (i) on the
same Business Day as each Base Rate Loan and each Swingline Loan and (ii) at least three (3)
Business Days before each LIBOR Rate Loan, specifying the date and amount of prepayment and
whether the prepayment is of LIBOR Rate Loans, Base Rate Loans, Swingline Loans or a combination
thereof, and, if of a combination thereof, the amount allocable to each. Upon receipt of such
notice, the Administrative Agent shall promptly notify each Lender. If any such notice is given,
the amount specified in such notice shall be due and payable on the date set forth in such notice.
Partial prepayments shall be in an aggregate amount of $50,000 or a whole multiple of $10,000 in
excess thereof with respect to Base Rate Loans (other than Swingline Loans), $1,000,000 or a whole
multiple of $1,000,000 in excess thereof with respect to LIBOR Rate Loans and $50,000 or a whole
multiple of $10,000 in excess thereof with respect to Swingline Loans. A Notice of Prepayment
received after 11:00 a.m. shall be deemed received on the next Business Day. Each such repayment
shall be accompanied by any amount required to be paid pursuant to Section 4.9 hereof.




     (d) Limitation on Prepayment of LIBOR Rate Loans. The Borrowers may not prepay any
LIBOR Rate Loan on any day other than on the last day of the Interest Period applicable thereto
unless such prepayment is accompanied by any amount required to be paid pursuant to Section
4.9 hereof.




     (e) Hedging Agreements. No repayment or prepayment pursuant to this Section shall
affect any of any Borrower’s obligations under any Hedging Agreement.



     Section 2.5 Permanent Reduction of the
Revolving Credit Commitment. (a) Voluntary
Reduction. The Borrowers shall have the right at any time and from time to time, upon at least
five (5) Business Days’ prior written notice from the Administrative Borrower to the Administrative
Agent, to permanently reduce, without premium or penalty, (i) the entire Revolving Credit
Commitment at any time or (ii) portions of the Revolving Credit Commitment, from time to time, in
an aggregate principal amount not less than $1,000,000 or any whole multiple of $1,000,000 in
excess thereof so long as after giving effect to any such reduction the aggregate amount of
outstanding Extensions of Credit does not exceed the Revolving Credit Commitment after giving
effect to such reduction. Any reduction of the Revolving Credit Commitment shall be applied to the
Revolving Credit Commitment of each Lender according to its Commitment Percentage. All commitment
fees accrued until the effective date of any termination of the Revolving Credit Commitment shall
be paid on the effective date of such termination.



     (b) Mandatory Reduction. The Revolving Credit Commitment shall be
permanently reduced as set forth below.




(Credit Agreement)




32









 






     (i) Debt Issuances. The Revolving Credit Commitment shall be permanently
reduced by an amount equal to one hundred percent (100%) of the aggregate Net Cash Proceeds
from any Debt Issuance.




     (ii) Asset Dispositions. The Revolving Credit Commitment shall be
permanently reduced by an amount equal to one hundred percent (100%) of the aggregate Net
Cash Proceeds from any Asset Disposition; provided that, so long as no Default or
Event of Default has occurred and is continuing, no reduction shall be required hereunder in
connection with (A) up to $500,000 aggregate Net Cash Proceeds from Asset Dispositions by any
Credit Party, (B) any Asset Disposition or series of related Asset Dispositions by any Credit
Party in which the aggregate Net Cash Proceeds from such disposition(s) are reinvested within
350 days after receipt of such Net Cash Proceeds by such Credit Party in replacement assets
(useful to the business of the Borrowers and the Guarantors as conducted in accordance with
Section 9.12), or (C) Asset Dispositions permitted pursuant to clauses (a)
through (f) of Section 9.5.




     (iii) Insurance or Condemnation Events. The Revolving Credit Commitment
shall be permanently reduced by an amount equal to one hundred percent (100%) of the
aggregate Net Cash Proceeds from any Insurance or Condemnation Event; provided that,
so long as no Default or Event of Default has occurred and is continuing, no reduction shall
be required hereunder (A) in connection with up to $500,000 aggregate Net Cash Proceeds from
Insurance or Condemnation Events received by any Credit Party or any Subsidiary thereof or
(B) in connection with Insurance or Condemnation Events with respect to any Credit Party in
which the aggregate Net Cash Proceeds are reinvested within 350 days after receipt of such
Net Cash Proceeds by such Credit Party or Subsidiary in similar replacement assets.



     (c) Corresponding Payment. Each permanent reduction permitted or required
pursuant to this Section shall be accompanied by a payment of principal sufficient to reduce the
aggregate outstanding Revolving Credit Loans, Swingline Loans and L/C Obligations, as applicable,
after such reduction to the Revolving Credit Commitment as so reduced and if the Revolving Credit
Commitment as so reduced is less than the aggregate amount of all outstanding Letters of Credit,
the Borrowers shall, jointly and severally, be required to deposit cash collateral in a cash
collateral account opened by the Administrative Agent in an amount equal to 105% of the aggregate
then undrawn and unexpired amount of such Letters of Credit. Such cash collateral shall be applied
in accordance with Section 10.2(b). Any reduction of the Revolving Credit Commitment to
zero shall be accompanied by, first, payment of all outstanding Swingline Loans,
second, payment of all outstanding Revolving Credit Loans and third, furnishing of
cash collateral satisfactory to the Administrative Agent for all L/C Obligations, together with
accrued and unpaid interest or fees, as the case may be, related thereto to the date of such
prepayment, and shall result in the termination of the Revolving Credit Commitment and the
Swingline Commitment and the Revolving Credit Facility. Such cash collateral shall be applied in
accordance with Section 10.2(b). If the reduction of the Revolving Credit Commitment
requires the repayment of any LIBOR Rate Loan, such repayment shall be accompanied by any amount
required to be paid pursuant to Section 4.9 hereof.




(Credit Agreement)




33









 





     Section 2.6 Termination of Revolving Credit Facility. The Revolving Credit Facility
shall terminate on the Maturity Date.



ARTICLE III




LETTER OF CREDIT FACILITY




     Section 3.1 L/C Commitment. Subject to the terms and conditions hereof, the
Administrative Agent, in reliance on the agreements of the other Lenders set forth in Section
3.4(a), agrees to arrange for the Issuing Bank to issue Letters of Credit for the account of
the Borrowers on any Business Day from the Closing Date through but not including the Maturity Date
in such form as may be approved from time to time by such Issuing Bank; provided, that the
Administrative Agent shall have no obligation to arrange for the issuance of any such Letter of
Credit if, after giving effect to such issuance, (a) the L/C Obligations would exceed the L/C
Commitment or (b) the aggregate principal amount of outstanding Revolving Credit Loans, plus
the aggregate principal amount of outstanding Swingline Loans, plus the aggregate
amount of L/C Obligations would exceed the lesser of (x) the Revolving Credit Commitment and (y)
the Borrowing Base Amount. Each Letter of Credit shall (i) be denominated in Dollars in a minimum
amount of $5,000, (ii) be a standby or commercial letter of credit issued to support obligations of
any Credit Party, contingent or otherwise, incurred in the ordinary course of business (including
bid, performance, surety and similar bonds or obligations), (iii) expire on a date no more than
twelve (12) months after the date of issuance or last renewal of such Letter of Credit (it being
understood and agreed that such limitation shall not be construed to prohibit the issuance by such
Issuing Bank of “evergreen” Letters of Credit providing for automatic extension for periods not
exceeding 12 months), which expiry date (including any such date that could automatically be
extended pursuant to an “evergreen” provision contained in a Letter of Credit) shall be no later
than the fifth
(5th)
Business Day prior to the date specified in clause (a) of
the definition of the term “Maturity Date” and (iv) be subject to the Uniform Customs and/or ISP98,
as set forth in the Letter of Credit Application or as determined by such Issuing Bank and, to the
extent not inconsistent therewith, the laws of the State of New York. The Administrative Agent
shall not be obligated to arrange for the issuance of any Letter of Credit hereunder if such
issuance would conflict with, or cause such Issuing Bank or any L/C Participant to exceed any
limits imposed by, any Applicable Law. References herein to “issue” and derivations thereof with
respect to Letters of Credit shall also include extensions or modifications of any outstanding
Letters of Credit, unless the context otherwise requires.



     Section 3.2 Procedure for Issuance of Letters of Credit. The Borrowers may from time
to time request that any Issuing Bank issue a Letter of Credit by the Administrative Borrower
delivering to such Issuing Bank at the Administrative Agent’s Office a Letter of Credit Application
therefor, completed to the satisfaction of such Issuing Bank, and such other certificates,
documents and other papers and information as such Issuing Bank may request. Upon receipt of any
Letter of Credit Application, such Issuing Bank shall process such Letter of Credit Application and
the certificates, documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall, subject to Section 3.1 and
Article V, promptly issue the Letter of Credit requested thereby (but in no event shall
such Issuing Bank be required to issue any Letter of Credit earlier than three (3) Business Days
after its receipt of the Letter of Credit Application therefor and all such other certificates,




(Credit Agreement)




34









 




documents and other papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by such Issuing Bank and the
Borrowers. Such Issuing Bank shall promptly furnish to the Administrative Borrower a copy of such
Letter of Credit and promptly notify each Lender of the issuance and upon request by any Lender,
furnish to such Lender a copy of such Letter of Credit and the amount of such Lender’s
participation therein.




     Section 3.3
Commissions and Other Charges. (a) Letter of Credit Commissions.
The Borrowers shall, jointly and severally, pay to the Administrative Agent, for the account of
each Issuing Bank and the L/C Participants, a letter of credit commission with respect to each
Letter of Credit issued by such Issuing Bank in an amount equal to the undrawn face amount of such
Letter of Credit multiplied by the Applicable Margin with respect to Revolving Credit Loans
that are LIBOR Rate Loans (determined on a per annum basis). Such commission shall be payable
quarterly in arrears on the last Business Day of each calendar quarter, on the Maturity Date and
thereafter on demand of the Administrative Agent. The Administrative Agent shall, promptly
following its receipt thereof, distribute to such Issuing Bank and the L/C Participants all
commissions received with respect to such Letter of Credit pursuant to this Section in accordance
with their respective Commitment Percentages.




     (b) Issuance Fee. In addition to the foregoing commission, the Borrowers shall,
jointly and severally, pay to the Administrative Agent, for the account of each Issuing Bank, an
issuance fee with respect to each Letter of Credit issued by such Issuing Bank in an amount equal
to the face amount of such Letter of Credit multiplied by 1/8 of 1 percent (0.125%) per annum.
Such issuance fee shall be payable on the date of issuance of such Letter of Credit.




     (c) Other Costs. In addition to the foregoing fees and commissions, the Borrowers
shall, jointly and severally, pay or reimburse each Issuing Bank for such normal and customary
costs and expenses as are incurred or charged by such Issuing Bank in issuing, effecting payment
under, amending or otherwise administering any Letter of Credit issued by such Issuing Bank.



     Section 3.4
L/C Participations. (a) Each L/C Participant unconditionally and
irrevocably agrees with the Administrative Agent that, if a draft is paid under any Letter of
Credit for which the Administrative Agent (or such Issuing Bank) is not reimbursed in full by the
Borrowers through a Revolving Credit Loan or otherwise in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Administrative Agent (for account of such Issuing
Bank) upon demand at the Administrative Agent’s address for notices specified herein an amount
equal to such L/C Participant’s Commitment Percentage of the amount of such draft, or any part
thereof, which is not so reimbursed.




     (b) Upon becoming aware of any amount required to be paid by any L/C Participant to the
Administrative Agent pursuant to Section 3.4(a) in respect of any unreimbursed portion of
any payment made by any Issuing Bank under any Letter of Credit, the Administrative Agent shall
notify each L/C Participant of the amount and due date of such required payment and such L/C
Participant shall pay to the Administrative Agent the amount specified on the applicable due
date. If any such amount is paid to the Administrative Agent after the date such payment is due,
such L/C Participant shall pay to the Administrative Agent (for account of the Issuing




(Credit Agreement)




35









 







Bank) on demand, in addition to such amount, the product of (i) such amount, times (ii)
the daily average Federal Funds Rate as determined by the Administrative Agent during the period
from and including the date such payment is due to the date on which such payment is immediately
available to the Administrative Agent, times (iii) a fraction the numerator of which is
the number of days that elapse during such period and the denominator of which is 360. A
certificate of the Administrative Agent with respect to any amounts owing under this Section shall
be conclusive in the absence of manifest error. With respect to payment to the Administrative
Agent of the unreimbursed amounts described in this Section, if the L/C Participants receive
notice that any such payment is due (A) prior to 1:00 p.m. on any Business Day, such payment shall
be due that Business Day, and (B) after 1:00 p.m. on any Business Day, such payment shall be due
on the following Business Day.




     (c) Whenever, at any time after any Issuing Bank has made payment under any Letter of
Credit and the Administrative Agent has received from any L/C Participant its Commitment
Percentage of such payment in accordance with this Section, the Administrative Agent receives from
such Issuing Bank any payment that such Issuing Bank received related to such Letter of Credit
(whether directly from the Borrowers or otherwise), or any payment of interest on account thereof,
the Administrative Agent will distribute to such L/C Participant its pro rata share
thereof; provided, that in the event that any such payment received by the Administrative
Agent from such Issuing Lender shall be required to be returned by such Issuing Lender, such L/C
Participant shall return to the Administrative Agent the portion thereof previously distributed by
such Issuing Lender to it.



     Section 3.5 Reimbursement Obligation of the Borrowers. In the event of any drawing
under any Letter of Credit, the Borrowers, jointly and severally, agree to reimburse (either with
the proceeds of a Revolving Credit Loan as provided for in this Section or with funds from other
sources), in same day funds, the Administrative Agent on each date on which the Administrative
Agent notifies the Administrative Borrower of the date and amount of a draft paid under any Letter
of Credit for the amount of (a) such draft so paid and (b) any amounts referred to in Section
3.3(c) incurred by such Issuing Bank in connection with such payment. Unless the Administrative
Borrower shall immediately notify the Administrative Agent that the Borrowers intend to reimburse
such drawing from other sources or funds, the Administrative Borrower shall be deemed to have
timely given a Notice of Borrowing to the Administrative Agent requesting that the Lenders make a
Revolving Credit Loan bearing interest at the Base Rate on such date in the amount of (a) such
draft so paid and (b) any amounts referred to in Section 3.3(c) incurred by such Issuing
Bank in connection with such payment, and the Lenders shall make a Revolving Credit Loan bearing
interest at the Base Rate in such amount, the proceeds of which shall be applied to reimburse the
Administrative Agent for the amount of the related drawing and costs and expenses. Each Lender
acknowledges and agrees that its obligation to fund a Revolving Credit Loan in accordance with this
Section to reimburse such Issuing Bank for any draft paid under a Letter of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including non-satisfaction
of the conditions set forth in Section 2.3(a) or Article V. If the Borrowers have
elected to pay the amount of such drawing with funds from other sources and shall fail to reimburse
such Issuing Bank as provided above, the unreimbursed amount of such drawing shall bear interest at
the rate which would be payable on any outstanding Base Rate Loans which were then overdue from the
date such amounts become payable (whether at stated maturity, by acceleration or otherwise) until
payment in full.




(Credit Agreement)




36









 





     Section 3.6 Obligations Absolute. The Borrowers’ obligations under this Article
III (including the Reimbursement Obligation) shall be joint and several and absolute and
unconditional under any and all circumstances and irrespective of any set-off, counterclaim or
defense to payment which the Borrowers may have or have had against the applicable Issuing Bank or
any beneficiary of a Letter of Credit or any other Person. The Borrowers also agree that such
Issuing Bank and the L/C Participants shall not be responsible for, and the Borrowers’
Reimbursement Obligation under Section 3.5 shall not be affected by, among other things,
the validity or genuineness of documents or of any endorsements thereon, even though such documents
shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the
Borrowers and any beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrowers against any beneficiary of such
Letter of Credit or any such transferee. No Issuing Bank shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or omissions caused by such
Issuing Bank’s gross negligence or willful misconduct, as determined by a court of competent
jurisdiction by final nonappealable judgment. The Borrowers agree that any action taken or omitted
by such Issuing Bank under or in connection with any Letter of Credit or the related drafts or
documents, if done in the absence of gross negligence or willful misconduct shall be binding on the
Borrowers and shall not result in any liability of such Issuing Bank or any L/C Participant to the
Borrowers. The responsibility of the applicable Issuing Bank to the Borrowers in connection with
any draft presented for payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in connection with such
presentment are in conformity with such Letter of Credit.



     Section 3.7 Effect of Letter of Credit Application. To the extent that any provision
of any Letter of Credit Application related to any Letter of Credit is inconsistent with the
provisions of this Article III, the provisions of this Article III shall apply.



ARTICLE IV




GENERAL LOAN PROVISIONS




     Section 4.1
Interest. (a) Interest Rate Options. Subject to the provisions of
this Section, at the election of the Borrowers, (i) Revolving Credit Loans shall bear interest at
(A) the Base Rate plus the Applicable Margin or (B) the LIBOR Rate plus the
Applicable Margin; provided that, unless the Primary Syndication Period has been
successfully completed, the LIBOR Rate shall not be available until ten (10) Business Days after
the Closing Date and (ii) any Swingline Loan shall bear interest at the Base Rate plus the
Applicable Margin. The Borrowers shall select the rate of interest and Interest Period, if any,
applicable to any Loan at the time a Notice of Borrowing is given by the Administrative Borrower or
at the time a Notice of Conversion/Continuation is given by the Administrative Borrower pursuant to
Section 4.2. Any Loan or any portion thereof as to which the Borrowers have not duly
specified an interest rate as provided herein shall be deemed a Base Rate Loan.




     (b) Interest Periods. In connection with each LIBOR Rate Loan, the
Administrative Borrower, by giving notice at the times described in
Section 2.3 or 4.2, as
applicable, shall elect




(Credit Agreement)




37









 







an interest period (each, an “Interest Period”) to be applicable to such Loan, which
Interest Period shall be a period of one (1), two (2), three (3), six (6) or if then
available from each Lender, nine (9) or twelve (12) months; provided that:




     (i) the Interest Period shall commence on the date of advance of or conversion to
any LIBOR Rate Loan and, in the case of immediately successive Interest Periods, each
successive Interest Period shall commence on the date on which the immediately preceding
Interest Period expires;




     (ii) if any Interest Period would otherwise expire on a day that is not a Business
Day, such Interest Period shall expire on the next succeeding Business Day; provided,
that if any Interest Period with respect to a LIBOR Rate Loan would otherwise expire on a day
that is not a Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the immediately preceding Business
Day;




     (iii) any Interest Period with respect to a LIBOR Rate Loan that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the last Business
Day of the relevant calendar month at the end of such Interest Period;




     (iv) no Interest Period shall extend beyond the date specified in clause (a)
of the definition of the term “Maturity Date”, without payment of any amounts pursuant to
Section 4.9; and




     (v) there shall be no more than eight (8) Interest Periods in effect at any
time.




     (c)
Default Rate. Subject to Section 10.3, (i) (A) immediately upon the
occurrence and during the continuance of any Event of Default, (i) the Borrowers shall no longer
have the option to request any Loans (including Swingline Loans) or Letters of Credit or continue
any LIBOR Rate Loans as LIBOR Rate Loans or convert any Base Rate Loans into LIBOR Rate Loans and
(ii) all outstanding Loans shall bear interest at a rate per annum of two percent (2%) in excess of
the rate then applicable to such Loans, and (ii) immediately upon the occurrence and during the
continuance of an Event of Default under Section 10.1(b), all outstanding interest and
other Obligations arising hereunder or under any other Loan Document shall bear interest at a rate
per annum equal to two percent (2%) in excess of the rate then applicable to Base Rate Loans.
Interest shall continue to accrue on the Obligations after the filing by or against any Borrower of
any petition seeking any relief in bankruptcy or under any act or law pertaining to insolvency or
debtor relief, whether state, federal or foreign.




     (d) Interest Payment and Computation. Interest on each Base Rate Loan shall be due and
payable in arrears on the last Business Day of each calendar quarter commencing September 30, 2006;
and interest on each LIBOR Rate Loan shall be due and payable on the last day of each Interest
Period applicable thereto, and if such Interest Period extends over three (3) months, at the end of
each three (3) month interval during such Interest Period. Interest on LIBOR Rate Loans, Base Rate
Loans accruing interest based on clause (b) of the definition of the term “Base Rate” and
all fees payable hereunder shall be computed on the basis of a 360-day



(Credit Agreement)




38









 







year and assessed for the actual number of days elapsed and interest on Base Rate Loans
accruing interest based on clause (a) of the definition of the term “Base Rate” shall be
computed on the basis of a 365/366-day year and assessed for the actual number of days elapsed.




     (e) Maximum Rate. In no contingency or event whatsoever shall the aggregate of
all amounts deemed interest under this Agreement charged or collected pursuant to the terms of
this Agreement exceed the highest rate permissible under any Applicable Law which a court of
competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that
such a court determines that the Lenders have charged or received interest hereunder in excess of
the highest applicable rate, the rate in effect hereunder shall automatically be reduced to the
maximum rate permitted by Applicable Law and the Lenders shall at the Administrative Agent’s
option (i) promptly refund to the Borrowers any interest received by the Lenders in excess of the
maximum lawful rate or (ii) apply such excess to the principal
balance of the Obligations on a pro
rata basis. It is the intent hereof that no Borrower pay or contract to pay, and that
neither the Administrative Agent nor any Lender receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may be paid by such Borrower
under Applicable Law.



     Section 4.2 Notice and Manner of Conversion or Continuation of Loans. Provided that no
Default or Event of Default has occurred and is then continuing, the Borrowers shall have the
option to (a) convert at any time following the tenth (10th) Business Day after the
Closing Date (unless the Primary Syndication Period has been successfully completed) all or any
portion of any outstanding Base Rate Loans (other than Swingline Loans) in a principal amount equal
to $3,000,000 or any whole multiple of $1,000,000 in excess thereof into one or more LIBOR Rate
Loans and (b) upon the expiration of any Interest Period, (i) convert all or any part of its
outstanding LIBOR Rate Loans in a principal amount equal to $1,000,000 or a whole multiple of
$1,000,000 in excess thereof into Base Rate Loans (other than Swingline Loans) or (ii) continue
such LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrowers desire to convert or continue
Loans as provided above, the Administrative Borrower shall give the Administrative Agent
irrevocable prior written notice in the form attached as Exhibit E (a “Notice of
Conversion/Continuation”) not later than 11:00 a.m. three (3) Business Days before the day on
which a proposed conversion or continuation of such Loan is to be effective specifying (A) the
Loans to be converted or continued, and, in the case of any LIBOR Rate Loan to be converted or
continued, the last day of the Interest Period therefor, (B) the effective date of such conversion
or continuation (which shall be a Business Day), (C) the principal amount of such Loans to be
converted or continued, and (D) the Interest Period to be applicable to such converted or continued
LIBOR Rate Loan. The Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.



     Section 4.3 Fees. (a) Commitment Fee. Commencing on the date of this
Agreement, the Borrowers shall, jointly and severally, pay to the Administrative Agent, for the
account of the Lenders, a non-refundable commitment fee at a rate per annum equal to 0.50% on the
average daily unused portion of the Revolving Credit Commitment (for which purpose the aggregate
outstanding amount of L/C Obligation shall be deemed to be a use of the Revolving Credit
Commitment); provided, that the amount of outstanding Swingline Loans shall not be
considered usage of the Revolving Credit Commitment for the purpose of calculating such commitment
fee



(Credit Agreement)




39









 







(other than with respect to calculating any commitment fee due to the Swingline Lender). The
commitment fee shall be payable in arrears on the last Business Day of each calendar month during
the term of this Agreement commencing August 31, 2006 and ending on the Maturity Date. Such
commitment fee shall be distributed by the Administrative Agent to
the Lenders pro rata in
accordance with the Lenders’ respective Commitment Percentages.





     (b) Administrative Agent’s and Other Fees. In order to compensate the
Administrative Agent for acting in its capacity as such hereunder and under the other Loan
Documents, the Borrowers, jointly and severally, agree to pay to the Administrative Agent, for its
own account, the fees set forth in the CIT Fee Letter.



     Section 4.4 Manner of Payment. Each payment by the Borrowers on account of the
principal of or interest on the Loans or of any fee, commission or other amounts (including the
Reimbursement Obligation) payable to the Lenders under this Agreement shall be made not later than
1:00 p.m. on the date specified for payment under this Agreement to the Administrative Agent at the
Administrative Agent’s Office for the account of the Lenders
(other than as set forth below) pro
rata in accordance with their respective Commitment Percentages, (except as specified
below), in Dollars, in immediately available funds and shall be made without any setoff,
counterclaim or deduction whatsoever. Any payment received after such time but before 2:00 p.m. on
such day shall be deemed a payment on such date for the purposes of Section 10.1, but for
all other purposes shall be deemed to have been made on the next succeeding Business Day. Any
payment received after 2:00 p.m. shall be deemed to have been made on the next succeeding Business
Day for all purposes. Upon receipt by the Administrative Agent of each such payment, the
Administrative Agent shall distribute to each Lender at its address for notices set forth herein
its pro rata share of such payment in accordance with such Lender’s Commitment Percentage,
(except as specified below) and shall wire advice of the amount of such credit to each Lender. Each
payment to the Administrative Agent of the applicable Issuing Bank’s fees or L/C Participants’
commissions shall be made in like manner, but for the account of such Issuing Bank or the L/C
Participants, as the case may be. Each payment to the Administrative Agent of Administrative
Agent’s fees or expenses shall be made for the account of the Administrative Agent and any amount
payable to any Lender under Sections 4.9, 4.10, 4.11 or 12.3 shall
be paid to the Administrative Agent for the account of the applicable Lender. Subject to
Section 4.1(b)(ii) if any payment under this Agreement shall be specified to be made upon 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 any interest if payable
along with such payment.



     Section 4.5
Evidence of Indebtedness. (a) Extensions of Credit. The Extensions
of Credit made by each Lender shall be evidenced by one or more accounts or records maintained by
such Lender and by the Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Extensions of Credit made by the Lenders to the Borrowers and the
interest and payments thereon. Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Borrowers hereunder to, jointly and
severally, pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the



(Credit Agreement)




40









 




Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender
made through the Administrative Agent, the Borrowers shall execute and deliver to such Lender
(through the Administrative Agent) a Revolving Credit Note and/or Swingline Note, as applicable,
which shall evidence such Lender’s Revolving Credit Loans and/or Swingline Loans, as applicable, in
addition to such accounts or records. Each Lender may attach schedules to its Notes and endorse
thereon the date, amount and maturity of its Loans and payments with respect thereto.





     (b) Participations. In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such Lender of
participations in Letters of Credit and Swingline Loans. In the event of any conflict between the
accounts and records maintained by the Administrative Agent and the accounts and records of any
Lender in respect of such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error.



     Section 4.6 Adjustments. If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its
Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion
of the aggregate amount of its Loans and accrued interest thereon or other such obligations (other
than pursuant to Sections 4.9, 4.10, 4.11 or 12.3 hereof) greater
than its pro rata share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at
face value) participations in the Loans and such other obligations of the other Lenders, or make
such other adjustments as shall be equitable, so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Loans and other amounts owing them; provided that:




     (a) if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and




     (b) the provisions of this paragraph shall not be construed to apply to (x) any payment
made by the Borrowers pursuant to and in accordance with the express terms of this Agreement
or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in Swingline Loans and Letters of Credit
to any assignee or participant, other than to any Borrower or any Subsidiary thereof (as to
which the provisions of this paragraph shall apply).


Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so
under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against each Credit Party rights of setoff and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of each Credit Party in the
amount of such participation.




     Section 4.7 Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by
the Administrative Agent. The obligations of the Lenders under this Agreement





(Credit Agreement)




41









 







to make the Loans and issue or participate in Letters of Credit are several and are not joint or
joint and several. Unless the Administrative Agent shall have received notice from a Lender prior
to a proposed borrowing date that such Lender will not make available to the Administrative Agent
such Lender’s ratable portion of the amount to be borrowed on such date (which notice shall not
release such Lender of its obligations hereunder), the Administrative Agent may assume that such
Lender has made such portion available to the Administrative Agent on the proposed borrowing date
in accordance with Section 2.3(b), and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrowers on such date a corresponding amount. If such amount is
made available to the Administrative Agent on a date after such borrowing date, such Lender shall
pay to the Administrative Agent on demand an amount, until paid, equal to the product of (a) the
amount not made available by such Lender in accordance with the terms hereof, times (b) the
daily average Federal Funds Rate during such period as determined by the Administrative Agent,
times (c) a fraction the numerator of which is the number of days that elapse from and
including such borrowing date to the date on which such amount not made available by such Lender in
accordance with the terms hereof shall have become immediately available to the Administrative
Agent and the denominator of which is 360. A certificate of the Administrative Agent with respect
to any amounts owing under this Section shall be conclusive, absent manifest error. If such
Lender’s Commitment Percentage of such borrowing is not made available to the Administrative Agent
by such Lender within three (3) Business Days after such borrowing date, the Administrative Agent
shall be entitled to recover such amount made available by the Administrative Agent with interest
thereon at the rate per annum applicable to Base Rate Loans hereunder, on demand, from the
Borrowers. The failure of any Lender to make available its Commitment Percentage of any Loan
requested by the Borrowers shall not relieve it or any other Lender of its obligation, if any,
hereunder to make its Commitment Percentage of such Loan available on the borrowing date, but no
Lender shall be responsible for the failure of any other Lender to make its Commitment Percentage
of such Loan available on the borrowing date.




     Section 4.8
Changed Circumstances. (a) Circumstances Affecting LIBOR Rate
Availability. If with respect to any Interest Period the Administrative Agent or any Lender
(after consultation with the Administrative Agent) shall determine that, by reason of circumstances
affecting the foreign exchange and interbank markets generally, deposits in eurodollars, in the
applicable amounts are not being quoted via the Telerate Page 3750 or offered to the Administrative
Agent or such Lender for such Interest Period, then the Administrative Agent shall forthwith give
notice thereof to the Administrative Borrower. Thereafter, until the Administrative Agent notifies
the Administrative Borrower that such circumstances no longer exist, the obligation of the Lenders
to make LIBOR Rate Loans and the right of the Borrowers to convert any Loan to or continue any Loan
as a LIBOR Rate Loan shall be suspended, and the Borrowers shall, jointly and severally, repay in
full (or cause to be repaid in full) the then outstanding principal amount of each such LIBOR Rate
Loan together with accrued interest thereon, on the last day of the then current Interest Period
applicable to such LIBOR Rate Loan or convert the then outstanding principal amount of each such
LIBOR Rate Loan to a Base Rate Loan as of the last day of such Interest Period.




     (b) Laws Affecting LIBOR Rate Availability. If, after the date hereof, the
introduction of, or any change in, any Applicable Law or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable agency




(Credit Agreement)




42









 







charged with the interpretation or administration thereof, or compliance by any of the Lenders (or
any of their respective Lending Offices) with any request or directive (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable agency, shall make it
unlawful or impossible for any of the Lenders (or any of their respective Lending Offices) to
honor its obligations hereunder to make or maintain any LIBOR Rate Loan, such Lender shall
promptly give notice thereof to the Administrative Agent and the Administrative Agent shall
promptly give notice to the Administrative Borrower and the other Lenders. Thereafter, until the
Administrative Agent notifies the Administrative Borrower that such circumstances no longer exist,
(i) the obligations of the Lenders to make LIBOR Rate Loans and the right of the Borrowers to
convert any Loan or continue any Loan as a LIBOR Rate Loan shall be suspended and thereafter the
Borrowers may select only Base Rate Loans hereunder, and (ii) if any of the Lenders may not
lawfully continue to maintain a LIBOR Rate Loan to the end of the then current Interest Period
applicable thereto as a LIBOR Rate Loan, the applicable LIBOR Rate Loan shall immediately be
converted to a Base Rate Loan for the remainder of such Interest Period.



     Section 4.9 Indemnity. The Borrowers hereby, jointly and severally, indemnify each of
the Lenders against any loss or expense which may arise or be attributable to each Lender’s
obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain
any Loan (a) as a consequence of any failure by the Borrowers to make any payment when due of any
amount due hereunder in connection with a LIBOR Rate Loan, (b) due to any failure of the Borrowers
to borrow, continue or convert on a date specified therefor in a Notice of Borrowing or Notice of
Conversion/Continuation or (c) due to any payment, prepayment or conversion of any LIBOR Rate Loan
on a date other than the last day of the Interest Period therefor. The amount of such loss or
expense shall be determined, in the applicable Lender’s sole discretion, based upon the assumption
that such Lender funded its Commitment Percentage of the LIBOR Rate Loans in the London interbank
market and using any reasonable attribution or averaging methods which such Lender deems
appropriate and practical. A certificate of such Lender setting forth the basis for determining
such amount or amounts necessary to compensate such Lender shall be forwarded to the Borrowers
through the Administrative Agent and shall be conclusively presumed to be correct save for manifest
error.



     Section 4.10
Increased Costs. (a) Increased Costs Generally. If any Change in Law
shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or for the
account of, or advances, loans or other credit extended or participated in by, any Lender
(except any reserve requirement reflected in the LIBOR Rate) or any Issuing Bank;




     (ii) subject any Lender or any Issuing Bank to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any participation in a Letter of
Credit or any LIBOR Rate Loan made by it, or change the basis of taxation of payments to
such Lender or such Issuing Bank in respect thereof (except for Indemnified Taxes or Other
Taxes covered by Section 4.11 and the imposition of, or any change in the rate of
any Excluded Tax payable by such Lender or such Issuing Bank); or




(Credit Agreement)




43









 






     (iii) impose on any Lender or any Issuing Bank or the London interbank market any
other condition, cost or expense affecting this Agreement or LIBOR Rate Loans made by such
Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making,
converting into or maintaining any LIBOR Rate Loan (or of maintaining its obligation to make any
such Loan), or to increase the cost to such Lender or such Issuing Bank of participating in,
issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or
to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such
Lender or such Issuing Bank hereunder (whether of principal, interest or any other amount) then,
upon written request of such Lender or such Issuing Bank, the Borrowers shall, jointly and
severally, promptly pay to any such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may
be, for such additional costs incurred or reduction suffered.





     (b)
Capital Requirements. If any Lender or any Issuing Bank determines that any Change
in Law affecting such Lender or such Issuing Bank or any lending office of such Lender or such
Lender’s or such Issuing Bank’s holding company, if any, regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s
capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a
consequence of this Agreement, the Revolving Credit Commitment of such Lender or the Loans made by,
or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by
such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or
such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or
such Issuing Bank’s holding company with respect to capital adequacy), then from time to time upon
written request of such Lender or such Issuing Bank the Borrowers shall, jointly and severally,
promptly pay to such Lender or such Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s
holding company for any such reduction suffered.




     (c) Certificates for Reimbursement. A certificate of a Lender or an Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of this Section and
delivered to the Administrative Borrower shall be conclusive absent manifest error. The Borrowers
shall, jointly and severally, pay such Lender or such Issuing Bank, as the case may be, the amount
shown as due on any such certificate within fifteen (15) days after receipt thereof.




     (d) Delay in Requests. Failure or delay on the part of any Lender or any Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or
such Issuing Bank’s right to demand such compensation; provided that the Borrowers shall
not be required to compensate such Lender or such Issuing Bank pursuant to this Section for any
increased costs incurred or reductions suffered more than nine (9) months prior to the date that
such Lender or such Issuing Bank, as the case may be, notifies the Administrative Borrower of the
Change in Law giving rise to such increased costs or reductions




(Credit Agreement)




44









 







and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor (except that,
if the Change in Law giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of retroactive effect
thereof).



     Section 4.11
Taxes. (a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of any Borrower hereunder or under any other Loan Document shall be made
free and clear of and without reduction or withholding for any Indemnified Taxes; provided
that if such Borrower shall be required by Applicable Law to deduct any Indemnified Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable under this Section)
the Administrative Agent, the applicable Lender or the applicable Issuing Bank, as the case may be,
receives 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 timely pay the full amount
deducted to the relevant Governmental Authority in accordance with Applicable Law.




     (b) Payment of Other Taxes by the Borrowers. Without limiting the provisions of
paragraph (a) above, the Borrowers shall, jointly and severally, timely pay any Other Taxes to the
relevant Governmental Authority in accordance with Applicable Law. The Administrative Agent, and
each Lender, represents that it is not aware, as of the date of this Agreement, of any Other Taxes
that may apply to payments by or on account of any obligation of the Borrower or under any Loan
Document.




     (c) Indemnification by the Borrowers. Each Borrower and each other Credit Party
shall, jointly and severally, indemnify the Administrative Agent, each Lender and each Issuing
Bank, within thirty (30) days after written demand therefor, for the full amount of any
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this Section) paid by the Administrative Agent, such Lender or such Issuing Bank, as
the case may be, and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Administrative Borrower by a Lender or an Issuing Bank (with
a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf
of such Lender or such Issuing Bank, shall be conclusive absent manifest error.




     (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrowers to a Governmental Authority, the Administrative Borrower
shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative Agent.




     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which any Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments




(Credit Agreement)




45









 







hereunder or under any other Loan Document shall deliver to such Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by Applicable Law or reasonably requested by
such Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by Applicable Law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by any Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or
reasonably requested by such Borrower or the Administrative Agent as will enable such Borrower or
the Administrative Agent to determine whether or not such Lender is subject to backup withholding
or information reporting requirements. Without limiting the generality of the foregoing, in the
event that any Borrower is a resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Administrative Borrower and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the request of any
Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:




     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of any Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or




     (iv) any other form prescribed by Applicable Law as a basis for claiming exemption
from or a reduction in United States Federal withholding tax duly completed together with
such supplementary documentation as may be prescribed by Applicable Law to permit the
Borrowers to determine the withholding or deduction required to be made.




     (f) Treatment of Certain Refunds. If the Administrative Agent, a Lender or an
Issuing Bank determines, in its sole discretion, that it has received a refund of any Taxes or
Other Taxes as to which it has been indemnified by any Borrower or with respect to which such
Borrower has paid additional amounts pursuant to this Section, it shall pay to such Borrower an
amount equal to such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by any Borrower under this Section with respect to the Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or
such Issuing Bank, as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided that such Borrower,
upon the request of the Administrative Agent, such Lender or such Issuing Bank,




(Credit Agreement)




46









 








agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender
or such Issuing Bank in the event the Administrative Agent, such Lender or such Issuing Bank is
required to repay such refund to such Governmental Authority. This paragraph shall not be
construed to require the Administrative Agent, any Lender or any Issuing Bank to make available
its tax returns (or any other information relating to its taxes which it deems confidential) to
any Borrower or any other Person.




     (g) Survival. Without prejudice to the survival of any other agreement of
the Borrowers hereunder, the joint and several agreements and obligations of the Borrowers
contained in this Section shall survive the payment in full of the Obligations and the
termination of the Revolving Credit Commitment.



     Section 4.12
Mitigation Obligations; Replacement of Lenders, (a) Designation of a
Different Lending Office. If any Lender requests compensation under Section 4.10, or
requires any Borrower to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 4.11, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 4.10 or 4.11, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be materially disadvantageous to such Lender. The Borrowers hereby, jointly and
severally, agree to pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment. In addition, the Administrative Agent and each Lender shall
take all reasonable actions reasonably requested by the Borrower that are without material risk and
cost to such Administrative Agent or Lender, and consistent with the internal policies of such
Administrative Agent or Lender and applicable legal and regulatory restrictions, in order to
maintain all exemptions, if any, available to it from withholding taxes (whether available by
treaty or existing administrative waiver) and otherwise to minimize any amounts payable by the
Borrower under Section 2.11, provided, however, the Borrowers agree to pay
all reasonable costs and expenses incurred by the Administrative Agent or Lender in connection with
taking such reasonable actions reasonably requested by the Borrower.




     (b) Replacement of Lenders. If any Lender requests compensation under
Section 4.10 in amounts disproportionate to the amounts requested by any other Lender
under such Section, or if the Borrowers are required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 4.11 in an
amount disproportionate to the amount the Borrowers are required to pay any other Lender or such
Governmental Authority for the account of such other Lender pursuant to such Section, or if any
Lender defaults in its obligation to fund Loans hereunder, then the Borrowers may, at their sole
expense and effort, upon notice by the Administrative Borrower to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by, Section
12.10), all of its interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment); provided that




(Credit Agreement)




47









 






     (i) the Borrowers shall have paid to the Administrative Agent the assignment fee
specified in Section 12.10,




     (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in Letters of Credit, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 4.9) from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Borrowers (in the case
of all other amounts),




     (iii) in the case of any such assignment resulting from a claim for
compensation under Section 4.10 or payments required to be made pursuant to
Section 4.11, such assignment will result in a reduction in such compensation
or payments thereafter, and




     (iv) such assignment does not conflict with Applicable Law.


A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to
require such assignment and delegation cease to apply.




     Section 4.13 Security. The Obligations of each Borrower shall be secured as provided
in the Security Documents.



ARTICLE V




CONDITIONS OF CLOSING AND BORROWING




     Section 5.1 Conditions to Closing and Initial Extensions of Credit. The effectiveness
of this Agreement, and the obligation of the Lenders to make the initial Loan or issue or
participate in the initial Letter of Credit, if any, is subject to the satisfaction of each of the
following conditions:




     (a) Executed Loan Documents. This Agreement, a Revolving Credit Note in favor of each
Lender requesting a Revolving Credit Note, a Swingline Note in favor of the Swingline Lender (if
requested thereby), the Security Documents, the Intercreditor Agreement, together with any other
applicable Loan Documents, shall have been duly authorized, executed and delivered to the
Administrative Agent by the parties thereto, shall be in full force and effect and no Default or
Event of Default shall exist hereunder or thereunder.




     (b) Consummation of the Transactions. The Transactions (other than the ATX
Acquisition) shall have been consummated pursuant to the definitive documentation relating thereto
and all conditions precedent to the consummation of the Transactions (other than the receipt of
all governmental approvals or consents necessary or desirable in connection with the ATX
Acquisition) shall have been satisfied or, with the prior approval of the Administrative Agent,
waived. The Administrative Agent shall have also received true and correct copies of all
Transaction Documents (including the ATX Acquisition Agreement and the related




(Credit Agreement)




48









 







schedules and exhibits, the Senior Secured Notes Indenture and the Senior Secured Notes and the
Equity Holder Agreements).




     (c) Closing Certificates; Etc. The Administrative Agent shall have received each
of the following in form and substance reasonably satisfactory to the Administrative Agent:




     (i) Officer’s Certificate of Holdings and the other Borrowers. A
certificate from a Responsible Officer of each of Holdings and each other Credit Party,
delivered on behalf of the Credit Parties, to the effect that all representations and
warranties contained in this Agreement and the other Loan Documents are true and correct;
that none of the Credit Parties is in violation of any of the covenants contained in this
Agreement and the other Loan Documents; that, after giving effect to the transactions
contemplated by this Agreement, no Default or Event of Default has occurred and is
continuing; and that each of the Credit Parties, as applicable, has satisfied each of the
conditions set forth in Section 5.1.




     (ii) Certificate of Secretary of each Credit Party. A certificate of a
Responsible Officer of each Credit Party certifying as to the incumbency and genuineness of
the signature of each officer of such Credit Party executing Loan Documents to which it is a
party and certifying that attached thereto is a true, correct and complete copy of (A) the
articles or certificate of incorporation or formation of such Credit Party and all amendments
thereto, certified as of a recent date by the appropriate Governmental Authority in its
jurisdiction of incorporation or formation, (B) the bylaws or other governing document of
such Credit Party as in effect on the Closing Date, (C) resolutions duly adopted by the board
of directors or other governing body of such Credit Party authorizing the transactions
contemplated hereunder and the execution, delivery and performance of this Agreement and the
other Loan Documents to which it is a party, and (D) each certificate required to be
delivered pursuant to Section 5.1(c)(iii).




     (iii) Certificates of Good Standing. Certificates as of a recent date of
the good standing of each Credit Party under the laws of its jurisdiction of organization
and, to the extent requested by the Administrative Agent, each other jurisdiction where such
Credit Party is qualified to do business and, to the extent available, a certificate of the
relevant taxing authorities of such jurisdictions certifying that such Credit Party has filed
required tax returns and owes no delinquent taxes.




     (iv) Opinions of Counsel. Favorable opinions addressed to the
Administrative Agent and the Lenders (and their respective successors and assigns) of (A)
corporate and local counsel to the Credit Parties with respect to organizational matters,
authorization, execution, enforceability, no conflict with Applicable Laws or agreements,
etc. with respect to the Credit Parties, the Loan Documents and such other matters as the
Lenders shall reasonably request and (B) special FCC counsel and/or PUC counsel to the Credit
Parties, as applicable, with respect to the Licenses of the Credit Parties and the
transactions contemplated hereby.




(Credit Agreement)




49









 






     (d) Personal Property Collateral.




     (i) Filings and Recordings. The Administrative Agent shall have received all
filings and recordations that are necessary to perfect the security interests of the Administrative
Agent, on behalf of itself and the Lenders, in the Collateral and the Administrative Agent shall
have received reasonably satisfactory evidence that upon such filings and recordations such
security interests constitute valid and perfected first priority Liens thereon (subject to
Permitted Liens).




     (ii) Pledged Collateral. The Administrative Agent shall have received (A)
original stock certificates or other certificates evidencing the Capital Stock pledged pursuant to
the Security Documents, together with an undated stock power for each such certificate duly
executed in blank by the registered owner thereof and (B) each original promissory note pledged
pursuant to the Security Documents.




     (iii) Lien Search. The Administrative Agent shall have received the results of a
Lien search (including a search as to judgments, pending litigation and tax matters), in form and
substance reasonably satisfactory to the Administrative Agent, made against each Credit Party and
ATX under the Uniform Commercial Code (or applicable judicial docket) as in effect in each relevant
jurisdiction, indicating among other things that its assets are free and clear of any Lien except
for Permitted Liens.




     (iv) Hazard and Liability Insurance. The Administrative Agent shall have received
certificates of property hazard, business interruption and liability insurance (or evidence of
self-insurance programs in form and substance satisfactory to the Administrative Agent), evidence
of payment of all insurance premiums for the current policy year of each (with proper endorsements
naming the Administrative Agent as loss payee (and mortgagee, as applicable) on all certificates
for property hazard insurance and as additional insured on all certificates for liability
insurance) and providing the Administrative Agent with at least thirty (30) days’ advance
notification of cancellation of any such insurance policy, and, if requested by the Administrative
Agent, copies (certified by a Responsible Officer) of insurance policies in the form required under
any Loan Document and otherwise in form and substance, including coverages and amounts, reasonably
satisfactory to the Administrative Agent.




     (v) Borrowing Base. The Administrative Agent shall have received a duly executed
Borrowing Base Certificate which shall reflect, among other things, a Borrowing Base Amount
(excluding, for this purpose Receivables owed to ATX and its Subsidiaries) of at least $7,500,000
as of the Closing Date.




     (e) Consents; Defaults.




     (i) Governmental and Third Party Approvals. The Credit Parties shall have
received all material governmental, shareholder and third party consents and approvals necessary
(or any other material consents as determined in the reasonable discretion of the Administrative
Agent) in connection with the Transactions and the other transactions contemplated by this
Agreement and the other Loan Documents (other than the receipt of




(Credit Agreement)




50









 







all governmental approvals or consents necessary of desirable in connection with the ATX
Acquisition) and all applicable waiting periods shall have expired without any action being taken
by any Person that could reasonably be expected to restrain, prevent or impose any material adverse
conditions on any of the Credit Parties or such other transactions or that could seek or threaten
any of the foregoing, and no law or regulation shall be applicable which in the reasonable judgment
of the Administrative Agent could reasonably be expected to have such effect; provided,
however, that with respect to governmental approvals, this Section shall apply only to
approval from jurisdictions from which Holdings derived in the aggregate at least 92% of its total
revenues during the fiscal quarter ended March 31, 2006. All governmental approvals and consents
that are required to be obtained under the ATX Acquisition shall have been applied for without any
action being taken by any applicable authority that would restrain, prevent or otherwise impose
adverse conditions on the ATX Acquisition or the financing thereof.




     (ii) Litigation, Etc. No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any Governmental Authority to
enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related
to or arises out of this Agreement, the other Loan Documents or the Transaction Documents or the
consummation of the transactions contemplated hereby or thereby, which, in the Administrative
Agent’s reasonable discretion, (A) would make it inadvisable to consummate the transactions
contemplated by this Agreement, the other Loan Documents or the Transaction Documents or the
consummation of the transactions contemplated hereby or thereby or (B) has had or would reasonably
be expected to have a Material Adverse Effect.




     (f) Financial Matters.




     (i) Financial Statements. The Administrative Agent shall have received (a)
Consolidated audited financial statements of Holdings and its Subsidiaries for the Fiscal Years
ended December 31, 2003, December 31, 2004 and December 31, 2005 and audited financial statements
of ATX for the period commencing April 23, 2005 and ending December 31, 2005, and (b) Consolidated
unaudited financial statements for (i) each fiscal quarter ended after December 31, 2005 and ended
at least 45 days prior to the Closing Date and (ii) the most recent twelve-calendar month period,
ended after December 31, 2005 but prior to the date that is 30 days prior to the Closing Date for
each of Holdings and ATX, and in each case, all meeting the requirements of Regulation S-X for Form
S-1 registration statements. Such financial statements shall show pro forma Consolidated EBITDA (as
defined in the Senior Secured Notes Indenture), including only those adjustments agreed between
Holdings and the Administrative Agent, for the twelve month period ending with the last fiscal
quarter ended prior to the Closing Date, (A) after giving effect to the Transactions, of not less
than $47,500,000 and (B) after giving effect to the Transactions other than the ATX Acquisition, of
not less than $29,000,000.




     (ii) Financial Condition Certificate. Holdings shall have delivered to the
Administrative Agent a certificate, in form and substance satisfactory to the Administrative Agent,
and certified as accurate on behalf of Holdings by a Responsible Officer of Holdings, that (A)
Holdings and its Subsidiaries, taken as a whole, are Solvent,




(Credit Agreement)




51









 







(B) the payables of Holdings and its Subsidiaries, taken as a whole, are current and not past
due, in the ordinary course of business (other than payables which are being contested in
good faith and by appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP), (C) on a pro forma basis for the twelve month period ended
immediately prior to the Closing Date, the Consolidated Total Leverage Ratio (as defined in
the Senior Secured Notes Indenture) (excluding the amount of any Permitted LCs and including
only those adjustments agreed between Holdings and the Administrative Agent), as of the
Closing Date (a) after giving effect to the Transactions, of Holdings and its Subsidiaries
(including, for the avoidance of doubt, ATX) not greater than 4.25:1.00 and (b) after giving
effect to the Transactions other than the ATX Acquisition, of Holdings and its Subsidiaries
(excluding, for the avoidance of doubt, ATX and excluding $95,000,000 of Indebtedness
evidenced by the Senior Secured Notes) not greater than 3.75:1.00, together with, in each
case, calculations evidencing the same, and (D) the financial projections contained in the
Offering Circular dated August 15, 2006 previously delivered to the Administrative Agent
represent the good faith estimates based on reasonable assumptions of the financial condition
and operations of Holdings and its Subsidiaries, taken as a whole.




     (iii) Payment at Closing; Fee Letters. (a) Holdings shall have paid (or
caused to be paid) to (x) the Administrative Agent the fees set forth or referenced in
Section 4.3, and (y) the Syndication Agent and certain of its affiliates the fees and
expense reimbursements separately agreed among Holdings, the Syndication Agent and such
affiliates in respect of this Agreement and the contemplated bridge financing, (b) CIT shall
have received from Jefferies Finance LLC the fees payable to CIT under the Jefferies Fee
Letter, and (c) Holdings shall have paid any other accrued and unpaid fees or commissions due
hereunder (including legal fees and expenses) and to any other Person such amount as may be
due thereto in connection with the transactions contemplated hereby, including all taxes,
fees and other charges in connection with the execution, delivery, recording, filing and
registration of any of the Loan Documents.




     (iv) Absence of Material Adverse Changes There shall not have occurred or
become known to the Administrative Agent or any Lender any event, development or circumstance
since December 31, 2005 as to Holdings and its Subsidiaries, taken as a whole, that has
caused or could reasonably be expected to cause a Material Adverse Effect.




     (v) Absence of Market Disruption. There shall not have occurred any event
or circumstance that has resulted in (or in the reasonable opinion of the Administrative
Agent, would result in) a cessation of trading in at least one national securities market for
more than one-half of a trading day for such market during three (3) consecutive Business
Days or for at least five (5) Business Days during any period
consisting of ten consecutive
Business Days. No banking moratorium shall have been declared by any applicable Governmental
Authority.




     (g) Representations and Warranties. The representations and warranties contained
in each of (i) Article VI and (ii) the ATX Acquisition Agreement shall be true and correct
on and as of the Closing Date in all material respects, except for any representation and warranty




(Credit Agreement)




52









 







made as of an earlier date, which representation and warranty shall remain true and correct as of
such earlier date.




     (h) No Existing Default. No Default or Event of Default shall have occurred and
be continuing on the Closing Date.




     (i) Miscellaneous.




     (i) Corporate Structure. The Administrative Agent (in its reasonable
credit judgment) shall be satisfied with the capitalization and corporate and organizational
structure of Holdings and its Subsidiaries (after giving effect to the ATX Acquisition and
the other transactions contemplated hereby), including as to direct and indirect ownership
and as to the terms of the Indebtedness and Capital Stock of Holdings and its Subsidiaries.




     (ii) Refinancing. Not in limitation of clause (b) above but in
furtherance thereof, contemporaneously with the consummation of the other Transactions
(other than the ATX Acquisition), the Existing Facility shall have been repaid in full, all
commitments relating thereto shall have been terminated, and all liens or security interests
related thereto shall have been terminated or released or arrangements made therefor, and
the Administrative Agent shall have received a pay-off letter in form and substance
satisfactory to it evidencing such repayment, termination, reconveyance and release, and the
Existing Subordinated Notes shall have been repaid or redeemed in their entirety and no
Existing Subordinated Notes shall be outstanding. After giving effect to the Transactions
(other than the ATX Acquisition), Holdings and its Subsidiaries shall have outstanding no
Indebtedness or preferred stock (or direct or indirect guarantee or other credit support in
respect thereof) other than as permitted under Section 9.1 and preferred stock
issued pursuant to the Conversion.




     (iii) “Know Your Customer” Requirements. The Administrative Agent and the
Lenders shall have received all documentation and other information required by bank
regulatory authorities under applicable “know your customer” and anti-money laundering rules
and regulations, including the Patriot Act.




     (iv) Other Documents. All Transaction Documents, opinions, certificates
and other instruments and all proceedings in connection with the transactions contemplated
by this Agreement shall be reasonably satisfactory in form and substance to the
Administrative Agent. The Administrative Agent shall have received copies of all other
documents, certificates and instruments reasonably requested thereby, with respect to the
transactions contemplated by this Agreement.



     Section 5.2 Conditions to All Extensions of Credit. The obligations of the Lenders to
make any Extensions of Credit (including the initial Extension of Credit) and/or any Issuing Bank
to issue or extend any Letter of Credit are subject to the satisfaction of the following conditions
precedent on the relevant borrowing, continuation, conversion, issuance or extension date:




(Credit Agreement)




53









 






     (a) Continuation of Representations and Warranties. The representations and
warranties contained in Article VI shall be true and correct in all material
respects on and as of such borrowing, continuation, conversion, issuance or extension date
with the same effect as if made on and as of such date, except for any representation and
warranty made as of an earlier date, which representation and warranty shall remain true
and correct as of such earlier date.




     (b) No Existing Default. No Default or Event of Default shall have occurred and
be continuing (i) on the borrowing, continuation or conversion date with respect to such
Loan or after giving effect to the Loans to be made, continued or converted on such date or
(ii) on the issuance or extension date with respect to such Letter of Credit or after giving
effect to the issuance or extension of such Letter of Credit on such date.




     (c) Notices. The Administrative Agent (and in the case of a Letter of Credit
Application, the applicable Issuing Bank) shall have received a Notice of Borrowing, Notice
of Conversion/Continuation or Letter of Credit Application, as applicable, from the
Administrative Borrower in accordance with Section 2.3(a)
or Section 4.2;
provided that no Notice of Borrowing may be submitted with respect to the borrowing
of any Loans on the Closing Date.




     (d) Additional Documents. The Administrative Agent (and in the case of a Letter
of Credit Application, the applicable Issuing Bank) shall have received each additional
document, instrument, legal opinion or other item reasonably requested by it.



ARTICLE VI




REPRESENTATIONS AND WARRANTIES OF THE BORROWERS




     Section 6.1 Representations and Warranties. To induce the Administrative Agent and
Lenders to enter into this Agreement and to induce the Lenders to make Extensions of Credit, the
Borrowers hereby, jointly and severally, represent and warrant to the Administrative Agent and
Lenders both before and after giving effect to the transactions contemplated hereunder that:




     (a)
Organization; Power; Qualification. Each Credit Party is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, has the power and authority to own its properties and to carry
on its business as now being and hereafter proposed to be conducted and is duly 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 and authorization except in
jurisdictions where the failure to be so qualified or in good standing could not reasonably
be expected to result in a Material Adverse Effect. The jurisdictions in which each Credit
Party is organized and qualified to do business as of the Closing Date are described on
Schedule 6.1(a).




     (b) Ownership. Each Subsidiary of Holdings as of the Closing Date is listed on
Schedule 6.1(b). As of the Closing Date, the capitalization of Holdings and its
Subsidiaries consists of the number of shares, authorized, issued and outstanding, of such




(Credit Agreement)




54









 







classes and series, with or without par value, described on Schedule 6.1(b). All
outstanding shares have been duly authorized and validly issued and are fully paid and
nonassessable, with no personal liability attaching to the ownership thereof, and not subject to
any preemptive or similar rights, except as described in Schedule 6.1(b). The shareholders
of Holdings and its Subsidiaries and the number of shares owned by each as of the Closing Date are
described on Schedule 6.1(b). As of the Closing Date, there are no outstanding stock
purchase warrants, subscriptions, options, securities, instruments or other rights of any type or
nature whatsoever, which are convertible into, exchangeable for or otherwise provide for or permit
the issuance of Capital Stock of Holdings or its Subsidiaries, except as described on Schedule
6.1(b).




     (c)
Authorization of Agreement, Loan Documents and Borrowing. Each Credit Party has
the right, power and authority and has taken all necessary corporate and other action to authorize
the execution, delivery and performance of this Agreement and each of the other Loan Documents to
which it is a party in accordance with their respective terms. This Agreement and each of the other
Loan Documents have been duly executed and delivered by the duly authorized officers of each Credit
Party thereto, and each such document constitutes the legal, valid and binding obligation of each
Credit Party thereto, enforceable in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor
relief laws from time to time in effect which affect the enforcement of creditors’ rights in
general and the availability of equitable remedies.




     (d) Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc. The
execution, delivery and performance by the Credit Parties of the Loan Documents to which each such
Person is a party, in accordance with their respective terms, the Extensions of Credit hereunder
and the transactions contemplated hereby do not and will not, by the passage of time, the giving of
notice or otherwise, (i) conflict with, result in a breach of or constitute a default under the
articles of incorporation, bylaws or other organizational documents of any Credit Party, (ii)
conflict with, result in a breach of or constitute a default under any material indenture,
agreement or other instrument to which such Person is a party or by which any of its properties may
be bound or any material Governmental Approval relating to such Person, (iii) result in or require
the creation or imposition of any Lien upon or with respect to any property now owned or hereafter
acquired by such Person other than Liens arising under the Loan Documents or (iv) require any
Governmental Approval (other than such Governmental Approvals as may be necessary to consummate the
ATX Acquisition), violate any Applicable Law relating to any Credit Party or require any consent of
any other Person in connection with the execution, delivery, performance, validity or
enforceability of this Agreement other than consents, authorizations, filings or other acts or
consents that have been obtained or for which the failure to obtain or make could not reasonably be
expected to have a Material Adverse Effect and other than filings under the UCC.




     (e) Compliance with Law; Governmental Approvals. Each Credit Party (i) has all
Governmental Approvals required by any Applicable Law for it to conduct its business, each of which
is in full force and effect, is final and not subject to review on appeal and is not the subject of
any pending or, to its knowledge, threatened attack by




(Credit Agreement)




55









 







direct or collateral proceeding, (ii) is in compliance with each Governmental Approval applicable
to it and in compliance with all other Applicable Laws relating to it or any of its respective
properties, (iii) has timely filed all material reports, documents and other materials required to
be filed by it under all Applicable Laws with any Governmental Authority and has retained all
material records and documents required to be retained by it under Applicable Law, and (iv) no
Credit Party is aware of any event or circumstance constituting noncompliance (or any Person
alleging noncompliance) with any rule or regulation of the FCC or any applicable PUC except, in
each case, where the failure to have, comply or file could not reasonably be expected to have a
Material Adverse Effect.




     (f) Tax Returns and Payments. Except as set forth on Schedule 6.1 (f), each
Credit Party has duly filed or caused to be filed all material federal, state, local and other tax
returns required by Applicable Law to be filed, and has paid, or made adequate provision for the
payment of, all material federal, state, local and other Taxes which are due and payable. Such
returns accurately reflect in all material respects all liability for taxes of the Credit Parties
for the periods covered thereby. Except as set forth on Schedule 6.1 (f), as of the Closing
Date, there is no ongoing audit or examination or, to the knowledge of any Borrower, other
investigation by any Governmental Authority of the tax liability of any Credit Party, and none of
the Credit Parties is aware of any proposed Material Tax assessment against it or any other Credit
Party. No Governmental Authority has asserted any Lien or other claim against any Credit Party with
respect to unpaid taxes which has not been discharged or resolved other than Permitted Liens. The
charges, accruals and reserves on the books of the applicable Credit Parties in respect of federal,
state, local and other taxes for all Fiscal Years and portions thereof since the organization of
the applicable Credit Party are in accordance with GAAP.




     (g) Intellectual Property Matters. Each Credit Party owns or possesses rights to use
all material franchises, licenses, copyrights, copyright applications, patents, patent rights or
licenses, patent applications, trademarks, trademark rights, service mark, service mark rights,
trade names, trade name rights, copyrights and other rights with respect to the foregoing which are
reasonably necessary to conduct its business. No event has occurred which permits, or after notice
or lapse of time or both would permit, the revocation or termination of any such rights, and no
Credit Party is liable to any Person for infringement under Applicable Law with respect to any such
rights as a result of its business operations except, in each case, as could not reasonably be
expected to have a Material Adverse Effect.




     (h) Environmental Matters.




     (i) The properties owned, leased or operated by any Borrower or any of its
Subsidiaries now or in the past do not contain, and to their knowledge have not
previously contained, any Hazardous Materials in amounts or concentrations which (A)
constitute or constituted a violation of applicable Environmental Laws or (B) could
reasonably be expected to give rise to liability under applicable Environmental Laws;



(Credit Agreement)




56









 






     (ii) To the knowledge of the Credit Parties, each Credit Party and such properties and
all operations conducted in connection therewith are in all material respects in compliance, and
have been in all material respects in compliance, with all applicable Environmental Laws, and
there is no contamination at, under or about such properties or such operations which could
interfere with the continued operation of such properties or impair the fair saleable value
thereof;




     (iii) No Credit Party has received any written notice of violation, alleged violation,
non-compliance, liability or potential liability regarding environmental matters, Hazardous
Materials, or compliance with Environmental Laws, nor does any Credit Party have knowledge or
reason to believe that any such notice will be received or is being threatened.




     (iv) To the knowledge of the Credit Parties, Hazardous Materials have not been
transported or disposed of to or from the properties owned, leased or operated by any Credit Party
in violation of, or in a manner or to a location which could give rise to liability under,
Environmental Laws, nor have any Hazardous Materials been generated, treated, stored or disposed of
at, on or under any of such properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Laws;




     (v) No judicial proceedings or governmental or administrative action is pending, or, to
the knowledge of any Borrower, threatened, under any Environmental Law to which any Credit Party is
or will be named as a potentially responsible party with respect to such properties or operations
conducted in connection therewith, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to any Credit Party or such properties or such
operations that could reasonably be expected to have a Material Adverse Effect; and




     (vi) There has been no release, or to any Borrower’s knowledge, threat of release, of
Hazardous Materials at or from properties owned, leased or operated by any Borrower or any
Subsidiary, now or in the past, in violation of or in amounts or in a manner that could give rise
to liability under Environmental Laws that could reasonably be expected to have a Material Adverse
Effect.




(i) ERISA.




     (i) As of the Closing Date, no Credit Party or any ERISA Affiliate maintains or
contributes to, or has any obligation under, any Pension Plan or Multiemployer Plan other than
those identified on Schedule 6.1(i);




     (ii) Each Credit Party and each ERISA Affiliate is in material compliance with all
applicable provisions of ERISA and the regulations and published interpretations thereunder with
respect to all Employee Benefit Plans except for any required amendments for which the remedial
amendment period as



(Credit Agreement)





57









 









defined in Section 401(b) of the Code has not yet expired and except where a failure to so
comply could not reasonably be expected to have a Material Adverse Effect. Each Credit
Party and each ERISA Affiliate has fulfilled its obligations, if any, under the minimum
funding standards of Section 302 of ERISA with respect to each Pension Plan and each
Pension Plan is in compliance in all material respects with the presently applicable
provisions of ERISA and the Code. None of the Credit Parties or any ERISA Affiliate has
incurred any unpaid liability to the PBGC (other than for the payment of premiums in the
ordinary course) or to any Pension Plan or Multiemployer Plan which could reasonably be
expected to have a Material Adverse Effect and none of the Credit Parties has incurred any
unpaid liability to any Employee Benefit Plan which could reasonably be expected to have a
Material Adverse Effect;




     (iii) Except where the failure of any of the following representations to be
correct could not reasonably be expected to have a Material Adverse Effect, no Credit Party
or any ERISA Affiliate has engaged in a nonexempt prohibited transaction described in
Section 406 of the ERISA or Section 4975 of the Code;




     (iv) No Termination Event has occurred or is reasonably expected to occur; and




     (v) Except where the failure of any of the following representations to be
correct could not reasonably be expected to have a Material Adverse Effect, no proceeding,
claim (other than a benefits claim in the ordinary course of business), lawsuit and/or
investigation is existing or, to the knowledge of any Borrower after due inquiry,
threatened concerning or involving any (A) employee welfare benefit plan (as defined in
Section 3(l) of ERISA) currently maintained or contributed to by such Borrower or any ERISA
Affiliate, (B) Pension Plan or (C) Multiemployer Plan.




     (j) Margin Stock. No Credit Party is engaged principally or as one of its
activities in the business of extending credit for the purpose of “purchasing” or “carrying” any
“margin stock” (as each such term is defined or used, directly or indirectly, in Regulation U of
the Board of Governors of the Federal Reserve System). No part of the proceeds of any of the Loans
or Letters of Credit will be used for purchasing or carrying margin stock or for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation T, U or X of such Board
of Governors.




     (k) Government Regulation. No Credit Party is an “investment company” or a
company “controlled” by an “investment company” (as each such term is defined or used in the
Investment Company Act of 1940, as amended) and no Credit Party is, or after giving effect to any
Extension of Credit will be, subject to regulation under the Interstate Commerce Act, each as
amended, or any other Applicable Law which limits its ability to incur or consummate the
transactions contemplated hereby.




     (l) Material Contracts; Licenses. On the Closing Date, all Licenses of each
Credit Party have been duly authorized and obtained, and are in full force and effect.



(Credit Agreement)




58









 






Each Credit Party is in compliance with all material provisions thereof. On each date after the
Closing Date on which this representation is deemed to be made, all Licenses of each Credit Party
have been duly authorized and obtained, and are in full force and effect, unless failure to so
obtain could not reasonably be expected to cause a Material Adverse Effect. Each Credit Party is in
compliance with all material provisions thereof. On the Closing Date, no License is the subject of
any pending or, to any Borrower’s knowledge, threatened challenge or revocation. On each date after
the Closing Date on which this representation is deemed to be made, no License is the subject of
any pending or, to any Borrower’s knowledge, threatened challenge or revocation, which such event
is reasonably expected to cause a Material Adverse Effect. Except as disclosed on Schedule
6.1(l), no Credit Party is required to obtain any License that has not already been obtained
from (or, following the Closing Date, that with respect to which it is in the process of
obtaining), or effect any filing or registration that has not already been effected (or, following
the Closing Date, that with respect to which it is in the process of effecting) with, the FCC, any
applicable PUC or any other Governmental Authority in connection with the execution and delivery of
this Agreement or any other Loan Document, or the performance thereof (other than any enforcement
of remedies by Administrative Agent on behalf of Lenders), in accordance with their respective
terms, including the making of any Extension of Credit. On the Closing Date, each Material Contract
and License is, and after giving effect to the consummation of the transactions contemplated by the
Loan Documents will be, in full force and effect in accordance with the terms thereof. To the
extent requested by the Administrative Agent, the Credit Parties have delivered to the
Administrative Agent a true and complete copy of each Material Contract or License. No Credit Party
(nor, to the knowledge of any Borrower, any other party thereto) is in breach of or in default
under any Material Contract.




     (m) Employee Relations. As of the Closing Date, no Credit Party is party to any
collective bargaining agreement nor has any labor union been recognized as the representative of
its employees except as set forth on Schedule 6.1 (m). No Borrower knows of any pending,
threatened or contemplated strikes, work stoppage or other collective labor disputes involving its
employees or those of its Subsidiaries that could reasonably be expected to have a Material Adverse
Effect.




     (n) Burdensome Provisions. No Credit Party is a party to any indenture,
agreement, lease or other instrument, or subject to any corporate or partnership restriction,
Governmental Approval or Applicable Law which is so unusual or burdensome as in the foreseeable
future could be reasonably expected to have a Material Adverse Effect. No Credit Party presently
anticipates that future expenditures needed to meet the provisions of any statutes, orders, rules
or regulations of a Governmental Authority will be so burdensome as to have a Material Adverse
Effect. No Credit Party is party to any agreement or instrument or otherwise subject to any
restriction or encumbrance that restricts or limits its ability to make dividend payments or other
distributions in respect of its Capital Stock to any Borrower or any Subsidiary or to transfer any
of its assets or properties to any Borrower or any Subsidiary in each case other than existing
under or by reason of the Loan Documents or Applicable Law.



(Credit Agreement)




59









 






     (o) Financial Statements. The audited and unaudited financial statements
delivered pursuant to Section 5.1(h)(i) are complete and correct and fairly present on a
Consolidated basis the assets, liabilities and financial position of the Credit Parties as at such
dates, and the results of the operations and changes of financial position for the periods then
ended (other than customary year-end adjustments for unaudited financial statements). All such
financial statements, including the related schedules and notes thereto, have been prepared in
accordance with GAAP. Such financial statements show all material Indebtedness and other material
liabilities, direct or contingent, of the Credit Parties as of the date thereof, including material
liabilities for taxes, commitments and Indebtedness, in each case, to the extent required to be
disclosed under GAAP. The pro forma financial statements delivered pursuant to Section
5.1(h)(i) were prepared by Holdings in good faith on the basis of the assumptions stated
therein, which assumptions are believed to be reasonable in light of then existing conditions
except that such financial statements and forecasts shall be subject to normal year end closing and
audit adjustments.




     (p) No Material Adverse Change. Since December 31, 2005, there has been no
material adverse change, or any condition, fact, event or development that has resulted or could
reasonably be expected to result in a material adverse change in the condition (financial or
otherwise), results of operation, assets, liabilities (contingent or otherwise), properties,
solvency, business, management or value of Holdings and its Subsidiaries, taken as a whole, and no
event has occurred or condition arisen that could reasonably be expected to have a Material Adverse
Effect.




     (q) Solvency. From and after the Closing Date, and after giving effect to each
Extension of Credit made hereunder, the Credit Parties, on a Consolidated basis, will be Solvent.




     (r) Titles to Properties. As of the Closing Date, each parcel of real property
owned or leased, or to which a Credit Party has a Right-of-Way Agreement, is identified on
Schedule 6.1(r). Each Credit Party has such title and rights to the real property owned or
leased by it as is necessary or desirable to the conduct of its business and valid and legal title
to all of its personal property and assets (including those reflected on the Consolidated balance
sheets of Holdings delivered pursuant to Section 6.1(o), except those which have been
disposed of by the Credit Parties subsequent to such date which dispositions have been in the
ordinary course of business or as otherwise expressly permitted hereunder), free and clear in each
case of all Liens or claims, except for Liens permitted pursuant to Section 9.2.




     (s) Insurance. The properties of the Credit Parties are insured with financially
sound and reputable insurance companies not Affiliates of any Credit Party (or are covered under
such self-insurance programs which have been disclosed to and determined acceptable by the
Administrative Agent in its reasonable discretion), in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in locations where the applicable Credit Party operates.



(Credit Agreement)




60









 






     (t) Liens; Perfected Security Interests. None of the properties and assets of
any Credit Party is subject to any Lien, except Permitted Liens. No Credit Party has signed any
financing statement or any security agreement authorizing any secured party thereunder to file any
financing statement, except to perfect those Permitted Liens. The Security Documents, together with
the filing of appropriate UCC financing statements and Mortgages in favor of the Administrative
Agent, on behalf the Lenders, and the possession of the certificates evidencing the Capital Stock
comprising part of the Collateral and the instruments evidencing the intercompany Indebtedness
compromising part of the Collateral, create valid and perfected liens on and security interests in
the Collateral (subject solely to any Permitted Liens and subject to the provisions of the
Collateral Agreement regarding delivery of Control Agreements after the Closing Date) in favor of
the Administrative Agent, for the benefit the Lenders, securing the payment of the Obligations,
having the priority provided in the Intercreditor Agreement. Certificates representing all of the
Capital Stock in the Subsidiaries that are purported to comprise part of the Collateral have been
delivered to the Administrative Agent as required under the terms of the Security Documents,
together with undated stock powers or other appropriate powers duly executed in blank; all filings
and other actions of or by any Credit Party required hereunder, under any Security Document or
requested by the Administrative Agent necessary to perfect and protect the liens and security
interests of the Administrative Agent in the Collateral have been duly made or taken and are in
full force and effect or will be duly made or taken in accordance with the terms of the Loan
Documents; and all filing fees and recording taxes due and payable have been paid in full.




     (u) Litigation. Except for matters existing on the Closing Date and set forth on
Schedule 6.1(u), there are no actions, suits or proceedings pending nor, to the knowledge
of any Borrower, threatened against any Credit Party or any of their respective properties,
businesses, assets or revenues in any court or before any arbitrator of any kind or before or by
any Governmental Authority that (i) has or could reasonably be expected to have a Material Adverse
Effect, or (ii) purports to affect the legality, validity or enforceability of any Loan Document,
the Transaction Documents or the Transactions.




     (v) Absence of Defaults. No event has occurred or is continuing which
constitutes a Default or an Event of Default.




     (w) Existing Subordinated Notes. No Existing Subordinated Notes are
outstanding.




     (x) OFAC. No Credit Party or any Subsidiary or any Affiliate thereof: (i) is a
Sanctioned Person, (ii) has more than 10% of its assets in Sanctioned Entities, or (iii) derives
more than 10% of its operating income from investments in, or transactions with Sanctioned Persons
or Sanctioned Entities. The proceeds of any Loan will not be used and have not been used to fund
any operations in, finance any investments or activities in, or make any payments to, a Sanctioned
Person or a Sanctioned Entity.



(Credit Agreement)




61









 






     (y) Disclosure. Each Credit Party has disclosed to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other restrictions to
which such Credit Party is subject, and all other matters known to it, that, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No
financial statement, material report, material certificate or other material information
furnished, taken together as a whole, by or on behalf of any of Holdings or any of its
Subsidiaries to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, pro forma financial
information, estimated financial information and other projected or estimated information,
such information was prepared in good faith based upon assumptions believed to be reasonable
at the time.



     Section 6.2 Survival of Representations and Warranties, Etc. All representations and
warranties set forth in this Article VI and all representations and warranties contained in
any certificate provided by or on behalf of any Credit Party, or any of the Loan Documents
(including in any amendments made in writing to any Loan Documents) shall constitute
representations and warranties made under this Agreement. All representations and warranties made
under this Agreement shall be made or deemed to be made at and as of the Closing Date (except those
that are expressly made as of a specific date), shall survive the Closing Date and shall not be
waived by the execution and delivery of this Agreement, any investigation made by or on behalf of
the Lenders or any borrowing hereunder.



ARTICLE VII




FINANCIAL INFORMATION AND NOTICES




     Until all the Obligations (other than inchoate indemnification obligations) have been paid and
satisfied in full and the Revolving Credit Commitment terminated, unless consent has been obtained
in the manner set forth in Section 12.2, the Administrative Borrower will furnish, or cause
to be furnished, to the Administrative Agent at the Administrative Agent’s Office at the address
set forth in Section 12.1 and to the Lenders at their respective addresses as set forth on
the Register, or such other office as may be designated by the Administrative Agent and Lenders
from time to time:



     Section 7.1 Financial Statements and Projections. (a) Quarterly Financial
Statements. As soon as available and in any event within forty-five (45) days after the end of
fiscal quarter of each Fiscal Year (in the case of the fourth fiscal quarter of each Fiscal Year,
within ninety (90) days after the end thereof), (i) an unaudited Consolidated balance sheet of
Holdings and its Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated
statements of income, retained earnings and cash flows and a report containing management’s
discussion and analysis of such financial statements for the fiscal quarter then ended and that
portion of the Fiscal Year then ended, all in reasonable detail setting forth in comparative form
the corresponding figures as of the end of and for the corresponding period in the preceding Fiscal



(Credit Agreement)




62









 




Year and prepared by Holdings in accordance with GAAP and, if applicable, containing disclosure of
the effect on the financial position or results of operations of any change in the application of
accounting principles and practices during the period, and certified by the chief financial officer
of Holdings to present fairly in all material respects the financial condition of Holdings and its
Subsidiaries on a Consolidated (and consolidating, if applicable) basis as of their respective
dates and the results of operations of Holdings and its Subsidiaries for the respective periods
then ended, subject to normal year end adjustments and the absence of footnote disclosure, and (ii)
a calculation of Access Lines sold during such fiscal quarter and of Access Lines installed,
activated and in service during such fiscal quarter, and the approximate number of all Access Lines
actually in service as at the last day of such fiscal quarter.




     (b) Annual Financial Statements. As soon as practicable and in any event within
ninety (90) days after the end of each Fiscal Year, an audited Consolidated balance sheet of
Holdings and its Subsidiaries as of the close of such Fiscal Year and audited Consolidated
statements of income, retained earnings and cash flows and a report containing management’s
discussion and analysis of such financial statements for the Fiscal Year then ended, including the
notes thereto, all in reasonable detail setting forth in comparative form the corresponding
figures as of the end of and for the preceding Fiscal Year and prepared in accordance with GAAP
and, if applicable, containing disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles and practices during the
year. Such annual financial statements shall be audited by Ernst & Young LLP or another
independent certified public accounting firm reasonably acceptable to the Administrative Agent,
and accompanied by a report thereon by such certified public accountants that is not qualified
with respect to scope limitations imposed by Holdings or any of its Subsidiaries or with respect
to accounting principles followed by Holdings or any of its Subsidiaries not in accordance with
GAAP.



     (c) Annual Business Plan and Financial Projections. As soon as available and in any
event within ninety (90) days following the end of each Fiscal Year, a business plan of Holdings
and its Subsidiaries for the ensuing twelve (12) months, such plan to be prepared in accordance
with GAAP (to the extent applicable) and to include, on a monthly basis, the following: a monthly
operating and capital budget, a projected income statement, statement of cash flows and balance
sheet and a report containing management’s discussion and analysis of such projections (taken as a
whole), accompanied by a certificate from a Responsible Officer of Holdings to the effect that, to
such officer’s knowledge, such projections of the financial condition and operations of Holdings
and its Subsidiaries for such twelve (12) month period are based on reasonable estimates,
information and assumptions and that such Responsible Officer has no reason to believe that such
projections are incorrect or misleading in any material respect.



     (d) Monthly Financial Statements. Within thirty (30) days after the end of each
month, the Consolidated balance sheet of Holdings and its Subsidiaries, each as at the end of such
month, and the related Consolidated statements of income and consolidated statements of capital
expenditures made for such month and for the elapsed portion of the year ended with the last day
of such month, all of which shall be certified by a Responsible Officer, to, in his or her
opinion, present fairly, in accordance with GAAP (to the extent applicable), subject to year end
adjustments, the financial position, results of operations and capital expenditures made of



(Credit Agreement)




63









 




Holdings and its Subsidiaries as at the end of and for such month, and for the elapsed portion of
the year ended with the last day of such month, and.




     (e) Officer’s Certificate. At each time financial statements are delivered
pursuant to clause (a) or (b) above, a certificate of a Responsible Officer stating that
(i) no Default or Event of Default has occurred and is continuing (or, if a Default or Event of
Default has occurred, specifying the details of such Default or Event of Default and the action
that any Borrower or another Credit Party has taken or proposes to take with respect thereto) and
(ii) no Subsidiary has been formed or acquired since the delivery of the last certificate pursuant
to this Section (or, if a Subsidiary has been formed or acquired since such delivery, a statement
that such Subsidiary has complied with Section 8.11).



     Section 7.2 Collateral Reporting.



     (a) Deliver to the Administrative Agent, within fifteen (15) days (if any Trigger Event shall
be continuing, within five (5) days) of the end of each month (or more frequently if reasonably
requested by the Administrative Agent or if requested at any time during the continuance of a
Trigger Event), a Borrowing Base Certificate (which shall be calculated as of the last day of the
immediately preceding month and which shall not be binding upon the Administrative Agent or
restrictive of the Administrative Agent’s rights under this Agreement). Any immaterial error in a
Borrowing Base Certificate (or immaterial discrepancy between the Borrowing Base Amount set forth
in a Borrowing Base Certificate the Borrowing Base Amount as calculated by the Administrative
Agent) shall not constitute a default under this Section 7.2(a) unless the correction of such error
or discrepancy results in an obligation to make a mandatory prepayment under Section 2.4(b).



     (b) Deliver to the Administrative Agent on or before the fifteenth (15th) day of
each month as and for the prior month, for each Borrower on an individual basis (x) accounts
receivable agings and (y) accounts payable agings. In addition, each Borrower shall deliver to the
Administrative Agent at such intervals as the Administrative Agent may reasonably require: (i)
confirmatory assignment schedules, (ii) copies of Customer’s invoices, (iii) evidence of shipment
or delivery, and (iv) such further schedules, documents and/or information regarding the Collateral
as the Administrative Agent may reasonably require, including trial balances and test
verifications. The Administrative Agent shall have the right to confirm and verify all Receivables
by any manner and through any medium it considers commercially reasonable.



     (c) Notify the Administrative Agent promptly if any of its Receivables arise out of contracts
between any Credit Party and the United States, any State thereof, the District of Columbia or any
department, agency or instrumentality of any of them.



     (d) The items to be provided under clauses (a) and (b) above are to be in form
reasonably satisfactory to the Administrative Agent and executed by each Borrower and delivered to
the Administrative Agent from time to time solely for the Administrative Agent’s convenience in
maintaining records of the Collateral, and any Borrower’s failure to deliver any of such items to
the Administrative Agent shall not affect, terminate, modify or otherwise limit the Administrative
Agent’s Lien with respect to the Collateral.



(Credit Agreement)




64









 





     Section 7.3 Other Reports. (a) Promptly upon receipt thereof, copies of all material
reports, if any, submitted to Holdings, any other Credit Party or any of their respective board of
directors by its independent public accountants in connection with their auditing function,
including any management report and any management responses thereto;



     (b) such other information regarding the operations, business affairs and financial condition
of the Credit Parties as the Administrative Agent or any Lender may reasonably request;



     (c) promptly following the mailing or receipt of any notice or report delivered under the
terms of the Senior Secured Notes Indenture (other than those relating solely to transfers or other
administrative matters), copies of such notice or report; and



     (d) promptly after the sending or filing thereof, copies of all reports, notices,
prospectuses and registration statements which any Credit Party files with the Securities and
Exchange Commission or any national securities exchange.



     Section 7.4 Notice of Litigation and Other Matters. Promptly (but in no event later
than three (3) Business Days after an officer of any Borrower obtains knowledge thereof) telephonic
and written notice of:




     (a) the commencement of all proceedings and investigations by or before any
Governmental Authority and all actions and proceedings in any court or before any arbitrator
against or involving any Credit Party or any of their respective properties, assets or
businesses that if adversely determined could reasonably be expected to result in material
liability to the Credit Parties;




     (b) any notice of any violation received by any Credit Party from any Governmental
Authority including any notice of violation of Environmental Laws which in any such case
could reasonably be expected to have a Material Adverse Effect;




     (c) any labor controversy that has resulted in, or threatens to result in, a strike or
other work action against any Credit Party, which in any such case could reasonably be
expected to have a Material Adverse Effect;




     (d) any attachment, judgment, lien, levy or order exceeding $1,000,000
individually (or in the aggregate for related attachments, judgments, liens, levys,
or orders) or that may be assessed against or threatened against any Credit Party;




     (e) (i) any Default or Event of Default, including a statement of a Responsible Officer
of such Borrower setting forth details of such Default or Event of Default and the action
which such Borrower or such Credit Party has taken and proposes to take with respect thereto
or (ii) any event which constitutes or which with the passage of time or giving of notice or
both would constitute a default or event of default under any Material Contract to which any
Credit Party is a party or by which any Credit Party or any of its properties may be bound
which, in any such case, could reasonably be expected to have a Material Adverse Effect;



(Credit Agreement)




65









 






     (f) (i) any unfavorable determination letter from the Internal Revenue Service
regarding the qualification of an Employee Benefit Plan under Section 401(a) of the Code
(along with a copy thereof), (ii) all notices received by any Credit Party or any ERISA
Affiliate of the PBGC’s intent to terminate any Pension Plan or to have a trustee appointed
to administer any Pension Plan, (iii) all notices received by any Credit Party or any ERISA
Affiliate from a Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA, (iv) any Credit Party obtaining
knowledge or reason to know that a Credit Party or any ERISA Affiliate has filed or intends
to file a notice of intent to terminate any Pension Plan under a distress termination within
the meaning of Section 4041(c) of ERISA, (v) the failure to make a required contribution to
any Pension Plan if such failure is sufficient to give rise to a Lien under Section 302(f)
of ERISA, (vi) the taking of any action with respect to a Pension Plan which could result in
the requirement that any Credit Party furnish a bond or other security to the PBGC or such
Pension Plan, and (vii) the occurrence of any event with respect to any Pension Plan which
could result in the incurrence by any Credit Party of any material liability, fine or
penalty, notice thereof and copies of all documentation relating thereto; and




     (g) any event which makes any of the representations set forth in Section 6.1
that is subject to materiality or Material Adverse Effect qualifications inaccurate in
any respect or any event which makes any of the representations set forth in Section
6.1 that is not subject to materiality or Material Adverse Effect qualifications
inaccurate in any material respect; and




     (h) promptly upon becoming aware thereof, any announcement by Moody’s or S&P of
any change in a Debt Rating.



     Section 7.5 Accuracy of Information. All written information, reports, statements and
other papers and data furnished by or on behalf of any Borrower to the Administrative Agent or any
Lender whether pursuant to this Article VII or any other provision of this Agreement, or
any other Loan Documents, shall, at the time the same is so furnished, comply with the
representations and warranties set forth in Section 6.1(y).



ARTICLE VIII 


 AFFIRMATIVE COVENANTS




     Until all of the Obligations (other than inchoate indemnification obligations) have been paid
and satisfied in full and the Revolving Credit Commitment terminated, unless consent has been
obtained in the manner provided for in Section 12.2, each Borrower will, and will cause
each of its Subsidiaries to:



     Section 8.1 Preservation of Corporate Existence and Related Matters. Except as
permitted by Section 9.4, preserve and maintain its separate corporate existence and all
rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify
and remain qualified as a foreign corporation and authorized to do business in each jurisdiction in
which the failure to so qualify could reasonably be expected to have a Material Adverse Effect.



(Credit Agreement)




66









 





     Section 8.2 Maintenance of Property. In addition to the requirements of any of the
Security Documents, protect and preserve all properties necessary in and material to its business,
including copyrights, patents, trade names, service marks and trademarks; maintain in good working
order and condition, ordinary wear and tear, and insured casualty losses excepted (provided
that the proceeds from any such insured casualty losses are reinvested or applied to repay the
Credit Facility in accordance with Section 2.5), all buildings, equipment and other
tangible real and personal property; and from time to time make or cause to be made all repairs,
renewals and replacements thereof and additions to such property necessary for the conduct of its
business, so that the business carried on in connection therewith may be conducted in a
commercially reasonable manner.



     Section 8.3 Insurance. Maintain insurance with financially sound and reputable
insurance companies (or such self-insurance programs which have been disclosed to and determined
reasonably acceptable by the Administrative Agent) against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by Applicable Law and as are
required by any Security Documents (including hazard and business interruption insurance), and on
the Closing Date and from time to time thereafter deliver to the Administrative Agent upon its
reasonable request information in reasonable detail as to the insurance then in effect, stating the
names of the insurance companies, the amounts and rates of the insurance, the dates of the
expiration thereof, reserve amounts (if applicable), and the properties and risks covered thereby.



     Section 8.4 Accounting Methods and Financial Records. Maintain (a) a system of
accounting, and keep proper books, records and accounts (which shall be true and complete in all
material respects) as may be required or as may be necessary to permit the preparation of financial
statements in accordance with GAAP and in compliance with the regulations of any Governmental
Authority having jurisdiction over it or any of its properties and (b) on a reasonably current
basis, set up on its books, from its earnings, allowances against doubtful Receivables, advances
and investments and all other proper accruals (including by reason of enumeration, accruals for
premiums, if any, due on required payments and accruals for depreciation, obsolescence, or
amortization of properties), which should be set aside from such earnings in connection with its
business. All determinations pursuant to this Section 8.4 shall be made in accordance with,
or as required by, GAAP consistently applied.



     Section 8.5 Payment and Performance of Taxes and Other Governmental Charges. Pay and
perform all Obligations under this Agreement and the other Loan Documents, and pay or perform all
taxes, assessments and other governmental charges that may be levied or assessed upon it or any of
its property; provided, that any Credit Party may contest any such tax, assessment or other
governmental charge in good faith so long as adequate reserves are maintained with respect thereto
in accordance with GAAP.



     Section 8.6 Compliance With Laws and Approvals. Observe and remain in compliance in
all material respects with all Applicable Laws and maintain in full force and effect all
Governmental Approvals and Licenses, in each case applicable to the conduct of its business except
where the failure to do so could not reasonably be expected to have a Material Adverse Effect.



(Credit Agreement)




67









 





     Section 8.7 Environmental Laws. In addition to and without limiting the generality of
Section 8.6, (a) comply with, and ensure such compliance by all tenants and subtenants
with, all applicable Environmental Laws and obtain and comply with and maintain, and ensure that
all tenants and subtenants, if any, obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable Environmental Laws,
except for any failure to do or comply with any of the foregoing that could not reasonably be
expected to result in a Material Adverse Effect, (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions required under
Environmental Laws, and promptly comply with all lawful orders and directives of any Governmental
Authority regarding Environmental Laws, (c) keep its property free of any Lien imposed by any
Environmental Law, and (d) defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees, agents, officers and
directors, from and against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the presence of Hazardous Materials, or the violation of,
noncompliance with or liability under any Environmental Laws applicable to the operations of any
Credit Party, or any orders, requirements or demands of Governmental Authorities related thereto,
including reasonable attorney’s and consultant’s fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, except to the extent that any of the foregoing directly
result from the gross negligence or willful misconduct of the party seeking indemnification
therefor, as determined by a court of competent jurisdiction by final nonappealable judgment.



     Section 8.8 Compliance with ERISA. In addition to and without limiting the generality
of Section 8.6, (a) comply with all material applicable provisions of ERISA and the
regulations and published interpretations thereunder with respect to all Employee Benefit Plans,
(b) not take any action or fail to take action the result of which could be a liability to the PBGC
or to a Multiemployer Plan, (c) not participate in any prohibited transaction that could result in
any civil penalty under ERISA or tax under the Code, and (d) operate each Employee Benefit Plan in
such a manner that will not incur any tax liability under Section 4980B of the Code, except for any
failure to do or comply with any of the matters referred to in clause (a), (b), (c) or (d) above
that could not reasonably be expected to result in a Material Adverse Effect, or any liability to
any qualified beneficiary as defined in Section 4980B of the Code and (e) furnish to the
Administrative Agent upon the Administrative Agent’s request such additional information about any
Employee Benefit Plan as may be reasonably requested by the Administrative Agent.



     Section 8.9 Compliance With Agreements. Comply with each material term, condition and
provision of all leases, agreements and other instruments entered into in the conduct of its
business including any Material Contract except for any failure so to comply that could not
reasonably be expected to result in a Material Adverse Effect and; provided, that any
Credit Party may contest any such lease, agreement or other instrument in good faith through
applicable proceedings so long as adequate reserves are maintained in accordance with GAAP.



     Section 8.10 Visits and Inspections. Permit representatives of the Administrative
Agent or any Lender, from time to time upon prior reasonable notice to the Administrative Borrower
and at such times during normal business hours, to visit and inspect its properties; inspect, audit
and make extracts from its books, records and files, including management letters prepared by



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independent accountants; and discuss with its principal officers, and its independent accountants,
its business, assets, liabilities, financial condition, results of operations and business
prospects; provided that, unless a Default or Event of Default shall have occurred and be
continuing, the Borrowers shall only be required to pay, jointly and severally, for one (1) such
visit and inspection by the Administrative Agent or any Lender per Fiscal Year; provided
further, that upon the occurrence and during the continuance of a Default or an Event of
Default, representatives of the Administrative Agent or any Lender may do any of the foregoing at
the, joint and several, expense of the Borrowers (without reference to the above-mentioned expense
limitation) as often as may be reasonably desired, at any time during normal business hours and
without advance notice.




     Section 8.11
Additional Subsidiaries; Real Property. (a) Additional Domestic
Subsidiaries. Notify the Administrative Agent of the creation or acquisition of any Domestic
Subsidiary of any Borrower and promptly thereafter (and in any event within thirty (30) days),
cause such Person to:




     (i) become a Guarantor by delivering to the Administrative Agent a duly
executed supplement to the Guaranty Agreement or such other document as the
Administrative Agent shall deem appropriate for such purpose,




     (ii) pledge a security interest in all Collateral owned by such Subsidiary by
delivering to the Administrative Agent a duly executed supplement to each Security Document
or such other document as the Administrative Agent shall deem appropriate for such purpose
and comply with the terms of each Security Document,




     (iii) deliver to the Administrative Agent any applicable documents and
certificates referred to in Section 5.1 relating to such Subsidiary, as may be
reasonably requested by the Administrative Agent,




     (iv) deliver to the Administrative Agent such original Capital Stock or other
certificates and stock or other transfer powers evidencing the Capital Stock of such Person,




     (v) deliver to the Administrative Agent such updated Schedules to the Loan
Documents as requested by the Administrative Agent with respect to such Person, and




     (vi) deliver to the Administrative Agent such other documents as may be reasonably
requested by the Administrative Agent in connection therewith, all in form, content and
scope reasonably satisfactory to the Administrative Agent.



     (b) Real Property Collateral. Notify the Administrative Agent, within ten (10)
Business Days after the acquisition of any owned real property by any Credit Party that is not
subject to the existing Security Documents, and within ninety (90) days following request by the
Administrative Agent, deliver such Mortgages, title insurance policies (with copies of all
exceptions to such title insurance policies), environmental assessments and reports, flood
certifications, surveys and other documents reasonably requested by the Administrative Agent in
connection with granting and perfecting a first priority Lien, subject to the Intercreditor
Agreement and other than Permitted Liens, on such real property in favor of the Administrative



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69









 




Agent, for the benefit of itself and the Lenders, all in form and substance acceptable
to the Administrative Agent.




     Section 8.12 Use of Proceeds. The Borrowers shall use the proceeds of the Extensions
of Credit for working capital and general corporate purposes of the Borrower and the other
Subsidiaries, including Permitted Acquisitions and provision of cash collateral for letters of
credit.



     Section 8.13 Further Assurances. Make, execute and deliver all such additional and
further acts, things, deeds and instruments as the Administrative Agent or the Required Lenders
(through the Administrative Agent) may reasonably require to document and consummate the
transactions contemplated hereby and to vest completely in and insure the Administrative Agent and
the Lenders their respective rights under this Agreement, the Letters of Credit and the other Loan
Documents. The Borrowers shall, and shall cause each Guarantor to, use its reasonable best efforts
to obtain necessary government approvals to grant Liens pursuant to the Security Documents on
Excluded Collateral of the types described in clause (g) of the definition thereof.



     Section 8.14 Post-Closing Obligation. Within 30 days after the Closing Date (or such
later date with the consent of the Administrative Agent in its sole discretion), the Administrative
Agent shall have received control agreements, duly authorized, executed and delivered, among the
applicable Credit Party, the Administrative Agent and the applicable depositary bank, with such
exceptions as are provided in the Collateral Agreement, and each in form and substance satisfactory
to the Administrative Agent, including that upon a Trigger Event such depositary bank shall not
take instructions from such applicable Credit Party (but if, after the occurrence of any Trigger
Event, no Trigger Event shall have occurred during any period of 30 consecutive days, then, at the
end of such 30-day period, the Administrative Agent shall notify the applicable depositary bank
that the applicable Credit Party is once again entitled to give instructions to such depositary
bank).



ARTICLE IX




NEGATIVE COVENANTS




     Until all of the Obligations (other than inchoate indemnification obligations) have been
paid and satisfied in full and the Revolving Credit Commitment terminated, unless consent has
been obtained in the manner set forth in Section 12.2, no Borrower will, nor will any
Borrower permit any of its Subsidiaries to:



     Section 9.1 Limitations on Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness except:




     (a) the Obligations (excluding Hedging Obligations permitted pursuant to clause
(e) below);




     (b) the Senior Secured Notes in an aggregate principal amount not to exceed
$210,000,000;



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     (c) Indebtedness in respect of letters of credit that are collateralized with cash
or cash equivalents in an amount at least equal to (but not exceeding 105% of) the
aggregate stated amount of such letters of credit;




     (d) Indebtedness in respect of letters of credit (the “Verizon Permitted LCs” and,
together with the letters of credit described in clause (c) above, the “Permitted
LCs”) that (i) are or were issued to (A) Verizon or (B) a financial institution that issued one
or more letters of credit to Verizon for the account of the Persons that were holders of the
capital stock of ATX immediately prior to the consummation of the ATX Acquisition, (ii) have an
aggregate stated amount not exceeding an amount equal to the excess of (A) $18,000,000 over (B) the
aggregate amount of settlement payments made after June 16, 2006 to Verizon and (iii) are
collateralized with cash or cash equivalents in an amount at least equal to (but not exceeding 105%
of) the aggregate stated amount of such letters of credit;




     (e) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon
terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent;
provided that any counterparty that is a Lender shall be deemed satisfactory to the
Administrative Agent;




     (f) Indebtedness existing on the Closing Date and not otherwise permitted
under this Section and listed on Schedule 9.1, and any refinancings, refundings,
renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is
not increased at the time of such refinancing, refunding, renewal or extension except by an
amount equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an amount
equal to any existing commitments unutilized thereunder and (ii) any refinancing,
refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on
subordination terms at least as favorable to the Lenders, (B) no more restrictive on the
Credit Parties than the Subordinated Indebtedness being refinanced, refunded, renewed or
extended and (C) in an amount not less than the amount outstanding at the time of such
refinancing, refunding, renewal or extension;




     (g) Guaranty Obligations in favor of the Administrative Agent for the benefit
of the Administrative Agent and the Lenders;




     (h) Guaranty Obligations with respect to Indebtedness permitted pursuant to clauses
(a) through (d) and (j) of this Section;




     (i) Indebtedness owed by Holdings or any Subsidiary to Holdings or any Subsidiary;
provided, that (i) no Event of Default has occurred and is continuing, or would result
therefrom, (ii) all such extensions of credit shall be documented in the form of a promissory note
and such note shall be delivered, with such appropriate endorsement or other transfer powers in
blank, to the Collateral Agent as Collateral in accordance with the Security Documents and (iii) if
such Indebtedness is incurred by a Subsidiary that is not a Borrower or a Guarantor and owed to a
Borrower or a Guarantor, shall not exceed $1,000,000;



(Credit Agreement)




71









 






     (j) additional Indebtedness of Holdings and its Subsidiaries in an aggregate
principal amount not to exceed $16,500,000 at any time outstanding (including Indebtedness
in respect of Capital Leases and Purchase Money Indebtedness outstanding at any time);
provided that no Default or Event of Default has occurred and is continuing, or
would result therefrom; and




     (k) additional Indebtedness of Holdings and its Subsidiaries; provided
that (i) no Default or Event of Default has occurred and is continuing or would result
therefrom, (ii) the incurrence of such Indebtedness is permitted by the Senior Secured Notes
Indenture (as in effect on the date hereof), and (iii) such Indebtedness is not secured by
any Lien on any property of Holdings or any of its Subsidiaries (unless the Senior Secured
Notes Indenture (as in effect on the date of this Agreement) permits such Indebtedness to be
so secured);


provided, that no agreement or instrument with respect to Indebtedness permitted to be
incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the
ability of any Credit Party to make any payment to Holdings or any of its Subsidiaries (in the form
of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrowers to pay
the Obligations.




     Section 9.2 Limitations on Liens. Create, incur, assume or suffer to exist, any Lien
on or with respect to any of its assets or properties (including shares of Capital Stock), real or
personal, whether now owned or hereafter acquired, except:




     (a) Liens for taxes, assessments and other governmental charges or levies (excluding
any Lien imposed pursuant to any of the provisions of ERISA or Environmental Laws) not yet
due or as to which the period of grace (not to exceed thirty (30) days), if any, related
thereto has not expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP;




     (b) the claims of materialmen, mechanics, carriers, warehousemen, processors or
landlords for labor, materials, supplies or rentals incurred in the ordinary course of
business, (i) which are not overdue for a period of more than thirty (30) days or (ii) which
are being contested in good faith and by appropriate proceedings if adequate reserves are
maintained to the extent required by GAAP;




     (c) Liens consisting of deposits or pledges made in the ordinary course of business in
connection with, or to secure payment of, obligations under workers’ compensation,
unemployment insurance or similar legislation;




     (d) Liens constituting encumbrances in the nature of zoning restrictions, easements and
rights or restrictions of record on the use of real property, which in the aggregate are not
substantial in amount and which do not, in any case, detract in any material respect from
the value of such property or impair in any material respect the use thereof in the ordinary
conduct of business;



(Credit Agreement)




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     (e) Liens of the Administrative Agent for the benefit of the Administrative Agent and
the Lenders under the Loan Documents;




     (f) Liens not otherwise permitted by this Section and in existence on the Closing
Date and described on Schedule 9.2;




     (g) Deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business; provided,
that all such deposits in the aggregate could not reasonably be expected to result in a
Material Adverse Effect;




     (h) (i) any interest or title of a lessor under any Indebtedness incurred in
respect of a Capital Lease that is permitted pursuant to clause (j) of Section
9.1 (provided that such Liens do not extend to any property or assets which are not
leased property subject to such Capital Lease) and (ii) Liens securing Purchase Money
Indebtedness permitted pursuant to clause (j) of Section 9.1 (provided that
(A) such Purchase Money Indebtedness shall not exceed the cost of the property or assets
acquired, together, in the case of real property, with the cost of the construction thereof
and improvements thereto, and shall not be secured by a Lien on any property or assets of
the Holdings or any Subsidiary of Holdings other than such property or assets so acquired or
constructed and improvements thereto, (B) the Lien securing such Indebtedness shall be
created within 180 days of such acquisition or construction or, in the case of a refinancing
of any such Purchase Money Indebtedness, within 180 days of such refinancing and (C) such
property or assets is subject to a Lien securing the Obligations that is subordinate to the
Lien securing such Purchase Money Indebtedness, unless such Lien is prohibited by the
agreement or instrument governing such Purchase Money Indebtedness);




     (i) Liens securing Permitted LCs, to the extent (i) such Indebtedness is
permitted under clause (c) or (d) of
Section 9.1; (ii) such Liens only cover
Permitted LC Cash Collateral Accounts and the cash and cash equivalents on deposit therein;
and (iii) the aggregate amount of such cash and cash equivalents that are subject to any
such Lien are in an amount at least equal to (but not exceeding 105% of) the aggregate
stated amount of the Permitted LCs secured thereby;




     (j) Liens in favor of the Collateral Agent or the Trustee for the benefit of the
Collateral Agent, the Trustee and the Senior Secured Noteholders, which, in each case,
secure the Second Priority Claims (as defined in the Intercreditor Agreement) and (except
with respect to such Liens on the Escrow Account and Escrow Funds) are subject to the
Intercreditor Agreement;




     (k) judgment Liens that have been stayed or bonded or do not give rise to an Event
of Default.



     Section 9.3
Limitations on Loans, Advances, Investments and Acquisitions. Purchase,
own, invest in or otherwise acquire, directly or indirectly, any Capital Stock, interests in any
partnership or joint venture (including the creation or capitalization of any Subsidiary), evidence



(Credit Agreement)




73









 




of Indebtedness or other obligation or security, substantially all or a portion of the
business or assets of any other Person or any other investment or interest whatsoever in any other
Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of
credit to, or any investment in cash or by delivery of property in, any Person except:





     (a) investments (i) in Subsidiaries existing on the Closing Date, (ii) in Domestic
Subsidiaries that are also Subsidiaries formed or acquired after the Closing Date;
provided that Holdings and its Subsidiaries comply with the applicable provisions of
Section 8.11 and (iii) the other loans, advances and investments described on
Schedule 9.3 existing on the Closing Date;




     (b) investments in Cash Equivalents;




     (c) investments by Holdings or any of its Subsidiaries in the form of
(i) Permitted Acquisitions, and (ii) the ATX Acquisition (but only if, after giving effect
to the ATX Acquisition, the Borrowers shall be able to borrow at least $10,000,000 in
Loans); provided that, all such investments shall result in the acquisition of one
or more Wholly-Owned Domestic Subsidiaries;




     (d) Hedging Agreements permitted pursuant to clause (e) of Section
9.1;




     (e) purchases of assets in the ordinary course of business;




     (f) loans and advances, including advances for travel and moving expenses, to
employees, officers and directors Holdings and its Subsidiaries in the ordinary course of
business for bona fide business purposes not in excess of $1,000,000 at any one time
outstanding;




     (g) intercompany Indebtedness permitted pursuant to clause (i) of Section
9.1; and




     (h) other Investments so long as (i) the aggregate amount of such Investments at
any one time outstanding does not exceed $5,000,000, and (ii) at the time such Investment is
made, the Borrowers have the ability to borrow at least $8,000,000 of Loans.



     Section 9.4 Limitations on Mergers and Liquidation. Merge, consolidate or enter into
any similar combination with any other Person or liquidate, wind-up or dissolve itself (or suffer
any liquidation or dissolution) except:




     (a) any Wholly-Owned Subsidiary of a Borrower may be merged or consolidated with
or into such Borrower (provided that such Borrower shall be the continuing or
surviving Person) or with or into any Guarantor (provided that the Guarantor
shall be the continuing or surviving Person);




     (b) any Wholly-Owned Subsidiary may sell, lease, transfer or otherwise dispose of any
or all of its assets (upon voluntary liquidation or otherwise) to any Borrower or any other
Wholly-Owned Subsidiary (provided that if the transferor in such



(Credit Agreement)




74









 






a transaction is a Guarantor, then the transferee must either be a
Borrower or a Guarantor);




     (c) any Wholly-Owned Subsidiary of any Borrower may merge into the Person such
Wholly-Owned Subsidiary was formed to acquire in connection with a Permitted
Acquisition; and




     (d) any Subsidiary of any Borrower may wind-up into a Borrower or, if such Subsidiary
is not a Borrower, any Guarantor.



     Section 9.5 Limitations on Asset Dispositions. Make any Asset Disposition (including
the sale of any receivables and leasehold interests and any sale-leaseback or similar transaction)
except:




     (a) the sale of inventory in the ordinary course of business;




     (b) the sale of obsolete or worn-out assets no longer usable in the business of
Holdings or any of its Subsidiaries;




     (c) transfers of assets permitted pursuant to Section 9.4;




     (d) the sale or discount without recourse of accounts receivable arising in the
ordinary course of business in connection with the compromise or collection thereof;




     (e) subject to the requirements of Section 8.12, the disposition of any Hedging
Agreement; and




     (f) Liens, investments, dividends and distribution, leases and licenses not
prohibited by the provisions of this Agreement; and




     (g) additional Asset Dispositions not otherwise permitted pursuant to this Section
in an aggregate amount not to exceed $5,000,000 during the term of this Agreement.



     Section 9.6 Limitations on Dividends and Distributions. Declare or pay any dividends
upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or
indirectly, any of its Capital Stock, or make any distribution of cash, property or assets among
the holders of its Capital Stock, or make any change in its capital structure except as otherwise
permitted hereunder; provided that




     (a) Holdings or any Subsidiary may pay dividends in shares of its own Qualified
Capital Stock;




     (b) any Subsidiary may pay cash dividends to any Borrower; and




     (c) if no Default or Event of Default has occurred and is continuing or would exist
after giving effect thereto, Holdings or any Subsidiary declare and pay dividends upon any
of its Capital Stock, or purchase, redeem, retire or otherwise acquire, directly or



(Credit Agreement)




75









 






indirectly, any of its Capital Stock, or make any distribution of cash, property or
assts among the holders of its Capital Stock, in each case to the extent permitted by the
Senior Secured Notes Indenture as in effect on the Closing Date (and so long as the
Administrative Agent is given notice thereof).



     Section 9.7 Limitations on Issuance of Capital Stock. Issue any Disqualified Capital
Stock (whether for value or otherwise) to any Person, except to the extent permitted under
Section 9.1. Issue any Capital Stock of any Subsidiary of Holdings to any Person other than
Holdings or another Subsidiary of Holdings (but in each case, with notice to the Administrative
Agent).



     Section 9.8 Transactions with Affiliates. Directly or indirectly (a) make any loan or
advance to, or purchase or assume any note or other obligation to or from, any of its officers,
directors, shareholders or other Affiliates, or to or from any member of the immediate family of
any of its officers, directors, shareholders or other Affiliates, or subcontract any operations to
any of its Affiliates or (b) enter into, or be a party to, any other transaction not described in
clause (a) above with any of its Affiliates other than:




     (i) transactions permitted by any of Sections 9.3, 9.4,
9.6 and 9.7;




     (ii) transactions existing on the Closing Date and described on Schedule
9.8;




     (iii) normal compensation (including bonuses) and reimbursement of
reasonable expenses of officers and directors; and




     (iv) other transactions in the ordinary course of business on terms as favorable as
would be obtained by it on a comparable arms-length transaction with an independent,
unrelated third party as determined in good faith by the board of directors of Holdings.



     Section 9.9 Certain Accounting Changes; Organizational Documents; Equity Holder
Agreements. (a) Change its Fiscal Year end, or make any change in its accounting treatment and
reporting practices except as required by GAAP, (b) amend, modify or change its articles of
incorporation (or corporate charter or other similar organizational documents) or amend, modify or
change its bylaws (or other similar documents) in any manner materially adverse in any respect to
the rights or interests of the Lenders or (c) amend, modify or change any term or provision of any
of the Equity Holder Agreements in any manner adverse in any respect to the rights or interests of
the Lenders.



     Section 9.10
Amendments; Prepayments and Optional Redemptions of Senior Secured Notes.
(a) Amend or modify (or permit the modification or amendment of) any of the terms or provisions of
the Senior Secured Notes, the Senior Secured Notes Indenture or any other material document,
instrument or agreement executed and delivered by any Credit Party in connection therewith, other
than any amendment, supplement, waiver or modification for which no fee is payable to the holders
of the Senior Secured Notes and which (i) extends the date or reduces the amount of any required
repayment, prepayment or redemption of the principal of the Senior Secured Notes, (ii) reduces the
rate or extends the date for payment of the interest, premium (if any) or fees payable on the
Senior Secured Notes or (iii) makes the covenants, events of default



(Credit Agreement)





76









 




or remedies in the Senior Secured Notes, the Senior Secured Notes Indenture and such other
documents, instruments and agreements less restrictive on the Credit Parties party thereto.




     (b) Cancel, forgive, make any voluntary prepayment on, or optionally redeem or acquire for
value (including by way of defeasance) the Senior Secured Notes.



     (c) Amend or modify any of the Transaction Documents (other than the Senior Secured Notes,
the Senior Secured Notes Indenture or any other document, instrument or agreement executed and
delivered by any Credit Party in connection therewith), other than any amendment, supplement,
waiver or modification which is not materially adverse to the Lenders or any Credit Party.



     Section 9.11 Restrictive Agreements. (a) Enter into any Indebtedness which contains
any negative pledge on assets or any covenants more restrictive than the provisions of Articles
VIII and IX hereof, or which restricts, limits or otherwise encumbers its ability to incur
Liens on or with respect to any of its assets or properties other than the assets or properties
securing such Indebtedness.



     (b) Enter into or permit to exist any agreement which prohibits the ability of any
Subsidiary to make any payments or transfer any of its assets, directly or indirectly, to any
Borrower, including by way of dividends, advances, repayments of loans, reimbursements of
management and other intercompany charges, expenses and accruals or other returns on
investments other than:




     (i) the Credit Agreement and the other Loan Documents;




     (ii) customary non-assignment provisions of any lease of any Subsidiary of
Holdings to the extent such provisions restrict the transfer of the lease or the property
leased thereunder;




     (iii) restrictions on the transfer of assets subject to any Permitted Lien;




     (iv) restrictions on cash or other deposits imposed by customers under
contracts or other arrangements entered into or agreed to in the ordinary course of
business; and




     (v) the Senior Secured Notes Indenture.



     (c) Enter into or permit to exist any agreement (other than the Intercreditor
Agreement) which prohibits the ability of any Credit Party to amend or otherwise modify any
Loan Document.



     Section 9.12 Nature of Business. Alter in any material respect the character or
conduct of the business conducted by Holdings and its Subsidiaries as of the Closing Date.



     Section 9.13 Impairment of Security Interests. Take or omit to take any action, which
might or would have the result of materially impairing the security interests in favor of the
Administrative Agent with respect to the Collateral or grant to any Person (other than the



(Credit Agreement)





77









 







Administrative Agent for the benefit of itself and the Lenders pursuant to the Security
Documents) any interest whatsoever in the Collateral, except for Permitted Liens and asset sales
permitted under Section 9.5 or as provided in the Intercreditor Agreement.




ARTICLE X




DEFAULT AND REMEDIES




     Section 10.1 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 Authority or otherwise:




     (a) Default in Payment of Principal of Loans and Reimbursement Obligations. Any
Borrower or any other Credit Party shall default in any payment of principal of any Loan or
Reimbursement Obligation when and as due (whether at maturity, by reason of acceleration or
otherwise).




     (b) Other Payment Default. Any Borrower or any other Credit Party shall default
in the payment when and as due (whether at maturity, by reason of acceleration or otherwise)
of interest on any Loan or Reimbursement Obligation or the payment of any other Obligation,
and such default shall continue for a period of three (3) Business Days.




     (c) Misrepresentation. Any representation, warranty, certification or statement
of fact made or deemed made by or on behalf of any Borrower or any other Credit Party
herein, in any other Loan Document, or in any document delivered by or on behalf of any
Borrower or any other Credit Party herein in connection herewith or therewith that is
subject to materiality or Material Adverse Effect qualifications, shall be incorrect or
misleading in any respect when made or deemed made or any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of such Borrower or
such other Credit Party herein, any other Loan Document, or in any document delivered by or
on behalf of any Borrower or any other Credit Party herein in connection herewith or
therewith that is not subject to materiality or Material Adverse Effect qualifications,
shall be incorrect or misleading in any material respect when made or deemed made.




     (d) Default in Performance of Certain Covenants. Any Borrower or any other
Credit Party shall default in the performance or observance of any covenant or agreement
contained in (i) Section 7.1(a) or (b) and such default continues for a period of
five (5) days, (ii) Section 7.1(e) and such default continues for a period of five
(5) days or (iii) Section 7.2 or 7.5 or Article IX.




     (e) Default in Performance of Other Covenants and Conditions. Any
Borrower or any other Credit Party shall default in the performance or observance of
any term, covenant, condition or agreement contained in this Agreement (other than as
specifically provided for otherwise in this Section) or any other Loan Document and such



(Credit Agreement)




78









 









default shall continue for a period of fifteen (15) days after written notice thereof
has been given to Administrative Borrower by the Administrative Agent.




     (f) Hedging Agreement. Any Borrower or any other Credit Party shall default in the
performance or observance of any terms, covenant, condition or agreement (after giving effect to
any applicable grace or cure period) under any Hedging Agreement and such default causes the
termination of such Hedging Agreement and the Termination Value owed by such Credit Party as a
result thereof exceeds $1,000,000.




     (g) Indebtedness Cross-Default. Any Borrower or any other Credit Party shall (i)
default in the payment of any Indebtedness (other than the Loans or any Reimbursement Obligation)
the aggregate outstanding amount of which Indebtedness is in excess of $1,000,000 beyond the period
of grace if any, provided in the instrument or agreement under which such Indebtedness was created,
(ii) default in the observance or performance of any other agreement or condition relating to any
Indebtedness (other than the Loans or any Reimbursement Obligation) the aggregate outstanding
amount of which Indebtedness is in excess of $1,000,000 or contained in any instrument or agreement
evidencing, securing or relating thereto or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit the holder or holders
of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the
giving of notice if required, any such Indebtedness to become due prior to its stated maturity (any
applicable grace period having expired) or (iii) any such Indebtedness shall be declared due and
payable, or required to be prepaid, mandatorily redeemed or repurchased (other than by a regularly
scheduled required prepayment or, in the case of Senior Secured Notes, pursuant to mandatory
prepayment or repurchase provisions contained in the Senior Secured Notes Indenture), prior to the
stated maturity thereof.




     (h) Other Cross-Defaults. Any Borrower or any other Credit Party shall default
in the payment when due, or in the performance or observance, of any obligation or condition of any
Material Contract unless, but only as long as, the existence of any such default is being contested
by such Borrower or such other Credit Party in good faith by appropriate proceedings and adequate
reserves in respect thereof have been established on the books of such Borrower or such other
Credit Party to the extent required by GAAP.




     (i) Change in Control. Any Change in Control shall occur.




     (j) Voluntary Bankruptcy Proceeding. Any Borrower or any other Credit Party
shall (i) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in
effect), (ii) file a petition seeking to take advantage of any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or composition for adjustment of
debts, (iii) consent to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv) apply for or
consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a
substantial part of its property, domestic



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or foreign, (v) admit in writing its inability to pay its debts as they become due, (vi)
make a general assignment for the benefit of creditors, or (vii) take any corporate action for the
purpose of authorizing any of the foregoing.




     (k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against any Borrower or any other Credit Party in any court of competent jurisdiction
seeking (i) relief under the federal bankruptcy laws (as now or hereafter in effect) or under any
other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or the
like for any Borrower or any other Credit Party or for all or any substantial part of their
respective assets, domestic or foreign, and such case or proceeding shall continue without
dismissal or stay for a period of sixty (60) consecutive days, or an order granting the relief
requested in such case or proceeding (including an order for relief under such federal bankruptcy
laws) shall be entered.




     (l) Failure of Agreements. Any of the following shall occur: (i) any Note, or
any material provision of this Agreement or any Loan Document that is a guaranty, security
agreement, pledge agreement or other document or instrument evidencing the Obligations or granting
any Lien to secure the Obligations shall, for any reason, not be valid and binding on the Credit
Party signatory thereto, or not be in full force and effect, or shall be declared to be null and
void; or (ii) the validity or enforceability of any Loan Document or any Lien created thereunder
shall be contested by any Credit Party; or (iii) any Credit Party shall deny in writing that it has
any or further liability or obligation under its respective Loan Documents; or (iv) any property of
any Credit Party constituting collateral is not subject to a perfected security interest and Lien,
having the priority provided for in the Loan Documents (and subject to Permitted Liens) in favor of
Administrative Agent.




     (m) Termination Event. The occurrence of any of the following events: (i) a
contribution failure sufficient to give rise to a Lien under Section 302(f) of ERISA, (ii) an
accumulated funding deficiency in excess of $500,000 occurs or exists, whether or not waived, with
respect to any Pension Plan, (iii) a Termination Event or (iv) any Credit Party or any ERISA
Affiliate as employers under one or more Multiemployer Plans makes a complete or partial withdrawal
from any such Multiemployer Plan and the plan sponsor of such Multiemployer Plans notifies such
withdrawing employer that such employer has incurred a withdrawal liability requiring payments in
an amount exceeding $1,000,000.




     (n) Judgment. A judgment or order for the payment of money in excess of
$1,000,000 or which causes the aggregate amount of all such judgments to exceed $2,500,000 (to the
extent not covered by independent third party insurance as to which the insurer does not dispute
coverage) in any Fiscal Year shall be entered against any Borrower or any other Credit Party by any
court and such judgment or order shall continue without having been discharged, vacated or stayed
for a period of thirty (30) days after the entry thereof.



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     (o) Environmental. Any one or more Environmental Claims shall have been
asserted against any Borrower or any other Credit Party; any Borrower and any other Credit
Party would be reasonably likely to incur liability as a result thereof; and such liability
would be reasonably likely, individually or in the aggregate, to have a Material Adverse
Effect.




     (p) Loss of Assets. Any of the following shall have occurred: (i) a final
non-appealable order is issued by any Governmental Authority, including the FCC, any
applicable PUC, or the United States Justice Department, requiring any Credit Party to divest a
material portion of its assets pursuant to any antitrust, restraint of trade, unfair
competition, industry regulation, or similar Applicable Laws, or (ii) any Governmental
Authority shall condemn, seize, or otherwise appropriate, or take custody or control of all or
a material portion of the assets of any Credit Party;




     (q) Loss of License. Any of the following shall have occurred if the effect
thereof would be reasonably expected to cause a Material Adverse Effect; (i) any License
whether presently existing or hereafter granted to or obtained by any Credit Party shall expire
without renewal or be suspended or revoked, or (ii) any Credit Party shall become subject to
any injunction or other order affecting or which may affect such Credit Party’s present or
proposed operations under any such License;




     (r) Failure to Comply; Expiration of License. Any Credit Party shall fail to
comply in any respect with the Communications Act, or any rule or regulation promulgated by the
FCC or any applicable PUC, and such failure would reasonably be expected to cause a Material
Adverse Effect; or any License or authorization constituting authorizations, permits or
licenses of any Credit Party material to the operation of the business of such Credit Party,
has expired or shall expire without having been renewed or shall be canceled or impaired, and
such expiration, cancellation or impairment would reasonably be expected to cause a Material
Adverse Effect;




     (s) Failure to Operate. (i) any Credit Party shall fail to operate its
business for any period of time which, in the aggregate, would reasonably be expected to cause
a Material Adverse Effect or (ii) any Substantial Portion shall not, for any reason (including
loss of an FCC License or otherwise) be operating for a period in excess of 30 (30) days. For
purposes of this Section 10.1(s). “Substantial Portion” means any portion of the
telecommunications system of the Credit Parties that has generated, for the most recently
completed twelve-month period, in excess of 5% of the gross revenues of the Credit Parties.



     Section 10.2 Remedies. Upon the occurrence of an Event of Default, with the consent of
Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Administrative Borrower:




     (a) Acceleration; Termination of Facilities. Terminate the Revolving Credit
Commitment and declare the principal of and interest on the Loans and the Reimbursement
Obligations at the time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan



(Credit Agreement)




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Documents (including all L/C Obligations, whether or not the beneficiaries of the
then outstanding Letters of Credit shall have presented or shall be entitled to present the
documents required thereunder) and all other Obligations (other than Hedging Obligations),
to be forthwith due and payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all of which are expressly
waived by each Credit Party, anything in this Agreement or the other Loan Documents to the
contrary notwithstanding, and terminate the Credit Facility and any right of the Borrowers
to request borrowings or Letters of Credit thereunder; provided, that upon the
occurrence of an Event of Default specified in Section 10.1(j) or (k), the Credit
Facility shall be automatically terminated and all Obligations (other than Hedging
Obligations) shall automatically become due and payable without presentment, demand, protest
or other notice of any kind, all of which are expressly waived by each Credit Party,
anything in this Agreement or in any other Loan Document to the contrary notwithstanding.




     (b) Letters of Credit. With respect to all Letters of Credit with respect to
which presentment for honor shall not have occurred at the time of an acceleration pursuant
to the preceding paragraph, the Borrowers shall, jointly and severally, at such time deposit
in a cash collateral account opened by the Administrative Agent an amount equal to 105% of
the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in
such cash collateral account shall be applied by the Administrative Agent to the payment of
drafts drawn under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay the other Obligations on a pro rata basis. After all such Letters of Credit
shall have expired or been fully drawn upon, the Reimbursement Obligation shall have been
satisfied and all other Obligations shall have been paid in full, the balance, if any, in
such cash collateral account shall be returned to the Borrowers.




     (c) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and Applicable
Law, in order to satisfy all of the Borrowers’ Obligations.



     Section 10.3 Rights and Remedies Cumulative; Non-Waiver; etc. The enumeration of the
rights and remedies of the Administrative Agent and the Lenders set forth in this Agreement is not
intended to be exhaustive and the exercise by the Administrative Agent and the Lenders of any right
or remedy shall not preclude the exercise of any other rights or remedies, all of which shall be
cumulative, and shall be in addition to any other right or remedy given hereunder or under the
other Loan Documents or that may now or hereafter exist at law or in equity or by suit or
otherwise. No delay or failure to take action on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege or shall be construed to be a waiver
of any Event of Default. No course of dealing between the Borrowers, the Administrative Agent and
the Lenders or their respective agents or employees shall be effective to change, modify or
discharge any provision of this Agreement or any of the other Loan Documents or to constitute a
waiver of any Event of Default.



(Credit Agreement)




82









 








     Section 10.4 Crediting of Payments and Proceeds. In the event that the
Borrowers shall fail to pay any of the Obligations when due and the Obligations have been
accelerated pursuant to Section 10.2, all payments received by the Administrative Agent and
the Lenders upon the Obligations and all net proceeds from the enforcement of the Obligations shall
be applied:




     First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts, including attorney fees, payable to the
Administrative Agent in its capacity as such and each Issuing Bank in its capacity as such
(ratably among the Administrative Agent and such Issuing Banks in proportion to the
respective amounts described in this clause First payable to them);




     Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the Lenders,
including attorney fees (ratably among the Lenders in proportion to the respective amounts
described in this clause Second payable to them);




     Third, to payment of that portion of the Obligations constituting accrued and
unpaid interest on the Loans and Reimbursement Obligations and any Hedging Obligations
(including any termination payments and any accrued and unpaid interest thereon) (ratably
among the Lenders in proportion to the respective amounts described in this clause
Third payable to them);




     Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and Reimbursement Obligations (ratably among the Lenders in
proportion to the respective amounts described in this clause Fourth held by them);




     Fifth, to the Administrative Agent for the account of each applicable Issuing
Bank, to cash collateralize any L/C Obligations then outstanding in an amount equal to 105%
of the amount of such L/C Obligations; and




     Last, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to the Borrowers or as otherwise required by Law.



     Section 10.5 Administrative Agent May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Credit Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrowers) shall be entitled and empowered, by intervention
in such proceeding or otherwise:




     (a) to file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are
owing and unpaid and to file such other documents as may be necessary or advisable in order
to have the claims of the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective agents and counsel and all



(Credit Agreement)




83









 









     other amounts due the Lenders and the Administrative Agent under Sections
3.3, 4.3 and 12.3) allowed in such judicial proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable
on any such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding 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 for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 4.3
and 12.3.



Nothing contained herein 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 the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.




ARTICLE XI




THE ADMINISTRATIVE AGENT




     Section 11.1 Appointment and Authority. Each of the Lenders and each Issuing Bank
hereby irrevocably appoints CIT to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
each Issuing Bank, and neither any Borrower nor any other Credit Party shall have rights as a third
party beneficiary of any of such provisions.



     Section 11.2 Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or
in any other advisory capacity for and generally engage in any kind of business with any Credit
Party or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.



     Section 11.3 Exculpatory Provisions. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other Loan Documents.
Without limiting the generality of the foregoing, the Administrative Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;



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84









 









     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or Applicable Law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Credit Party or Affiliate thereof that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.


The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Section 12.2 and Section 10.2) or
(ii) in the absence of its own gross negligence or willful misconduct as determined by a court of
competent jurisdiction by final nonappealable judgment. The Administrative Agent shall be deemed
not to have knowledge of any Default unless and until notice describing such Default is given to
the Administrative Agent by the Administrative Borrower, a Lender or a Issuing Bank.



The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this Agreement or any
other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article V or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.




     Section 11.4 Reliance by the Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by it to be genuine
and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have
been made by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or the issuance of a
Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing
Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or
such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from
such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of
Credit. The Administrative Agent may consult with



(Credit Agreement)




85









 







legal counsel (who may be counsel for a Borrower or another Credit Party), independent
accountants and other experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or experts.




     Section 11.5 Delegation of Duties. The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent may perform any and all of its duties and exercise its rights and powers by
or through their respective Related Parties. The exculpatory provisions of this Article shall apply
to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative Agent.



     Section 11.6 Resignation of Administrative Agent. The Administrative Agent may at any
time give notice of its resignation to the Lenders, each Issuing Bank and the Administrative
Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, with the Borrowers’ consent (such consent not to be unreasonably withheld or delayed), to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall have been so
appointed and shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and each Issuing Bank and without the consent of the Borrowers, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided that if
the Administrative Agent shall notify the Administrative Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on behalf of the
Lenders or each Issuing Bank under any of the Loan Documents, the retiring Administrative Agent
shall continue to hold such collateral security until such time as a successor Administrative Agent
is appointed) and (2) all payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank
directly, until such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this paragraph. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrowers to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrowers and such
successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 12.2 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.



(Credit Agreement)




86









 








     Section 11.7 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the
Administrative Agent, the Syndication Agent, the Arranger or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank
also acknowledges that it will, independently and without reliance upon the Administrative Agent,
the Syndication Agent, the Arranger or any other Lender or any of their Related Parties and based
on such documents and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.



     Section 11.8 No Other Duties, etc. Anything herein to the contrary notwithstanding,
neither the Syndication Agent nor the Arranger shall have any powers, duties or responsibilities
under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as
a Lender hereunder. Without limiting the foregoing, neither the Syndication Agent nor the Arranger
shall have or be deemed to have any fiduciary relationship with any Lender, any Borrower or any
Guarantor.



     Section 11.9 Collateral and Guaranty Matters. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion,




     (a) to release any Lien on any Collateral granted to or held by the Administrative
Agent, for the ratable benefit of itself and the Lenders, under any Loan Document (i) upon
repayment of the outstanding principal of and all accrued interest on the Loans and
Reimbursement Obligations, payment of all outstanding fees and expenses hereunder, the
termination of the Revolving Credit Commitment and the expiration or termination of all
Letters of Credit, (ii) that is sold or to be sold as part of or in connection with any sale
permitted hereunder or under any other Loan Document, or (iii) subject to Section
12.2, if approved, authorized or ratified in writing by the Required Lenders;




     (b) to subordinate or release any Lien on any Collateral granted to or held by the
Administrative Agent under any Loan Document to the holder of any Permitted Lien; and




     (c) to release any Guarantor from its obligations under the Guaranty Agreement if such
Person ceases to be a Subsidiary as a result of a transaction permitted hereunder.


Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release or subordinate its interest in particular types or
items of property, or to release any Guarantor from its obligations under the Guaranty Agreement
pursuant to this Section.




(Credit Agreement)




87









 








ARTICLE XII




MISCELLANEOUS




     Section 12.1 Notices. (a) Method of Communication. Except as otherwise
provided in this Agreement, all notices and communications hereunder shall be in writing (for
purposes hereof, the term “writing” shall include information in electronic format such as
electronic mail and internet web pages), or by telephone subsequently confirmed in writing. Any
notice shall be effective if delivered by hand delivery or sent via electronic mail, posting on an
internet web page, telecopy, recognized overnight courier service or certified mail, return receipt
requested, and shall be presumed to be received by a party hereto (i) on the date of delivery if
delivered by hand or sent by electronic mail, posting on an internet web page, telecopy, (ii) on
the next Business Day if sent by recognized overnight courier service and (iii) on the third
Business Day following the date sent by certified mail, return receipt requested. A telephonic
notice to the Administrative Agent as understood by the Administrative Agent will be deemed to be
the controlling and proper notice in the event of a discrepancy with or failure to receive a
confirming written notice.



(b) Addresses for Notices. Notices to any party shall be sent to it at the following
addresses, or any other address as to which all the other parties are notified in writing.




	 	 	 	 	 
	 

	 	If to the Administrative	 	 
	 

	 	Borrower:
	 	Broadview Networks Holdings, Inc.
	 

	 	 	 	800 Westchester Avenue
	 

	 	 	 	5th Floor–Suite N501
	 

	 	 	 	Rye Brook, New York 10573
	 

	 	 	 	Attention: General Counsel
	 

	 	 	 	Telecopy No.: (914) 742-5818
	 
	 	 	 	 
	 

	 	with a copy to:
	 	Willkie Farr & Gallagher LLP
	 

	 	 	 	787 Seventh Avenue
	 

	 	 	 	New York, New York 10019
	 

	 	 	 	Attention: Cornelius T. Finnegan, III
	 

	 	 	 	Telephone No.: (212) 728-8235
	 

	 	 	 	Telecopy No.: (212) 728-8111
	 
	 	 	 	 
	 

	 	If to Administrative Agent,	 	 
	 

	 	          Swingline Lender or	 	 
	 

	 	          initial Issuing Bank:
	 	The CIT Group/Business Credit, Inc.
	 

	 	 	 	11 West 42nd Street
	 

	 	 	 	New York, New York 10038
	 

	 	 	 	Attention: Portfolio Manager
	 
	 	 	 	 
	 

	 	If to any Lender:
	 	To the address set forth on the Register






     (c) Administrative Agent’s Office. The Administrative Agent hereby designates its
office located at the address set forth above, or any subsequent office which shall have been



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specified for such purpose by written notice to the Administrative Borrower and Lenders, as
the Administrative Agent’s Office referred to herein, to which payments due are to be made and at
which Loans will be disbursed and Letters of Credit requested.




     Section 12.2 Amendments, Waivers and Consents. Except as set forth below or as
specifically provided in any Loan Document, any term, covenant, agreement or condition of this
Agreement or any of the other Loan Documents may be amended or waived by the Lenders, and any
consent given by the Lenders, if, but only if, such amendment, waiver or consent is in writing
signed by the Required Lenders (or by the Administrative Agent with the consent of the Required
Lenders) and delivered to the Administrative Agent and, in the case of an amendment, signed by the
Borrowers; provided, that no amendment, waiver or consent shall:




     (a) extend or increase the Revolving Credit Commitment of any Lender (or reinstate any
Revolving Credit Commitment terminated pursuant to Section 10.2) or the amount of
Loans of any Lender without the written consent of such Lender;




     (b) postpone any date fixed by this Agreement or any other Loan Document for any
payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby;




     (c) reduce the principal of, or the rate of interest specified herein on, any Loan or
Reimbursement Obligation, or (subject to clause (iv) of the second proviso to this
Section) any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be necessary to waive
any obligation of the Borrowers to pay interest at the rate set forth in Section
4.1(c) during the continuance of an Event of Default;




     (d)
(i) change Section 4.4 in a manner that would alter
the pro rata
sharing of payments required thereby or (ii) change Section 10.4 in a manner that
would alter the order of application of amounts prepaid pursuant thereto, in each case,
without the written consent of each Lender directly affected thereby;




     (e) change Section 12.10 in manner that would further restrict the assignment
provisions thereunder, without the written consent of each Lender;




     (f) change any provision of this Section or the definition of “Required Lenders” or any
other provision hereof specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender;




     (g) release any Guarantor from the Guaranty Agreement (other than as authorized in
Section 11.9), without the written consent of each Lender;




     (h) release all or substantially all of the Collateral or release any Security
Document (other than as authorized in Section 11.9 or as otherwise specifically
permitted



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or contemplated in this Agreement or the applicable Security Document) without
the written consent of each Lender;




     (i) permit any Extension of Credit to be made if after giving effect thereto the
aggregate amount of Extensions of Credit would exceed the Borrowing Base Amount for more
than sixty (60) consecutive days or exceed one hundred and ten percent (110%) of the
Borrowing Base Amount without the written consent of each Lender; or




     (j) increase the Advance Rates above the Advance Rates in effect on the
Closing Date without the written consent of each Lender.


provided
further, that (i) no amendment, waiver or consent shall, unless in writing and
signed by each Issuing Bank in addition to the Lenders required above, affect the rights or duties
of such Issuing Bank under this Agreement or any Letter of Credit Application relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the Swingline Lender in addition to the Lenders required above, affect the
rights or duties of the Swingline Lender under this Agreement; (iii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document; (iv) no amendment, waiver or consent shall, unless in writing and signed by
the Syndication Agent or the Arranger in addition to the Lenders required above, affect the rights
or duties of the Syndication Agent or the Arranger, respectively,
under Section 4.3(b),
11.7, 11.8, 12.3 or 12.14 of this Agreement; and (v) any Fee Letter may
be amended, or rights or privileges thereunder waived, in a writing executed only by the parties
thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right
to approve or disapprove any amendment, waiver or consent hereunder, except that the Revolving
Credit Commitment of such Lender may not be increased or extended without the consent of such
Lender.




     Notwithstanding the foregoing, the Administrative Agent may at its discretion and without the
consent of the Required Lenders or the Borrowers, (i) voluntarily permit the outstanding Extensions
of Credit at any time to exceed the Borrowing Base Amount and the Revolving Credit Commitments so
long as the aggregate amount of all outstanding Extensions of Credit does not exceed the lesser of
(A) one hundred and ten percent (110%) of the Borrowing Base Amount and (B) $27,500,000, for up to
thirty (30) consecutive days and (ii) increase the Additional Reserves (which increases, the
Borrowers acknowledge, may limit or restrict the Extensions of Credit requested by the Borrowers).
For purposes of clause (i) of the immediately preceding sentence, the discretion granted to the
Administrative Agent hereunder shall not preclude involuntary overadvances that may result from
time to time due to the fact that the Borrowing Base Amount was unintentionally exceeded for any
reason, including if Collateral previously deemed to be “Eligible Receivables” becomes ineligible,
collections of Receivables applied to reduce outstanding Extensions of Credit are thereafter
returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In
the event the Administrative Agent involuntarily permits the outstanding Extensions of Credit to
exceed the Borrowing Base Amount by more than ten percent (10%), the Administrative Agent shall
decrease such excess in as expeditious a manner as is practicable under the circumstances and not
inconsistent with the reason for such excess. Extensions of Credit made after the Administrative
Agent has



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determined the existence of involuntary overadvances shall be deemed to be involuntary
overadvances and shall be decreased in accordance with the preceding sentence.




     Section 12.3 Expenses; Indemnity. (a) Costs and Expenses. Each Borrower and
each other Credit Party, jointly and severally, shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent, the Syndication Agent, the Arranger and their respective
Affiliates (including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, the Syndication Agent and the Arranger), and shall pay all fees and time
charges and disbursements for attorneys who may be employees of the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the other Loan Documents
or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by each Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit issued or to be issued by it or any demand for payment
thereunder, (iii) reasonable fees and disbursements incurred by the Administrative Agent or the
Administrative Agent on behalf of Lenders in connection with any appraisals of Collateral, field
examinations, collateral analysis or monitoring or other business analysis conducted by outside
Persons in connection with this Agreement and all related agreements (provided,
however, that so long as no Event of Default shall be in existence, the Credit Parties
shall be obligated to pay for no more than one (1) appraisal and two (2) collateral audits per
calendar year) and (iv) all out-of-pocket expenses incurred by the Administrative Agent, any Lender
or any Issuing Bank (including the reasonable fees, charges and disbursements of any counsel for
the Administrative Agent, any Lender or such Issuing Bank), and shall pay all fees and time charges
for attorneys who may be employees of the Administrative Agent, any Lender or any Issuing Bank, in
connection with the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in connection with
the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.



     (b) Indemnification. Each Borrower and each other Credit Party, jointly and
severally, shall indemnify the Administrative Agent (and any sub-agent thereof), the Syndication
Agent, the Arranger, each Lender and each Issuing Bank, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims (including any Environmental Claims or civil
penalties or fines assessed by OFAC), damages, liabilities and related expenses (including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee), other than Taxes
which shall be governed solely by Section 4.11, and shall, jointly and severally,
indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by the Borrower or any other Credit Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds



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therefrom (including any refusal by any applicable Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or
Release of Hazardous Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Claim related in any way to the Borrower or any of its
Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Credit Party, and regardless of whether
any Indemnitee is a party thereto, or (v) any claim (including any Environmental Claims or civil
penalties or fines assessed by OFAC), investigation, litigation or other proceeding (whether or not
the Administrative Agent or any Lender is a party thereto) and the prosecution and defense thereof,
arising out of or in any way connected with the Loans, this Agreement, any other Loan Document, or
any documents contemplated by or referred to herein or therein or the transactions contemplated
hereby or thereby, including reasonable attorneys’ and consultant’s fees, provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by a Borrower or any other
Credit Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if the Borrower or such Credit Party has obtained a
final and nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction.




     (c) Reimbursement by Lenders. To the extent that any Borrower or any other Credit
Party for any reason fails to indefeasibly pay any amount required under clause (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), any
Issuing Bank or any Related Party of any of the foregoing, each Lender severally agrees to pay to
the Administrative Agent (or any such sub-agent), such Issuing Bank or such Related Party, as the
case may be, such Lender’s Commitment Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that
the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the
case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent)
or any Issuing Bank in its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or such Issuing Bank in connection with
such capacity. The obligations of the Lenders under this clause (c) are subject to the
provisions of Section 4.7.



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
Applicable Law, no Borrower or other Credit Party shall assert, and each Borrower hereby waives,
any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of
the proceeds thereof. No Indemnitee referred to in clause (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other



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information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby.




     (e) Payments. All amounts due under this Section shall be payable promptly
after demand therefor.



     Section 12.4 Right of Set-off. If an Event of Default shall have occurred and be
continuing and subject to Section 4.6, each Lender, each Issuing Bank, the Swingline Lender
and each of their respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, such Issuing Bank, the
Swingline Lender or any such Affiliate to or for the credit or the account of any Borrower or any
other Credit Party against any and all of the obligations of such Borrower or such other Credit
Party now or hereafter existing under this Agreement or any other Loan Document to such Lender,
such Issuing Bank or the Swingline Lender, irrespective of whether or not such Lender, such Issuing
Bank or the Swingline Lender shall have made any demand under this Agreement or any other Loan
Document and although such obligations of such Borrower or such other Credit Party may be
contingent or unmatured or are owed to a branch or office of such Lender, such Issuing Bank or the
Swingline Lender different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, each Issuing Bank, the Swingline Lender and their
respective Affiliates under this Section are in addition to other rights and remedies (including
other rights of setoff) that such Lender, such Issuing Bank, the Swingline Lender or their
respective Affiliates may have. Each Lender, each Issuing Bank and the Swingline Lender agrees to
notify the Administrative Borrower and the Administrative Agent promptly after any such setoff and
application; provided that the failure to give such notice shall not affect the validity of
such setoff and application.



     Section 12.5 Governing Law. (a) Governing Law. This Agreement and the other
Loan Documents, unless expressly set forth therein, shall be governed by, and construed in
accordance with, the law of the State of New York.



     (b) Submission to Jurisdiction. Each Borrower and each other Credit Party
irrevocably and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the courts of the State of New York sitting in New York County and of the United
States District Court of the Southern District, and any appellate court thereof, in any action or
proceeding arising out of or relating to this Agreement or any other Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State court or, to the fullest extent permitted by Applicable Law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or in any other Loan
Document shall affect any right that the Administrative Agent, any Lender or any Issuing Bank may
otherwise have to bring any action or proceeding relating to this Agreement or any other Loan
Document against any Borrower or any other Credit Party or its properties in the courts of any
jurisdiction.



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     (c) Waiver of Venue. Each Borrower and each other Credit Party irrevocably and
unconditionally waives, to the fullest extent permitted by Applicable Law, any objection that it
may now or hereafter have to the laying of venue of any action or proceeding arising out of or
relating to this Agreement or any other Loan Document in any court referred to in paragraph
(b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by Applicable Law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.



     (d) Service of Process. Each party hereto irrevocably consents to service of process
in the manner provided for notices in Section 12.1. Nothing in this Agreement will affect
the right of any party hereto to serve process in any other manner permitted by Applicable Law.



     Section 12.6 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     Section 12.7 Reversal of Payments. To the extent any Borrower or any other Credit
Party makes a payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the collateral which
payments or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent
of such payment or proceeds repaid, the Obligations or part thereof intended to be satisfied shall
be revived and continued in full force and effect as if such payment or proceeds had not been
received by the Administrative Agent.



     Section 12.8 Injunctive Relief: Punitive Damages. (a) Each Borrower recognizes that,
in the event such Borrower or any other Credit Party fails to perform, observe or discharge any of
its obligations or liabilities under this Agreement or any other Loan Document, any remedy of law
may prove to be inadequate relief to the Lenders. Therefore, each Borrower (on behalf of itself and
the other Subsidiaries) agrees that the Lenders, at the Lenders’ option, shall be entitled to
temporary and permanent injunctive relief in any such case without the necessity of proving actual
damages.



     (b) The Administrative Agent, the Lenders, each Borrower (on behalf of itself and the
other Subsidiaries) hereby agree that no such Person shall have a remedy of punitive or



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exemplary damages against any other party to a Loan Document and each such Person hereby
waives any right or claim to punitive or exemplary damages that they may now have or may arise in
the future in connection with any Dispute, whether such Dispute is resolved through arbitration or
judicially.




     Section 12.9 Accounting Matters. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either
Holdings or the Required Lenders shall so request, the Administrative Agent, the Lenders and
Holdings shall negotiate in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) Holdings shall provide to
the Administrative Agent and the Lenders financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to such change in
GAAP.



     Section 12.10 Successors and Assigns; Participations. (a) Successors and Assigns
Generally. 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
neither any Borrower nor any other Credit Party may assign or otherwise transfer any of its rights
or obligations hereunder without the prior written consent of the Administrative Agent and each
Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder
except (i) to an Eligible Assignee in accordance with the provisions of paragraph (b) of
this Section, (ii) by way of participation in accordance with the provisions of paragraph
(d) of this Section or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of paragraph (f) of this Section (and any other attempted assignment or
transfer by any party hereto 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, Participants to the extent provided in
paragraph (d) of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time 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 its Revolving Credit Commitment and the Loans at the time owing to it);
provided that




     (i) except in the case of an assignment of the entire remaining amount of the
assigning Lender’s Revolving Credit Commitment, together with the Loans at the time owing to
it and such assigning Lender’s participations in all outstanding Swingline Loans and Letters
of Credit, or in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Revolving Credit
Commitment, together with the Loans at the time owing to it and such assigning Lender’s
participations in all outstanding Swingline Loans and Letters of Credit (determined as of
the date the Assignment and Assumption with respect to such



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95









 









assignment is delivered to the Administrative Agent or, if “Trade Date” is specified
in the Assignment and Assumption, as of the Trade Date) shall not be less than $2,000,000,
in the case of any assignment in respect of the Revolving Credit Facility unless (A) such
assignment is made to an existing Lender, an Affiliate thereof or an Approved Fund with
respect to a Lender or (B) the Administrative Agent and so long as no Default or Event of
Default has occurred and is continuing, the Borrowers otherwise consent (each such consent
not to be unreasonably withheld or delayed);




     (ii) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement with respect
to the Loan or the Revolving Credit Commitment assigned, except that this clause
(ii) shall not prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Facilities on a non-pro rata basis;




     (iii) any assignment of a Revolving Credit Commitment must be approved by the
Administrative Agent, the Swingline Lender and each Issuing Bank unless the Person that is
the proposed assignee is itself a Lender with a Revolving Credit Commitment (whether or not
the proposed assignee would otherwise qualify as an Eligible Assignee); and




     (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500 for each assignment, and the Eligible Assignee, if it shall not be
a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.


If the consent of the Borrowers to an assignment is required hereunder (including a consent to an
assignment which does not meet the minimum assignment threshold specified in this Section), the
Borrowers shall be deemed to have given their consent ten (10) Business Days after the date notice
thereof has been delivered by the assigning Lender (through the Administrative Agent) to the
Administrative Borrower, unless such consent is expressly refused by the Borrowers in writing prior
to such tenth Business Day.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, 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 Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption 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 4.8, 4.9, 4.10,
4.11 and 12.3 with respect to facts and circumstances occurring prior to the
effective date of such assignment. 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.




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     (c) Register. The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in New York, New York, a copy of each
Assignment and Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Revolving Credit Commitment of, and principal amounts 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. The Register shall be available for inspection by any
Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior
notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person (other than (i) a
natural person, (ii) a Credit Party or an Affiliate or Subsidiary thereof or (iii) a Competitor)
(each, 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 Revolving Credit Commitment and/or 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, the Administrative Agent and the
other Lenders 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 or modification described in
Section 12.2 that directly affects such Participant. Subject to paragraph (e) of
this Section, the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 4.8, 4.9, 4.10 and 4.11 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To
the extent permitted by law, each Participant also shall be entitled to the benefits of Section
12.4 as though it were a Lender, provided that such Participant agrees to be subject to
Section 4.6 as though it were a Lender.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Sections 4.10 and 4.11 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 Borrowers’
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 4.11 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 4.11(e) as though it were a Lender.



     (f) Certain
Pledges. Any Lender (or, subject to Section 12.10(g), any SPC)
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 any pledge or assignment to secure



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obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall
release such Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.




     (g) SPCs. Notwithstanding anything to the contrary contained herein, any Lender
(a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in
writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers (an
“SPC”) the option to provide all or any part of any Advance that such Granting Lender would
otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing
herein shall constitute a commitment by any SPC to fund any Extension of Credit, and (ii) if an
SPC elects not to exercise such option or otherwise fails to make all or any part of such
Extension of Credit, the Granting Lender shall be obligated to make such Extension of Credit
pursuant to the terms hereof. The making of an Extension of Credit by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if, such Extension of
Credit were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement for which a Lender
would be liable, (ii) no SPC shall be entitled to the benefits of Sections 4.10 and 4.11 (or any
other increased costs protection provision) and (iii) the Granting Lender shall for all purposes,
including the approval of any amendment or waiver of any provision of any Loan Document, remain
the Lender of record hereunder. Notwithstanding anything to the contrary contained in this
Agreement, any SPC may (i) with notice to, but without prior consent of, the Borrowers and the
Administrative Agent and without paying any processing fee therefor, assign all or any portion of
its interest in any Extension of Credit to the Granting Lender and (ii) disclose on a confidential
basis any non-public information relating to its funding of Extensions of Credit to any rating
agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity
enhancement to such SPC. This subsection (g) may not be amended without the prior written consent
of each Granting Lender, all or any part of whose Extensions of Credit are being funded by the SPC
at the time of such amendment.



     (h) Limitation on Assignments and Participations during the Primary Syndication
Period. Notwithstanding anything else contained in this Section, no Lender may assign, or sell
a participation in, its Revolving Credit Commitment during the Primary Syndication Period other
than (i) assignments by the Syndication Agent and its Affiliates or (ii) assignments by a Lender
to its Affiliates and Approved Funds of such Lender.



     Section 12.11 Confidentiality. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, trustees, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed and agree to keep such Information confidential), (b) to the extent
requested by, or required to be disclosed to, any rating agency, or regulatory or similar authority
(including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by Applicable Laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any
remedies under this Agreement or under any other Loan Document (or any Hedging Agreement with a
Lender or the Administrative Agent) or any action or proceeding relating to this Agreement or any
other



(Credit Agreement)




98









 




Loan Document (or any Hedging Agreement with a Lender or the Administrative Agent) or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section and solely for the enumerated purpose, to (i) any
purchasing Lender, proposed purchasing Lender, Participant or proposed Participant, (ii) any actual
or prospective counterparty (or its advisors) to any swap or derivative transaction relating to any
Borrower and its obligations, (iii) to an investor or prospective investor in an Approved Fund,
(iv) to a trustee, collateral manager, servicer, backup servicer, noteholder or secured party in an
Approved Fund in connection with the administration, servicing and reporting on the assets serving
as collateral for an Approved Fund, or (v) to a nationally recognized rating agency that requires
access to information regarding the Credit Parties, the Loans and Loan Documents in connection with
ratings issued with respect to an Approved Fund, (g) with the consent of the Borrowers, (h) to Gold
Sheets and other similar bank trade publications, such information to consist of deal terms and
other information customarily found in such publications, or (i) to the extent such Information (x)
becomes publicly available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis from a source other
than a Borrower or (j) to governmental regulatory authorities in connection with any regulatory
examination of the Administrative Agent or any Lender or in accordance with the Administrative
Agent’s or any Lender’s regulatory compliance policy if the Administrative Agent or such Lender
deems necessary for the mitigation of claims by those authorities against the Administrative Agent
or such Lender or any of its subsidiaries or affiliates. For purposes of this Section,
“Information” means all information received from any Credit Party relating to any Credit
Party or any of their respective businesses, other than any such information that is available to
the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by any Credit
Party; provided that, in the case of information received from a Credit Party after the
date hereof, such information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.




     Section 12.12 Administrative Borrower. Each Borrower hereby irrevocably appoints
Holdings 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 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 and all other notices and
instructions under this Agreement, (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 and (iii) to receive notices and
communications under this Agreement from any Lender on behalf of any Credit Party. Any notices or
communications by any Lender to one or more Credit Parties need only be delivered to the
Administrative Borrower to satisfy any notice requirement, and each Credit Party agrees that
notices received by the Administrative Borrower shall be deemed received by each Credit Party upon
the Administrative Borrower’s receipt. The Borrowers hereby jointly and severally agree to
indemnify each Lender and hold each Lender harmless against any and all



(Credit Agreement)




99









 




liability, expense, loss or claim of damage or injury, made against any Lender by any Borrower or
by any Credit Party or any other third party whosoever, arising from or incurred by reason of any
Lender relying on any instructions or notices of the Administrative Borrower or by reason of such
Lender delivering notices or communications solely to such Administrative Borrower as provided
herein.




     Section 12.13 Performance of Duties. Each of the Credit Party’s obligations under this
Agreement and each of the other Loan Documents shall be performed by such Credit Party at its sole
cost and expense.



     Section 12.14 All Powers Coupled with Interest. All powers of attorney and other
authorizations granted to the Lenders, the Administrative Agent and any Persons designated by the
Administrative Agent or any Lender pursuant to any provisions of this Agreement or any of the other
Loan Documents shall be deemed coupled with an interest and shall be irrevocable so long as any of
the Obligations remain unpaid or unsatisfied, any of the Revolving Credit Commitment remains in
effect or the Credit Facility has not been terminated.



     Section 12.15 Survival of Indemnities. Notwithstanding any termination of this
Agreement, the indemnities to which the Administrative Agent, the Syndication Agent, the Arranger,
each Issuing Bank and the Lenders are entitled under the provisions of this Article XII and
any other provision of this Agreement and the other Loan Documents shall continue in full force and
effect and shall protect the Administrative Agent, the Syndication Agent, the Arranger, each
Issuing Bank and the Lenders against events arising after such termination as well as before.



     Section 12.16 Titles and Captions. Titles and captions of Articles, Sections and
subsections in, and the table of contents of, this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.



     Section 12.17 Severability of Provisions. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without
invalidating the remainder of such provision or the remaining provisions hereof or thereof or
affecting the validity or enforceability of such provision in any other jurisdiction.



     Section 12.18 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and shall be binding upon all parties, their successors
and assigns, and all of which taken together shall constitute one and the same agreement.



     Section 12.19 Integration. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject matter hereof and
thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event
of any conflict between the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the



(Credit Agreement)




100









 




joint participation of the respective parties thereto and shall be construed neither against nor in
favor of any party, but rather in accordance with the fair meaning thereof.




     Section 12.20 Term of Agreement. This Agreement shall remain in effect from the
Closing Date through and including the date upon which all Obligations arising hereunder or under
any other Loan Document shall have been indefeasibly and irrevocably paid and satisfied in full and
the Revolving Credit Commitment has been terminated. No termination of this Agreement shall affect
the rights and obligations of the parties hereto arising prior to such termination or in respect of
any provision of this Agreement which survives such termination.



     Section 12.21
Advice of Counsel, No Strict Construction. Each of the parties
represents to each other party hereto that it has discussed this Agreement with its counsel. The
parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any provisions of this
Agreement.



     Section 12.22 USA Patriot Act. The Administrative Agent and each Lender hereby
notifies the Borrowers that pursuant to the requirements of the Patriot Act, it is required to
obtain, verify and record information that identifies each Credit Party, which information includes
the name and address of each Credit Party and other information that will allow such Lender to
identify such Credit Party in accordance with the Patriot Act.



     Section 12.23
Inconsistencies with Other Documents; Independent Effect of Covenants.
(a) Subject to clause (b) below, in the event there is a conflict or inconsistency between
this Agreement and any other Loan Document (other than the Intercreditor Agreement), the terms of
this Agreement shall control; provided that any provision of the Security Documents which
imposes additional burdens on the Credit Parties or further restricts the rights of the Credit
Parties or gives the Administrative Agent or Lenders additional rights shall not be deemed to be in
conflict or inconsistent with this Agreement and shall be given full force and effect.



     (b) In the event there is a conflict or inconsistency between the Intercreditor
Agreement and any other Loan Document, the terms of the Intercreditor Agreement shall
control.



     (c) Each of the Borrowers
expressly acknowledges and agrees that each covenant contained in
Article VIII or IX hereof shall be given independent effect. Accordingly, no Borrower
shall not engage in any transaction or other act otherwise permitted under any covenant contained
in Article VIII or IX if, before or after giving effect to such transaction or act, such
Borrower shall or would be in breach of any other covenant contained in Article VIII or
IX.



[Signature pages to follow]




(Credit Agreement)




101









 





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



	 	 	 	 	 	 	 
	 	 	BORROWERS:	 	 
	 
	 	 	 	 	 	 
	 	 	BROADVIEW NETWORKS HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Corey Rinker
 

Name: Corey Rinker
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	BROADVIEW NETWORKS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Corey Rinker
 

Name: Corey Rinker
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	BROADVIEW NETWORKS OF MASSACHUSETTS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Corey Rinker
 

Name: Corey Rinker
	 	 
	 

	 	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	 	 	BROADVIEW NETWORKS OF VIRGINIA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Corey Rinker
 

Name: Corey Rinker
	 	 
	 

	 	 	 	Title: CFO	 	 






(Credit Agreement)




S-1




 









 





	 	 	 	 	 	 	 
	 	 	BRIDGECOM INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Corey Rinker
 

Name: Corey Rinker
	 	 
	 

	 	 	 	Title: CFO	 	 






(Credit Agreement)




S-2





 









 








	 	 	 	 	 	 	 
	 	 	AGENTS AND LENDERS:	 	 
	 
	 	 	 	 	 	 
	 	 	THE CIT GROUP/BUSINESS CREDIT, INC., as the
Administrative Agent and Swingline Lender
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Cyntra A. Trani
 

Name: Cyntra A. Trani
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	JEFFERIES & COMPANY, INC., as the
Syndication Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Craig Zaph
 

Name: Craig Zaph
	 	 
	 

	 	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	Revolving Credit Commitment:

$20,000,000	 	THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Cyntra A. Trani
 

Name: Cyntra A. Trani
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	Revolving Credit Commitment:

$5,000,000	 	JEFFERIES FINANCE CP FUNDING LLC, as a Lender
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ E. Joseph Hess
 

Name: E. Joseph Hess
	 	 
	 

	 	 	 	Title: Managing Director	 	 






(Credit Agreement)




S-3




 









 








SCHEDULE 6.1(a)




Jurisdictions of Organization and Qualification




	 	 	 
	Name of Obligor/Chief Executive Office and Principal	 	Jurisdiction of
	Place of Business	 	Organization
	Broadview Networks Holdings, Inc.
	 	 
	800 Westchester Ave., Rye Brook, NY 10573

	 	Delaware
	 
	 	 
	Broadview Networks, Inc.
	 	 
	 
	 	 
	800 Westchester Ave., Rye Brook, NY 10573

	 	New York
	 
	 	 
	BV-BC Acquisition Corporation
	 	 
	800 Westchester Ave., Rye Brook, NY 10573

	 	Delaware
	 
	 	 
	Broadview NP Acquisition Corp.
	 	 
	800 Westchester Ave., Rye Brook, NY 10573

	 	Delaware
	 
	 	 
	OPEN SUPPORT SYSTEMS LLC
	 	 
	 
	 	 
	800 Westchester Ave., Rye Brook, NY 10573

	 	Connecticut
	 
	 	 
	Broadview Networks of Virginia, Inc.
	 	 
	 
	 	 
	800 Westchester Ave., Rye Brook, NY 10573

	 	Virginia
	 
	 	 
	Broadview Networks of Massachusetts, Inc.
	 	 
	 
	 	 
	800 Westchester Ave., Rye Brook, NY 10573

	 	Delaware
	 
	 	 
	BridgeCom Holdings, Inc.
	 	 
	 
	 	 
	800 Westchester Ave., Rye Brook, NY 10573

	 	Delaware
	 
	 	 
	BridgeCom International, Inc.
	 	 
	 
	 	 
	800 Westchester Ave., Rye Brook, NY 10573

	 	Delaware
	 
	 	 
	BridgeCom Solutions Group, Inc.
	 	 
	 
	 	 
	800 Westchester Ave., Rye Brook, NY 10573

	 	Delaware
	 
	 	 
	TruCom Corporation
	 	 
	 
	 	 
	800 Westchester Ave., Rye Brook, NY 10573

	 	New York






 









 






	 	 	 	 	 
	 	 	 	 	Foreign Jurisdictions
	Entity	 	Incorporated	 	Qualified to do Business
	Broadview Networks Holdings, Inc.

	 	Delaware
	 	New York
	 
	 	 	 	 
	Broadview Networks, Inc.

	 	New York
	 	California
	 
	 	 	 	 
	 

	 	 	 	Connecticut
	 
	 	 	 	 
	 

	 	 	 	Delaware
	 
	 	 	 	 
	 

	 	 	 	Florida
	 
	 	 	 	 
	 

	 	 	 	Georgia
	 
	 	 	 	 
	 

	 	 	 	Illinois
	 
	 	 	 	 
	 

	 	 	 	Maine
	 
	 	 	 	 
	 

	 	 	 	Maryland
	 
	 	 	 	 
	 

	 	 	 	Massachusetts
	 
	 	 	 	 
	 

	 	 	 	Michigan
	 
	 	 	 	 
	 

	 	 	 	New Hampshire
	 
	 	 	 	 
	 

	 	 	 	New Jersey
	 
	 	 	 	 
	 

	 	 	 	North Carolina
	 
	 	 	 	 
	 

	 	 	 	Ohio
	 
	 	 	 	 
	 

	 	 	 	Pennsylvania
	 
	 	 	 	 
	 

	 	 	 	Rhode Island
	 
	 	 	 	 
	 

	 	 	 	Texas
	 
	 	 	 	 
	 

	 	 	 	Vermont
	 
	 	 	 	 
	 

	 	 	 	Washington D.C.
	 
	 	 	 	 
	 

	 	 	 	West Virginia
	 
	 	 	 	 
	Broadview NP Acquisition Corp.

	 	Delaware
	 	Colorado
	 
	 	 	 	 
	 

	 	 	 	Connecticut
	 
	 	 	 	 
	 

	 	 	 	Delaware






 









 






	 	 	 	 	 
	 

	 	 	 	Florida
	 
	 	 	 	 
	 

	 	 	 	Georgia
	 
	 	 	 	 
	 

	 	 	 	Illinois
	 
	 	 	 	 
	 

	 	 	 	Indiana
	 
	 	 	 	 
	 

	 	 	 	Iowa
	 
	 	 	 	 
	 

	 	 	 	Maine
	 
	 	 	 	 
	 

	 	 	 	Maryland
	 
	 	 	 	 
	 

	 	 	 	Massachusetts
	 
	 	 	 	 
	 

	 	 	 	Michigan
	 
	 	 	 	 
	 

	 	 	 	Montana
	 
	 	 	 	 
	 

	 	 	 	Nevada
	 
	 	 	 	 
	 

	 	 	 	New Hampshire
	 
	 	 	 	 
	 

	 	 	 	New Jersey
	 
	 	 	 	 
	 

	 	 	 	New York
	 
	 	 	 	 
	 

	 	 	 	North Carolina
	 
	 	 	 	 
	 

	 	 	 	Ohio
	 
	 	 	 	 
	 

	 	 	 	Pennsylvania
	 
	 	 	 	 
	 

	 	 	 	Rhode Island
	 
	 	 	 	 
	 

	 	 	 	Vermont
	 
	 	 	 	 
	 

	 	 	 	Washington D.C.
	 
	 	 	 	 
	 

	 	 	 	West Virginia
	 
	 	 	 	 
	Open Support Systems LLC

	 	Connecticut
	 	New York
	 
	 	 	 	 
	Broadview Networks of Massachusetts, Inc.

	 	 Delaware	 	 
	 
	 	 	 	 
	Broadview Networks of Virginia, Inc.

	 	Virginia	 	 
	 
	 	 	 	 
	BV-BC Acquisition Corp.

	 	Delaware	 	 
	 
	 	 	 	 
	BridgeCom Holdings, Inc.

	 	Delaware
	 	New York
	 
	 	 	 	 
	BridgeCom International, Inc.

	 	Delaware
	 	Arkansas
	 
	 

	 	 
	 	
 California






 









 






	 	 	 	 	 
	 

	 	 	 	Connecticut
	 
	 	 	 	 
	 

	 	 	 	Florida
	 
	 	 	 	 
	 

	 	 	 	Georgia
	 
	 	 	 	 
	 

	 	 	 	Iowa
	 
	 	 	 	 
	 

	 	 	 	Kansas
	 
	 	 	 	 
	 

	 	 	 	Maine
	 
	 	 	 	 
	 

	 	 	 	Massachusetts
	 
	 	 	 	 
	 

	 	 	 	Michigan
	 
	 	 	 	 
	 

	 	 	 	New Jersey
	 
	 	 	 	 
	 

	 	 	 	New York
	 
	 	 	 	 
	 

	 	 	 	North Carolina
	 
	 	 	 	 
	 

	 	 	 	Ohio
	 
	 	 	 	 
	 

	 	 	 	Pennsylvania
	 
	 	 	 	 
	 

	 	 	 	Rhode Island
	 
	 	 	 	 
	 

	 	 	 	Texas
	 
	 	 	 	 
	 

	 	 	 	Washington
	 
	 	 	 	 
	BridgeCom Solutions Group

	 	Delaware
	 	New York
	 
	 	 	 	 
	TruCom Corporation

	 	New York
	 	New Jersey






 









 






SCHEDULE 6.1(b)




Subsidiaries and Capitalization









 









 






SCHEDULE 6.1(f)




Tax




Tax audits




As of 8/21/06




	 	 	 
	 	 	Period
	Bridgecom International, Inc.
	 	 
	NYC UXS
	 	2004 & 2005
	Florida Communications Tax
	 	2002-2005
	IRS
	 	2003
	 
	 	 
	Broadview Networks, Inc.
	 	 
	NYS Sales Tax
	 	various
	NYS 184/186
	 	2001 & 2002
	Federal Excise
	 	various
	 
	 	 
	Broadview Networks Holdings, Inc.
	 	 
	NYS Sales Tax
	 	1999-2005
	 
	 	 
	Broadview
NP Acquisition Corp.
	 	 
	NYC UXS
	 	2002 & 2003
	 
	 	 
	Broadview Networks Holdings, Inc. & Subs
	 	 
	Federal Form 1120 and applicable
	 	 
	State corporate tax returns
	 	2005
	(currently open, not under audit)
	 	 






 









 





SCHEDULE
6.1 (i)




ERISA plans





	–	 	Broadview Networks Retirement Savings Plan
	 
	–	 	Travel Policy for the Employees of Broadview Networks and Subsidiaries
dated July 1, 2002
	 
	–	 	Aetna Dental PPO Plan
	 
	–	 	Aetna Dental DMO Plan
	 
	–	 	Spectera Vision
	 
	–	 	Aetna Triple Option Medical Program





 









 





SCHEDULE 6.1(1)




Licenses




None     




 









 





SCHEDULE
6.1 (m)




Labor and Collective Bargaining Agreements




None





 









 





SCHEDULE
6.1 (r)




Real Property




	 	 	 
	Broadview Networks Holdings, Inc.	 	 
	Real Estate Leases	 	 
	Street Address	 	Lessee
	800 Westchester Avenue, 5th Floor, Rye Brook, NY 10573

	 	Bridgecom International. Inc.
	500 7th Avenue, NY, NY 10018

	 	Broadview Networks Inc.
	1065 Avenue of the Americas, NY, NY 10018

	 	Bridgecom International. Inc.
	63 W 38th Street, NY, NY 10018

	 	Trucom Corporation
	45-18 Court Square, Long Island City, NY 11101

	 	Broadview Networks Holdings Inc.
	37-18 Northern Blvd, Long Island City, NY 11101

	 	Broadview Networks Inc.
	41-20 39th St., Long Island City, NY 11104

	 	Broadview Networks Inc.
	744 Broad St., Newark, NJ 07102

	 	Broadview Networks Holdings Inc.
	90 Meirick Avenue, East Meadow, NY 11554

	 	Bridgecom International Inc.
	101 Merritt, 7 Corporate Park, Norwalk, CT 06851

	 	Open Support Systems LLC
	230 Congress St., Boston, MA 02110

	 	Broadview NP Acquisition Corp.
	500 Rutherford Ave., Charlestown, MA 02129

	 	Broadview Networks Inc.
	1250 Hancock St., Quincy, MA 02169

	 	Broadview Networks Inc.
	12 Corp. Woods Blvd, Albany, NY 12211

	 	Broadview Networks Inc.
	555 Broad Hollow Road, Melville, NY 11747

	 	Broadview Networks Inc.
	59 Maiden Lane, NY, NY 10038

	 	Broadview Networks Inc.
	601 W. 26th St., NY, NY 10001

	 	Broadview Networks Inc.
	224 Harrison St. Syracuse, NY 13202

	 	Broadview Networks Inc.
	400 Horsham, Horsham, PA 19044

	 	Broadview Networks Inc.
	128 Dorrance St. Shakespeare Hall Providence, RI 02903

	 	Broadview Networks Inc.
	48 Sword Street Auburn, MA 01501

	 	Broadview Networks Inc.
	401 N. Broad St. Philadelphia, PA 19108

	 	Broadview NP Acquisition Corp.
	3928 Pender Dr., Fairfax, VA 22033

	 	Broadview Networks Inc.
	495 Aero Drive, Cheektowaga, NY 14225

	 	Broadview Networks Inc.






 









 






	 	 	 	 	 	 	 	 	 	 	 
	ColloName	 	Address	 	City	 	State	 	Lessee	 	Collateral
	Brighton — NWP Cage

	 	12 WIRT ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Brookline — NWP Cage

	 	41 MARION ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Braintree — NWP Cage

	 	442 WASHINGTON ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Brockton — NWP Cage

	 	65 CRESCENT ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Boston — Back Bay — NWP Cage

	 	41 BELVIDERE ST
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Boston — Back Bay

	 	41 BELVIDERE ST
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Boston-Bowdoin

	 	6 BOWDOIN SQ
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Boston-Bowdoin — NWP Cage

	 	6 BOWDOIN SQ
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Boston — Franklin — NWP Cage

	 	185 FRANKLIN ST
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Boston-Harrison — NWP Cage

	 	8 HARRISON AVE
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Boston-Harrison

	 	8 HARRISON AVE
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Burlington

	 	I BEDFORD ST
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Boston — Bent St — NWP Cage

	 	210 BENT ST
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Cambridge-Ware St — NWP Cage

	 	10 WARE ST
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Cambridge-Ware St

	 	10 WARE ST
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Canton -NWP Cage

	 	825 WASHINGTON ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Dcdham - NWP Cage

	 	387 WASHINGTON ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Dover — NWP Cage

	 	57 SAINT THOMAS ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Dorchester — NWP Cage

	 	174 ADAMS ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	East Boston — NWP Cage

	 	40 SARATOGA ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Franklin — NWP Cage

	 	MAIN & CRESENT
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Fall River — NWP Cage

	 	326 N MAIN ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Framingham

	 	141 UNION AVE
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Holyoke
—  NWP Cage

	 	322 MAPLE ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Hyannis — NWP Cage

	 	40 OCEAN ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Lowell — NWP Cage

	 	115 APPLETON ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Lawrence — NWP Cage

	 	2 HAMPSHIRE ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Lexington — NWP Cage

	 	73 WALTHAM ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Lynn/Nahant/Peabody

	 	21 CITY HALL SQ
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Malden/Medford — NWP Cage

	 	5 ELM ST
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Malden/Medford

	 	5 ELM ST
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Marlboro — NWP Cage

	 	2 MAPLE ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	North Hampton — NWP Cage

	 	61 MASONIC ST
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	New Bedford — NWP Cage

	 	390 ACUSHNET AVE
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Needham — NWP Cage

	 	66 PICKERING ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Norwood — NWP Cage

	 	85 VERNON ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Natick — NWP Cage

	 	56 EAST CENTRAL ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Newtown — NWP Cage

	 	787 WASHINGTON ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Newtown

	 	787 WASHINGTON ST
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Quincy — NWP Cage

	 	1070 HANCOCK ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Quincy

	 	1070 HANCOCK ST
	 	Charlestown
	 	Massachusetts
	 	Broadview Networks Inc.
	 	network equipment
	Rockland — NWP Cage

	 	86 WEBSTER ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Roxbury — NWP Cage

	 	26 WAVERLY ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Salem — NWP Cage

	 	35 NORMAN ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Stoughton — NWP Cage

	 	862 WASHINGTON ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment
	Somerville — NWP Cage

	 	111 CENTRAL ST
	 	Charlestown
	 	Massachusetts
	 	Broadview NP Acquisition
	 	network equipment






 









 






	 	 	 	 	 	 	 	 	 	 	 
	ColloName	 	Address	 	City	 	State	 	Lessee	 	Collateral
	Springfield — NWP Cage

	 	295 WORTHINGTON ST
	 	Charlestown
	 	 Massachusetts
	 	 Broadview NP Acquisition
	 	network equipment
	Taunton — NWP Cage

	 	11 PLEASANT ST
	 	Charlestown
	 	 Massachusetts
	 	 Broadview NP Acquisition
	 	network equipment
	Wakefield — NWP Cage

	 	4 BENNETT ST
	 	Charlestown
	 	 Massachusetts
	 	 Broadview NP Acquisition
	 	network equipment
	Waltham
— NWP Cage

	 	36 Spring St
	 	Charlestown
	 	 Massachusetts
	 	 Broadview NP Acquisition
	 	network equipment
	Wellesley — NWP Cage

	 	11 LAUREL AVE
	 	Charlcstown
	 	 Massachusetts
	 	 Broadview NP Acquisition
	 	network equipment
	Winchester/Vobum — NWP Cage

	 	954 MAIN ST
	 	Charlestown
	 	 Massachusetts
	 	 Broadview Networks Inc.
	 	network equipment
	Winchester/Wobum

	 	954 MAIN ST
	 	Charlestown
	 	 Massachusetts
	 	 Broadview Networks Inc.
	 	network equipment
	Worcester — NWP Cage

	 	15 CHESTNUT ST
	 	Charlestown
	 	 Massachusetts
	 	 Broadview NP Acquisition
	 	network equipment
	Concord — NWP Cage

	 	12 SOUTH ST
	 	Charlestown
	 	 New Hampshire
	 	 Broadview NP Acquisition
	 	network equipment
	Danvers — NWP Cage

	 	63 HIGH ST
	 	Charlestown
	 	 New Hampshire
	 	 Broadview NP Acquisition
	 	network equipment
	Manchester — NWP Cage

	 	25 CONCORD ST
	 	Charlestown
	 	 New Hampshire
	 	 Broadview NP Acquisition
	 	network equipment
	Nashua — NWP Cage

	 	128 WEST PEARL ST
	 	Charlestown
	 	 New Hampshire
	 	 Broadview NP Acquisition
	 	network equipment
	Portsmouth — NWP Cage

	 	56 ISLINGTON ST
	 	Charlestown
	 	 New Hampshire
	 	 Broadview NP Acquisition
	 	network equipment
	Salem -NWP Cage

	 	128 NORTH BROADWAY
	 	Charlestown
	 	 New Hampshire
	 	 Broadview NP Acquisition
	 	network equipment
	Hackensack

	 	256 STATE ST
	 	NY-132
	 	New Jersey
	 	Broadview Networks Inc.
	 	network equipment
	Summit Ave

	 	773 SUMMIT A V
	 	NY-132
	 	New Jersey
	 	Broadview Networks Inc.
	 	network equipment
	Morristown

	 	37 MAPLE AV
	 	NY-132
	 	New Jersey
	 	Broadview Networks Inc.
	 	network equipment
	Passaic

	 	133 PROSPECT ST
	 	NY-132
	 	New Jersey
	 	Broadview Networks Inc.
	 	network equipment
	Patterson

	 	114 PATERSON ST
	 	NY-132
	 	New Jersey
	 	Broadview Networks Inc.
	 	network equipment
	Ridgewood

	 	178 E RIDGEWOOD AV
	 	NY-132
	 	New Jersey
	 	Broadview Networks Inc.
	 	network equipment
	Union City

	 	3414 NEW YORK AV
	 	NY-132
	 	New Jersey
	 	Broadview Networks Inc.
	 	network equipment
	Guilderland

	 	RT. 155 KARNER RD
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	State st

	 	158 STATE ST
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Washington Ave

	 	1161 WASHINGTON
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Amherst

	 	2775 MILLERSPORT HWY
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Babylon

	 	30 LITTLE E NECK RD
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Bailey

	 	2045 BAILEY AV
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Elmwood

	 	548 ELMWOOD
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Franklin

	 	65 FRANKLIN ST., 6TH FL
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Hertel

	 	935 HERTEL
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Main

	 	2743 MAIN ST
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	South Park

	 	1861 S PARK AV
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Brentwood

	 	1265 SUFFOLK AVE
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Brentwood — NWP cage

	 	1265 SUFFOLK AVE
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	Bay Shore

	 	35 FOURTH AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Hamburg

	 	141 Main St
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Deer Park

	 	80 W 1ST ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	East Northport

	 	706 FIRST AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Floral Park

	 	159 LOWELL AVE
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Farmingdale

	 	575 CONKLIN ST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Freeport

	 	120 S GROVE ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Fairview Park — BCOM Cage

	 	545 SAW MILL RIVER ROAD
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Garden City — BCOM cage

	 	741 ZECKENDORF BLVD
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Great Neck

	 	9 BARSTOW RD
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Hicksville

	 	69 WEST CHERRY ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Hamburg

	 	141 Main St
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment






 









 






	 	 	 	 	 	 	 	 	 	 	 
	ColloName	 	Address	 	City	 	State	 	Lessee	 	Collateral
	Hempstead

	 	199 FULTON AVE
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Huntington-NWP Cage

	 	80 W 4TH ST
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	Huntington

	 	80 W 4TH ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Lindenhurst

	 	565 S SECOND ST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Lancaster

	 	57 CENTRAL
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Latham

	 	529 TROY-SCHENECTADY ROAD

	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Levittown

	 	3313 BETHPAGE TPKE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Lynbrook

	 	7 WASHINGTON AV
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Mineola

	 	60 MAIN ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Mammaroneck — BCOM Cage

	 	473 N BARRY AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Massapequa

	 	5 431 MERRICK ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Mount Vernon

	 	45 S 6 AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Portage Road

	 	574 PORTAGE RD
	 	Syracuse
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	New Rochelle

	 	342 HUGENOT ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	14th St

	 	355 14 ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	71st St

	 	7101 16TH AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	77th St

	 	7701 THIRD AV
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Albermale Rd

	 	2177 ALVERMALE RD
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Avenue R

	 	1101 AVENUE R
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Avenue U

	 	2101 W 12TH ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Avenue Y

	 	2885 OCEAN AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Bridge St

	 	360 BRIDGE ST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Clinton Ave

	 	547 CLINTON AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Fairview Ave

	 	680 FAIRVIEW AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	14th Ave

	 	4101 FOURTEENTH AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Kenmore P1

	 	1421 OCEAN AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Williamsburg

	 	55 MESEROLE ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	2nd
Ave - NWP cage

	 	204 SECOND AVE
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	2nd Ave

	 	204 SECOND AVE
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	W 18th St-NWP Cage

	 	210 W 18 ST
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	W 18th St

	 	210 W 18 ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	E 30th St

	 	227 E 30 ST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	E 30th St-NWP Cage

	 	227 E30 ST
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	W 36th St-NWP Cage

	 	230 W 36 ST
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	W 36th St

	 	230 W 36 ST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	nclwork equipment
	E 37th St-NWP Cage

	 	240 E 37 ST
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	E 37th St

	 	240 E 37 ST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	W 42nd St-NWP Cage

	 	1095 AVE OF THE AMERICAS
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	W 42nd St

	 	1095 AVE OF THE AMERICAS
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	W 50th St-NWP Cage

	 	435 W 50TH ST
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	W 50th St

	 	435 W 50TH ST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	E 56th St-NWP Cage

	 	228 E 56 ST
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	E 56th St

	 	228 E 56 ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	W 73rd St

	 	125 W 73 ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	E 79th St

	 	208 E 79TH ST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	E 97th St

	 	151 E 97TH ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment






 









 






	 	 	 	 	 	 	 	 	 	 	 
	ColloName	 	Address	 	City	 	State	 	Lessee	 	Collateral
	Broad St-NWP Cage

	 	104 BROAD ST
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	Broad St

	 	104 BROAD ST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Manhattan Ave

	 	Manhattan Ave
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	VarickSt-NWPCage

	 	50 VARICK ST
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	Varick St

	 	50 VARICK ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	West St-NWP Cage

	 	140 WEST STREET
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	West St

	 	140 WEST STREET
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Astoria

	 	28-27 30 ST, ASTORIA
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Bay side

	 	214-20 43 AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Forest Hills

	 	107-15 70 RD, FOREST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Flushing

	 	137-34 NORTHERN BLVD
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Hollis

	 	199-06 93 AV, HOLLIS
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	JFK -BCOM Cage

	 	BLDG 147, JFK INT’L AIRPORT
	 	 NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Jamaica

	 	89-63 163RDST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Long Island City

	 	11-31 46 RD, LONG ISL
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Laurelton

	 	140-20 183 RD ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Newtown

	 	82-23 BROADWAY, ELMH
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	115th Avenue

	 	118-15 115THST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Richmond Hill

	 	87-28 109 ST, RICHMO
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Cruger

	 	3050 CRUGER AVE
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Hoe Avenue — BCOM Cage

	 	1106 HOE AVE
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Tiebout — BCOM Cage

	 	2373 TIEBOUT AVE
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Tratman Ave

	 	2411 TRATMAN AVE
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Patchogue

	 	22 BAY AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Peekskill — BCOM Cage

	 	1023 BROWN ST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Plainview-NWP Cage

	 	790 OLD COUNTRY RD
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	Pleasantville — BCOM Cage

	 	465 MARBLE AVE
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Portchester

	 	50 BROAD ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Ronkonkoma

	 	100 PORTION RD
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Roslyn — NWP Cage

	 	277 WARNER AVE
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	Clinton St

	 	133 CLINTON ST., 1ST FL
	 	Syracuse
	 	 New York
	 	Broadview Networks Inc.
	 	network equipment
	Smithtown

	 	55 MAPLE AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Spring Valley

	 	158 W CENTRAL AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Syosset-NWP Cage

	 	88 IRA RD
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	Electronic Blvd

	 	423 ELECTRONICS BLVD
	 	Syracuse
	 	 New York
	 	Broadview Networks Inc.
	 	network equipment
	James St

	 	3325 JAMES ST
	 	Syracuse
	 	 New York
	 	Broadview Networks Inc.
	 	network equipment
	State St

	 	201 STATE ST. , 3RD FL
	 	Syracuse
	 	 New York
	 	Broadview Networks Inc.
	 	network equipment
	Sayville

	 	145 RAILROAD AVE
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Tonawanda

	 	95 TREMONT ST NO T
	 	Syracuse
	 	 New York
	 	Broadview Networks Inc.
	 	network equipment
	Utica — Genesee

	 	280 GENESEE ST
	 	Syracuse
	 	 New York
	 	Broadview Networks Inc.
	 	network equipment
	Westbury

	 	220 MAPLE AV
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Woodmere — NWP Cage

	 	108 FRANKLIN PL
	 	NY-132
	 	New York
	 	Broadview NP Acquisition
	 	network equipment
	White Plains

	 	111 MAIN ST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Wantagh

	 	2020 WANTAGH ST
	 	NY-132
	 	New York
	 	Broadview Networks Inc.
	 	network equipment
	Union

	 	1091 UNION RD EBENEZ
	 	Syracuse
	 	 New York
	 	Broadview Networks Inc.
	 	network equipment
	Williamsville

	 	46 N CA YUGA RD
	 	Syracuse
	 	 New York
	 	Broadview Networks Inc.
	 	network equipment






 









 






	 	 	 	 	 	 	 	 	 	 	 
	ColloName	 	Address	 	City	 	State	 	Lessee	 	Collateral
	Yonkers

	 	40 MAIN ST
	 	NY-132
	 	New York
	 	Bridgecom International, Inc.
	 	network equipment
	Ambler

	 	20 N SPRING GARDENS
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	Churchville

	 	1518 BUSTLETON PIKE
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	Eddington

	 	2920 FOREST AV
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	Hatboro

	 	29 E MORELAND AV
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	Jenkingtown

	 	100 GREENWOOD AV
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	King of Prussia

	 	540 ALLENDALE RD.
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	Nortistown

	 	BLDG 400 DEKALB
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	Paoli

	 	125 CIRCULAR AV
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	Jefferson

	 	4803 LEIPER ST
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	Market

	 	900 RACE ST
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	Orchard

	 	2210 LOTT AVE
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	Regent

	 	2514 EMERALD ST
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	Wayne

	 	300 W LANCASTER AV
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	West Chester

	 	401 S HIGH ST
	 	Horsham
	 	Pennsylvania
	 	Broadview Networks Inc.
	 	network equipment
	Cranston — NWP Cage

	 	56 PHENIX AVE
	 	Charlestown
	 	Rhode Island
	 	Broadview NP Acquisition
	 	network equipment
	East Providence-NWP Cage

	 	789 NORTH BROADWAY
	 	Charlestown
	 	Rhode Island
	 	Broadview Networks Inc.
	 	network equipment
	Newport -NWP Cage

	 	20 BULL ST
	 	Charlestown
	 	Rhode Island
	 	Broadview NP Acquisition
	 	network equipment
	Providence_Broad-NWP Cage

	 	1096 BROAD ST
	 	Charlestown
	 	Rhode Island
	 	Broadview Networks Inc.
	 	network equipment
	Providence_Washington-NWP Cage

	 	 234 WASHINGTON ST
	 	Charlestown
	 	Rhode Island
	 	Broadview NP Acquisition
	 	network equipment
	Pawtucket — NWP Cage

	 	85 HIGH ST
	 	Charlestown
	 	Rhode Island
	 	Broadview NP Acquisition
	 	network equipment
	Woonsocket — NWP Cage

	 	199 CLINTON ST
	 	Charlestown
	 	Rhode Island
	 	Broadview NP Acquisition
	 	network equipment
	Warwick-NWP Cage

	 	2527 WEST SHORE RD
	 	Charlestown
	 	Rhode Island
	 	Broadview NP Acquisition
	 	network equipment







 









 





SCHEDULE
6.1 (u)




Litigation




None




 









 





SCHEDULE 9.1




Indebtedness and Guaranty Obligations




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Capital Leases	 	 	 	Principal Outstanding	 
	June 30, 2006	 	 	 	Current	 	 	 	 	 	 	 
	Creditor	 	Asset	 	Portion	 	 	Long Term Portion	 	 	Total	 
	VAResuources
	 	Computer Equipment	 	 	8 324	 	 	 	—	 	 	 	8 324	 
	Leaf Financial
	 	Computer Equipment	 	 	6 308	 	 	 	—	 	 	 	6 308	 
	Irwin Business
Financial
	 	Computer Equipment	 	 	1 871	 	 	 	—	 	 	 	1 871	 
	Axis
	 	Office Backup Systems	 	 	22 585	 	 	 	47 772	 	 	 	70 357	 
	Broadband
	 	Network Equipment	 	 	310 167	 	 	 	426 549	 	 	 	736 716	 
	Comdisco
	 	Network Equipment	 	 	1 323 404	 	 	 	—	 	 	 	1 323 404	 
	Enterprise
	 	Automobiles	 	 	317 272	 	 	 	225 643	 	 	 	542 915	 
	Fortran
	 	Office Backup Systems	 	 	51 154	 	 	 	28 767	 	 	 	79 921	 
	Insight
	 	Network Equipment	 	 	45 909	 	 	 	41 232	 	 	 	87 141	 
	Performance
	 	Office Backup Systems	 	 	12 192	 	 	 	49 649	 	 	 	61 841	 
	Relational
	 	Network Equipment	 	 	247 147	 	 	 	2 035 217	 	 	 	2 282 364	 
	 
	 	 	 	 	2 346 332	 	 	 	2 854 830	 	 	 	5 201 161	 







 









 








Senior Subordinated Debt



The Company has raised additional senior subordinated debt from certain of the existing
equity holders of the Company. The total senior subordinated debt balance at June 30, 2006 was
$63,528. In general, the terms of the senior subordinated debt include an interest rate of 12%
until December 31, 2008 at which point it increases to 15% until the stated maturity date of
December 31, 2009.









 









 











SCHEDULE 9.2




Existing Liens




None




 









 





SCHEDULE 9.3




Existing
Loans, Advances and Investments




None





 









 








SCHEDULE 9.8




Transactions with Affiliates





	–	 	Wholesales Services Agreement between Bridgecom Inernational, Inc.
and Trucom Corporation
	 
	–	 	Wholesales Services Agreement between Bridgecom
International, Inc. and
Broadview Networks, Inc.
	 
	–	 	Broadview Networks Holdings, Inc. will pay to MCG Capital and
Baker Capital a 2%
conversion fee upon conversion of all of the notes existing under the notes purchase
agreement dated January 14, 2005, as amended.