Exhibit 10.29
TERM LOAN NOTE
$15,000,000 March 16, 0000
Xxxxxxxxx, Xxxxxxxx
This TERM LOAN NOTE (hereinafter, the "Note" or the "Term Loan
Note") is executed and delivered under and pursuant to the terms of that certain
Credit Facility Agreement dated as of March 16, 2000 (as may be amended from
time to time hereafter, the "Credit Agreement") by and among XXXXXXXXXXXXX.XXX,
INC. and each of its direct and indirect Subsidiaries (including any successor
or permitted assignee thereof, each, a "Borrower"; collectively, the
"Borrowers"), and the Lenders which are or which become parties to the Credit
Agreement, and MCG FINANCE CORPORATION, a Delaware corporation (including any
successor, assignee, transferee, pledgee or participant thereof, "Administrative
Agent" or, in its capacity as the Lender under this Note, "Payee Lender").
FOR VALUE RECEIVED, each undersigned Borrower (jointly and
severally) hereby unconditionally promises to pay to the order of Payee Lender
on or before the Term Loan Maturity Date, the principal sum of FIFTEEN MILLION
DOLLARS ($15,000,000) (as such amount may be increased from time to time in
Lenders' sole and absolute discretion in accordance with the terms of the Credit
Agreement), or such other amount as may have been advanced to or on behalf of
Borrowers and is at the time outstanding hereunder or under the Term Loan
Facility of the Credit Agreement, together with all accrued but unpaid interest
thereon computed daily until paid at the varying rates per annum set forth in
the Credit Agreement and all unpaid expenses, fees and other advances connected
herewith.
The outstanding principal amount hereunder and under the Term Loan
Facility will bear interest (computed daily until paid, whether prior to or
after the Term Loan Maturity Date) that will be accrued, calculated imposed, due
and payable in accordance with the terms of the Credit Agreement.
Repayments of principal, together with all accrued but unpaid
interest on the outstanding balance under the Term Loan Facility, are due and
payable in accordance with the terms of the Credit Agreement. On the Term Loan
Maturity Date, Borrowers will pay Administrative Agent (for the ratable benefit
of Payee Lender and the other Lenders and without necessity of notice or demand)
the entire outstanding balance hereunder and under the Term Loan Facility,
together with all accrued but unpaid interest hereunder and all fees, expenses
and other advances connected herewith.
All payments (including prepayments) of principal, interest, fees
and any other amounts due hereunder must be received by Administrative Agent in
immediately available funds on or before Two O'clock (2:00) p.m. Eastern Time
("ET") on the due date therefor at the principal office of Administrative Agent
at 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 or at such other
place as Administrative Agent or any other holder of this Term Loan Note may at
any time or from time to time designate in writing.
Whenever any payment to be made hereunder is due on a day that is
not a Business Day, such payment may be made on the next succeeding Business
Day, and such extension of time will be included in the computation of interest
due hereunder. Any funds received by Administrative Agent after 2:00 p.m. ET on
any day will be deemed to be received on the next succeeding Business Day.
A default or breach of any term, condition or covenant under this
Note will constitute a Default under the Credit Agreement, and an Event of
Default under the Credit Agreement or any other Loan Document will constitute an
immediate Event of Default under this Note. In addition, it shall also
constitute an Event of Default hereunder if any Borrower fails to pay when due
any payment of principal or interest or any other sum payable to Administrative
Agent or any Lender under the Term Loan Facility and such failure continues for
five (5) Business Days after the due date therefor. Upon the occurrence of any
Event of Default hereunder and at any time thereafter (at the election of
Administrative Agent, but with notice to a Borrower), Administrative Agent may
declare all or any portion of the indebtedness of any or all Borrowers to Payee
Lender (hereunder or otherwise, but including the unpaid balance of principal,
interest and fees hereunder) to be immediately due and payable. Notwithstanding
the foregoing, if the relevant Event of Default relates to the insolvency or
bankruptcy of any Borrower, then such acceleration will occur automatically with
respect to the entire indebtedness and without notice. Upon any such
declaration, Administrative Agent and Lenders will have the immediate right to
enforce and realize upon any guaranty and/or collateral security for the
indebtedness hereunder in any manner or order that Required Lenders or
Administrative Agent (at the direction of Required Lenders) deems expedient
without regard to any equitable principles of marshalling or otherwise. In
addition to any rights granted hereunder or in any documents delivered in
connection herewith, Administrative Agent and Lenders will also have all other
rights and remedies permissible under any applicable law (including the rights
of a secured party under the Uniform Commercial Code), and all such rights and
remedies will be cumulative in nature.
Upon the occurrence and during the existence of any Default or Event
of Default hereunder or under the Credit Agreement, each Borrower (jointly and
severally) hereby agrees (to the maximum extent not prohibited by applicable
law) to pay to Administrative Agent (for the ratable benefit of Payee Lender and
the other Lenders) (upon Administrative Agent's request) a default rate of
interest as provided for in the Credit Agreement. In addition, if Administrative
Agent does not receive any payments (of principal, interest, fees or other
charges) in immediately available funds on or before the seventh (7th) calendar
day after the due date therefor, then each Borrrower (jointly and severally)
hereby agrees (to the maximum extent not prohibited by applicable law) to pay to
Administrative Agent (for the ratable benefit of Payee Lender and the other
Lenders) (upon Administrative Agent's request) a late payment charge as provided
for in the Credit Agreement.
If, after the occurrence of any Default under any Loan Document,
counsel is retained to advise Administrative Agent or any Lender in connection
therewith, to collect, compromise or settle the indebtedness evidenced hereby or
to otherwise protect the security hereof, each Borrower (jointly and severally)
agrees to pay (to the maximum extent not
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prohibited by applicable law) reasonable fees and all other costs and expenses
of such counsel incurred by Administrative Agent or such Lender.
Each Borrower hereby waives diligence, presentment, protest, demand
for payment, notice of protest and non-payment, notice of dishonor, and any and
all other notices or demands in connection with the delivery, acceptance,
performance, default, acceleration or enforcement of this Term Loan Note. Each
Borrower, in addition, hereby consents (without the necessity of prior notice)
to any extensions of time, renewals, releases of any party hereto or guarantor
hereof, waivers and/or modifications in connection herewith that may be granted
or consented to by Administrative Agent from time to time. Each Borrower also
waives any defenses and rights of discharge to its obligations hereunder that it
may have or may hereafter acquire based on suretyship or impairment of
collateral (including lack of attachment or perfection with respect thereto).
No delay on the part of Administrative Agent or any Lender in
exercising any power or right hereunder will operate as a waiver thereof nor
will any single or partial exercise of any power or right hereunder preclude
other or further exercises thereof or the exercise of any other power or right.
This Term Loan Note is binding on each Borrower and each Borrower's successors
and assigns and is enforceable by Administrative Agent, Payee Lender and their
successors, assigns, transferees and participants. If any term or provision of
this Term Loan Note is held invalid, illegal or unenforceable, the validity of
all other terms and provisions hereof will in no way be affected thereby.
Nothing contained in this Term Loan Note will require any Borrower
to pay interest at a rate or any fee or expense in an amount prohibited by
applicable law. If interest or any fee or expense payable to Administrative
Agent on any date would be in a prohibited amount, such interest, fee or expense
will be automatically reduced to an amount that is not prohibited, and interest
or such fee or expense for subsequent periods, to the extent not prohibited,
will be increased by the amount of such reduction until payment of the full
amount of each such reduction. Any prohibited amount previously paid will be
credited towards reduction of the outstanding principal balance.
Liability Waiver. Each Borrower (a) agrees that neither
Administrative Agent nor any Lender (nor any director, officer, employee or
agent of Administrative Agent or any Lender) shall have any liability to any
Borrower (whether sounding in tort, contract or otherwise) for losses or costs
suffered or incurred by any Borrower in connection with or in any way related to
the transactions contemplated or the relationship established by this Note or
any other Loan Document, or any act, omission or event occurring in connection
therewith, except for foreseeable actual losses resulting directly and
exclusively from Administrative Agent's or such Lender's own gross negligence,
willful misconduct or fraud and (b) waives, releases and agrees not to xxx upon
any claim against Administrative Agent or any Lender (or their directors,
officers, employees or agents) whether sounding in tort, contract or otherwise,
except for claims for foreseeable actual losses resulting directly and
exclusively from Administrative Agent's or such Lender's own gross negligence,
willful misconduct or fraud. Moreover, whether or not such damages are related
to a claim that is subject to the waiver effected above and whether or not such
waiver is effective, neither Administrative Agent nor any Lender (nor any
director, officer,
3
employee or agent of Administrative Agent or any Lender) shall have any
liability with respect to (and each Borrower hereby waives, releases and agrees
not to xxx upon any claim for) any special, indirect, consequential, punitive or
non-foreseeable damages suffered by any Borrower in connection with or in any
way related to the transactions contemplated or the relationship established by
any Loan Document, or any act, omission or event occurring in connection
herewith or therewith.
Jurisdictional and Related Consents. Any litigation in connection
with or in any way related to this Note, or any course of conduct, course of
dealing, statements (whether verbal or written), actions or inactions of
Administrative Agent, any Lender or any Borrower will be brought and maintained
exclusively in the courts of the Commonwealth of Virginia or in the United
States District Court for the Eastern District of Virginia; provided, however,
that any suit seeking enforcement hereof against any Borrower, any Collateral or
any other property may also be brought (at Administrative Agent's or such
Lender's option) in the courts of any other jurisdiction where such Collateral
or other property may be found or where Administrative Agent or such Lender may
otherwise obtain personal jurisdiction over such Borrower. Each Borrower hereby
expressly and irrevocably submits to the jurisdiction of the courts of the
Commonwealth of Virginia and of the United States District Court for the Eastern
District of Virginia for the purpose of any such litigation as set forth above
and irrevocably agrees to be bound by any final and non-appealable judgment
rendered thereby in connection with such litigation. Each Borrower further
irrevocably consents to the service of process by registered or certified mail,
postage prepaid, or by personal service within or outside the Commonwealth of
Virginia. Each Borrower hereby expressly and irrevocably waives, to the fullest
extent permitted by law, any objection which it may have or hereafter may have
to the laying of venue of any such litigation brought in any such court referred
to above and any claim that any such litigation has been brought in an
inconvenient forum. To the extent that any Borrower has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) with respect to itself or its property, then such
Borrower hereby irrevocably waives such immunity in respect of its obligations
under this Note.
Jury Trial Waiver. Administrative Agent, each Lender and each
Borrower each hereby knowingly, voluntarily and intentionally waives any rights
it may have to a trial by jury in respect of any litigation (whether as claim,
counter-claim, affirmative defense or otherwise) in connection with or in any
way related to this Note or any of the Loan Documents or any course of conduct,
course of dealing, statements (whether verbal or written), actions or inactions
of Administrative Agent, any Lender or any Borrower. Each Borrower acknowledges
and agrees (a) that it has received full and sufficient consideration for this
provision (and each other provision of each other Loan Document to which it is a
party), and (b) that it has been advised by legal counsel in connection
herewith, and (c) that this provision is a material inducement for
Administrative Agent and each Lender entering into the Loan Documents and
funding the Advance thereunder.
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Payee Lender, and its successors or assigns, at any time and from
time to time, may assign, participate and syndicate all or any part of its
rights under this Term Loan Note pursuant to the terms of Section 10.2 of the
Credit Agreement.
This Term Loan Note is the "Term Loan Note" referred to in, and
arises out of, the Credit Agreement. The Credit Agreement contains, among other
things, provisions for acceleration of the maturity hereof upon the occurrence
of certain stated events and also for prepayments of the principal hereunder
prior to the maturity hereof upon the terms and conditions specified therein.
Payment of this Note is secured by various forms of property pledged and
encumbered to Administrative Agent as Collateral pursuant to the Loan Documents.
In the event of any irreconcilable conflict between the terms and
conditions of this Term Loan Note and the terms and conditions of the Credit
Agreement or other Loan Documents, the terms and conditions of this Term Loan
Note shall govern.
This Term Loan Note is governed by and is to be construed in
accordance with the laws of the Commonwealth of Virginia, without reference to
the conflicts of law provisions thereof.
[BALANCE OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, each Borrower has caused this Term Loan Note to
be executed in its name and on its behalf, as an instrument under seal (whether
or not any such seals are physically attached hereto), on the day and year first
written above.
ATTEST: XXXXXXXXXXXXX.XXX, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: GLOBAL 2000 COMMUNICATIONS, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: ALBANYNET, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: WEBWAY INTERNET, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: ASCENT NETWORKING, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: CYBERZONE, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: CARAVELA SOFTWARE, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: NECANET, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: PRIME COMMUNICATION
SYSTEMS, INCORPORATED
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: INFOBOARD, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BORG INTERNET SERVICES, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: ULSTERNET, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BOL ACQUISITION CO. II, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BOL ACQUISITION CO. III, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BOL ACQUISITION CO. VIII, INC.
By: By: /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
