SECOND
MASTER AMENDMENT
TO
LOAN AND SECURITY AGREEMENTS, WAIVER
AND EQUIPMENT NOTES
MODIFICATION AGREEMENT
THIS SECOND MASTER AMENDMENT TO LOAN AND SECURITY AGREEMENTS, WAIVER
AND EQUIPMENT NOTES MODIFICATION AGREEMENT ("Master Amendment") is entered into
as of September 6, 1996 among American Communication Services of Louisville,
Inc., a Delaware corporation ("Louisville"), American Communication Services of
Fort Worth, Inc., a Delaware corporation ("Fort Worth"), American
Communication Services of Columbia, Inc., a Delaware corporation ("Columbia"),
American Communication Services of Greenville, Inc., a Delaware corporation
("Greenville"), and American Communication Services of El Paso, Inc. ("El Paso",
and collectively with Louisville, Fort Worth, Columbia and Greenville, the "ACSI
Borrower Subsidiaries") and AT&T Credit Corporation ("Lender").
WITNESSETH:
WHEREAS, each of the ACSI Borrower Subsidiaries is party to a Loan and
Security Agreement with the Lender; specifically described as follows:
(i) Louisville and the Lender are parties to that certain Loan
and Security Agreement dated as of October 17, 1994, as
amended by that certain Amendment No. 1 dated as of June 26,
1995 and that certain Master Amendment (the "First Master
Amendment") to Loan and Security Agreements dated as of
November 30, 1995 between Lender and the ACSI Borrower
Subsidiaries (as the same may from time to time be further
amended, modified, supplemented or restated, the "Louisville
Loan Agreement");
(ii) Fort Worth and the Lender are parties to that certain
Loan and Security Agreement dated as of February 28, 1995, as
amended by the First Master Amendment and that certain Letter
Amendment (the "Letter Amendment") dated as of December 19,
1995 between Lender and the ACSI Borrower Subsidiaries other
than Louisville (as the same may from time to time be further
amended, modified, supplemented or restated.
the "Fort Worth Loan Agreement");
(iii) Columbia, Greenville and the Lender are parties to that
certain Loan and Security Agreement dated as of June 30, 1995,
as amended by the First Master Amendment and the Letter
Amendment (as the same may from time to time be further
amended, modified, supplemented or restated, the "Columbia and
Greenville Loan Agreement"), and
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(iv) El Paso and the Lender are parties to that certain Loan
and Security Agreement dated as of September 8, 1995, as
amended by the First Master Amendment and the Letter Amendment
(as the same may from time to time be further amended,
modified, supplemented or restated, the "El Paso Loan
Agreement", and collectively with the Louisville Loan
Agreement, the Fort Worth Loan Agreement and the Columbia and
Greenville Loan Agreement, the "Loan Agreements");
WHEREAS, the ACSI Borrower Subsidiaries have requested the Lender to
modify the Loan Agreements to increase the Capital Loan Commitment Amount and
decrease the Equipment Loan Commitment Amount in each of the respective Loan
Agreements and to substitute as Exhibit A a modified Business Plan for each of
the respective Loan Agreements,
WHEREAS, the Lender and the ACSI Borrower Subsidiaries have agreed to
amend the "Equipment Notes" to make a technical correction and to reflect the
reduced "Commitment Amount" for the "Equipment Loans" (as each quoted term is
defined in the respective Loan Agreements for each ACSI Subsidiary); and
WHEREAS, the Lender and the ACSI Borrower Subsidiaries have agreed to
amend the Loan Agreements on the terms and conditions set forth herein and
restate paragraph 2 of the Letter Amendment;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
ACSI Borrower Subsidiaries and the Lender have agreed to amend the Loan
Agreements and the Equipment Notes as set forth below. Capitalized terms used in
this Master Amendment which are not otherwise defined herein, shall have the
meanings given such terms in the respective Loan Agreement for each ACSI
Borrower Subsidiary as applicable.
1. Amendments to Loan Agreements. Effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 4
below, on and after the date hereof, the parties hereto agree as follows:
1.1 The definition of "Capital Loan Commitment Amount" in Section 1.01
of each of the Loan Agreements is hereby deleted and replaced as follows:
(a) In the Louisville Loan Agreement with the following definition:
"Capital Loan Commitment Amount" shall mean the lesser of (i)
$5,216,242.00 inclusive of capitalized interest, if any, on
the Capital Loans and (ii) ninety percent (90%) of the
outstanding principal balance of all then outstanding Loans,
inclusive of capitalized interest.
(b) In the Fort Worth Loan Agreement, with the following definition:
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"Capital Loan Commitment Amount" shall mean the lesser of (i)
$6,665,024.00 inclusive of capitalized interest, if any, on
the Capital Loans and (ii) ninety percent (90%) of the
outstanding principal balance of all then outstanding Loans,
inclusive of capitalized interest."
(c) In the Columbia and Greenville Loan Agreement, with the
following definitions:
"ACS Columbia Capital Loan Commitment Amount" shall mean the
lesser of (i) $6,101,357.00 inclusive of capitalized interest,
if any, on the ACS Columbia Capital Loans and (ii) ninety
percent (90%) of the outstanding principal balance of all
Loans made by Lender to ACS Columbia, inclusive of capitalized
interest."
"ACS Greenville Capital Loan Commitment Amount" shall mean the
lesser of (i) $4,680,000, and (ii) ninety percent (90%) of the
outstanding principal balance of all loans made by Lender to
ACS Greenville, inclusive of capitalized interest. "
(d) In the El Paso Loan Agreement, with the following definition:
"Capital Loan Commitment Amount" shall mean the lesser of (i)
$5,529,387.00 inclusive of capitalized interest, if any, on
the Capital Loans and (ii) ninety percent (90%) of the
outstanding principal balance of all then outstanding Loans,
inclusive of capitalized interest."
1.2 The definition of "Capital Note" in Section 1.01 of each of the
Loan Agreements is hereby deleted and replaced with the following:
(a) In the Louisville Loan Agreement, the Fort Worth Loan Agreement,
and the El Paso Loan Agreement with the following definition:
"Capital Note" shall mean the promissory note of the Borrower,
substantially in the form of Exhibit C attached hereto and any
replacement or substitute therefor. "
(b) In the Columbia and Greenville Loan Agreement, with the
following definition:
"Capital Note" shall mean the promissory note of either
Borrower, substantially in the form of Exhibit C attached
hereto and any replacement or substitute therefor."
1.3 The definition of "Equipment Loan Commitment Amount" in Section
1.01 of each of the Loan Agreements is hereby deleted and replaced as follows:
(a) In the Louisville Loan Agreement with the following definition:
"Equipment Loan Commitment Amount" shall mean $579,582.00,
inclusive of capitalized interest, if any, on the Equipment
Loans."
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(b) In the Fort Worth Loan Agreement with the following definition:
"Equipment Loan Commitment Amount" shall mean $740,558.00,
inclusive of capitalized interest, if any, on the Equipment
Loans."
(c) In the Columbia and Greenville Loan Agreement, with the
following definitions:
"ACS Columbia Equipment Loan Commitment Amount" shall mean
$677,928.00, inclusive of capitalized interest, if any, on the
ACS Columbia Equipment Loans."
"ACS Greenville Equipment Loan Commitment Amount" shall mean
$520,000.00, inclusive of capitalized interest, if any, on the
ACS Greenville Equipment Loans."
(d) In the El Paso Loan Agreement, with the following definition:
"Equipment Loan Commitment Amount" shall mean $614,376.00,
inclusive of capitalized interests, if any on the Equipment
Loans. "
1.4 Section 2.08(f) of the Louisville Loan Agreement is hereby amended
in its entirety to read as follows:
"If the aggregate principal balance (inclusive of capitalized
interest) of (i) the Equipment Loans exceeds the Equipment
Loan Commitment Amount or (ii) the Capital Loans exceeds the
Capital Loan Commitment Amount, but in either case does not
cause the aggregate of the then outstanding Capital Loans and
Equipment Loans to exceed the amount which is the aggregate of
the Equipment Loan Commitment Amount and Capital Loan
Commitment Amount, such excess shall be treated as a Capital
Loan. Otherwise, then in each such case, Borrower shall
immediately repay to Lender, upon notice from Lender, the
amount by which the outstanding principal balance of the
respective Loan Balance exceeds its respective Commitment
Amount, together with all accrued and unpaid interest on such
excess principal up to the date of repayment. "
1.5 Section 6.03 of each of the Loan Agreements is hereby amended to
add the following clause at the end thereof:
"and if no Default or Event of Default has then occurred and
is continuing, transfers occurring on or after June 1, 1996 of
Equipment and other equipment to Additional System Borrowers
and other subsidiaries of Parent owning and operating
alternate access communication systems, with book value not to
exceed (i) $250,000 in the aggregate, and (ii) when combined
with similar transfers made by Additional System Borrowers,
not to exceed $500,000 in the aggregate, provided that the
Person which receives such Equipment or other equipment shall
pay the Borrower which transferred such Equipment to it, cash
in the amount of the book value for such transferred Equipment
or equipment, within five Business Days of such transfer,
subject to accounting adjustments in
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connection with the monthly closing of the books of the
Borrower, the Additional System Borrowers and such other
subsidiaries, which accounting adjustments shall be made not
later than forty-five (45) days after such fifth Business Day,
and provided further that the book value of all such transfers
by the Borrower and a description of the Equipment or
equipment transferred shall be noted on the monthly report
required to be delivered to the Lender pursuant to Section
5.06(i) for the month in which such transfer occurred."
1.6 Exhibits A and C to each of the respective Loan Agreements is
hereby deleted in their entirety and Exhibits A and C to this Master Amendment
respectively are hereby substituted therefor, specifically as follows:
(a) to the Louisville Loan Agreement, Exhibits A-1, and C-1 to this
Master Amendment shall replace Exhibits A and C to the Louisville Loan
Agreement, respectively.
(b) to the Fort Worth Loan Agreement, Exhibits A-2 and C-2 to this
Master Amendment shall replace Exhibits A and C to the Fort Worth Loan
Agreement, respectively.
(c) to the Columbia and Greenville Loan Agreement, Exhibits A-3 and C-3
to this Master Amendment shall replace Exhibits A and C to the Columbia and
Greenville Loan Agreement, respectively.
(d) to the El Paso Loan Agreement, Exhibits A-4 and C-4 to this Master
Amendment shall replace Exhibits A and C to the El Paso Loan Agreement,
respectively.
1.7 Section 6.01 of the El Paso Loan Agreement is amended to delete the
word "and" at the end of clause (iv), to add the word "and" at the end of clause
(v) thereof and to add the following clause (vi) thereto:
"(vi) the rights of El Paso Electric Company, a Texas
corporation ("El Paso Electric Company"), pursuant to that
certain License Agreement dated as of December 6, 1995 between
El Paso Electric Company and Borrower. "
2. Equipment Notes Modification. Each Equipment Note executed by the
respective ACSI Borrower Subsidiary is hereby amended (i) to delete the phrase
"as set forth on Schedule A attached hereto" at the end of the first sentence in
the second paragraph of the respective Equipment Note and to substitute the
following therefor: "as set forth in Section 2.06(b) of the Loan Agreement", and
(ii) to reduce the principal amount thereof to the amounts set forth as the
respective Equipment Loan Commitment Amounts in Section 1.3 above.
3. Waiver. Parent and each of ACSI Borrower Subsidiaries have advised
Lender that as of May 31, 1996, the ACSI Borrower Subsidiaries and other
operating subsidiaries of Parent had engaged in transfers and exchanges of
Equipment and other equipment, which transfers and exchanges of Equipment and
other equipment which were the property of the ACSI Borrower Subsidiaries had an
aggregate book value not in excess of $380,000. The Lender hereby waives any
Event of Default that
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occurred under any of the Loan Agreements as a result of any of the
above-described transfers. Nothing contained in this Section 3 shall be
construed as waiving any other Event of Default or allowing any future transfers
of Equipment or other equipment not permitted by the terms of the respective
Loan Agreements.
4. Conditions of Effectiveness of this Master Amendment. This Master
Amendment shall become effective and be deemed effective on the date first above
written subject to the Lender's receipt of each of the following:
(i) five (5) originals of this Master Amendment, duly executed by
the ACSI Borrower Subsidiaries and the Lender; and
(ii) Substituted and Amended Capital Notes by each of the ACSI
Borrower Subsidiaries;
(iii) five (5) originals of the Master Reaffirmation of Parent
Pledge and Support Agreements attached as Annex A hereto; and
(iv) perfection of security interest in all new filing
jurisdictions where respective Systems are being expanded.
5. Further Assurances. The ACSI Borrower Subsidiaries hereby agree from
time to time, as and when requested by the Lender, to execute and deliver or
cause to be executed and delivered, all such documents, instruments and
agreements and to take or cause to be taken such further or other action as the
Lender may deem necessary or desirable in order to carry out the intent and
purposes of this Master Amendment, the Loan Agreements or the other Loan
Documents.
6. Representations and Warranties of the ACSI Borrower Subsidiaries.
The ACSI Borrower Subsidiaries hereby represent and warrant that this Master
Amendment and their respective Loan Agreement as previously executed and as
amended hereby, constitute legal, valid and binding obligations of the
respective ACSI Borrower Subsidiary and are enforceable against the respective
ACSI Borrower Subsidiary in accordance with their terms.
7. Reference to the Effect on the Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Loan Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import shall mean and be a reference to the
respective Loan Agreement as amended hereby.
(b) Except as specifically set forth above, each of the Loan Agreements
and the Equipment Notes, and all other documents, instruments and agreements
executed and/or delivered in connection therewith, shall remain in full force
and effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Master Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Lender, nor
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constitute a waiver of any provision of the Loan Agreements or the Equipment
Notes, or any other documents, instruments and agreements executed and/or
delivered in connection therewith.
8. Headings. Section headings in this Master Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Master Amendment for any other purpose.
9. Counterparts: Facsimile Signatures. This Master Amendment may be
executed by one or more of the parties to the Master Amendment on any number of
separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. Each of the parties hereto
agrees that a signature transmitted by facsimile transmission shall be effective
to bind the party so transmitting its signature.
10. Entire Agreement. This Master Amendment, taken together with the
respective Loan Agreements and all of the other respective Loan Documents,
embodies the entire agreement and understanding of the parties hereto and
supersedes all prior agreements and understandings, written and oral, relating
to the subject matter hereof.
11. Applicable Law, Severability. This Master Amendment shall be
governed by, and construed in accordance with, the internal laws (as opposed to
the conflict of laws provisions) and decisions of the State of New Jersey.
Whenever possible, each provision of this Master Amendment shall be interpreted
in such manner as to be effective and valid under applicable law, but, if any
provision of this Master Amendment shall be held to be prohibited or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Master Amendment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this Master Amendment has been duly executed as of
the date set forth above.
AMERICAN COMMUNICATION
SERVICES OF LOUISVILLE, INC.
/s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: President & Chief Executive Officer
AMERICAN COMMUNICATION
SERVICES OF FORT WORTH. INC.
/s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: President & Chief Executive Officer
AMERICAN COMMUNICATION
SERVICES OF COLUMBIA, INC.
/s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: President & Chief Executive Officer
AMERICAN COMMUNICATION
SERVICES OF GREENVILLE, INC.
/s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: President & Chief Executive Officer
AMERICAN COMMUNICATION
SERVICES OF EL PASO, INC.
/s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: President & Chief Executive Officer
AT&T CREDIT CORPORATION
/s/ XXXXXX X. XXXXXXX, XX.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
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EXHIBIT A
to
SECOND MASTER AMENDMENT TO
LOAN AGREEMENTS
A-1 Exhibit A to Louisville Loan Agreement
A-2 Exhibit A to Fort Worth Loan Agreement
A-3 Exhibit A to Columbia and Greenville Loan Agreement
A-4 Exhibit A to El Paso Loan Agreement
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EXHIBIT A-1
to
SECOND MASTER AMENDMENT TO
LOAN AGREEMENTS
EXHIBIT A
BUSINESS PLAN
Attached.
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EXHIBIT A-2
to
SECOND MASTER AMENDMENT TO
LOAN AGREEMENTS
EXHIBIT A
BUSINESS PLAN
Attached.
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EXHIBIT A-3
to
SECOND MASTER AMENDMENT TO
LOAN AGREEMENTS
EXHIBIT A
BUSINESS PLAN
Attached.
-4-
EXHIBIT A-4
to
SECOND MASTER AMENDMENT TO
LOAN AGREEMENTS
BUSINESS PLAN
Attached.
EXHIBIT A
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EXHIBIT C
to
SECOND MASTER AMENDMENT TO
LOAN AGREEMENTS
C-1 Exhibit C to Louisville Loan Agreement
C-2 Exhibit C to Fort Worth Loan Agreement
C-3 Exhibit C to Columbia and Greenville Loan Agreement
C-4 Exhibit C to El Paso Loan Agreement
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ANNEX A
SECOND
MASTER REAFFIRMATION OF
PARENT PLEDGE AND SUPPORT AGREEMENTS
This SECOND MASTER REAFFIRMATION OF PARENT PLEDGE AND SUPPORT
AGREEMENTS (this "Reaffirmation") is executed as of this 6th day of September,
1996 by American Communications Services, Inc., a Delaware corporation (the
"Parent"), in favor of AT&T Credit Corporation, a Delaware corporation
("Lender").
WITNESSETH
WHEREAS, American Communications Services of Louisville, Inc.,
American Communication Services of Fort Worth, Inc., American Communication
Services of Columbia, Inc. and American Communication Services of Greenville,
Inc., and American Communication Services of El Paso, Inc. (each a Delaware
corporation), entered into those certain Loan and Security Agreements each
dated respectively as of October 16, 1994, February 28, 1995, June 30, 1995 and
September 9, 1995, as amended (collectively, as so amended and as further
amended, restated or modified. the "Loan Agreements") with Lender;
WHEREAS, to induce Lender to enter into the Loan Agreement, Parent
executed and delivered those certain Parent Pledge and Support Agreements each
dated as of October 16, 1994, February 28, 1995, June 30, 1995 and September 9,
1995, as amended (collectively, as so amended and as further amended, restated
or modified, the "Pledge Agreements") in favor of the Lender;
WHEREAS, the parties to the Loan Agreements are entering into that
certain Second Master Amendment to Loan and Security Agreements, Waiver and
Equipment Notes Modification Agreement (the "Amendment") of even date herewith;
and
WHEREAS, it is a condition precedent to the effectiveness of the
Amendment that Parent execute and deliver this Reaffirmation;
NOW, THEREFORE, for and in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parent hereby agrees as follows:
1. Reaffirmation of Pledge Agreements. The Parent acknowledges that it
has received and reviewed the Amendment and reaffirms that (a) the pledge of the
"Pledged Stock" as defined in the respective Pledge Agreements and the liens and
security interest granted therein and (b) the Pledge Agreements and the liens
and security interest granted therein shall continue in full force and effect in
accordance with their respective terms notwithstanding the execution and
delivery of the Amendment.
2. Governing Law and Jurisdiction. This Reaffirmation shall be
construed in accordance with and governed by the internal laws of the State of
New Jersey, without giving effect to any conflicts of laws principles.
3. Execution in Counterparts. This Reaffirmation may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Reaffirmation
to be duly executed by their duly authorized representatives as of the day and
year first written above.
AMERICAN COMMUNICATIONS SERVICES, INC.
By:
Name:
Title:
Acknowledged and agreed to as of the day and year first written above.
AT&T CREDIT CORPORATION
By:
Name:
Title:
EXHIBIT C
FORM OF
SUBSTITUTED AND AMENDED CAPITAL NOTE
$ Morristown, New Jersey
[DATE]
FOR VALUE RECEIVED, the undersigned, AMERICAN COMMUNICATION SERVICES OF
LOUISVILLE, INC., a Delaware corporation (the "Borrower"), hereby
unconditionally promises to pay to the order of AT&T CREDIT CORPORATION, a
Delaware corporation (the "Lender"), at its office at 00 Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, or at such other place as the holder of this
Substituted and Amended Capital Note may from time to time designate in writing,
in lawful money of the United States of America and in immediately available
funds, the lesser of (i) the principal sum of AND NO/100 DOLLARS ($ ), and (ii)
the unpaid amount of all "Capital Loans" (referred to below), together with
interest on the principal balance remaining from time to time unpaid at the rate
provided below from the date such principal is advanced until payment in full
thereof. This Substituted and Amended Capital Note is referred to in and was
executed and delivered pursuant to Section 2.04 of that certain Loan and
Security Agreement dated as of October 17, 1994, as amended (as so amended and
restated, and further amended, restated and supplemented or modified from time
to time, the "Loan Agreement") by and between the Borrower and the Lender (the
"Loan Agreement"), to which reference is hereby made for a statement of the
terms and conditions under which the Capital Loans evidenced hereby are being
made and are to be repaid. All terms which are capitalized and used herein
(which are not otherwise specifically defined herein) and which are defined in
the Loan Agreement shall be used in this Substituted and Amended Capital Note as
defined in the Loan Agreement.
The principal indebtedness evidenced hereby shall be payable in
twenty-eight (28) consecutive quarterly installments, as set forth in Section
2.06(b) of the Loan Agreement. The principal amount hereof may be prepaid only
in accordance with the terms of the Loan Agreement.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof which remains unpaid from the date hereof until payment
in full hereof at the rates described in the Loan Agreement, payable quarterly
in arrears on the Payment Dates and subject to capitalization of the interest
payable prior to the Commitment Termination Date in accordance with the
provisions of Section 2.06 of the Loan Agreement, and calculated on the basis of
a 360-day year comprised of twelve 30 day months, compounded monthly; provided,
however, that if the Borrower shall default in the payment of the principal or
interest hereof, the Borrower promises to, on demand, pay interest on the entire
unpaid principal amount hereof at a rate equal to four percent (4%) per annum
above the rate of interest that would otherwise be applicable, from the date
such payment is due to the date of actual payment, and if any other Event of
Default occurs and is continuing, the Borrower promises to, on demand, pay
interest on the entire unpaid principal amount hereof at a rate equal to two
percent (2%) per annum above the rate of interest that would otherwise be
applicable, until such Event of Default is cured.
If payment hereunder becomes due and payable on a Saturday, Sunday, or
legal holiday, under the laws of the State of New Jersey, the due date thereof
shall be extended to the next succeeding Business Day, and interest shall be
payable thereon during such extension at the rate specified above.
Checks, drafts or similar items of payment received by the Lender shall not
constitute payment, but credit therefor shall, solely for the purpose of
computing interest earned by the Lender, be given on the date the same is
honored by the Lender's depository bank and final settlement thereof is
reflected by irrevocable credit to the Lender's account in such bank. In no
contingency or event whatsoever shall interest charged hereunder, however such
interest may be characterized or computed, exceed the highest rate permissible
under any 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 Lender has received interest hereunder in excess of the highest rate
applicable hereto, the Lender shall promptly refund such excess interest to
Borrower.
The unpaid balance of the indebtedness hitherto evidenced by that
certain Capital Note dated October 17, 1994 in the original principal amount of
$2,214,000 (the "Former Note") made by the Borrower and delivered to the Lender
remains outstanding as of the date hereof and shall continue to be secured
pursuant to the terms of the Loan Documents. The principal balance of this
Substituted and Amended Capital Note includes the indebtedness hitherto
evidenced by the Former Note and to the extent such indebtedness is included in
the principal balance of this Substituted and Amended Capital Note, the
Substituted and Amended Capital Note (i) merely reevidences the indebtedness
hitherto evidenced by the Former Note, (ii) is given in substitution for, and
not as payment of the Former Note, and (iii) is in no way intended to constitute
a novation of the Former Note.
Except as otherwise agreed in the Loan Agreement, payments received by
the Lender from the Borrower on this Substituted and Amended Capital Note shall
be applied first to the payment of interest which is due and payable and only
thereafter to the outstanding principal balance.
Presentment, protest and notice of nonpayment are hereby waived by the
Borrower.
This Substituted and Amended Capital Note shall be interpreted and the
rights and liabilities of the parties hereto determined in accordance with the
internal laws (as opposed to conflicts of law provisions) and decisions of the
State of New Jersey. Whenever possible each provision of this Substituted and
Amended Capital Note shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Substituted and Amended
Capital Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Substituted and Amended Capital Note. Whenever in this Substituted and
Amended Capital Note reference is made to the Lender or Borrower, such reference
is made to include, as applicable, a reference to their respective successors
and assigns. The provisions of this Substituted and Amended Capital Note shall
be binding upon and inure to the benefit of said successors and assigns.
Borrower's successors and assigns shall include, without limitation, a receiver,
trustee or debtor in possession of or for the Borrower.
AMERICAN COMMUNICATION SERVICES
OF LOUISVILLE, INC.
By:
Its:
EXHIBIT C
SUBSTITUTED AND AMENDED CAPITAL NOTE
Morristown, New Jersey
$ [DATE]
FOR VALUE RECEIVED, the undersigned, AMERICAN COMMUNICATION SERVICES OF
FORT WORTH, INC., a Delaware corporation (the "Borrower"), hereby
unconditionally promises to pay to the order of AT&T CREDIT CORPORATION, a
Delaware corporation (the "Lender"), at its office at 00 Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, or at such other place as the holder of this
Substituted and Amended Capital Note may from time to time designate in writing,
in lawful money of the United States of America and in immediately available
funds, the lesser of (i) the principal sum of AND NO/100 DOLLARS ($ ), and (ii)
the unpaid amount of all "Capital Loans" (referred to below), together with
interest on the principal balance remaining from time to time unpaid at the rate
provided below from the date such principal is advanced until payment in full
thereof. This Substituted and Amended Capital Note is referred to in and was
executed and delivered pursuant to Section 2.04 of that certain Loan and
Security Agreement dated as of February 28, 1995, as amended (as so amended and
restated, and further amended, restated and supplemented or modified from time
to time, the "Loan Agreement") by and between the Borrower and the Lender (the
"Loan Agreement"), to which reference is hereby made for a statement of the
terms and conditions under which the Capital Loans evidenced hereby are being
made and are to be repaid. All terms which are capitalized and used herein
(which are not otherwise specifically defined herein) and which are defined in
the Loan Agreement shall be used in this Substituted and Amended Capital Note as
defined in the Loan Agreement.
The principal indebtedness evidenced hereby shall be payable in
twenty-eight (28) consecutive quarterly installments, as set forth in Section
2.06(b) of the Loan Agreement. The principal amount hereof may be prepaid only
in accordance with the terms of the Loan Agreement.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof which remains unpaid from the date hereof until payment
in full hereof at the rates described in the Loan Agreement, payable quarterly
in arrears on the Payment Dates and subject to capitalization of the interest
payable prior to the Commitment Termination Date in accordance with the
provisions of Section 2.06 of the Loan Agreement, and calculated on the basis of
a 360-day year comprised of twelve 30 day months, compounded monthly; provided,
however, that if the Borrower shall default in the payment of the principal or
interest hereof, the Borrower promises to, on demand, pay interest on the entire
unpaid principal amount hereof at a rate equal to four percent (4%) per annum
above the rate of interest that would otherwise be applicable, from the date
such payment is due to the date of actual payment, and if any other Event of
Default occurs and is continuing, the Borrower promises to, on demand, pay
interest on the entire unpaid principal amount hereof at a rate equal to two
percent (2%) per annum above the rate of interest that would otherwise be
applicable, until such Event of Default is cured.
If payment hereunder becomes due and payable on a Saturday, Sunday, or
legal holiday, under the laws of the State of New Jersey, the due date thereof
shall be extended to the next succeeding Business Day, and interest shall be
payable thereon during such extension at the rate specified above. Checks,
drafts or similar items of payment received by the Lender shall not constitute
payment, but credit therefor shall, solely for the purpose of computing interest
earned by the Lender, be given on the
date the same is honored by the Lender's depository bank and final settlement
thereof is reflected by irrevocable credit to the Lender's account in such bank.
In no contingency or event whatsoever shall interest charged hereunder, however
such interest may be characterized or computed, exceed the highest rate
permissible under any 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 Lender has received interest hereunder in excess of the
highest rate applicable hereto, the Lender shall promptly refund such excess
interest to Borrower.
The unpaid balance of the indebtedness hitherto evidenced by that
certain Capital Note dated May 1, 1995 in the original principal amount of
$2,970,000 (the "Former Note") made by the Borrower and delivered to the Lender
remains outstanding as of the date hereof and shall continue to be secured
pursuant to the terms of the Loan Documents. The principal balance of this
Substituted and Amended Capital Note includes the indebtedness hitherto
evidenced by the Former Note and to the extent such indebtedness is included in
the principal balance of this Substituted and Amended Capital Note, the
Substituted and Amended Capital Note (i) merely reevidences the indebtedness
hitherto evidenced by the Former Note, (ii) is given in substitution for, and
not as payment of the Former Note, and (iii) is in no way intended to constitute
a novation of the Former Note.
Except as otherwise agreed in the Loan Agreement, payments received by
the Lender from the Borrower on this Substituted and Amended Capital Note shall
be applied first to the payment of interest which is due and payable and only
thereafter to the outstanding principal balance.
Presentment, protest and notice of nonpayment are hereby waived by the
Borrower.
This Substituted and Amended Capital Note shall be interpreted and the
rights and liabilities of the parties hereto determined in accordance with the
internal laws (as opposed to conflicts of law provisions) and decisions of the
State of New Jersey. Whenever possible each provision of this Substituted and
Amended Capital Note shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Substituted and Amended
Capital Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Substituted and Amended Capital Note. Whenever in this Substituted and
Amended Capital Note reference is made to the Lender or Borrower, such reference
is made to include, as applicable, a reference to their respective successors
and assigns. The provisions of this Substituted and Amended Capital Note shall
be binding upon and inure to the benefit of said successors and assigns.
Borrower's successors and assigns shall include, without limitation, a receiver,
trustee or debtor in possession of or for the Borrower.
AMERICAN COMMUNICATION SERVICES
OF FORT WORTH, INC.
By:
Its:
EXHIBIT C
SUBSTITUTED AND AMENDED CAPITAL NOTE
Morristown, New Jersey
$ [DATE]
FOR VALUE RECEIVED, the undersigned, AMERICAN COMMUNICATION SERVICES OF
COLUMBIA, INC., a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of AT&T CREDIT CORPORATION, a Delaware corporation
(the "Lender"), at its office at 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000-0000, or at such other place as the holder of this Substituted and Amended
Capital Note may from time to time designate in writing, in lawful money of the
United States of America and in immediately available funds, the lesser of (i)
the principal sum of
AND NO/100 DOLLARS ($ ), and (ii) the unpaid amount of all "Capital
Loans" (referred to below), together with interest on the principal balance
remaining from time to time unpaid at the rate provided below from the date such
principal is advanced until payment in full thereof. This Substituted and
Amended Capital Note is referred to in and was executed and delivered pursuant
to Section 2.04 of that certain Loan and Security Agreement dated as of June 30,
1995, as amended (as so amended and restated, and further amended, restated and
supplemented or modified from time to time, the "Loan Agreement") by and among
the Borrower, American Communication Services of Greenville, Inc., and the
Lender (the "Loan Agreement"), to which reference is hereby made for a statement
of the terms and conditions under which the Capital Loans evidenced hereby are
being made and are to be repaid. All terms which are capitalized and used herein
(which are not otherwise specifically defined herein) and which are defined in
the Loan Agreement shall be used in this Substituted and Amended Capital Note as
defined in the Loan Agreement.
The principal indebtedness evidenced hereby shall be payable in
twenty-eight (28) consecutive quarterly installments, as set forth in Section
2.06(b) of the Loan Agreement. The principal amount hereof may be prepaid only
in accordance with the terms of the Loan Agreement.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof which remains unpaid from the date hereof until payment
in full hereof at the rates described in the Loan Agreement, payable quarterly
in arrears on the Payment Dates and subject to capitalization of the interest
payable prior to the Commitment Termination Date in accordance with the
provisions of Section 2.06 of the Loan Agreement, and calculated on the basis of
a 360-day year comprised of twelve 30 day months, compounded monthly; provided,
however, that if the Borrower shall default in the payment of the principal or
interest hereof, the Borrower promises to, on demand, pay interest on the entire
unpaid principal amount hereof at a rate equal to four percent (4%) per annum
above the rate of interest that would otherwise be applicable, from the date
such payment is due to the date of actual payment, and if any other Event of
Default occurs and is continuing, the Borrower promises to, on demand, pay
interest on the entire unpaid.
Whenever in this Substituted and Amended Capital Note reference is made
to the Lender or Borrower, such reference is made to include, as applicable, a
reference to their respective successors
and assigns. The provisions of this Substituted and Amended Capital Note shall
be binding upon and inure to the benefit of said successors and assigns.
Borrower's successors and assigns shall include, without limitation, a receiver,
trustee or debtor in possession of or for the Borrower.
AMERICAN COMMUNICATION SERVICES
OF COLUMBIA, INC.
By:
Its:
EXHIBIT C
SUBSTITUTED AND AMENDED CAPITAL NOTE
$ [DATE]
FOR VALUE RECEIVED, the undersigned, AMERICAN COMMUNICATION SERVICES OF
GREENVILLE, INC., a Delaware corporation (the "Borrower"), hereby
unconditionally promises to pay to the order of AT&T CREDIT CORPORATION, a
Delaware corporation (the "Lender"), at its office at 00 Xxxxxxxx Xxxx,
Xxxxxxxxxx, New Jersey 07962- 1983, or at such other place as the holder of this
Substituted and Amended Capital Note may from time to time designate in writing,
in lawful money of the United States of America and in immediately available
funds, the lesser of (i) the principal sum of
AND NO/100 DOLLARS ($ ), and (ii) the unpaid amount of all "Capital
Loans" (referred to below), together with interest on the principal balance
remaining from time to time unpaid at the rate provided below from the date such
principal is advanced until payment in full thereof. This Substituted and
Amended Capital Note is referred to in and was executed and delivered pursuant
to Section 2.04 of that certain Loan and Security Agreement dated as of June 30,
1995, as amended (as so amended and restated, and further amended, restated and
supplemented or modified from time to time, the "Loan Agreement") by and among
the Borrower, American Communication Services of Columbia, Inc., and the Lender
(the "Loan Agreement"), to which reference is hereby made for a statement of the
terms and conditions under which the Capital Loans evidenced hereby are being
made and are to be repaid. All terms which are capitalized and used herein
(which are not otherwise specifically defined herein) and which are defined in
the Loan Agreement shall be used in this Substituted and Amended Capital Note as
defined in the Loan Agreement.
The principal indebtedness evidenced hereby shall be payable in
twenty-eight (28) consecutive quarterly installments, as set forth in Section
2.06(b) of the Loan Agreement. The principal amount hereof may be prepaid only
in accordance with the terms of the Loan Agreement.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof which remains unpaid from the date hereof until payment
in full hereof at the rates described in the Loan Agreement, payable quarterly
in arrears on the Payment Dates and subject to capitalization of the interest
payable prior to the Commitment Termination Date in accordance with the
provisions of Section 2.06 of the Loan Agreement, and calculated on the basis of
a 360-day year comprised of twelve 30 day months, compounded monthly; provided,
however, that if the Borrower shall default in the payment of the principal or
interest hereof, the Borrower promises to, on demand, pay interest on the entire
unpaid principal amount hereof at a rate equal to four percent (4%) per annum
above the rate of interest that would otherwise be applicable, from the date
such payment is due to the date of actual payment, and if any other Event of
Default occurs and is continuing, the Borrower promises to, on demand, pay
interest on the entire unpaid principal amount hereof at a rate equal to two
percent (2%) per annum above the rate of interest that would otherwise be
applicable, until such Event of Default is cured.
If payment hereunder becomes due and payable on a Saturday, Sunday, or
legal holiday, under the laws of the State of New Jersey, the due date thereof
shall be extended to the next succeeding
Business Day, and interest shall be payable thereon during such extension at the
rate specified above. Checks, drafts or similar items of payment received by the
Lender shall not constitute payment, but credit therefor shall, solely for the
purpose of computing interest earned by the Lender, be given on the date the
same is honored by the Lender's depository bank and final settlement thereof is
reflected by irrevocable credit to the Lender's account in such bank. In no
contingency or event whatsoever shall interest charged hereunder, however such
interest may be characterized or computed, exceed the highest rate permissible
under any 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 Lender has received interest hereunder in excess of the highest rate
applicable hereto, the Lender shall promptly refund such excess interest to
Borrower.
The unpaid balance of the indebtedness hitherto evidenced by that
certain Capital Note dated July 21, 1995 in the original amount of $2,808,000
(the "Former Note") made by the Borrower and delivered to the Lender remains
outstanding as of the date hereof and shall continue to be secured pursuant to
the terms of the Loan Documents. The principal balance of this Substituted and
Amended Capital Note includes the indebtedness hitherto evidenced by the Former
Note and to the extent such indebtedness is included in the principal balance of
this Substituted and Amended Capital Note, the Substituted and Amended Capital
Note (i) merely reevidences the indebtedness hitherto evidenced by the Former
Note, (ii) is given in substitution for, and not as payment of the Former Note,
and (iii) is in no way intended to constitute a novation of the Former Note.
Except as otherwise agreed in the Loan Agreement, payments received by
the Lender from the Borrower on this Substituted and Amended Capital Note shall
be applied first to the payment of interest which is due and payable and only
thereafter to the outstanding principal balance.
Presentment, protest and notice of nonpayment are hereby waived by the
Borrower.
This Substituted and Amended Capital Note shall be interpreted and the
rights and liabilities of the parties hereto determined in accordance with the
internal laws (as opposed to conflicts of law provisions) and decisions of the
State of New Jersey. Whenever possible each provision of this Substituted and
Amended Capital Note shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Substituted and Amended
Capital Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Substituted and Amended Capital Note.
Whenever in this Substituted and Amended Capital Note reference is made
to the Lender or Borrower;:such reference is made to include, as applicable, a
reference to their respective successors and assigns. The provisions of this
Substituted and Amended Capital Note shall be binding upon and inure to the
benefit of said successors and assigns. Borrower's successors and assigns shall
include, without limitation, a receiver, trustee or debtor in possession of or
for the Borrower.
AMERICAN COMMUNICATION SERVICES
OF GREENVILLE, INC.
By:
Its:
EXHIBIT C
SUBSTITUTED AND AMENDED CAPITAL NOTE
Morristown, New Jersey
$ [DATE]
FOR VALUE RECEIVED, the undersigned, AMERICAN COMMUNICATION SERVICES OF
EL PASO, INC., a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of AT&T CREDIT CORPORATION, a Delaware corporation
(the "Lender"), at its office at 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000-0000, or at such other place as the holder of this Substituted and Amended
Capital Note may from time to time designate in writing, in lawful money of the
United States of America and in immediately available funds, the lesser of (i)
the principal sum of AND NO/100 DOLLARS ($ ), and (ii) the unpaid amount of all
"Capital Loans" (referred to below), together with interest on the principal
balance remaining from time to time unpaid at the rate provided below from the
date such principal is advanced until payment in full thereof. This Substituted
and Amended Capital Note is referred to in and was executed and delivered
pursuant to Section 2.04 of that certain Loan and Security Agreement dated as of
September 8, 1995, as amended (as so amended and restated, and further amended,
restated and supplemented or modified from time to time, the "Loan Agreement")
by and between the Borrower and the Lender, to which reference is hereby made
for a statement of the terms and conditions under which the Capital Loans
evidenced hereby are being made and are to be repaid. All terms which are
capitalized and used herein (which are not otherwise specifically defined
herein) and which are defined in the Loan Agreement shall be used in this
Substituted and Amended Capital Note as defined in the Loan Agreement.
The principal indebtedness evidenced hereby shall be payable in
twenty-eight (28) consecutive quarterly installments, as set forth in Section
2.06(b) of the Loan Agreement. The principal amount hereof may be prepaid only
in accordance with the terms of the Loan Agreement.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof which remains unpaid from the date hereof until payment
in full hereof at the rates described in the Loan Agreement, payable quarterly
in arrears on the Payment Dates and subject to capitalization of the interest
payable prior to the Commitment Termination Date in accordance with the
provisions of Section 2.06 of the Loan Agreement, and calculated on the basis of
a 360-day year comprised of twelve 30 day months, compounded monthly; provided,
however, that if the Borrower shall default in the payment of the principal or
interest hereof, the Borrower promises to, on demand, pay interest on the entire
unpaid principal amount hereof at a rate equal to four percent (4%) per annum
above the rate of interest that would otherwise be applicable, from the date
such payment is due to the date of actual payment, and if any other Event of
Default occurs and is continuing, the Borrower promises to, on demand, pay
interest on the entire unpaid principal amount hereof at a rate equal to two
percent (2%) per annum above the rate of interest that would otherwise be
applicable, until such Event of Default is cured.
If payment hereunder becomes due and payable on a Saturday, Sunday, or
legal holiday, under the laws of the State of New Jersey, the due date thereof
shall be extended to the next succeeding Business Day, and interest shall be
payable thereon during such extension at the rate specified above. Checks,
drafts or similar items of payment received by the Lender shall not constitute
payment, but
credit therefor shall, solely for the purpose of computing interest earned by
the Lender, be given on the date the same is honored by the Lender's depository
bank and final settlement thereof is reflected by irrevocable credit to the
Lender's account in such bank. In no contingency or event whatsoever shall
interest charged hereunder, however such interest may be characterized or
computed, exceed the highest rate permissible under any 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 Lender has received interest
hereunder in excess of the highest rate applicable hereto, the Lender shall
promptly refund such excess interest to Borrower.
The unpaid balance of the indebtedness hitherto evidenced by that
certain Capital Note dated September 29, 1995 in the original principal amount
of $4,125,000 (the "Former Note") made by the Borrower and delivered to the
Lender remains outstanding as of the date hereof and shall continue to be
secured pursuant to the terms of the Loan Documents. The principal balance of
this Substituted and Amended Capital Note includes the indebtedness hitherto
evidenced by the Former Note and to the extent such indebtedness is included in
the principal balance of this Substituted and Amended Capital Note, the
Substituted and Amended Capital Note (i) merely reevidences the indebtedness
hitherto evidenced by the Former Note, (ii) is given in substitution for, and
not as payment of the Former Note, and (iii) is in no way intended to constitute
a novation of the Former Note.
Except as otherwise agreed in the Loan Agreement, payments received by
the Lender from the Borrower on this Substituted and Amended Capital Note shall
be applied first to the payment of interest which is due and payable and only
thereafter to the outstanding principal balance.
Presentment, protest and notice of nonpayment are hereby waived by the
Borrower.
This Substituted and Amended Capital Note shall be interpreted and the
rights and liabilities of the parties hereto determined in accordance with the
internal laws (as opposed to conflicts of law provisions) and decisions of the
State of New Jersey. Whenever possible each provision of this Substituted and
Amended Capital Note shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Substituted and Amended
Capital Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Substituted and Amended Capital Note. Whenever in this Substituted and
Amended Capital Note reference is made to the Lender or Borrower, such reference
is made to include, as applicable, a reference to their respective successors
and assigns. The provisions of this Substituted and Amended Capital Note shall
be binding upon and inure to the benefit of said successors and assigns.
Borrower's successors and assigns shall include, without limitation, a receiver,
trustee or debtor in possession of or for the Borrower.
AMERICAN COMMUNICATION SERVICES
OF EL PASO, INC.
By:
Its:
SUBSTITUTED AND AMENDED CAPITAL NOTE
$5,216,242.00 Morristown, New Jersey
September 6, 1996
FOR VALUE RECEIVED, the undersigned, AMERICAN COMMUNICATION SERVICES OF
LOUISVILLE, INC., a Delaware corporation (the "Borrower"), hereby
unconditionally promises to pay to the order of AT&T CREDIT CORPORATION, a
Delaware corporation (the "Lender"), at its office at 00 Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, or at such other place as the holder of this
Substituted and Amended Capital Note may from time to time designate in writing,
in lawful money of the United States of America and in immediately available
funds, the lesser of (i) the principal sum of FIVE MILLION TWO HUNDRED SIXTEEN
THOUSAND TWO HUNDRED FORTY-TWO AND NO/100 DOLLARS ($5,216,242.00), and (ii) the
unpaid amount of all "Capital Loans" (referred to below), together with interest
on the principal balance remaining from time to time unpaid at the rate provided
below from the date such principal is advanced until payment in full thereof.
This Substituted and Amended Capital Note is referred to in and was executed and
delivered pursuant to Section 2.04 of that certain Loan and Security Agreement
dated as of October 17, 1994, as amended (as so amended and restated, and
further amended, restated and supplemented or modified from time to time, the
"Loan Agreement") by and between the Borrower and the Lender (the "Loan
Agreement"), to which reference is hereby made for a statement of the terms and
conditions under which the Capital Loans evidenced hereby are being made and are
to be repaid. All terms which are capitalized and used herein (which are not
otherwise specifically defined herein) and which are defined in the Loan
Agreement shall be used in this Substituted and Amended Capital Note as defined
in the Loan Agreement.
The principal indebtedness evidenced hereby shall be payable in
twenty-eight (28) consecutive quarterly installments, as set forth in Section
2.06(b) of the Loan Agreement. The principal amount hereof may be prepaid only
in accordance with the terms of the Loan Agreement.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof which remains unpaid from the date hereof until payment
in full hereof at the rates described in the Loan Agreement, payable quarterly
in arrears on the Payment Dates and subject to capitalization of the interest
payable prior to the Commitment Termination Date in accordance with the
provisions of Section 2.06 of the Loan Agreement, and calculated on the basis of
a 360-day year comprised of twelve 30 day months, compounded monthly; provided,
however, that if the Borrower shall default in the payment of the principal or
interest hereof, the Borrower promises to, on demand, pay interest on the entire
unpaid principal amount hereof at a rate equal to four percent (4%) per annum
above the rate of interest that would otherwise be applicable, from the date
such payment is due to the date of actual payment, and if any other Event of
Default occurs and is continuing, the Borrower promises to, on demand, pay
interest on the entire unpaid principal amount hereof at a rate equal to two
percent (2%) per annum above the rate of interest that would otherwise be
applicable, until such Event of Default is cured.
If payment hereunder becomes due and payable on a Saturday, Sunday, or
legal holiday, under the laws of the State of New Jersey, the due date thereof
shall be extended to the next succeeding Business Day, and interest shall be
payable thereon during such extension at the rate specified above. Checks,
drafts or similar items of payment received by the Lender shall not constitute
payment, but credit therefor shall, solely for the purpose of computing interest
earned by the Lender, be given on the
date the same is honored by the Lender's depository bank and final settlement
thereof is reflected by irrevocable credit to the Lender's account in such bank.
In no contingency or event whatsoever shall interest charged hereunder, however
such interest may be characterized or computed, exceed the highest rate
permissible under any 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 Lender has received interest hereunder in excess of the
highest rate applicable hereto, the Lender shall promptly refund such excess
interest to Borrower.
The unpaid balance of the indebtedness hitherto evidenced by that
certain Capital Note dated October 17, 1994 in the original principal amount of
$2,214,000 (the "Former Note") made by the Borrower and delivered to the Lender
remains outstanding as of the date hereof and shall continue to be secured
pursuant to the terms of the Loan Documents. The principal balance of this
Substituted and Amended Capital Note includes the indebtedness hitherto
evidenced by the Former Note and to the extent such indebtedness is included in
the principal balance of this Substituted and Amended Capital Note, the
Substituted and Amended Capital Note (i) merely reevidences the indebtedness
hitherto evidenced by the Former Note, (ii) is given in substitution for, and
not as payment of the Former Note, and (iii) is in no way intended to constitute
a novation of the Former Note.
Except as otherwise agreed in the Loan Agreement, payments received by
the Lender from the Borrower on this Substituted and Amended Capital Note shall
be applied first to the payment of interest which is due and payable and only
thereafter to the outstanding principal balance.
Presentment, protest and notice of nonpayment are hereby waived by the
Borrower.
This Substituted and Amended Capital Note shall be interpreted and the
rights and liabilities of the parties hereto determined in accordance with the
internal laws (as opposed to conflicts of law provisions) and decisions of the
State of New Jersey. Whenever possible each provision of this Substituted and
Amended Capital Note shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Substituted and Amended
Capital Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Substituted and Amended Capital Note. Whenever in this Substituted and
Amended Capital Note reference is made to the Lender or Borrower, such reference
is made to include, as applicable, a reference to their respective successors
and assigns. The provisions of this Substituted and Amended Capital Note shall
be binding upon and inure to the benefit of said successors and assigns.
Borrower's successors and assigns shall include, without limitation, a receiver,
trustee or debtor in possession of or for the Borrower.
AMERICAN COMMUNICATION SERVICES
OF LOUISVILLE, INC.
/s/ XXXXXXX X. XXXXX
Its: President & CEO
SUBSTITUTED AND AMENDED CAPITAL NOTE
$6,665,024.00 September 6, 1996
FOR VALUE RECEIVED, the undersigned, AMERICAN COMMUNICATION SERVICES OF
FORT WORTH, INC., a Delaware corporation (the "Borrower"), hereby
unconditionally promises to pay to the order of AT&T CREDIT CORPORATION, a
Delaware corporation (the "Lender"), at its office at 00 Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, or at such other place as the holder of this
Substituted and Amended Capital Note may from time to time designate in writing,
in lawful money of the United States of America and in immediately available
funds, the lesser of (i) the principal sum of SIX MILLION SIX HUNDRED SIXTY-FIVE
THOUSAND TWENTY-FOUR AND NO/100 DOLLARS ($6,665,024.00), and (ii) the unpaid
amount of all "Capital Loans" (referred to below), together with interest on the
principal balance remaining from time to time unpaid at the rate provided below
from the date such principal is advanced until payment in full thereof. This
Substituted and Amended Capital Note is referred to in and was executed and
delivered pursuant to Section 2.04 of that certain Loan and Security Agreement
dated as of February 28, 1995, as amended (as so amended and restated, and
further amended, restated and supplemented or modified from time to time, the
"Loan Agreement") by and between the Borrower and the Lender (the "Loan
Agreement"), to which reference is hereby made for a statement of the terms and
conditions under which the Capital Loans evidenced hereby are being made and are
to be repaid. All terms which are capitalized and used herein (which are not
otherwise specifically defined herein) and which are defined in the Loan
Agreement shall be used in this Substituted and Amended Capital Note as defined
in the Loan Agreement.
The principal indebtedness evidenced hereby shall be payable in
twenty-eight (28) consecutive quarterly installments, as set forth in Section
2.06(b) of the Loan Agreement. The principal amount hereof may be prepaid only
in accordance with the terms of the Loan Agreement.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof which remains unpaid from the date hereof until payment
in full hereof at the rates described in the Loan Agreement, payable quarterly
in arrears on the Payment Dates and subject to capitalization of the interest
payable prior to the Commitment Termination Date in accordance with the
provisions of Section 2.06 of the Loan Agreement, and calculated on the basis of
a 360-day year comprised of twelve 30 day months, compounded monthly; provided,
however, that if the Borrower shall default in the payment of the principal or
interest hereof, the Borrower promises to, on demand, pay interest on the entire
unpaid principal amount hereof at a rate equal to four percent (4%) per annum
above the rate of interest that would otherwise be applicable, from the date
such payment is due to the date of actual payment, and if any other Event of
Default occurs and is continuing, the Borrower promises to, on demand, pay
interest on the entire unpaid principal amount hereof at a rate equal to two
percent (2%) per annum above the rate of interest that would otherwise be
applicable, until such Event of Default is cured.
If payment hereunder becomes due and payable on a Saturday, Sunday, or
legal holiday, under the laws of the State of New Jersey, the due date thereof
shall be extended to the next succeeding Business Day, and interest shall be
payable thereon during such extension at the rate specified above. Checks,
drafts or similar items of payment received by the Lender shall not constitute
payment, but credit therefor shall, solely for the purpose of computing interest
earned by the Lender, be given on the
date the same is honored by the Lender's depository bank and final settlement
thereof is reflected by irrevocable credit to the Lender's account in such bank.
In no contingency or event whatsoever shall interest charged hereunder, however
such interest may be characterized or computed, exceed the highest rate
permissible under any 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 Lender has received interest hereunder in excess of the
highest rate applicable hereto, the Lender shall promptly refund such excess
interest to Borrower.
The unpaid balance of the indebtedness hitherto evidenced by that
certain Capital Note dated May 1, 1995 in the original principal amount of
$2,970,000 (the "Former Note") made by the Borrower and delivered to the Lender
remains outstanding as of the date hereof and shall continue to be secured
pursuant to the terms of the Loan Documents. The principal balance of this
Substituted and Amended Capital Note includes the indebtedness hitherto
evidenced by the Former Note and to the extent such indebtedness is included in
the principal balance of this Substituted and Amended Capital Note, the
Substituted and Amended Capital Note (i) merely reevidences the indebtedness
hitherto evidenced by the Former Note, (ii) is given in substitution for, and
not as payment of the Former Note, and (iii) is in no way intended to constitute
a novation of the Former Note.
Except as otherwise agreed in the Loan Agreement, payments received by
the Lender from the Borrower on this Substituted and Amended Capital Note shall
be applied first to the payment of interest which is due and payable and only
thereafter to the outstanding principal balance.
Presentment, protest and notice of nonpayment are hereby--waived by the
Borrower.
This Substituted and Amended Capital Note shall be interpreted and the
rights and liabilities of the parties hereto determined in accordance with the
internal laws (as opposed to conflicts of law provisions) and decisions of the
State of New Jersey. Whenever possible each provision of this Substituted and
Amended Capital Note shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Substituted and Amended
Capital Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Substituted and Amended Capital Note. Whenever in this Substituted and
Amended Capital Note reference is made to the Lender or Borrower, such reference
is made to include, as applicable, a reference to their respective successors
and assigns. The provisions of this Substituted and Amended Capital Note shall
be binding upon and inure to the benefit of said successors and assigns.
Borrower's successors and assigns shall include, without limitation, a receiver,
trustee or debtor in possession of or for the Borrower.
AMERICAN COMMUNICATION SERVICES
OF FORT WORTH, INC.
/s/ XXXXXXX X. XXXXX
Its: President & CEO
SUBSTITUTED AND AMENDED CAPITAL NOTE
$6,101,357.00 September 6, 1996
FOR VALUE RECEIVED, the undersigned, AMERICAN COMMUNICATION SERVICES OF
COLUMBIA, INC., a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of AT&T CREDIT CORPORATION, a Delaware corporation
(the "Lender"), at its office at 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, New Jersey 07962-
1983, or at such other place as the holder of this Substituted and Amended
Capital Note may from time to time designate in writing, in lawful money of the
United States of America and in immediately available funds, the lesser of (i)
the principal sum of SIX MILLION ONE HUNDRED ONE THOUSAND THREE HUNDRED
FIFTY-SEVEN AND NO/100 DOLLARS ($6,101,357.00), and (ii) the unpaid amount of
all "Capital Loans" (referred to below), together with interest on the principal
balance remaining from time to time unpaid at the rate provided below from the
date such principal is advanced until payment in full thereof. This Substituted
and Amended Capital Note is referred to in and was executed and delivered
pursuant to Section 2.04 of that certain Loan and Security Agreement dated as of
June 30, 1995, as amended (as so amended and restated, and further amended,
restated and supplemented or modified from time to time, the "Loan Agreement")
by and among the Borrower, American Communication Services of Greenville, Inc.,
and the Lender (the "Loan Agreement"), to which reference is hereby made for a
statement of the terms and conditions under which the Capital Loans evidenced
hereby are being made and are to be repaid. All terms which are capitalized and
used herein (which are not otherwise specifically defined herein) and which are
defined in the Loan Agreement shall be used in this Substituted and Amended
Capital Note as defined in the Loan Agreement.
The principal indebtedness evidenced hereby shall be payable in
twenty-eight (28) consecutive quarterly installments, as set forth in Section
2.06(b) of the Loan Agreement. The principal amount hereof may be prepaid only
in accordance with the terms of the Loan Agreement.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof which remains unpaid from the date hereof until payment
in full hereof at the rates described in the Loan Agreement, payable quarterly
in arrears on the Payment Dates and subject to capitalization of the interest
payable prior to the Commitment Termination Date in accordance with the
provisions of Section 2.06 of the Loan Agreement, and calculated on the basis of
a 360-day year comprised of twelve 30 day months, compounded monthly; provided,
however, that if the Borrower shall default in the payment of the principal or
interest hereof, the Borrower promises to, on demand, pay interest on the entire
unpaid principal amount hereof at a rate equal to four percent (4%) per annum
above the rate of interest that would otherwise be applicable, from the date
such payment is due to the date of actual payment, and if any other Event of
Default occurs and is continuing, the Borrower promises to, on demand, pay
interest on the entire unpaid principal amount hereof at a rate equal to two
percent (2%) per annum above the rate of interest that would otherwise be
applicable, until such Event of Default is cured.
If payment hereunder becomes due and payable on a Saturday, Sunday, or
legal holiday, under the laws of the State of New Jersey, the due date thereof
shall be extended to the next succeeding Business Day, and interest shall be
payable thereon during such extension at the rate specified above. Checks,
drafts or similar items of payment received by the Lender shall not constitute
payment, but credit therefor shall, solely for the purpose of computing interest
earned by the Lender, be given on the
date the same is honored by the Lender's depository bank and final settlement
thereof is reflected by irrevocable credit to the Lender's account in such bank.
In no contingency or event whatsoever shall interest charged hereunder, however
such interest may be characterized or computed, exceed the highest rate
permissible under any 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 Lender has received interest hereunder in excess of the
highest rate applicable hereto, the Lender shall promptly refund such excess
interest to Borrower.
The unpaid balance of the indebtedness hitherto evidenced by that
certain Capital Note dated July 21, 1995 in the original amount of $2,700,000
(the "Former Note") made by the Borrower and delivered to the Lender remains
outstanding as of the date hereof and shall continue to be secured pursuant to
the terms of the Loan Documents. The principal balance of this Substituted and
Amended Capital Note includes the indebtedness hitherto evidenced by the Former
Note and to the extent such indebtedness is included in the principal balance of
this Substituted and Amended Capital Note, the Substituted and Amended Capital
Note (i) merely reevidences the indebtedness hitherto evidenced by the Former
Note, (ii) is given in substitution for, and not as payment of the Former Note,
and (iii) is in no way intended to constitute a novation of the Former Note.
Except as otherwise agreed in the Loan Agreement, payments received by
the Lender from the Borrower on this Substituted and Amended Capital Note shall
be applied first to the payment of interest which is due and payable and only
thereafter to the outstanding principal balance.
Presentment, protest and notice of nonpayment are hereby waived by the
Borrower.
This Substituted and Amended Capital Note shall be interpreted and the
rights and liabilities of the parties hereto determined in accordance with the
internal laws (as opposed to conflicts of law provisions) and decisions of the
State of New Jersey. Whenever possible each provision of this Substituted and
Amended Capital Note shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Substituted and Amended
Capital Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Substituted and Amended Capital Note.
Whenever in this Substituted and Amended Capital Note reference is made
to the Lender or Borrower, such reference is made to include, as applicable, a
reference to their respective successors and assigns. The provisions of this
Substituted and Amended Capital Note shall be binding upon and inure to the
benefit of said successors and assigns. Borrower's successors and assigns shall
include, without limitation, a receiver, trustee or debtor in possession of or
for the Borrower.
AMERICAN COMMUNICATION SERVICES
OF COLUMBIA, INC.
/s/ XXXXXXX X. XXXXX
Its: President & CEO
SUBSTITUTED AND AMENDED CAPITAL NOTE
$4,680,000.00 September 6, 1996
FOR VALUE RECEIVED, the undersigned, AMERICAN COMMUNICATION SERVICES OF
GREENVILLE, INC., a Delaware corporation (the "Borrower"), hereby
unconditionally promises to pay to the order of AT&T CREDIT CORPORATION, a
Delaware corporation (the "Lender"), at its office at 00 Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, or at such other place as the holder of this
Substituted and Amended Capital Note may from time to time designate in writing,
in lawful money of the United States of America and in immediately available
funds, the lesser of (i) the principal sum of FOUR MILLION SIX HUNDRED EIGHTY
THOUSAND AND NO/100 DOLLARS ($4,680,000.00), and (ii) the unpaid amount of all
"Capital Loans" (referred to below), together with interest on the principal
balance remaining from time to time unpaid at the rate provided below from the
date such principal is advanced until payment in full thereof. This Substituted
and Amended Capital Note is referred to in and was executed and delivered
pursuant to Section 2.04 of that certain Loan and Security Agreement dated as of
June 30, 1995, as amended (as so amended and restated, and further amended,
restated and supplemented or modified from time to time, the "Loan Agreement")
by and among the Borrower, American Communication Services of Columbia, Inc.,
and the Lender (the "Loan Agreement"), to which reference is hereby made for a
statement of the terms and conditions under which the Capital Loans evidenced
hereby are being made and are to be repaid. All terms which are capitalized and
used herein (which are not otherwise specifically defined herein) and which are
defined in the Loan Agreement shall be used in this Substituted and Amended
Capital Note as defined in the Loan Agreement.
The principal indebtedness evidenced hereby shall be payable in
twenty-eight (28) consecutive quarterly installments, as set forth in Section
2.06(b) of the Loan Agreement. The principal amount hereof may be prepaid only
in accordance with the terms of the Loan Agreement.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof which remains unpaid from the date hereof until payment
in full hereof at the rates described in the Loan Agreement, payable quarterly
in arrears on the Payment Dates and subject to capitalization of the interest
payable prior to the Commitment Termination Date in accordance with the
provisions of Section 2.06 of the Loan Agreement, and calculated on the basis of
a 360-day year comprised of twelve 30 day months, compounded monthly; provided,
however, that if the Borrower shall default in the payment of the principal or
interest hereof, the Borrower promises to, on demand, pay interest on the entire
unpaid principal amount hereof at a rate equal to four percent (4%) per annum
above the rate of interest that would otherwise be applicable, from the date
such payment is due to the date of actual payment, and if any other Event of
Default occurs and is continuing, the Borrower promises to, on demand, pay
interest on the entire unpaid principal amount hereof at a rate equal to two
percent (2%) per annum above the rate of interest that would otherwise be
applicable, until such Event of Default is cured.
If payment hereunder becomes due and payable on a Saturday, Sunday, or
legal holiday, under the laws of the State of New Jersey, the due date thereof
shall be extended to the next succeeding Business Day, and interest shall be
payable thereon during such extension at the rate specified above. Checks,
drafts or similar items of payment received by the Lender shall not constitute
payment, but
credit therefor shall, solely for the purpose of computing interest earned by
the Lender, be given on the date the same is honored by the Lender's depository
bank and final settlement thereof is reflected by irrevocable credit to the
Lender's account in such bank. In no contingency or event whatsoever shall
interest charged hereunder, however such interest may be characterized or
computed, exceed the highest rate permissible under any 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 Lender has received interest
hereunder in excess of the highest rate applicable hereto, the Lender shall
promptly refund such excess interest to Borrower.
The unpaid balance of the indebtedness hitherto evidenced by that
certain Capital Note dated July 21, 1995 in the original amount of $2,808,000
(the "Former Note") made by the Borrower and delivered to the Lender remains
outstanding as of the date hereof and shall continue to be secured pursuant to
the terms of the Loan Documents. The principal balance of this Substituted and
Amended Capital Note includes the indebtedness hitherto evidenced by the Former
Note and to the extent such indebtedness is included in the principal balance of
this Substituted and Amended Capital Note, the Substituted and Amended Capital
Note (i) merely reevidences the indebtedness hitherto evidenced by the Former
Note, (ii) is given in substitution for, and not as payment of the Former Note,
and (iii) is in no way intended to constitute a novation of the Former Note.
Except as otherwise agreed in the Loan Agreement, payments received by
the Lender from the Borrower on this Substituted and Amended Capital Note shall
be applied first to the payment of interest which is due and payable and only
thereafter to the outstanding principal balance.
Presentment, protest and notice of nonpayment are hereby waived by the
Borrower.
This Substituted and Amended Capital Note shall be interpreted and the
rights and liabilities of the parties hereto determined in accordance with the
internal laws (as opposed to conflicts of law provisions) and decisions of the
State of New Jersey. Whenever possible each provision of this Substituted and
Amended Capital Note shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Substituted and Amended
Capital Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Substituted and Amended Capital Note. Whenever in this Substituted and
Amended Capital Note reference is made to the Lender or Borrower, such reference
is made to include, as applicable, a reference to their respective successors
and assigns. The provisions of this Substituted and Amended Capital Note shall
be binding upon and inure to the benefit of said successors and assigns.
Borrower's successors and assigns shall include, without limitation, a receiver,
trustee or debtor in possession of or for the Borrower.
AMERICAN COMMUNICATION SERVICES
OF GREENVILLE, INC.
/s/ XXXXXXX X. XXXXX
Its: President & CEO
SUBSTITUTED AND AMENDED CAPITAL NOTE
$5,529,387.00 September 6, 1996
FOR VALUE RECEIVED, the undersigned, AMERICAN COMMUNICATION SERVICES OF
EL PASO, INC., a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of AT&T CREDIT CORPORATION, a Delaware corporation
(the "Lender"), at its office at 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000-0000, or at such other place as the holder of this Substituted and Amended
Capital Note may from time to time designate in writing, in lawful money of the
United States of America and in immediately available funds, the lesser of (i)
the principal sum of FIVE MILLION FIVE HUNDRED TWENTY-NINE THOUSAND THREE
HUNDRED EIGHTY-SEVEN AND NO/100 DOLLARS ($5,529,387.00), and (ii) the unpaid
amount of all "Capital Loans" (referred to below), together with interest on the
principal balance remaining from time to time unpaid at the rate provided below
from the date such principal is advanced until payment in full thereof. This
Substituted and Amended Capital Note is referred to in and was executed and
delivered pursuant to Section 2.04 of that certain Loan and Security Agreement
dated as of September 8, 1995, as amended (as so amended and restated, and
further amended, restated and supplemented or modified from time to time, the
"Loan Agreement") by and between the Borrower and the Lender, to which reference
is hereby made for a statement of the terms and conditions under which the
Capital Loans evidenced hereby are being made and are to be repaid. All terms
which are capitalized and used herein (which are not otherwise specifically
defined herein) and which are defined in the Loan Agreement shall be used in
this Substituted and Amended Capital Note as defined in the Loan Agreement.
The principal indebtedness evidenced hereby shall be payable in
twenty-eight (28) consecutive quarterly installments, as set forth in Section
2.06(b) of the Loan Agreement. The principal amount hereof may be prepaid only
in accordance with the terms of the Loan Agreement.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof which remains unpaid from the date hereof until payment
in full hereof at the rates described in the Loan Agreement, payable quarterly
in arrears on the Payment Dates and subject to capitalization of the interest
payable prior to the Commitment Termination Date in accordance with the
provisions of Section 2.06 of the Loan Agreement, and calculated on the basis of
a 360-day year comprised of twelve 30 day months, compounded monthly; provided,
however, that if the Borrower shall default in the payment of the principal or
interest hereof, the Borrower promises to, on demand, pay interest on the entire
unpaid principal amount hereof at a rate equal to four percent (4%) per annum
above the rate of interest that would otherwise be applicable, from the date
such payment is due to the date of actual payment, and if any other Event of
Default occurs and is continuing, the Borrower promises to, on demand, pay
interest on the entire unpaid principal amount hereof at a rate equal to two
percent (2%) per annum above the rate of interest that would otherwise be
applicable, until such Event of Default is cured.
If payment hereunder becomes due and payable on a Saturday, Sunday, or
legal holiday, under the laws of the State of New Jersey, the due date thereof
shall be extended to the next succeeding Business Day, and interest shall be
payable thereon during such extension at the rate specified above. Checks,
drafts or similar items of payment received by the Lender shall not constitute
payment, but credit therefor shall, solely for the purpose of computing interest
earned by the Lender, be given on the
date the same is honored by the Lender's depository bank and final settlement
thereof is reflected by irrevocable credit to the Lender's account in such bank.
In no contingency or event whatsoever shall interest charged hereunder, however
such interest may be characterized or computed, exceed the highest rate
permissible under any 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 Lender has received interest hereunder in excess of the
highest rate applicable hereto, the Lender shall promptly refund such excess
interest to Borrower.
The unpaid balance of the indebtedness hitherto evidenced by that
certain Capital Note dated September 29, 1995 in the original principal amount
of $4,125,000 (the "Former Note") made by the Borrower and delivered to the
Lender remains outstanding as of the date hereof and shall continue to be
secured pursuant to the terms of the Loan Documents. The principal balance of
this Substituted and Amended Capital Note includes the indebtedness hitherto
evidenced by the Former Note and to the extent such indebtedness is included in
the principal balance of this Substituted and Amended Capital Note, the
Substituted and Amended Capital Note (i) merely reevidences the indebtedness
hitherto evidenced by the Former Note, (ii) is given in substitution for, and
not as payment of the Former Note, and (iii) is in no way intended to constitute
a novation of the Former Note.
Except as otherwise agreed in the Loan Agreement, payments received by
the Lender from the Borrower on this Substituted and Amended Capital Note shall
be applied first to the payment of interest which is due and payable and only
thereafter to the outstanding principal balance.
Presentment, protest and notice of nonpayment are hereby waived by the
Borrower.
This Substituted and Amended Capital Note shall be interpreted and the
rights and liabilities of the parties hereto determined in accordance with the
internal laws (as opposed to conflicts of law provisions) and decisions of the
State of New Jersey. Whenever possible each provision of this Substituted and
Amended Capital Note shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Substituted and Amended
Capital Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Substituted and Amended Capital Note. Whenever in this Substituted and
Amended Capital Note reference is made to the Lender or Borrower, such reference
is made to include, as applicable, a reference to their respective successors
and assigns. The provisions of this Substituted and Amended Capital Note shall
be binding upon and inure to the benefit of said successors and assigns.
Borrower's successors and assigns shall include, without limitation, a receiver,
trustee or debtor in possession of or for the Borrower.
AMERICAN COMMUNICATION SERVICES
OF EL PASO, INC.
/s/ XXXXXXX X. XXXXX
Its: President & CEO
