Exhibit 10.25
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
----------------------------------------------
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT ("Agreement"), is dated
as of April 15, 1999, by and between the following parties:
LENDER/SECURED PARTY: NTFC CAPITAL CORPORATION, a Delaware corporation with
offices at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxx 00000 ("Lender")
BORROWER/DEBTOR: FOCAL COMMUNICATIONS CORPORATION, a Delaware
corporation with its principal place of business at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
("Borrower")
This First Amendment to Loan and Security Agreement amends that certain Loan and
Security Agreement between the parties dated as of December 30, 1998 (the "Loan
Agreement") and includes the general terms and conditions contained herein and
all the exhibits and schedules attached hereto, all of which are incorporated
herein. In the event of a conflict between the general terms and conditions and
any schedule, the additional terms and conditions stated in the schedule shall
control.
By executing this First Amendment to Loan and Security Agreement, Lender agrees
to make loans to Borrower, and Borrower agrees to borrow from Lender and to
provide collateral to secure such loans, all on the terms and conditions set
forth herein.
ARTICLE 1: AMENDMENTS TO LOAN AGREEMENT
---------------------------------------
The Loan Agreement is hereby amended as follows:
1.01. The Promissory Note dated as December 30, 1998, executed in
connection with the Loans outstanding at the time of this First Amendment shall
be canceled and superseded by an Amended and Restated Promissory Note in the
form of Exhibit A hereto, dated as of the date of this First Amendment, and duly
executed and delivered by the Borrower.
1.02. Schedule 2.01 to the Loan Agreement is amended by deleting the
present Schedule 2.01 and replacing it with Exhibit B attached hereto.
1.03. Schedule 4.25 to the Loan Agreement is amended by deleting the
present Schedule 4.25 and replacing it with Exhibit C attached hereto.
1.04 Schedule 4.26 to the Loan Agreement is amended by deleting the present
Schedule 4.26 and replacing it with Exhibit D attached hereto.
ARTICLE 2: AFFIRMATIONS
-----------------------
2.01. Borrower hereby represents and warrants that (a) the representations
and warranties contained in Article 4 of the Loan Agreement are true and correct
on and as of the date hereof as though made on and as of the date hereof, and
(b) on the date hereof no Default or Event of Default has occurred and is
continuing or exists or will occur or exist after giving effect to this First
Amendment.
ARTICLE 3: CONDITIONS PRECEDENT
-------------------------------
3.01. The effectiveness of this First Amendment shall be subject to
Lender's receipt of (a) a fully executed Amended and Restated Promissory Note,
reflecting the increased Total Commitment under the Loan of up to $50,000,000
and (b) such additional UCC filings and other documents as Lender may reasonably
require to secure the Loans.
ARTICLE 4: MISCELLANEOUS
------------------------
4.01. Except as amended as provided above, the Loan Agreement shall remain
in full force and effect, and the Loan Agreement, as amended, is hereby ratified
by Borrower and Lender.
4.02. Borrower represents and warrants that the execution and terms of this
First Amendment and the Amended and Restated Promissory Note delivered herewith
have been duly authorized by all necessary and appropriate corporate action.
4.03. Except to the extent otherwise provided in Schedule 2.02, this First
Amendment shall be governed by and construed in accordance with the internal
laws of the State of Tennessee.
4.04. All capitalized terms used herein shall, unless otherwise
specifically defined herein, have the meanings assigned to such terms in the
Loan Agreement.
2
IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment to Loan and Security Agreement as of the day and year first above
written.
LENDER: BORROWER:
--------- ---------
NTFC CAPITAL CORPORATION FOCAL COMMUNICATIONS CORPORATION
BY: X.X. Xxxxxxxxx BY: Xxxxxx X. Xxxxxxxxx
------------------------- -----------------------
TITLE: Vice President TITLE: Vice President and Treasurer
------------------------- -----------------------------
DATE: April 15, 1999 DATE: April 15, 1999
------------------------- ----------------------------
3
EXHIBIT A
---------
AMENDED AND RESTATED PROMISSORY NOTE
$50,000,000.00 April __, 1999
FOR VALUE RECEIVED, FOCAL COMMUNICATIONS CORPORATION, a Delaware
corporation with its principal place of business at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 ("Borrower") promises and agrees to pay to the order of
NTFC CAPITAL CORPORATION, a Delaware corporation, its successors, assigns or any
subsequent holder of this Note (the "Lender") at its offices located at 000
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000, or at such other place as may
be designated in writing by Lender, in lawful money of the United States of
America in immediately available funds the lesser of Fifty Million Dollars
($50,000,000) or all amounts advanced hereunder pursuant to Section 2.02 of the
Loan Agreement (defined below), as noted on any and all amortization schedules
attached hereto, together with interest thereon and other amounts due as
provided below. The amortization schedules attached hereto are for convenience
only, and the failure of the Lender to attach an amortization schedule, or any
error or incorrect notation by the Lender on any amortization schedule, shall
not diminish the obligations of the Borrower under this Note. This Note shall
mature on the latest of (i) January 1, 2004, (ii) the sixtieth (60th) Payment
Date, or (iii) the first Business Day of the sixty-first (61st) month after the
first Advance hereunder (the "Maturity Date").
This Note is issued pursuant to that certain Loan and Security Agreement
dated December 30, 1998, by and between Borrower and Lender, as amended by the
First Amendment to Loan Agreement dated as of the date of this Note (as it may
be further modified, amended or restated from time to time, the "Loan
Agreement"). It is an amendment and restatement of and replaces the Promissory
Note dated as of December 30, 1998 from Borrower to Lender. Any term not
otherwise defined in this Note shall have the same meaning as in the Loan
Agreement. Reference is made to the Loan Agreement, which, among other things,
permits the acceleration of the maturity hereof upon the occurrence of certain
events and for prepayments in certain circumstances and upon certain terms and
conditions. This Note is secured by, among other things, the Collateral
described in the Loan Agreement and the Security Documents.
Each Advance hereunder shall bear interest from the date of such Advance
until such amount is due and payable (whether on any Payment Date, at the
Maturity Date, by acceleration, or otherwise) based on a rate equal to the five
(5) year "Swap Rate" as shown on the Telerate screen page 19901 on the date of
such Advance hereunder, plus 395 basis points (the "Interest Rate"). Interest
shall be paid monthly with principal, and shall accrue based on a 365 day year.
The Interest Rate is subject to adjustment as follows: When the Borrower has met
the conditions set forth below for two consecutive fiscal quarters, the 395
basis point margin stated above will be reduced to the
applicable margin as set forth in the table below, and the new margin will apply
so long as the required Cash Flow Coverage continues to exist. Should the
Borrower fail to maintain the required Cash Flow Coverage that permitted the
reduced margin for one fiscal quarter, then the margin shall return to the
appropriate margin until a reduction is again permitted hereunder.
Condition Margin
--------- ------
Cash Flow Coverage (greater than or equal to) 1:1 350 Basis Points
Cash Flow Coverage (greater than or equal to) 1.5:1 325 Basis Points
Cash Flow Coverage (greater than or equal to) 2:1 300 Basis Points
Cash Flow Coverage (greater than or equal to) 2.5:1 275 Basis Points
For purposes of this provision, Cash Flow Coverage is defined as (EBITDA +
Interest Income)/Scheduled Principal Payments + Required Interest Payments
on all outstanding Debt)
Commencing with the Initial Payment Date (defined below), principal amounts
outstanding hereunder on each Advance and interest thereon at the applicable
Interest Rate shall be amortized and paid in sixty (60) monthly equal
installment payments, commencing on the first Business Day of the first Calendar
Month to commence at least thirty (30) days after the date of such Advance (the
"Initial Payment Date") and on the first Business Day of each calendar month
thereafter (each, a "Payment Date"), in accordance with a separate amortization
schedule attached hereto. In the event of any additional Advances hereunder an
additional amortization schedule will be attached for each additional Advance,
reflecting the principal amount of such Advance and the applicable Interest
Rate. All such amortization schedules shall provide for equal monthly
amortization of principal and interest through the Maturity Date. If any
principal, interest, or other charge or expense remains outstanding on the
Maturity Date, such amount shall be added to the payment due on the Maturity
Date.
Notwithstanding the foregoing, if Borrower shall fail to pay within ten
(10) days after the due date any principal amount or interest or other amount
payable under this Note, Borrower shall pay to Lender, to defray the
administrative costs of handling such late payments, an amount equal to interest
on the amount unpaid, to the extent permitted under applicable law, at a rate
equal to the lesser of three percent (3%) higher than the then applicable
interest rate or the maximum permissible interest rate under applicable law (the
"Default Rate") (instead of the Interest Rate), from the due date until such
overdue principal amount, interest or other unpaid amount is paid in full (both
before and after judgment) whether or not any notice of default in the payment
thereof has been delivered under the Loan Agreement. In addition, but without
duplication, upon the occurrence and during the continuance of an Event of
Default, all outstanding amounts hereunder shall bear interest at the Default
Rate (instead of the Interest Rate) until such amounts are paid in full or such
Event of Default is waived in writing by Lender.
Notwithstanding any provision of this Note or the Loan Agreement to the
contrary, it is the intent of the Lender and the Borrower that the Lender or any
2
subsequent holder of this Note shall never be entitled to receive, collect,
reserve or apply, as interest, any amount in excess of the maximum rate of
interest permitted to be charged by applicable law, as amended or enacted, from
time to time. In the event Lender, or any subsequent holder of this Note, ever
receives, collects, reserves or applies, as interest, any such excess, such
amount which would be excessive interest shall be deemed a partial prepayment of
principal and treated as such (except that no prepayment premium will be payable
thereon), or, if the principal indebtedness and all other amounts due are paid
in full, any remaining excess funds shall immediately be paid to the Borrower.
In determining whether or not the interest paid or payable, under any specific
contingency, exceeds the highest lawful rate, the Borrower and the Lender shall,
to the maximum extent permitted under applicable law, (a) exclude voluntary
prepayments and the effects thereof as it may relate to any fees charged by the
Lender, and (b) amortize, prorate, allocate, and spread, in equal parts, the
total amount of interest throughout the entire term of the indebtedness;
provided that if the indebtedness is paid and performed in full prior to the end
of the full contemplated term hereof, and if the interest received for the
actual period of existence hereof exceeds the maximum lawful rate, the Lender or
any subsequent holder of the Note shall refund to the Borrower the amount of
such excess or credit the amount of such excess against the principal portion of
the indebtedness, as of the date it was received, and, in such event, the Lender
shall not be subject to any penalties provided by any laws for contracting for,
charging, reserving or receiving interest in excess of the maximum lawful rate.
All amounts received for payment under this Note shall at the option of
Lender be applied first to any unpaid expenses due Lender under this Note or
under any other documents evidencing or securing the obligations of Borrower to
Lender, then to any unpaid late charges, then to any unpaid interest accrued at
the Default Rate, then to all other accrued but unpaid interest due under this
Note and finally to the reduction of outstanding principal due under this Note.
Upon the occurrence of any one or more of the Events of Default specified
in the Loan Agreement (each, an "Event of Default"), all amounts then remaining
unpaid on this Note shall be, or may be declared to be, immediately due and
payable as provided in the Loan Agreement, without further notice, at the option
of the Lender. Lender may waive any Event of Default before or after the same
has been declared and restore this Note to full force and effect without
impairing any rights hereunder, such right of waiver being a continuing one, but
one waiver shall not imply any additional or subsequent waiver. Time is of the
essence of this Note.
Demand, presentment, notice and protest are expressly waived, except for
notices to Borrower otherwise expressly required in the Loan Agreement. Borrower
and any and all endorsers, guarantors and other parties liable on this Note, and
any and all general partners of Borrower or any endorsers, guarantors or other
parties liable on this Note (collectively, the "Obligors") jointly and severally
waive presentment for payment, protest, notice of protest, notice of nonpayment
of this Note, demand and all legal diligence in enforcing collection, and hereby
expressly consent to (i) any and all delays, extensions, renewals or other
modifications of this Note or any waivers of any term hereof, (ii) any release
or discharge by Lender of any of the Obligors, (iii) any release, substitution
or exchange of any security for the payment hereof, (iv) any failure to act
3
on the part of Lender, and (vi) any indulgence shown by Lender from time to time
(without notice or further assent from any of the Obligors) and hereby agree
that no such action, failure to act or failure to exercise any right or remedy
by Lender shall in any way affect or impair the obligations of any of the
Obligors.
BORROWER HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS
LOCATED IN DAVIDSON OR XXXXXXXXXX COUNTY, TENNESSEE, INCLUDING WITHOUT
LIMITATION FEDERAL COURTS SITTING IN THE MIDDLE DISTRICT OF TENNESSEE AND THE
CHANCERY COURT FOR DAVIDSON OR XXXXXXXXXX COUNTY, TENNESSEE, FOR ANY SUIT
BROUGHT OR ACTION COMMENCED IN CONNECTION WITH THIS NOTE, ANY DOCUMENTS EXECUTED
OR DELIVERED IN CONNECTION HEREWITH, INCLUDING WITHOUT LIMITATION THE LOAN
AGREEMENT, OR ANY RELATIONSHIP BETWEEN LENDER AND BORROWER, AND AGREES NOT TO
CONTEST OR CHALLENGE VENUE OR JURISDICTION IN ANY SUCH COURTS.
Borrower irrevocably consents to the service of process of any such courts
in any such action or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, return receipt requested, to Borrower at the
address opposite its signature below or to such other address as Borrower may
have furnished to Lender in writing, and agrees that such service shall become
effective fifty (50) days after such mailing. However, nothing herein shall
affect the right of Lender or Borrower to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
Lender or Borrower in any other jurisdiction.
BORROWER HEREBY KNOWINGLY, WILLINGLY AND IRREVOCABLY WAIVES ITS RIGHTS TO
DEMAND A JURY TRIAL IN ANY ACTION OR PROCEEDING INVOLVING THIS NOTE, ANY
DOCUMENTS EXECUTED OR DELIVERED IN CONNECTION HEREWITH INCLUDING WITHOUT
LIMITATION THE LOAN AGREEMENT OR ANY RELATIONSHIP BETWEEN BORROWER AND LENDER.
BORROWER AGREES THAT LENDER MAY FILE AN ORIGINAL COUNTERPART OR COPY OF THIS
PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF BORROWER'S EXPRESS WAIVER OF ITS
RIGHT TO TRIAL BY JURY.
IN ANY ACTION TO ENFORCE THIS NOTE, BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHTS UNDER THE LAWS OF ANY STATE TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY,
PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN ACTUAL DIRECT DAMAGES.
In the event this Note is placed in the hands of one or more attorneys for
collection or enforcement or protection of the holder's rights described herein
or in the Loan Agreement or the other Loan Documents, the Borrower agrees to pay
all reasonable attorneys' fees and all court and other out-of-pocket costs
incurred by the holder hereof (as of which shall be due on demand and shall bear
interest at the rate then payable hereunder from five (5) days after such demand
is made until paid).
4
This Note is governed by and shall be construed in accordance with the
internal laws of the State of Tennessee. If any provision of this Note should
for any reason be invalid or unenforceable, the remaining provisions hereof
shall remain in full force and effect.
This Note may not be changed, extended or terminated except in writing. No
waiver of any term or provision hereof shall be valid unless in writing signed
by Lender.
Executed as of April __, 1999.
FOCAL COMMUNICATIONS CORPORATION
By:__________________________________
Title:_______________________________
5
AMORTIZATION SCHEDULE(S)
6
EXHIBIT B
---------
SCHEDULE 2.01 TO
----------------
LOAN AND SECURITY AGREEMENT
---------------------------
MAXIMUM LOAN AMOUNTS
--------------------
Maximum principal amount of all Loans: Up to Fifty Million (US) Dollars
($50,000,000) ("Total Commitment")
EXHIBIT C
---------
SCHEDULE 4.25 TO
----------------
LOAN AND SECURITY AGREEMENT
---------------------------
UCC FILING OFFICES
------------------
Illinois Secretary of State, UCC Division
Xxxxxxx Bldg., Room 030
2nd and Xxxxxxx Xx.
Xxxxxxxxxxx, XX 00000
Pennsylvania Department of State
UCC Division
000 Xxxxx Xxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Philadelphia County
Office of the Prothonotary
Broad & Mkt.
Xxxxxxxxxxxx, XX 00000
Michigan Department of State
UCC Division
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
Secretary of State, UCC Division
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Recorder of Deeds, D.C.
515 "D" St., NW, Xxxx 000
Xxxxxxxxxx, X.X. 00000
Department of Licensing, XXX Xxxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Corporations Section,
Secretary of State
1019 Brazos
Xxxxxx, XX 00000
11
EXHIBIT D
---------
SCHEDULE 4.26 TO
----------------
LOAN AND SECURITY AGREEMENT
---------------------------
PRINCIPAL OFFICES AND LOCATION OF COLLATERAL
--------------------------------------------
Name Address County
---------------------- ----------------------------- -------------
Focal Communications 000 Xxxxxx Xx. Xxxxxxxxxxxx
of Pennsylvania Xxxxxxxxxxxx, XX 00000
Focal Communications 0000 X. 0xx Xx., Xxxxx X0-000 Xxx Xxxxxxx
of California Xxx Xxxxxxx, XX 00000
000 Xxxxxxxx, Xxxxx 000 Xxx Xxxxxxxxx
Xxx Xxxxxxxxx, XX 00000
Focal Communications Decatur Building King
of Washington 0000 0xx Xxxxxx
Xxxxxxx, XX 00000
Focal Communications 0000 Xxxxxxx Xxx. D.C.
of the Xxx-Xxxxxxxx Xxxxxxxxxx, X.X. 00000
Focal Communications 00000 Xxxx Xxx Xxxx Xxxx Xxxxxxx
xx Xxxxxxxx The Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Focal Communications 0000 Xxxxxxxx Xxx Xxxxxx
Corporation of Texas Xxxxxx, XX 00000
12
AMENDED AND RESTATED PROMISSORY NOTE
$50,000,000.00 April 15, 1999
FOR VALUE RECEIVED, FOCAL COMMUNICATIONS CORPORATION, a Delaware
corporation with its principal place of business at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 ("Borrower") promises and agrees to pay to the order of
NTFC CAPITAL CORPORATION, a Delaware corporation, its successors, assigns or any
subsequent holder of this Note (the "Lender") at its offices located at 000
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000, or at such other place as may
be designated in writing by Lender, in lawful money of the United States of
America in immediately available funds the lesser of Fifty Million Dollars
($50,000,000) or all amounts advanced hereunder pursuant to Section 2.02 of the
Loan Agreement (defined below), as noted on any and all amortization schedules
attached hereto, together with interest thereon and other amounts due as
provided below. The amortization schedules attached hereto are for convenience
only, and the failure of the Lender to attach an amortization schedule, or any
error or incorrect notation by the Lender on any amortization schedule, shall
not diminish the obligations of the Borrower under this Note. This Note shall
mature on the latest of (i) January 1, 2004, (ii) the sixtieth (60th) Payment
Date, or (iii) the first Business Day of the sixty-first (61st) month after the
first Advance hereunder (the "Maturity Date").
This Note is issued pursuant to that certain Loan and Security Agreement
dated December 30, 1998, by and between Borrower and Lender, as amended by the
First Amendment to Loan Agreement dated as of the date of this Note (as it may
be further modified, amended or restated from time to time, the "Loan
Agreement"). It is an amendment and restatement of and replaces the Promissory
Note dated as of December 30, 1998, from Borrower to Lender. Any term not
otherwise defined in this Note shall have the same meaning as in the Loan
Agreement. Reference is made to the Loan Agreement, which, among other things,
permits the acceleration of the maturity hereof upon the occurrence of certain
events and for prepayments in certain circumstances and upon certain terms and
conditions. This Note is secured by, among other things, the Collateral
described in the Loan Agreement and the Security Documents.
Each Advance hereunder shall bear interest from the date of such Advance
until such amount is due and payable (whether on any Payment Date, at the
Maturity Date, by acceleration, or otherwise) based on a rate equal to the five
(5) year "Swap Rate" as shown on the Telerate screen page 19901 on the date of
such Advance hereunder, plus 395 basis points (the "Interest Rate"). Interest
shall be paid monthly with principal, and shall accrue based on a 365 day year.
The Interest Rate is subject to adjustment as follows: When the Borrower has met
the conditions set forth below for two consecutive fiscal quarters, the 395
basis point margin stated above will be reduced to the applicable margin as set
forth in the table below, and the new margin will apply so long as the required
Cash Flow Coverage continues to exist. Should the Borrower fail to maintain the
required Cash Flow Coverage that permitted the reduced margin for one
1
fiscal quarter, then the margin shall return to the appropriate margin until a
reduction is again permitted hereunder.
Condition Margin
--------- ------
Cash Flow Coverage (Equal to or Greater Than) 1:1 350 Basis Points
Cash Flow Coverage (Equal to or Greater Than) 1.5:1 325 Basis Points
Cash Flow Coverage (Equal to or Greater Than) 2:1 300 Basis Points
Cash Flow Coverage (Equal to or Greater Than) 2.5:1 275 Basis Points
For purposes of this provision, Cash Flow Coverage is defined as (EBITDA +
Interest Income)/Scheduled Principal Payments + Required Interest Payments
on all outstanding Debt)
Commencing with the Initial Payment Date (defined below), principal amounts
outstanding hereunder on each Advance and interest thereon at the applicable
Interest Rate shall be amortized and paid in sixty (60) monthly equal
installment payments, commencing on the first Business Day of the first Calendar
Month to commence at least thirty (30) days after the date of such Advance (the
"Initial Payment Date") and on the first Business Day of each calendar month
thereafter (each, a "Payment Date"), in accordance with a separate amortization
schedule attached hereto. In the event of any additional Advances hereunder an
additional amortization schedule will be attached for each additional Advance,
reflecting the principal amount of such Advance and the applicable Interest
Rate. All such amortization schedules shall provide for equal monthly
amortization of principal and interest through the Maturity Date. If any
principal, interest, or other charge or expense remains outstanding on the
Maturity Date, such amount shall be added to the payment due on the Maturity
Date.
Notwithstanding the foregoing, if Borrower shall fail to pay within ten
(10) days after the due date any principal amount or interest or other amount
payable under this Note, Borrower shall pay to Lender, to defray the
administrative costs of handling such late payments, an amount equal to interest
on the amount unpaid, to the extent permitted under applicable law, at a rate
equal to the lesser of three percent (3%) higher than the then applicable
interest rate or the maximum permissible interest rate under applicable law (the
"Default Rate") (instead of the Interest Rate), from the due date until such
overdue principal amount, interest or other unpaid amount is paid in full (both
before and after judgment) whether or not any notice of default in the payment
thereof has been delivered under the Loan Agreement. In addition, but without
duplication, upon the occurrence and during the continuance of an Event of
Default, all outstanding amounts hereunder shall bear interest at the Default
Rate (instead of the Interest Rate) until such amounts are paid in full or such
Event of Default is waived in writing by Lender.
Notwithstanding any provision of this Note or the Loan Agreement to the
contrary, it is the intent of the Lender and the Borrower that the Lender or any
subsequent holder of this Note shall never be entitled to receive, collect,
reserve or apply, as interest, any amount in excess of the maximum rate of
interest permitted to be
2
charged by applicable law, as amended or enacted, from time to time. In the
event Lender, or any subsequent holder of this Note, ever receives, collects,
reserves or applies, as interest, any such excess, such amount which would be
excessive interest shall be deemed a partial prepayment of principal and treated
as such (except that no prepayment premium will be payable thereon), or, if the
principal indebtedness and all other amounts due are paid in full, any remaining
excess funds shall immediately be paid to the Borrower. In determining whether
or not the interest paid or payable, under any specific contingency, exceeds the
highest lawful rate, the Borrower and the Lender shall, to the maximum extent
permitted under applicable law, (a) exclude voluntary prepayments and the
effects thereof as it may relate to any fees charged by the Lender, and (b)
amortize, prorate, allocate, and spread, in equal parts, the total amount of
interest throughout the entire term of the indebtedness; provided that if the
indebtedness is paid and performed in full prior to the end of the full
contemplated term hereof, and if the interest received for the actual period of
existence hereof exceeds the maximum lawful rate, the Lender or any subsequent
holder of the Note shall refund to the Borrower the amount of such excess or
credit the amount of such excess against the principal portion of the
indebtedness, as of the date it was received, and, in such event, the Lender
shall not be subject to any penalties provided by any laws for contracting for,
charging, reserving or receiving interest in excess of the maximum lawful rate.
All amounts received for payment under this Note shall at the option of
Lender be applied first to any unpaid expenses due Lender under this Note or
under any other documents evidencing or securing the obligations of Borrower to
Lender, then to any unpaid late charges, then to any unpaid interest accrued at
the Default Rate, then to all other accrued but unpaid interest due under this
Note and finally to the reduction of outstanding principal due under this Note.
Upon the occurrence of any one or more of the Events of Default specified
in the Loan Agreement (each, an "Event of Default"), all amounts then remaining
unpaid on this Note shall be, or may be declared to be, immediately due and
payable as provided in the Loan Agreement, without further notice, at the option
of the Lender. Lender may waive any Event of Default before or after the same
has been declared and restore this Note to full force and effect without
impairing any rights hereunder, such right of waiver being a continuing one, but
one waiver shall not imply any additional or subsequent waiver. Time is of the
essence of this Note.
3
Demand, presentment, notice and protest are expressly waived, except for
notices to Borrower otherwise expressly required in the Loan Agreement. Borrower
and any and all endorsers, guarantors and other parties liable on this Note, and
any and all general partners of Borrower or any endorsers, guarantors or other
parties liable on this Note (collectively, the "Obligors") jointly and severally
waive presentment for payment, protest, notice of protest, notice of nonpayment
of this Note, demand and all legal diligence in enforcing collection, and hereby
expressly consent to (i) any and all delays, extensions, renewals or other
modifications of this Note or any waivers of any term hereof, (ii) any release
or discharge by Lender of any of the Obligors, (iii) any release, substitution
or exchange of any security for the payment hereof, (iv) any failure to act on
the part of Lender, and (vi) any indulgence shown by Lender from time to time
(without notice or further assent from any of the Obligors) and hereby agree
that no such action, failure to act or failure to exercise any right or remedy
by Lender shall in any way affect or impair the obligations of any of the
Obligors.
BORROWER HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS
LOCATED IN DAVIDSON OR XXXXXXXXXX COUNTY, TENNESSEE, INCLUDING WITHOUT
LIMITATION FEDERAL COURTS SITTING IN THE MIDDLE DISTRICT OF TENNESSEE AND THE
CHANCERY COURT FOR DAVIDSON OR XXXXXXXXXX COUNTY, TENNESSEE, FOR ANY SUIT
BROUGHT OR ACTION COMMENCED IN CONNECTION WITH THIS NOTE, ANY DOCUMENTS EXECUTED
OR DELIVERED IN CONNECTION HEREWITH, INCLUDING WITHOUT LIMITATION THE LOAN
AGREEMENT, OR ANY RELATIONSHIP BETWEEN LENDER AND BORROWER, AND AGREES NOT TO
CONTEST OR CHALLENGE VENUE OR JURISDICTION IN ANY SUCH COURTS.
Borrower irrevocably consents to the service of process of any such courts
in any such action or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, return receipt requested, to Borrower at the
address opposite its signature below or to such other address as Borrower may
have furnished to Lender in writing, and agrees that such service shall become
effective fifty (50) days after such mailing. However, nothing herein shall
affect the right of Lender or Borrower to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
Lender or Borrower in any other jurisdiction.
BORROWER HEREBY KNOWINGLY, WILLINGLY AND IRREVOCABLY WAIVES ITS RIGHTS TO
DEMAND A JURY TRIAL IN ANY ACTION OR PROCEEDING INVOLVING THIS NOTE, ANY
DOCUMENTS EXECUTED OR DELIVERED IN CONNECTION HEREWITH INCLUDING WITHOUT
LIMITATION THE LOAN AGREEMENT OR ANY RELATIONSHIP BETWEEN BORROWER AND LENDER.
BORROWER AGREES THAT LENDER MAY FILE AN ORIGINAL COUNTERPART OR COPY OF THIS
PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF BORROWER'S EXPRESS WAIVER OF ITS
RIGHT TO TRIAL BY JURY.
IN ANY ACTION TO ENFORCE THIS NOTE, BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHTS UNDER THE LAWS OF ANY STATE TO
4
CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER
DAMAGES OTHER THAN ACTUAL DIRECT DAMAGES.
In the event this Note is placed in the hands of one or more attorneys for
collection or enforcement or protection of the holder's rights described herein
or in the Loan Agreement or the other Loan Documents, the Borrower agrees to pay
all reasonable attorneys' fees and all court and other out-of-pocket costs
incurred by the holder hereof (as of which shall be due on demand and shall bear
interest at the rate then payable hereunder from five (5) days after such demand
is made until paid).
This Note is governed by and shall be construed in accordance with the
internal laws of the State of Tennessee. If any provision of this Note should
for any reason be invalid or unenforceable, the remaining provisions hereof
shall remain in full force and effect.
This Note may not be changed, extended or terminated except in writing. No
waiver of any term or provision hereof shall be valid unless in writing signed
by Lender.
Executed as of April 15, 1999.
FOCAL COMMUNICATIONS CORPORATION
By: Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President and Treasurer
----------------------------------
5
Focal Communications Corporation
Amortization Schedule
March 19, 1999
9.63%
Payment Beginning Total Ending
Number Date Balance Interest Principal Payment Balance
---------------------------------------------------------------------------------------------------------
0 3/19/99 $5,808,837.57
1 5/1/99 $5,808,837.57 $ 65,900.86 $ 56,899.14 $122,800.00 $5,751,938.43
2 6/1/99 $5,751,938.43 $ 47,044.55 $ 75,755.45 $122,800.00 $5,676,182.99
3 7/1/99 $5,676,182.99 $ 44,927.38 $ 77,872.62 $122,800.00 $5,598,310.36
4 8/1/99 $5,598,310.36 $ 45,788.04 $ 77,011.96 $122,800.00 $5,521,298.41
5 9/1/99 $5,521,298.41 $ 45,158.17 $ 77,641.83 $122,800.00 $5,443,656.58
6 10/1/99 $5,443,656.58 $ 43,086.91 $ 79,713.09 $122,800.00 $5,363,943.49
7 11/1/99 $5,363,943.49 $ 43,871.18 $ 78,928.82 $122,800.00 $5,285,014.67
8 12/1/99 $5,285,014.67 $ 41,831.25 $ 80,968.75 $122,800.00 $5,204,045.93
9 1/1/00 $5,204,045.93 $ 42,563.39 $ 80,236.61 $122,800.00 $5,123,809.32
10 2/1/00 $5,123,809.32 $ 41,792.64 $ 81,007.36 $122,800.00 $5,042,801.96
11 3/1/00 $5,042,801.96 $ 38,478.23 $ 84,321.77 $122,800.00 $4,958,480.20
12 4/1/00 $4,958,480.20 $ 40,444.13 $ 82,355.87 $122,800.00 $4,876,124.32
13 5/1/00 $4,876,124.32 $ 38,489.41 $ 84,310.59 $122,800.00 $4,791,813.73
14 6/1/00 $4,791,813.73 $ 39,084.70 $ 83,715.30 $122,800.00 $4,708,098.43
15 7/1/00 $4,708,098.43 $ 37,163.10 $ 85,836.90 $122,800.00 $4,622,461.54
16 8/1/00 $4,622,461.54 $ 37,703.37 $ 85,096.63 $122,800.00 $4,537,364.91
17 9/1/00 $4,637,364.91 $ 37,009.28 $ 85,790.72 $122,800.00 $4,451,574.19
18 10/1/00 $4,451,574.19 $ 35,138.25 $ 87,861.75 $122,800.00 $4,383,912.43
19 11/1/00 $4,363,912.43 $ 35,594.50 $ 87,205.50 $122,800.00 $4,276,706.94
20 12/1/00 $4,276,706.94 $ 33,757.94 $ 89,042.06 $122,800.00 $4,187,664.88
21 1/1/01 $4,187,664.88 $ 34,156.93 $ 88,643.07 $122,800.00 $4,099,021.81
22 2/1/01 $4,099,021.81 $ 33,525.51 $ 89,274.49 $122,800.00 $4,009,747.31
23 3/1/01 $4,009,747.31 $ 29,621.60 $ 93,178.40 $122,800.00 $3,916,568.91
24 4/1/01 $3,916,588.91 $ 32,033.24 $ 90,766.76 $122,800.00 $3,825,802.15
25 5/1/01 $3,825,802.15 $ 30,261.49 $ 92,518.51 $122,800.00 $3,733,283.64
26 6/1/01 $3,733,283.64 $ 30,534.17 $ 92,265.83 $122,800.00 $3,841,017.81
27 7/1/01 $3,641,017.81 $ 28,818.91 $ 93,981.09 $122,800.00 $3,547,036.71
28 8/1/01 $3,547,036.71 $ 29,010.87 $ 93,789.13 $122,800.00 $3,453,247.58
29 9/1/01 $3,453,247.58 $ 28,243.78 $ 94,556.22 $122,800.00 $3,358,691.37
30 10/1/01 $3,358,691.37 $ 26,584.27 $ 96,215.73 $122,800.00 $3,262,475.64
31 11/1/01 $3,262,475.64 $ 26,683.48 $ 96,116.52 $122,800.00 $3,166,359.11
32 12/1/01 $3,166,359.11 $ 25,061.95 $ 97,738.05 $122,800.00 $3,068,621.06
33 1/1/02 $3,068,621.06 $ 25,097.96 $ 97,702.04 $122,800.00 $2,970,919.02
34 2/1/02 $2,970,919.02 $ 24,298.86 $ 98,501.14 $122,800.00 $2,872,417.88
35 3/1/02 $2,872,417.88 $ 21,219.69 $ 101,580.31 $122,800.00 $2,770,837.57
36 4/1/02 $2,770,837.57 $ 22,662.41 $ 100,137.59 $122,800.00 $2,670,699.99
37 5/1/02 $2,670,699.99 $ 21,138.77 $ 101,661.23 $122,800.00 $2,569,038.76
38 6/1/02 $2,569,038.76 $ 21,011.92 $ 101,788.08 $122,800.00 $2,467,250.68
39 7/1/02 $2,467,250.68 $ 19,528.46 $ 103,271.54 $122,800.00 $2,363,979.14
40 8/1/02 $2,363,979.14 $ 19,334.76 $ 103,465.24 $122,800.00 $2,260,513.90
41 9/1/02 $2,260,513.90 $ 18,488.53 $ 104,311.47 $122,800.00 $2,156,202.43
42 10/1/02 $2,156,202.43 $ 17,066.49 $ 105,733.51 $122,800.00 $2,050,468.92
43 11/1/02 $2,050,468.92 $ 16,770.59 $ 106,029.41 $122,800.00 $1,944,439.50
44 12/1/02 $1,944,439.50 $ 15,390.37 $ 107,409.63 $122,800.00 $1,837,029.88
45 1/1/03 $1,837,029.88 $ 15,024.89 $ 107,775.11 $122,800.00 $1,729,254.77
46 2/1/03 $1,729,254.77 $ 14,143.41 $ 108,656.59 $122,800.00 $1,620,598.18
47 3/1/03 $1,620,598.18 $ 11,972.00 $ 110,828.00 $122,800.00 $1,509,770.18
48 4/1/03 $1,509,770.18 $ 12,348.27 $ 110,451.73 $122,800.00 $1,399,318.44
49 5/1/03 $1,399,318.44 $ 11,075.70 $ 111,724.30 $122,800.00 $1,287,594.15
50 6/1/03 $1,287,594.15 $ 10,531.11 $ 112,268.89 $122,800.00 $1,175,325.26
51 7/1/03 $1,175,325.26 $ 9,302.78 $ 113,497.22 $122,800.00 $1,175,325.26
52 8/1/03 $1,061,828.04 $ 8,684.59 $ 114,115.41 $122,800.00 $ 947,712.62
53 9/1/03 $ 947,712.62 $ 7,751.25 $ 115,048.75 $122,800.00 $ 832,663.88
54 10/1/03 $ 832,663.88 $ 6,590.59 $ 116,209.41 $122,800.00 $ 716,454.47
55 11/1/03 $ 716,454.47 $ 5,859.81 $ 116,940.19 $122,800.00 $ 599,514.28
56 12/1/03 $ 599,514.28 $ 4,745.20 $ 118,054.80 $122,800.00 $ 481,459.48
57 1/1/04 $ 481,459.48 $ 3,937.81 $ 118,862.19 $122,800.00 $ 362,597.29
58 2/1/04 $ 362,597.29 $ 2,957.55 $ 119,842.45 $122,800.00 $ 242,754.83
59 3/1/04 $ 242,754.83 $ 1,852.30 $ 120,947.70 $122,800.00 $ 121,807.13
60 4/1/04 $ 121,807.13 $ 993.53 $ 121,807.13 $122,800.66 $ 0.00
---------------------------------------------------------------------------------------------------------
$1,559,163.09 $5,808,837.57
