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EXHIBIT 10.57
LOAN AGREEMENT AND PROMISSORY NOTE
$1,000,000,000 [month day, 1999]
For value received, XXXXXXXX COMMUNICATIONS, INC., a Delaware corporation
(the "Borrower"), promises to pay to the order of THE XXXXXXXX COMPANIES, INC.
(the "Lender"), the aggregate principal amount of $1,000,000,000 in immediately
available funds at the main office of Lender, together with interest on the
unpaid principal amount at the rate set forth below, according to the repayment
terms set forth below.
1. REPAYMENT.
(a) Mandatory Repayment. The Borrower agrees to repay principal to the
Lender according to the amortization schedule attached hereto as Exhibit
A.
(b) Optional Repayment. The Borrower may prepay amounts due under this
Loan Agreement and Promissory Note at any time and may make partial
prepayments from time to time without penalty.
2. INTEREST.
(a) Interest shall be computed on the basis of a 360-day year for the
actual number of days elapsed at a Eurodollar rate per annum plus 2.25
percent. The interest rate will be a fixed rate for the entire calendar
month commencing on the first calendar day of the month and ending on the
last calendar day of the month. The Borrower shall pay interest on the
unpaid principal amount monthly on the 25th day of each month and on the
date of payment in full.
(b) Any amount not paid when due shall bear interest, from the date on
which such amount is due until such amount is paid in full, at a rate per
annum equal to the sum of the rate per annum required to be paid on such
amount plus two percent per annum.
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants as follows:
(a) Borrower is a corporation duly incorporated and existing in good
standing under the laws of the state of Delaware, is duly qualified to do
business
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and is in good standing in every state where the nature or extent of its
business or properties requires it to be qualified to do business, except
where such failure is not reasonably likely to have a material effect on
Borrower's ability to conduct business, and has the power and authority to
own its properties and carry out its business as now being conducted.
(b) The execution, delivery, and performance of the terms of this Loan
Agreement and Promissory Note are within Borrower's corporate powers, have
been duly authorized, and do not contravene any applicable law, its
certificate of incorporation, bylaws, or any other contract, agreement, or
undertaking to which it is a party or by which it is bound.
(c) Borrower has good and marketable title to all real property and
good and indefeasible title to all material personal property purported to
be owned by it and reflected in its most recent financial statements,
dated March 31, 1999. Borrower's assets are subject to no liens except (i)
liens given by Xxxxxxxx in connection with its Asset Defeasance Program;
(ii) liens for taxes being contested in good faith; (iii) carriers',
warehousemen's, materialmen's, and mechanics' liens and other similar
liens imposed by law and arising in the ordinary course of business in
connection with Xxxxxxxx's operations; and (iv) purchase money security
interests in discrete items of equipment.
4. EVENTS OF DEFAULT. Borrower shall be in default of its obligations
under this Loan Agreement and Promissory Note upon the occurrence of any one of
the following events ("Events of Default"):
(a) Failure to comply with any material term, condition, or provision
of this Loan Agreement and Promissory Note;
(b) Any representation or warranty made by Borrower proves to have
been incorrect in any material respect when made;
(c) Xxxxxxxx makes a general assignment for the benefit of creditors
or commences a voluntary case under any applicable bankruptcy, insolvency,
or other similar law;
(d) The appointment of a receiver, trustee, or other similar official
for all or substantially all of Borrower's property or assets, or the
filing of a bankruptcy petition against Borrower in a court of competent
jurisdiction that commences an involuntary case under any applicable
bankruptcy, insolvency, or other similar law, which appointment or
petition is not dismissed within sixty (60) days;
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(e) The making of any levy, seizure, or attachment of or on any of
Borrower's asset or any portion thereof, or the issuance of any injunction
with respect to the use or sale of Borrower's assets or any portion
thereof.
5. REMEDY UPON DEFAULT. If any Event of Default shall have occurred,
Lender may declare all or any part of the outstanding obligations under this
Loan Agreement and Promissory Note immediately due and payable.
6. NO WAIVER. Lender shall not be deemed to have waived any of its
rights under this Loan Agreement and Promissory Note or any other agreement,
instrument, or paper unless such waiver shall be in writing and executed by
Xxxxxx. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right.
7. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of New York, without regard to its choice
of law principles.
8. ASSIGNMENT AND MODIFICATION. This Loan Agreement and Promissory
Note is binding upon the parties and their respective successors and permitted
assigns. Borrower may not assign its rights or delegate its duties under this
Loan Agreement and Promissory Note without the prior written consent of Lender.
This Agreement cannot be changed, modified, or assigned except in a writing
signed by both the Lender and Xxxxxxxx.
9. COSTS. Xxxxxxxx agrees to pay all costs, including reasonable
attorneys' fees, incurred by the holder in enforcing payment hereof.
XXXXXXXX COMMUNICATIONS, INC.
By:
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Name:
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Title:
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EXHIBIT A
AMORTIZATION SCHEDULE
Year Ending Amount Due
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12/31/99 0
12/31/00 $12,500,000
12/31/01 $25,000,000
12/31/02 $25,000,000
12/31/03 $25,000,000
12/31/04 $25,000,000
12/31/05 $25,000,000
12/31/06 $862,500,000
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