Exhibit 10.45
SENIOR NOTE DUE DECEMBER 20, 2003
$5,000,000 December 22, 2000
FOR VALUE RECEIVED, Network Access Solutions Corporation, a Delaware
corporation (the "Borrower"), promises to pay to the order of SBC
Communications, Inc., a Delaware corporation (the "Lender") at its
principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or at such
other place as the Lender may from time to time designate in writing, or to
its assigns, the principal sum equal to Five Million Dollars ($5,000,000),
or so much thereof as may be advanced from time to time and remain
outstanding, together with interest on the unpaid principal balance, at the
Interest Rate (hereinafter defined), compounded on the first day of each
calendar quarter, computed on the basis of a year with three hundred sixty-
five (365) days, and the actual number of days elapsed. This Note is
issued pursuant to that certain Agreement dated as of even date herewith by
and between Borrower and Lender (the "Agreement").
Payments. All payments made hereunder shall be made in lawful tender of
the United States in immediately available funds on the date on which such
payment shall be due. The entire outstanding principal balance of this
Note, all interest accrued thereon, and all other amounts then due and
owing under this Note shall be due and payable on December 20, 2003 (the
"Maturity Date").
Interest Rate. The "Interest Rate" shall be Four Percent (4.00%) per annum
over the Prime Rate. The "Prime Rate" shall be the prime rate as published
in The Wall Street Journal on the date of this Note.
Default. The following shall be Events of Default under this Note: (each,
an "Event of Default"):
The failure by Borrower to pay any amount when due under this Note, which
failure shall remain uncured for a period of five (5) days after delivery
of written notice of such failure;
The failure of Borrower to observe and/or perform any of the terms,
covenants, conditions and obligations of Borrower in this Note or in the
Agreement; or
The bankruptcy or insolvency of, the assignment for the benefit of
creditors by, or the appointment of a receiver for any of the property of,
or the liquidation, termination or dissolution of Borrower.
Rights of Lender Upon Default. Upon the occurrence or existence of any
Event of Default and at any time thereafter during the continuance of such
Event of Default, ▇▇▇▇▇▇ may declare the entire principal sum of this Note,
together with all unpaid accrued interest thereon, and all unpaid fees,
charges, costs and expenses, if any, owed by ▇▇▇▇▇▇▇▇ to Lender hereunder
or under the Agreement, to be immediately due and payable. In addition to
the foregoing remedies, upon the occurrence or existence of any Event of
Default, Lender may exercise any other right, power or remedy permitted to
it by law, either by suit in equity or by action at law, or both.
Notwithstanding anything herein to the contrary, upon an Event of Default,
whether by acceleration or otherwise, the entire principal amount of this
Note shall bear interest at the Default Rate until paid.
Voluntary Prepayment.
Prepayment. Borrower shall have the right, at any time and from time to
time, to prepay this Note, without premium or penalty, either in whole or
in part, by payment of the principal amount of this Note, or portion
thereof to be prepaid, and accrued interest thereon to the date of such
prepayment. Partial or total prepayments of this Note shall first be
credited to accrued interest due, then to the principal balance
outstanding.
Notice of Prepayment. The Borrower shall give notice to Lender of any
prepayment of this Note pursuant to Section 5(a) at least three Business
Days prior to the date fixed for such prepayment specifying (a) the date of
prepayment, and (b) the principal amount to be prepaid on such date.
Notice of prepayment having been so given, the principal amount of this
Note to be prepaid as specified in the notice, together with accrued
interest thereon shall become due and payable on the prepayment date
specified in such notice.
Note Unsecured. This Note constitutes an unsecured obligation of the
Borrower, senior in priority to all other indebtedness of the Borrower
other than indebtedness of the Borrower under equipment financing or
equipment leasing arrangements made in the ordinary course of business.
Waivers and Rights of Lender. Except as may be otherwise expressly set
forth in this Note, Borrower hereby (i) waives demand, presentment for
payment, protest, notice of nonpayment, notice of protest, notice of
dishonor, and any and all exemption rights which it holds at law or in
equity with respect to the indebtedness evidenced by this Note, and
(ii) agrees that enforcement by Lender of any security for the performance
of the terms of this Note shall not constitute an election by it of
remedies so as to preclude the exercise of any other remedy available to
it.
Default Rate. As long as any payment due under Note remains past due
(whether at the stated maturity, by acceleration or otherwise) for five (5)
days or more, the entire principal balance of this Note shall accrue
interest at the interest rate (the "Default Rate") equal to Eighteen
Percent (18.00%) per annum, in each case from the date of such non-payment
until such amount is paid in full (whether after or before judgment).
Payment of Expenses. Borrower shall pay, on demand, all reasonable costs
and expenses of collection of this Note (including, without limitation,
reasonable attorneys' fees), whether or not any suit or other legal
proceedings shall be instituted.
Rights Cumulative. All rights and remedies of Lender under this Note,
under any security given to secure ▇▇▇▇▇▇▇▇'s performance of the terms of
this Note (including, without limitation, the Security Agreement) and under
applicable law, are cumulative and not alternative. Failure of Lender at
any time to exercise any such rights or remedies shall neither constitute a
waiver of such rights or remedies nor bar the future exercise of any such
rights or remedies.
No Usury. In the event that any payment under this Note shall exceed the
amount permitted by applicable law, such payment shall be reduced to the
maximum amount permitted by law and the excess shall be applied in
reduction of the principal amount of this Note. In the event that any such
excess exceeds the principal amount, the amount of such excess over the
principal amount shall be refunded to Borrower.
Business Day. In the event that the date for performance of any
obligation under this Note falls on other than a Business Day, then such
obligation shall be performed on the next succeeding Business Day. For
purposes hereof, the term "Business Day" shall mean any other than
Saturday, Sunday or any day on which banks are closed in the State of
Delaware.
Successors and Assigns. The rights and obligations of the Borrower and the
Lender of this Note shall be binding upon and benefit the successors,
assigns, heirs, administrators and permitted transferees of the parties.
Entire Agreement; Amendments; Waiver. This Note contains the entire
agreement between Borrower and Lender relating to the subject matter
hereof. No amendment, modification, termination, release, surrender or
discharge of this Note shall be of any force or effect except by an
agreement in writing signed by ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇. No purported waiver of
any of the provisions of this Note shall be valid or effective unless the
same is in writing and signed by the party against whom it is sought to be
enforced.
Assignment by the Borrower. Neither this Note nor any of the rights,
interests or obligations hereunder may be assigned, by operation of law or
otherwise, in whole or in part, by the Borrower, without the prior written
consent of the Lender.
Severability. In case any one or more of the provisions contained in this
Note shall for any reason be held to be invalid, illegal and unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect any other provision hereof.
Notices. All notices required or permitted under this Note shall be in
writing and shall be hand-delivered, delivered by overnight courier (with
receipt acknowledged), or telecopied (and promptly confirmed in writing
hand-delivered or delivered by overnight courier) to the parties at their
respective addresses set forth below, or at such other addresses of which
either party shall notify the other party in accordance with this Section
18, and shall be deemed given as of the time of receipt or refusal of
receipt.
If to Borrower: Network Access Solutions Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇, CEO
If to Holder: SBC Communications Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President and General Counsel
No Setoff. Payments on this Note shall be made without setoff,
counterclaim or deduction, and without further notice or demand to Borrower
or any other party.
Records. Records of all borrowings evidenced by this Note and all payments
and prepayments of the principal hereof and interest hereon and the
respective dates thereof shall be maintained by the Lender, and such
records shall, absent manifest error, be conclusive and binding.
Governing Law. This Note and all actions arising out of or in connection
with this Note shall be governed by and construed in accordance with the
laws of Delaware, without regard to the conflicts of law provisions of that
or of any other state.
Time of Essence. Time is of the essence in the performance of each and
every term and provision of this Note.
(signature follows on next page)
IN WITNESS WHEREOF, the Borrower has caused this Note to be issued as
of the date first written above.
BORROWER:
Network Access Solutions Corporation, a
Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
