Exhibit 10.44
MASTER COLLOCATION
AGREEMENT
between
SBC COMMUNICATIONS INC.
and
NETWORK ACCESS SOLUTIONS CORPORATION
This Agreement (the "Agreement") is entered into as of December 22,
2000, by and between SBC Communications Inc. ("SBC") and Network Access
Solutions Corporation ("NAS"). SBC and NAS are individually referred to as
a "Party" and collectively as the "Parties."
Recitals
WHEREAS, NAS has contracted with various incumbent local exchange
carriers ("ILECs") for the provision of physical/virtual collocation
arrangements in various states pursuant to the agreements listed on
Schedule A attached hereto (the "Collocation Agreements"), and,
WHEREAS, NAS has acquired from the ILECs the right to occupy and use
certain physical/virtual collocation space in ILEC central offices (each a
"Collocation Arrangement") as listed in Schedule B attached hereto;
WHEREAS, NAS desires to assign its rights to the Collocation
Arrangements to SBC Telecom, Inc. ("SBC Telecom"), a wholly-owned
subsidiary of SBC, and
WHEREAS, SBC Telecom desires to acquire NAS's rights to those
Collocation Arrangements provided that NAS discharges, prior to any
assignment, all payment obligations under the Collocation Agreements,
NOW, THEREFORE, for and in consideration of the mutual obligations
contained herein and other consideration, the receipt and sufficiency of
which are hereby acknowledged by the Parties hereto, the Parties agree as
follows:
1. Agreement to Transfer and Assign. NAS hereby agrees to transfer
and assign to SBC Telecom, Inc. and SBC hereby agrees to cause SBC Telecom
to accept all of NAS's rights, title and interest in and to the Collocation
Arrangements in accordance with the applicable attached Assignment and
Transfer Agreements (Attachments 1-A through 1-[x]), which are incorporated
herein and made a part of this Agreement. In the event of a conflict
between those Assignment and Transfer Agreements and this Agreement, this
Agreement shall control.
Line of Credit.
Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Agreement, SBC
agrees to make one or more loans to NAS (each, a "Loan" and
collectively, the "Loans") from time to time commencing on the date
hereof and terminating on the date that is one hundred eighty (180)
days after the date hereof (the "Commitment Period") in an
aggregate principal amount not to exceed Five Million Dollars
($5,000,000). The purpose of each Loan shall be to make the
payments described in Section 3.a hereof.
Simultaneously with the execution and delivery of this Agreement, NAS
shall execute and deliver a Senior Note in the form attached hereto
as Attachment 2 (the "Note"), which Note shall evidence the Loans
from SBC to NAS in the aggregate principal amount of up to Five
Million Dollars ($5,000,000).
NAS may from time to time borrow under this Agreement during the
Commitment Period by giving notice to SBC of the amount of the Loan
and specifying the amount to be borrowed and the purpose therefor.
SBC shall make the Loan to NAS upon satisfaction of all of the
conditions with respect to such Loan set forth in Section 4 hereof.
In no event shall SBC be obligated to make any Loan if all such
conditions have not been satisfied prior to the expiration of the
Commitment Period.
3. Covenants of NAS.
NAS shall use the proceeds of each Loan solely to discharge any
payment obligations with respect to a particular Collocation
Arrangement it may have to an ILEC that arose prior to the
closing on the assignment under any Collocation Agreement
assigned to SBC Telecom in accordance with the terms and
conditions of this Agreement and the applicable Assignment and
Transfer Agreement, which obligations shall include, but are not
limited to, any construction or installation fees or charges or
costs associated with any assignment or transfer to SBC.
Until all of NAS's obligations under the Note are discharged in full,
NAS shall not incur any indebtedness senior in right of payment
to the Loans, except purchase money equipment financing in the
normal course of business consistent with NAS's past practice.
4. Closing Conditions to each Assignment and Loan. The closing of
(i) the assignment of any Collocation Arrangement and (ii) the making of a
Loan hereunder to fund the payments referenced in Section 3.a with respect
to such assignment shall be subject to prior satisfaction of the following
conditions:
NAS shall have discharged in full all of its payment obligations under
the relevant Collocation Agreement, including, but are not
limited to, any construction or installation fees or charges or
costs associated with any assignment or transfer to SBC (or made
arrangements reasonably satisfactory to SBC to use the proceeds
of the Loan to satisfy those obligations in full.)
NAS shall have removed, prior to the closing and at its own expense,
any and all equipment (e.g., electronic transmission equipment)
or facilities (e.g., bays and cable racking) installed by or on
behalf of NAS at the relevant ILEC central office.
NAS shall have obtained the written consent of the relevant ILEC in
form and substance reasonably acceptable to SBC to the assignment
of the relevant Collocation Arrangement to SBC Telecom.
NAS and SBC Telecom shall have obtained any required approvals of the
assignments by state regulatory agencies.
No litigation or proceeding shall then be pending against NAS that
could reasonably be expected to have a material adverse effect on
the business, prospects, assets, liabilities or properties of
NAS.
The making of the relevant Loan would not (i) result in a violation of
law by NAS or SBC, (ii) conflict with or result in any violation
of any provision of the articles of incorporation or by-laws, or
comparable organizational documents of SBC or NAS, (iii) conflict
with, result in a violation or breach of, or constitute a default
under any material contract, concession or permit issued to SBC
or NAS, or (iv) conflict with or result in a violation of any
judgment, order, decree, writ, injunction, statute, law,
ordinance, concession, permit, rule or regulation applicable to
SBC or NAS or to its property or assets.
All of the representations and warranties of NAS in this Agreement
shall be true and correct as of the date of the relevant closing
as if made on such date.
NAS shall not have breached any of its covenants or obligations under
this Agreement or under the Note in any material respect.
SBC shall have received evidence reasonably satisfactory to it that
all of the foregoing closing conditions have been satisfied.
5. Representations and Warranties. Each of the Parties hereby
represents and warrants to the other Party as follows:
That it is a corporation duly organized, validly existing and in good
standing under the laws of the State where it is incorporated,
that it has all requisite corporate power and authority to enter
into this Agreement and to consummate the transactions
contemplated herein, that all corporate acts and other
proceedings required to be taken to authorize the execution,
delivery and performance of this Agreement and the consummation
of the transactions contemplated herein have been duly and
properly taken, and that this Agreement has been duly executed
and delivered by it and constitutes the legal, valid and binding
obligation of the Party, enforceable against it in accordance
with its terms.
The execution and delivery by it of this Agreement and the
consummation of the transactions contemplated hereby and
compliance by it with the terms hereof will not (i) conflict with
or result in any violation of any provision of its articles of
incorporation or by-laws, or comparable organizational documents,
(ii) conflict with, result in a violation or breach of, or
constitute a default, or give rise to any right of termination,
revocation, cancellation, or acceleration, under, any material
contract, concession or permit issued to it, except for any such
conflict, violation, breach, default or right which is not
reasonably likely to have a material adverse effect on the
ability of it to consummate the material transactions
contemplated by this Agreement, (iii) conflict with or result in
a violation of any judgment, order, decree, writ, injunction,
statute, law, ordinance, concession, permit, rule or regulation
applicable to the Party or to its property or assets, except for
any such conflict or violation which is not reasonably likely to
have such a material adverse effect, or (iv) violate any existing
contractual arrangement to which it is a party or give rise to a
claim against the other Party for inducing a breach of contract
or interfering with contractual or other rights, or similar
claim.
c. No consent, approval, license, permit, order or authorization of,
registration, declaration or filing with, or notice to, any
governmental entity is required to be obtained or made by or with
respect to it in connection with the execution and delivery of
this Agreement or the consummation of the transactions
contemplated hereby. It has or will obtain all necessary
consents, approvals, authorizations and permits necessary to
perform fully its obligations under this Agreement.
6. Representations and Warranties of NAS. NAS hereby represents and
warrants to SBC that NAS has no unsecured indebtedness senior in priority
in right of payment of the Loans and has no secured indebtedness senior in
priority in right of payment to the Loans other than indebtedness in
connection with equipment financing and equipment leasing arrangements made
in the ordinary course of business.
7. Indemnification. NAS hereby agrees to defend, indemnify and hold
harmless SBC, its affiliates, officers, directors, shareholders, employees
and agents from and against any and all claims, damages, losses or
liabilities whatsoever, including reasonable legal fees, arising out of,
caused by, related to or based upon any claim by an ILEC or its affiliates
or any other third party arising out of (i) any Collocation Agreement prior
to the closing of the assignment of a related Collocation Arrangement from
NAS to SBC Telecom, (ii) NAS's use of any related collocation space, (iii)
NAS's preparations for use of any such collocation space in any case where
NAS has not actually used such space, or (iv) any breach of any
representation, warranty, covenant, or agreements under this Agreement.
The indemnification provisions of this Section 7 are in addition to the
indemnification provisions in the Assignment and Transfer Agreements
attached hereto.
8. Entire Agreement; Amendments; Waiver. This Agreement contains
the entire agreement between the Parties relating to the subject matter
hereof. No amendment, modification, termination, release, surrender or
discharge of this Agreement shall be of any force or effect except by an
agreement in writing signed by the Parties. No purported waiver of any of
the provisions of this Agreement shall be valid or effective unless the
same is in writing and signed by the party against whom it is sought to be
enforced.
9. Assignment. Neither Party may assign this Agreement to any third
party without the prior written consent of the other Party; provided that
either Party may assign this Agreement to an affiliate of such Party
without the prior consent of the other Party.
10. Severability. In case any one or more of the provisions
contained in this Agreement 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.
11. Notices. All notices required or permitted under this Agreement
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 11, and shall be deemed given as of the time of receipt or refusal
of receipt.
If to Borrower: Network Access Solutions Corporation
00000 Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxx, CEO
If to Holder: SBC Communications Inc.
000 Xxxx Xxxxxxx
Xxx Xxxxxxx, XX
Attn: Vice President and General Counsel
12. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to the
conflicts of law provisions of that or of any other state.
[Signatures appear on following page]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their respective authorized representatives as of the date
first written above.
NETWORK ACCESS SOLUTIONS SBC COMMUNICATIONS INC.
CORPORATION
By: /s/ Xxxxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxx Name: Xxxxx X. Xxxxx
Title: CEO Title: Senior Executive Vice
President-Corporate Development
Date: December 21, 2000 Date: December 21, 2000
Schedule A
NAS Collocation Agreements
Schedule B
NAS Collocation Arrangements
