NEGOTIABLE PROMISSORY NOTE AND AGREEMENT
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June__, 2004
Promissory Note for $130,477.17
RECITALS
Allcom USA, Inc. ("Obligor") acknowledges and agrees that (a) Obligor owes
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to Qwest Communications Corporation ("Qwest" or "Holder") $130,477.17, which
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amount represents amounts due and owing by Obligor to Qwest throughout the April
2004 Qwest invoice to Obligor, less any payments Obligor may have made prior to
May 17, 2004; (b) Qwest has the right to immediate payment of most, if not all
of this amount; and (c) the agreements and other covenants contained this
Negotiable Promissory Note and Agreement (the "Note"), including the obligation
to pay and the obligations in Section 3 hereof, are made in consideration of
Qwest's agreement not to demand immediate payment of such Principal.
AGREEMENT
1. Payment of Principal. Obligor hereby absolutely and unconditionally
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promises to pay to the order of Qwest or its assigns, at its office located at
0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx (or at such other place as the Holder
may designate by written notice to Obligor from seventy-seven dollars and 17
cents ($130,477.17) (the "Principal"). Subject to earlier payment pursuant to
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Section 2 hereof, Principal is payable as follows: full payment shall be made on
or before November 24, 2004.
2. Acceleration Upon Default. The Holder may declare the entire unpaid
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principal amount of this Note to be immediately due and payable upon written
demand, at the Holder's election in its sole discretion, if any one or more of
the following events of default (each, an "Event of Default") shall occur:
(a) Bankruptcy, etc. Of Obligor. (i) Obligor shall commence any
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case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or other relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other similar relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, conservator, custodian
or other similar official for it or for all or any substantial part of its
assets, or Obligor shall make a general assignment for the benefit of its
creditors (collectively, "Proceeding"); or (ii) there shall be commenced against
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Obligor any Proceeding of a nature referred to in clause (i) above which (A)
results either in the entry of a judgment, decree or other order for relief
("Order") or an appointment and any such Order or appointment remains
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undismissed in a manner reasonably satisfactory to Holder ("Undismissed") for a
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period of 60 days; the foregoing shall include the commencement against Obligor
of any Proceeding seeking issuance of a warrant of attachment, execution,
distraint or similar process against all of any substantial part of its assets
which results in the entry of an
Order for any such relief which remains Undismissed in a manner reasonably
satisfactory to Holder for 60 days; or (iii) Obligor takes any action
substantially in furtherance of or expressly indicating its consent to, approval
of or acquiescence in, any of the acts set forth in clause (i) or (ii) above; or
(iv) Obligor shall generally not be able to, or shall expressly admit in writing
its inability to, pay its debts as the become due;
(b) Covenants. Obligor breaches or otherwise defaults in any of
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its covenants or other agreements under this Note and such breach or the default
shall not be cured within ten days of notice from Qwest provided that no such
notice shall be required in respect of a failure to timely pay Principal under
this Note or in respect of any other Event of Default provided for in this
Section 2;
(c) Assertion. Obligor or any of its representatives asserts that
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any provision of this Note is not enforceable in accordance with its terms in
any material respect.
(d) Representations. Any representation or warranty made by
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Obligor herein proves to have been incorrect in any material respect when made;
(e) Judgment. One or more judgments or decrees is entered against
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Obligor involving in the aggregate a liability of $10,000 or more and(i) all
such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof or (ii) the judgment
creditors with respect to such judgments or their successors or assigns shall
have commenced enforcement proceedings, except for enforcement proceedings that
shall have remained stayed within 10 days after commencement, without any such
enforcement in any material respect being effected: or
(f) Sale of Substantially All of its Assets. Obligor sells,
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pledges, mortgages, otherwise encumbers, otherwise disposes of or otherwise
transfers, all or substantially all of its assets, or agrees to do any of the
foregoing.
3. Forbearance Agreements; Releases.
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(a) Acknowledgments of Defaults and No Right to Services. Obligor
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acknowledges and agrees that Obligor owes Qwest the sum identified in this Note
and that a substantial part of that sum is past due. Obligor further
acknowledges that Qwest is entitled under the contract between Obligor and Qwest
to disconnect and terminate any and all telecommunications services provided by
Qwest to Obligor (the "Services") if Obligor fails to pay past due balances.
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Obligor acknowledges and agrees that, (i) should Obligor fail to make full
payment under this Note, Qwest is entitled immediately thereafter to disconnect
and terminate Services to Obligor, (ii) in such an event, Qwest would have no
obligation to continue to provide any services to Obligor, and (iii) in such an
event, Obligor would have no right to request, compel or demand that Qwest
continue to provide the Services. Nothing in these acknowledgements or this Note
shall impact or affect Qwest's rights under its contract with Obligor to take
action (including termination of Services) for nonpayment of additional past due
balances not covered in this Note.
(b) Release by Obligor. By execution of this Note, Obligor
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acknowledges and agrees that it does not have any offsets, defenses or claims of
any kind or nature against Qwest,
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or any of its officers, agents, directors of employees whether asserted or
unasserted, known or unknown, arising out of or otherwise related to this Note
or the subject matter of this Note. However, to the extent that it may have or
does have any such offsets, defenses of claims, the Obligor for itself hereby
releases and discharges and shall cause each of its respective successors and
assigns, parents, subsidiaries, affiliates, and predecessors ( and, in their
capacity as such, their respective present and former employees, attorneys, and
agents) (collectively "Obligor Parties") as applicable, to forever release and
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discharge, Qwest, its successors and assigns, subsidiaries, affiliates, (and in
their capacity as such, their respective present and former officers, directors,
employees, agents, attorneys) and both present and former (collectively, the
"Qwest Parties") of and from any and all manner of action and actions, cause and
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causes of actions, suits, debts, controversies, damages, judgments, executions,
claims and demands of any kind or nature, asserted or unasserted, known or
unknown in law or in equity which against Qwest Obligor and/or any Obligor
Party, both present and former, ever had or now has, upon or by reason of any
manner, cause, causes or thing whatsoever including without limitation, any
presently existing claim of defense whatsoever including without limitation, any
presently existing claim or defense whether or not presently suspected,
contemplated or anticipated, arising out of or otherwise related to this Note.
(c) Partial Payments. Any partial payments made by Obligor or any
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other party on Obligor's behalf and accepted by Qwest will not constitute a
waiver of any default or of any other right held by Qwest. Except as otherwise
modified of amended by this Note, all of the terms of all agreements between
Obligor or any one of them and Qwest shall remain in full force and effect.
4. Relief from Automatic Stay. If any Event of Default under Section
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2(a) hereof occurs, then, (whether Qwest accelerates the obligations hereunder),
subject to court approval, Qwest shall thereupon be entitled to, and Obligor
irrevocably consents to, relief from the automatic stay imposed by Section 362
of the Bankruptcy Code, or otherwise, on or against the exercise of the rights
and remedies otherwise available to Qwest, and Obligor hereby irrevocably waives
its rights to object to such relief.
5. Costs and Expenses. No Set-Off: Allocation.
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(a) Costs and Expenses. Obligor agrees to pay all future costs and
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expenses including without limitation, reasonable attorneys' fees, incurred or
payable by the Holder in enforcing any provision of the Note including, without
limitation, respecting the collection of any and all amounts payable under this
Note.
(b) No Set-Off. Obligor acknowledges that its obligations to make
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payments hereunder are absolute and unconditional, and agrees that such payments
shall not be requested to be, and shall not be, subject to any defense, set-off
or counterclaim of any kind or nature, or any other action similar to the
foregoing.
(c) Payments. All payments made in respect of this Note shall be
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made in lawful money of the United States of America and in immediately
available funds.
6. Representations. Qwest and Obligor each represent and warrant to the
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other that (a) it is a corporation duly organized and validly existing under the
laws in which it was incorporated; (b) it has the corporate power and corporate
authority to, and has obtained all
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necessary corporate authorizations to, execute, deliver and perform this Note;
(c) this Note has been duly and validly executed and delivered by a properly
authorized representative of such Party and is enforceable in accordance with
its terms; (d) the execution, delivery and the performance of this Note does not
violate, cause a breech or default under or otherwise conflict with any
agreement or contract, or any decree, judgment or other order, of any kind or
nature to which such Party is a party, subject or bound; and 9e) the execution,
delivery and performance of this Note on such Party's part shall not require it
to obtain the approval of, make any filing with or provide any notice to any
governmental authority of any kind of nature.
7. Miscellaneous.
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(a) Entire Agreement: Binding Effect. This Note constitutes the
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entire and final agreement among the parties with respect to the subject matter
hereof and there are no agreements, understandings, warranties or
representations between Qwest and Obligor with respect to the subject matter
hereof except as set forth herein. This Note will inure to the benefit and bind
the successors and permitted assigns of Obligor and Qwest..
(b) Rights and Remedies. Qwest shall have all rights and remedies
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provided for by any law of any kind ( including all forms of legal and equitable
relief) with respect to any acceleration or any other breech or default
hereunder and Qwest shall in addition have any other rights and remedies
provided for in this Note. All rights and remedies contemplated in the preceding
sentence shall be independent and cumulative, and may, to the extent permitted
by law, be exercised concurrently or separately, and the exercise of any one
right or remedy shall not be deemed to be an election of such right or remedy or
the preclude or waive the exercise of any other right of remedy.
(c) Severability. If any provision of this Note or the application
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thereof to any person(s) or circumstance(s) shall be invalid of unenforceable to
any extent, (i) the remainder of this Note and the application of such provision
to other persons or circumstance(s) shall not be affected thereby; and (ii) each
such provision shall, as to such person or circumstances as to which it is not
unenforceable in full, be enforced to the greatest extent permitted by law.
(d) Amendments, Pronouns, No Waiver, Successors and Assigns. No
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amendment, modification, recision, waiver, forbearance or release of any
provision of this Note shall be valid or binding unless made in writing and
executed by a duly authorized representative of Obligor and the Holder. No
consent or waiver, express or implied, by the Holder to or of any breach by
Obligor in the performance by it of any of its obligations hereunder shall be
deemed or construed to be a consent to or waiver or the breach in the
performance of the same or any other obligation of Obligor hereunder. Failure on
the part of the Holder to complain of any act or failure to act by Obligor or to
declare Obligor in breach irrespective of how long such failure continues, shall
not constitute a waiver by the Holder of any of its rights hereunder. All
consents and waivers shall be in writing. All of the terms, covenants and
conditions contained in this Note shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, provided that
Obligor's obligations hereunder may be not be delegated to any other person or
entity without the prior consent of Qwest and any such attempted delegation
without such consent shall be void.
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(e) Governing Law Notices. This Note, including the performance
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and enforceability hereof, shall be governed by and construed in accordance with
the laws of the State of Colorado, without regard to the principles of conflicts
of law. Obligor hereby submits itself and its property to the non-exclusive
general jurisdiction of the federal and state courts located in the State of
Colorado, and waives any objection ( on the grounds of lack of jurisdiction, or
forum non conveniens or otherwise) to the exercise of such jurisdiction over it
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by any federal of state court in the State of Colorado.
(f) Notices. Any notice, demand or other communication required or
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permitted to be given by any provision of this Note shall be made in writing and
delivered by an overnight courier service that provides signed acknowledgement
of receipt or by first class U.S. Mail return receipt requested, directed as
follows::
To Qwest:
Xxxxxx Xxxxxx
Qwest Services Corporation
0000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX
To Obligor:
UC Hub 00000 Xxxxxxxx Xxxxxx Xxxxx Xxxxx 000
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By Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx, Xx 00000
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Pres
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(g) Headings. All headings contained in this Note are for
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reference purposes only and are not intended to affect in any way the meaning or
interpretation of this Note.
(h) Voluntary Agreement. Obligor represents and warrants that it
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is represented by legal counsel of its choice, is fully aware of the terms
contained in this Note and has voluntarily and without coercion or duress of any
kind entered into this Note.
(i) Negation of Partnership. Nothing contained in this Note will
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be deemed to create a partnership of joint venture between Obligor and Qwest, or
to cause Qwest to be a liable or responsible in any way for any actions,
liabilities or debts of any kind or nature of Obligor.
B. WAIVER OF JURY TRIAL. OBLIGOR KNOWINGSLY, VOLUTARILY AND INTENTIONALLY
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WAIVES ANY RIGHT IT MAY HAVE OR HEREAFTER HAS TO A TRIAL BY JURY IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR OTHERWISE RELATING TO THIS NOTE
OR THE NOTICE OBLIGOR CERTIFIES THAT NEITHER QWEST NOR ANY OF ITS
REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
QWEST
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WOULD NOT IN THE EVENT OF ANY SUCH SUIT, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
TRIAL BY JURY.
[signature page to follow]
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IN WITNESS WHEREOF, the undersigned have executed and delivered this Note
as of the day and year first above written.
WITNESS: UNITED COMMUNICATIONS HUB, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Pres
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QWEST COMMUNICATIONS CORPORATION
By:
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Name:
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Title:
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