EXHIBIT 10.49
THIS NOTE IS SUBJECT TO THE RIGHTS OF MCG FINANCE CORPORATION (AND ITS
SUCCESSORS, ASSIGNEES, TRANSFEREES, PLEDGEES, AND PARTICIPANTS) UNDER A
SUBORDINATION AGREEMENT DATED OCTOBER 15, 1999.
PROMISSORY NOTE
October 1, 1999
$3,000,000.00 Greenville, SC
FOR VALUE RECEIVED, OmniCall, Inc., a South Carolina corporation, promises
to pay to Xxxxxxx X. Xxxxxx, or his Assignee, the sum of Three Million and
no/100 Dollars ($3,000,000.00), together with interest thereon from the date
hereof at a variable annual percentage rate equal to 100 basis points above the
index rate of SouthTrust Bank, N.A.'s 30-day LIBOR, due and payable as follows:
(a) Monthly installments of interest only due and payable on the first
(1st) day of each month, commencing November 1, 1999, and continuing on the
first (1st) day of each successive month thereafter until December 1, 2000; and
(b) Quarterly installments of Seven Hundred Fifty Thousand and no/100
($750,000.00) Dollars each to be applied to the principal balance of the Note,
plus interest accrued thereon, commencing January 31, 2001 and continuing on the
last day of each successive three-month period thereafter until paid in full.
NOTWITHSTANDING THE FOREGOING, THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE,
TOGETHER WITH ALL INTEREST ACCRUED THEREON, SHALL BECOME IMMEDIATELY DUE AND
PAYABLE IN THE EVENT OF: (I) A CHANGE OF CONTROL OF ACCESS ONE COMMUNICATIONS
CORP. AS REFERRED TO IN SECTION 6.6 OF THAT CERTAIN AGREEMENT AND PLAN OF MERGER
ENTERED INTO BY AND AMONG ACCESS ONE COMMUNICATIONS, INC., OMNICALL, INC. AND
OMNICALL ACQUISITION CORP., DATED OCTOBER 15, 1999; OR (II) AN INITIAL PUBLIC
OFFERING OF ACCESS ONE COMMUNICATIONS CORP.
The Maker hereof shall have the right to prepay the within principal
obligation in whole or in part at any time without premium or penalty.
All payments shall be applied first to interest and then to principal, and
all interest not paid when due shall bear interest at the same rate as the
principal.
The undersigned Maker and any endorser of the obligations of Maker to
Holder agree that if any one of the following events shall occur and be
continuing, the whole amount evidenced by this Note shall, at the option of the
Holder and subject to the provisions hereinafter set forth, become at once due
and payable, and said Holder shall have the right to institute any proceedings
upon this Note and any collateral given to secure the same for the purpose of
collecting said principal and interest, with reasonable costs and expenses, and
of protecting any security connected herewith. The Holder may thereon, or at any
time thereafter, sell any and all securities and/or other property on which it
has a lien, mortgage or security interest.
(a) The failure to pay any installment of interest and/or principal
hereunder when due, beginning ten (10) business days after written notice of
same to the Maker;
(b) The filing of a petition in bankruptcy by or against the Maker or the
commencement of any proceeding or under any acts of Congress relating to the
relief of debtors for the relief or adjustment of any indebtedness of the Maker,
either through reorganization, composition, extension or otherwise, and if such
petition or proceeding is not commenced by the Maker, the Maker shall fail to
obtain a dismissal, stay, or other nullification of such proceeding within
thirty (30) days after the institution of the proceedings; or
(c) The insolvency or the execution of an assignment for the benefit of
creditors, or the appointment of a receiver, trustee or custodian of the
property of the Maker and, if such appointment is not consented to by the Maker,
it shall not be revoked or dismissed in thirty (30) days.
The Holder hereof shall give notice to Maker prior to acceleration
following Maker's breach of any covenant or agreement set forth in this Note.
The notice shall specify: (a) the breach; (b) the action required to cure the
breach; (c) a date, not less than twenty (20) days from the date the notice is
given to Maker, by which the breach must be cured; and (d) that failure to cure
the breach on or before the date specified in the notice will constitute an
Event of Default under this Note, and may result in acceleration of the sums due
hereunder.
Maker further agrees that if this Note be placed in the hands of an
attorney for collection, or if this debt or any part thereof be collected by an
attorney or by legal proceedings of any kind, a reasonable attorney fee, besides
all costs and expenses incident upon such collection, shall be added to the
amount due upon this note, and be collectible as a part thereof.
Witness the hand and seal of each of the signers hereof.
OMNICALL, INC.
By: /s/ Xxxxx X. Xxxx
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President
And: /s/ Xxxxxx X. Xxxxxx
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Secretary
