EXHIBIT 10.6
AMENDED AND RESTATED
SECURITY AGREEMENT
(ACCOUNTS, GENERAL INTANGIBLES, INVENTORY, EQUIPMENT & OTHER COLLATERAL)
Dated as of April 29, 1998
This Amended and Restated Security Agreement (as modified from time to time, the
"Agreement") has been executed by ONEPOINT COMMUNICATIONS CORP., a Delaware
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corporation ("Debtor"), as debtor, in favor of THE NORTHERN TRUST COMPANY, an
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Illinois banking corporation, as secured party (together with any successor,
assign or subsequent holder, "Secured Party"), with its office at 000 Xxxx
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Xxxxxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000.
In consideration of Secured Party's making loans and extensions of credit
and/or considering making loans or extensions of credit to Debtor, and other
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Debtor agrees as follows:
1. DEFINITIONS. As used in this Agreement:
(a) Unless otherwise defined herein, all terms that are defined in the
Uniform Commercial Code of the State in which the main banking office of Secured
Party is located shall have the same meanings herein as in such Code.
(b) "Guarantor" means SBC Communications Inc., its successors and assigns.
(c) "Prime Rate" means that floating rate of interest per year announced
from time to time by Secured Party called its prime rate, which at any time may
not be the lowest rate charged by Secured Party, computed for the actual number
of days elapsed on the basis of a year of 360 days.
(d) "Subsidiary" means any corporation, partnership, joint venture, trust,
or other legal entity of which Debtor owns directly or indirectly 80% or more of
the outstanding voting stock or interest, or of which Debtor has effective
control, by contract or otherwise.
2. SECURITY INTEREST. Debtor hereby grants to Secured Party a continuing
security interest in, and assigns and transfers to Secured Party, all of
Debtor's right, title and interest in the following property or types of
property now owned by Debtor or hereafter created or acquired by Debtor,
wherever located (any or all of such, the "Collateral"):
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(a) All accounts (including without limitation all rights to payment for
services or the Inventory, however arising), leases, chattel paper, contract
rights, instruments, life insurance policies, and documents;
(b) All general intangibles (including without limitation inventions,
designs, patents, patent applications, service marks, trademarks, trade names,
copyrights, licenses, leasehold
interests, tax refund claims, guaranty claims, and security interests or other
security held by Debtor to secure accounts);
(c) All inventory, including without limitation returned and repossessed
goods, raw materials, and work in progress (the "Inventory");
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(d) All goods (other than Inventory), equipment, vehicles, leasehold
improvements, and fixtures, together with accessions thereto and replacement
parts therefor (the "Equipment");
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(e) All monies, accounts, deposits, and property now or at any time
hereafter in the possession or under the control of Secured Party or its bailee,
including that certain account of the Borrower Account No. 0000000 maintained at
the Secured Party and all cash, property maintained therein and proceeds
thereof; and
(f) All books and records, including without limitation customer lists,
credit files, computer programs, printouts, and other materials and records,
pertaining to any of the foregoing;
(g) All documents of title evidencing or issued with respect to any of the
foregoing; and
(h) All proceeds and products of all of the foregoing, including without
limitation proceeds of insurance policies insuring the foregoing.
3. LIABILITIES. The Collateral shall secure the payment and performance of
all obligations and liabilities of Debtor to Secured Party howsoever created,
evidenced or arising, whether direct or indirect, absolute or contingent, now
due or to become due, or now existing or hereafter arising, including without
limitation future advances, letters of credit issued for the account of or at
the request of Debtor as well as all agreements relating to any of the foregoing
(the "Liabilities").
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4. REPRESENTATIONS. Debtor hereby represents and warrants to Secured Party
that:
(a) Debtor and any Subsidiary are existing and in good standing under the
laws of their state of formation, are duly qualified, in good standing and
authorized to do business in each jurisdiction where failure to do so might have
a material adverse impact on the consolidated assets, condition or prospects of
Debtor; the execution, delivery and performance of this Agreement and all
related documents and instruments are within Debtor's powers and have been
authorized by all necessary corporate action.
(b) The execution, delivery and performance of this Agreement and all
related documents and instruments have received any and all necessary
governmental approval, and do not and will not contravene or conflict with any
provision of law or of the articles of incorporation or by-laws or similar
agreement of Debtor or any agreement affecting Debtor or its property.
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(c) There has been no material adverse change in the business, condition,
properties, assets, operations or prospects of Debtor or the Guarantor since the
date of the latest financial statements provided on behalf of Debtor or the
Guarantor to Secured Party.
(d) Debtor does not do business, nor has it done business during the five
(5) years and six months prior to the date of this Agreement, under any other
name except Ventures in Communications RMTS, LLC. and OnePoint Communications,
L.L.C.
(e) No financing statement, mortgage, notice of judgment, or any similar
instrument (unless filed on behalf of Secured Party) covering any of the
Collateral is on file in any public office.
(f) Debtor is the lawful owner of all Collateral, free and clear of all
liens, pledges, charges, mortgages, and claims other than any in favor of
Secured Party, except liens for current taxes not delinquent and the interest of
lessors in property leased to Debtor.
(g) All Collateral is located at Debtor's address for notices set forth
below or at the addresses set forth on Schedule A hereto, and is not in transit,
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except: (i) for goods covered by negotiable warehouse receipts that have been
delivered to Secured Party or (ii) as notified to Secured Party in compliance
herewith. All Collateral is of good and merchantable quality and free from any
defects that would affect its market value.
(h) All accounts receivable of Debtor are genuine, are in all respects
what they purport to be, are not evidenced by a judgment, and represent
undisputed, bona fide transactions completed or to be completed in accordance
with the terms and conditions of any document related thereto; none of the
Collateral has been sold or pledged to any other person or entity; and Debtor
has no knowledge of any fact or circumstance which would impair the validity or
collectibility of any of the Collateral.
(i) Debtor (and each shareholder of Debtor) has filed or caused to be
filed all federal, state, and local tax returns that are required to be filed,
and has paid or has caused to be paid all of its taxes, including without
limitation any taxes shown on such returns or on any assessment received by it
to the extent that such taxes have become due, except in the case of a
shareholder of Debtor only, where the failure to file such returns or pay such
taxes would not have a material adverse effect on the ability of the Debtor to
perform the Liabilities.
5. COVENANTS OF DEBTOR. Debtor agrees that so long as this Agreement remains
in effect, it will: (a) NOTIFY SECURED PARTY IN WRITING AT LEAST SIXTY (60)
DAYS IN ADVANCE OF ANY CHANGE WHATSOEVER IN THE NAME OF DEBTOR OR THE NAME(S)
UNDER WHICH DEBTOR CONDUCTS BUSINESS, ANY NEW NAMES UNDER WHICH DEBTOR INTENDS
TO DO BUSINESS, AND ANY NEW ADDRESSES AT OR FROM WHICH DEBTOR INTENDS TO DO
BUSINESS OR TO KEEP COLLATERAL OF ANY KIND. Debtor shall keep all Collateral
within one or more of the United States of America;
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(b) Provide and maintain insurance with respect to the Collateral and the
operation of Debtor's business, as reasonably required by Secured Party from
time to time; all such insurance shall be in such amounts and against such risks
as shall be reasonably satisfactory in all respects to Secured Party, with
Secured Party named as additional insured and loss payee;
(c) Defend the Collateral against the claims and demands of all persons
other than Secured Party and promptly pay all taxes, assessments, and charges
upon the Collateral, except for such taxes, assessments and charges which are
being contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with generally accepted accounting principles have been
reserved on the books of the Debtor; and not sign (or permit to be signed) any
financing statements or other documents creating or perfecting a lien upon or
security interest in any of the Collateral except in favor of Secured Party, or
otherwise create, suffer, or permit to exist any liens or security interests
upon any Collateral other than in favor of Secured Party, except tax liens,
provided that such liens are removed before related taxes become delinquent;
(d) Execute such financing statements and other documents (and pay the
cost of filing and recording the same in all public offices deemed necessary by
Secured Party) and do such other acts as Secured Party may request to establish
and maintain a valid and perfected security interest in the Collateral free and
clear of all other liens and claims, except tax liens, provided that such liens
are removed before related taxes become delinquent;
(e) Deliver to Secured Party any certificates or other documents of title
representing or issued with respect to any of the Collateral, with Secured
Party's security interest and lien endorsed thereon, and record such
certificates or documents with all appropriate regulatory agencies;
(f) Furnish to Secured Party, immediately upon the request of Secured
Party, any evidence of ownership of the Collateral, including without limitation
bills of sale, paid invoices, certificates of title, or applications for title;
(g) Keep at its address for notices set forth under or opposite its
signature hereto its records concerning the Collateral, which records shall be
of such character as will enable Secured Party to determine at any time the
status of the Collateral; furnish to Secured Party such information concerning
Debtor, the Collateral, and the account debtors as Secured Party may from time
to time reasonably request; and permit Secured Party from time to time to
inspect the Collateral and to inspect, audit, and make copies of, and extracts
from, all records and all other papers in the possession of Debtor pertaining to
the Collateral and the account debtors. Secured Party shall have the right at
any time or times to make direct verification with the account debtors of any
and all of the accounts;
(h) Keep and maintain the Collateral in good operating condition and
repair, and make all necessary replacements and renewals to the Collateral so
that the value and operating efficiency thereof shall at all times be maintained
and preserved;
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(i) Make appropriate entries upon its financial statements and its books
and records disclosing Secured Party's security interest in the Collateral;
(j) Provide to Secured Party from time to time such financial statements
of and other information concerning Debtor and any shareholder of Debtor,
including Ventures in Communications II, LLC ("VIC2") (audited, if requested by
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Secured Party) as Secured Party shall reasonably request;
(k) If at any time any of the Collateral shall be or become evidenced by
any instrument, note, or other document, immediately deliver such instrument,
note, or document to Secured Party, endorsed as requested by Secured Party;
(l) Immediately notify Secured Party of any material loss or depreciation
in the value of the Collateral; and
(m) Except to the extent specifically permitted in Section 6 of this
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Agreement, not sell, transfer, or otherwise dispose of any Collateral without
Secured Party's prior written consent.
6. USE OF THE INVENTORY. Until notice to the contrary is given by the Secured
Party, Debtor may use, consume, and sell Inventory in carrying on its business
in the ordinary course of business substantially in the same manner as now
conducted, but a sale in the ordinary course of business shall not include any
transfer or sale in satisfaction, partial or complete, of a debt owed by Debtor
or any shareholder.
7. COLLECTIONS.
(a) Until written notice to the contrary is given by Secured Party, Debtor
(i) shall collect the accounts for Secured Party at Debtor's own expense, and
(ii) may grant, in the ordinary course of business, to any party obligated on
any of the Collateral, any rebate, refund, or allowance to which such party may
be lawfully entitled and accept in connection therewith the return of any goods
the sale or lease of which shall have given rise to such accounts.
(b) At any time and from time to time, after the occurrence of an Event of
Default, Secured Party, at Debtor's expense, may or, upon request of Secured
Party, Debtor shall, notify any account debtors of the existence of this
Agreement and direct such account debtors to pay directly to Secured Party the
amounts due or to become due from such account debtors. Each account debtor so
notified and directed may accept the receipt of Secured Party for any such
payment as a full release of any amounts so paid.
(c) Secured Party may enforce collection of any or all of the Collateral
by suit or otherwise, and surrender, release, or exchange all or any part
thereof, or compromise or extend or renew for any period (whether or not longer
than the original period) any indebtedness thereunder.
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(d) Secured Party at any time may, and upon direction of Debtor or upon
the happening of an Event of Default shall, apply all payments received from
account debtors to the Liabilities when due (whether by acceleration or
otherwise) and may credit any balance after such payment to the account of
Debtor.
8. WARRANTY-FUTURE. The request or application by Debtor for any Liability
secured hereby shall be a representation and warranty by Debtor as of the date
of such request or application that: (i) no Event of Default or Unmatured Event
of Default (in each case as defined herein) has occurred or is continuing as of
such date; and (ii) Debtor's representations and warranties herein are true and
correct as of such date as though made on such date, except that Section 4(c)
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shall be deemed to refer to the then most recent financial statements furnished
to Secured Party.
9. EVENTS OF DEFAULT. The occurrence of any of the following shall constitute
an "Event of Default":
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(a) Failure to pay, when and as due, and subject to any applicable grace
period, any principal, interest or other amounts payable hereunder or in
connection with any of the Liabilities; or failure to comply with or perform any
agreement or covenant of Debtor contained herein, which failure shall continue
unremedied for a period of 10 days after the notice thereof from Secured Party
to Debtor; or
(b) Any default, event of default, or similar event shall occur or
continue (after the expiration of any applicable grace period) under any other
instrument, document, note, agreement, or guaranty delivered to Secured Party in
connection with this Agreement; or any such instrument, document, note,
agreement, or guaranty shall not be, or shall cease to be, enforceable in
accordance with its terms; or
(c) There shall occur any default or event of default, or any event or
condition that might become such with notice or the passage of time or both, or
any similar event, or any event that requires the prepayment of borrowed money
or the acceleration of the maturity thereof, under the terms of any evidence of
indebtedness or other agreement issued or assumed or entered into by Debtor, any
Subsidiary, Ventures in Communications, L.L.C. ("VIC"), VIC2 or VenCom L.L.C.
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("VenCom") in an aggregate amount in excess of $5,000,000, or the Guarantor, or
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under the terms of any indenture, agreement, or instrument under which any such
evidence of indebtedness or other agreement is issued, assumed, secured, or
guaranteed, and such event shall continue beyond any applicable period of grace;
or
(d) Any representation, warranty, schedule, certificate, financial
statement, report, notice, or other writing furnished by or on behalf of Debtor,
any Xxxxxxxxxx, XXX, XXX0, VenCom, or the Guarantor to Secured Party is false or
misleading in any material respect on the date as of which the facts therein set
forth are stated or certified; or
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(e) Any guaranty of or pledge of collateral security for the Liabilities,
including without limitation this Agreement, shall be repudiated or become
unenforceable or incapable of performance; or
(f) Debtor, any Subsidiary or the Guarantor shall fail to maintain their
existence in good standing in their state of formation or shall fail to be duly
qualified, in good standing and authorized to do business in each jurisdiction
where failure to do so might have a material adverse impact on the consolidated
assets, condition or prospects of Debtor; or
(g) Debtor, any Xxxxxxxxxx, XXX, XXX0, VenCom, or the Guarantor shall
dissolve, liquidate, merge, consolidate, or cease to be in existence for any
reason; or any member of VIC2 shall withdraw or notify VIC2 of its intention to
withdraw as a member of VIC2; or any member of VIC2 shall fail to make any
contribution required by the limited liability company agreement or operating
agreement of VIC2 as and when due under such agreement; or there shall be any
change in a limited liability company agreement or operating agreement of VIC2
from that in force on the date hereof which may have a material adverse impact
on the ability of Borrower to repay the Liabilities; or
(h) Any person or entity presently not in control of Xxxxxx, XXX0, VenCom,
or the Guarantor, shall obtain control directly or indirectly of Xxxxxx, XXX0,
VenCom or the Guarantor, whether by purchase or gift of stock or assets, by
contract, or otherwise; provided, however, that ownership of less than 20% of
the issued and outstanding shares of the Debtor by persons not owning shares of
the Debtor on the date hereof shall not constitute a change in control for
purposes of this clause (h); or
(i) Any proceeding (judicial or administrative) shall be commenced against
Debtor, any Xxxxxxxxxx, XXX, XXX0, VenCom, or the Guarantor, or with respect to
any assets of Debtor, any Xxxxxxxxxx, XXX, XXX0, VenCom or the Guarantor which
shall threaten to have a material and adverse effect on the assets, condition or
prospects of Debtor, any Xxxxxxxxxx, XXX, XXX0, VenCom, or the Guarantor; or
final judgment(s) and/or settlement(s) in an aggregate amount in excess of (i)
in the case of the Guarantor, TWENTY-FIVE MILLION UNITED STATES DOLLARS
($25,000,000), (ii) in the case of VIC, TEN MILLION UNITED STATES DOLLARS
($10,000,000), or (iii) in the case of the Debtor, any Subsidiary, VIC2 or
VenCom, ONE MILLION UNITED STATES DOLLARS ($1,000,000), in each case in excess
of insurance for which the insurer has confirmed coverage in writing, a copy of
which writing has been furnished to Secured Party, shall be entered or agreed to
in any suit or action; or
(j) Debtor shall grant or any person (other than Secured Party) shall
obtain a security interest in any of the Collateral; Debtor or any other person
shall perfect (or attempt to perfect) such a security interest; a court shall
determine that Secured Party does not have a first-priority security interest in
any of the Collateral enforceable in accordance with the terms hereof; or any
notice of a federal tax lien against Xxxxxx, XXX, XXX0 or VenCom in excess of
$1,000,000 shall be filed with any public recorder; or
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(k) There shall be any material loss or depreciation in the value of any
of the Collateral for any reason, or Secured Party shall otherwise reasonably
deem itself insecure; or, unless expressly permitted by this Agreement or the
related documents, all or any part of any of the Collateral or any direct,
indirect, legal, equitable or beneficial interest therein is assigned,
transferred or sold without Secured Party's prior written consent; or
(l) Any bankruptcy, insolvency, reorganization, arrangement, readjustment,
liquidation, dissolution, or similar proceeding, domestic or foreign, is
instituted by or against Debtor, any Xxxxxxxxxx, XXX, XXX0, VenCom, or any
Guarantor and any such involuntary proceeding is not dismissed within 60 days;
or Debtor, any Xxxxxxxxxx, XXX, XXX0, VenCom, or any Guarantor shall take any
steps toward, or to authorize, such a proceeding; or
(m) Debtor, any Xxxxxxxxxx, XXX, XXX0, VenCom, or any Guarantor shall
become insolvent, generally shall fail or be unable to pay its debts as they
mature, shall admit in writing its inability to pay its debts as they mature,
shall make a general assignment for the benefit of its creditors, shall enter
into any composition or similar agreement, or shall suspend the transaction of
all or a substantial portion of its usual business.
10. DEFAULT REMEDIES.
(a) Notwithstanding any provision of any document or instrument evidencing
or relating to any Liability: (i) upon the occurrence and during the continuance
of any Event of Default specified in Section 9(a)-(k), Secured Party at its
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option may declare the Liabilities immediately due and payable without notice or
demand of any kind; and (ii) upon the occurrence of any Event of Default
specified in Section 9(l)-(m), the Liabilities shall be immediately and
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automatically due and payable without action of any kind on the part of Secured
Party. Upon the occurrence and during the continuance of any Event of Default,
Secured Party may exercise any rights and remedies under this Agreement, any
related document or instrument (including without limitation any pertaining to
Collateral), and at law or in equity.
(b) If any Event of Default shall have occurred and be continuing, then,
in addition to having the right to exercise any rights and remedies of a secured
party upon default under the Uniform Commercial Code in effect in the State
where the main banking office of Secured Party and/or any Collateral is located,
Secured Party may, in its sole discretion, exercise any rights or powers set
forth in this Agreement. Secured Party may require Debtor to assemble the
Collateral and deliver it to a place designated by Secured Party. Without
limiting any other provision hereof, Debtor shall pay all related expenses,
including without limitation attorneys' fees and reasonable time charges of
attorneys of Secured Party in enforcing its rights hereunder. If any
notification of intended disposition of any of the Collateral is required by
law, such notification, if mailed, shall be deemed reasonably and properly given
if mailed at least ten days before such disposition, by certified mail, postage
prepaid, addressed to Debtor at the address of Debtor shown below. Secured Party
shall, in addition to and not in limitation of all rights of offset under
applicable law, have the right to appropriate and apply all of the Collateral in
its possession to payment of the Liabilities. Secured Party may proceed to sell
or otherwise dispose of the Collateral at public or private sale for cash or
credit; provided, however, that Debtor shall be
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credited with proceeds of such sale only when the proceeds are actually received
by Secured Party. Any proceeds of the Collateral may be applied by Secured Party
to the payment of expenses and costs to exercise of Secured Party's rights
hereunder, and any balance of such proceeds shall be applied toward the
Liabilities in such order as Secured Party shall determine in its sole
discretion. Any balance remaining shall be returned to Debtor.
(c) Secured Party may, by written notice to Debtor, at any time and from
time to time, waive any Event of Default or "Unmatured Event of Default" (as
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defined below), which shall be for such period and subject to such conditions as
shall be specified in any such notice. In the case of any such waiver, Secured
Party and Debtor shall be restored to their former position and rights
hereunder, and any Event of Default or Unmatured Event of Default so waived
shall be deemed to be cured and not continuing; but no such waiver shall extend
to or impair any subsequent or other Event of Default or Unmatured Event of
Default. No failure to exercise, and no delay in exercising, on the part of
Secured Party of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies of Secured Party herein provided are
cumulative and not exclusive of any rights or remedies provided by law.
"Unmatured Event of Default" means any event or condition which would become an
Event of Default with notice or the passage of time or both.
11. RIGHTS OF SECURED PARTY. Secured Party may, from time to time, at its
option (but shall have no duty to):
(a) Perform any agreement of Debtor hereunder that Debtor shall have
failed to perform;
(b) Take any other action which Secured Party deems necessary or desirable
for the preservation of the Collateral or Secured Party's interest therein and
the carrying out of this Agreement, including without limiting the generality of
the foregoing: (i) any action to collect or realize upon the Collateral; (ii)
the discharge of taxes, liens, security interests or other encumbrances at any
time levied or placed on the Collateral; (iii) the discharge or keeping current
of any obligation of Debtor having effect on the Collateral; or (iv) receiving,
endorsing and collecting all checks and other orders for the payment of money
made payable to Debtor representing any dividend, interest payment or other
distribution payable or distributable in respect of the Collateral or any part
thereof, and to give full discharge for the same; and
(c) File, or cause to be filed, photocopies or carbon copies of any
financing statement respecting any right of Secured Party in the Collateral, and
any such photocopy or carbon copy of the signature of Debtor on such photocopy
or carbon copy shall be deemed an original for purposes of such filing. Debtor
hereby authorizes Secured Party to sign financing statements on Debtor's behalf
to be filed in all jurisdictions in which such authorization is permitted.
Debtor hereby appoints Secured Party as Debtor's attorney in fact, which
appointment is and shall be deemed to be irrevocable and coupled with an
interest, for purposes of performing acts and signing and delivering any
agreement, document, or instrument, on behalf of Debtor in accordance with this
Section. Secured Party shall provide Debtor with reasonable advance notice
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of its intent to exercise the powers of attorney provided herein, except in the
event that an Event of Default shall have occurred. Debtor immediately will
reimburse Secured Party for all expenses so incurred by Secured Party, together
with interest thereon at 3% in addition to the Prime Rate.
12. FURTHER ASSURANCES. (a) Debtor agrees to do such further acts and things,
and to execute and deliver such additional conveyances, assignments, agreements,
and instruments, as Secured Party may at any time request in connection with the
administration or enforcement of this Agreement or related to the Collateral or
any part thereof or in order better to assure and confirm unto Secured Party its
rights, powers and remedies hereunder.
(b) No delay in enforcing payment of the Liabilities, nor any amendment,
waiver, change, or modification of any terms of any document or instrument which
evidences or is given in connection with the Liabilities, shall release Debtor
from any obligation hereunder. The obligations of Debtor under this Agreement
are and shall be primary, continuing, unconditional and absolute, irrespective
of the value, genuineness, regularity, validity or enforceability of any
documents or instruments respecting or evidencing the Liabilities. In order to
hold Debtor liable or exercise rights or remedies hereunder, there shall be no
obligation on the part of Secured Party, at any time, to resort for payment to
any Guarantor or to any other security for the Liabilities. Secured Party shall
have the right to enforce this Agreement irrespective of whether or not other
proceedings or steps are being taken against any other property securing the
Liabilities or any other party primarily or secondarily liable on any of the
Liabilities.
(c) Debtor irrevocably waives presentment, protest, demand, notice of
dishonor or default, and all demands and notices of any kind in connection with
this Agreement or the Liabilities.
13. NOTICES. All notices, requests and demands to or upon the respective
parties hereto shall be deemed to have been given or made when deposited in the
mail, postage prepaid, addressed if to Secured Party to The Northern Trust Bank,
000 X. Xxxxxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000 (Attention: Division Head,
Commercial Division), and if to Debtor to its address set forth below, or to
such other address as may be hereafter designated in writing by the respective
parties hereto or, as to Debtor, may appear in Secured Party's records.
14. MISCELLANEOUS. This Agreement and any document or instrument executed in
connection herewith shall be governed by and construed in accordance with the
internal law of the State of Illinois, and shall be deemed to have been executed
in such State. Unless the context requires otherwise, wherever used herein the
singular shall include the plural and vice versa. Captions herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof; references herein to Sections or provisions without reference
to the document in which they are contained are references to this Agreement.
This Agreement shall bind Debtor, its successors and assigns, and shall inure to
the benefit of Secured Party, its successors and assigns, except that Debtor may
not transfer or assign any of its rights or interest hereunder without the prior
written consent of Secured Party. Debtor agrees to pay upon demand all expenses
(including without limitation attorneys' fees, legal costs and expenses, and
time
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charges of attorneys in each case whether in or out of court, in original or
appellate proceedings or in bankruptcy) incurred or paid by Secured Party or any
holder hereof in connection with the enforcement or preservation of its rights
hereunder or under any document or instrument executed in connection herewith.
15. WAIVER OF JURY TRIAL, ETC. DEBTOR AND SECURED PARTY HEREBY IRREVOCABLY
AGREE THAT ALL SUITS, ACTIONS OR OTHER PROCEEDINGS WITH RESPECT TO, ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT OR INSTRUMENT EXECUTED
IN CONNECTION HEREWITH SHALL BE SUBJECT TO LITIGATION IN COURTS HAVING SITUS
WITHIN OR JURISDICTION OVER CHICAGO, ILLINOIS. DEBTOR HEREBY CONSENTS AND
SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED IN OR
HAVING JURISDICTION OVER SUCH CITY, AND HEREBY IRREVOCABLY WAIVES ANY RIGHT IT
MAY HAVE TO REQUEST OR DEMAND TRIAL BY JURY, TO TRANSFER OR CHANGE THE VENUE OF
ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY SECURED PARTY IN ACCORDANCE WITH
THIS PARAGRAPH, OR TO CLAIM THAT ANY SUCH PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
16. AMENDMENT AND RESTATEMENT. This Agreement amends and restates in its
entirety the Security Agreement dated as of March 25, 1998 of OnePoint
Communications, L.L.C. (the predecessor of Debtor) in favor of the Secured Party
("Prior Agreement") and nothing contained herein shall be construed to release,
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cancel, terminate or otherwise adversely affect all or any part of any lien or
security interest heretofore granted to Secured Party under the Prior Agreement
which has not been expressly released.
ONEPOINT COMMUNICATIONS CORP.
By: [SIGNATURE ILLEGIBLE]
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Title:________________________
Address for notices:
0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention:____________________
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SCHEDULE A
COLLATERAL LOCATIONS
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OnePoint Communications Corp. OnePoint Communications Corp.
Corporate Headquarters 0000 Xxxxxxxxx Xxx., XX
0000 Xxxxxxxx Xxxx, Xxxxx X-000 Xxxxx #000
Xxxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxxxx, X.X. 00000
OnePoint Communications Corp. OnePoint Communications Corp.
Two Point Royal 00000 X. Xxxxx Xxx.
0000 Xxxxx Xxxxx Xxxx. Xxxxx #000
Xxxxx #000 Xxxxxx, XX 00000-0000
Xxxxxxxxxx, XX 00000
OnePoint Communications Corp. OnePoint Communications Corp.
(temporary office space) 0000 Xxxxxxxxxx Xxxx
0000 X. 00xx Xx. Xxxxx #000
Xxxxx #000 Xxxxx, XX 00000
Xxxxxxx, XX 00000
EXHIBIT A
TO
FINANCING STATEMENT
OF
ONEPOINT COMMUNICATIONS CORP.
IN FAVOR OF
THE NORTHERN TRUST COMPANY
(CONSISTING OF ONE PAGE)
All of Debtor's right, title and interest in the following property or
types of property whether now existing or hereafter arising or acquired,
wherever located:
(a) All accounts (including without limitation all rights to payment for
services or the Inventory, however arising), leases, chattel paper, contract
rights, instruments, life insurance policies, and documents;
(b) All general intangibles (including without limitation inventions,
designs, patents, patent applications, service marks, trademarks, trade
names, copyrights, licenses, leasehold interests, tax refund claims, guaranty
claims, and security interests or other security held by Debtor to secure
accounts);
(c) All inventory, including without limitation returned and repossessed
goods, raw materials, and work in progress (the "Inventory");
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(d) All goods (other than Inventory), equipment, vehicles, leasehold
improvements, and fixtures, together with accessions thereto and replacement
parts therefor, but excluding property used exclusively for personal,
household, or family use (the "Equipment");
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(e) All monies, accounts, deposits, and property now or at any time
hereafter in the possession or under the control of Secured Party or its
bailee, including that certain account of Debtor Account No. 0000000
maintained at Secured Party and all cash, property maintained therein and
proceeds thereof;
(f) All books and records, including without limitation customer lists,
credit files, computer programs, printouts, and other materials and records,
pertaining to any of the foregoing;
(g) All documents of title evidencing or issued with respect to any of the
foregoing; and
(h) All proceeds and products of all of the foregoing, including without
limitation proceeds of insurance policies insuring the foregoing.
