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EXHIBIT 10.07
MASTER LOAN AND SECURITY AGREEMENT NO. 4390
DEBTOR: UNIVERSAL ACCESS, INC. SECURED PARTY: Charter Financial, Inc.
000 X. XXXXXXXXX XXXXX 000 Xxxxx Xxxxxx
XXXXXXX, XX 00000 Xxx Xxxx, XX 00000
In consideration of the mutual covenants set forth herein, the above named
Debtor and the above named Secured Party hereby enter into this Master Loan and
Security Agreement and agree to the terms and conditions set forth herein. Each
Loan Schedule which may be executed by Debtor and Secured Party from time to
time pursuant to this Master Loan and Security Agreement shall be deemed to be a
separate loan transaction incorporating all of the terms and conditions of this
Master Loan and Security Agreement. References in this Master Loan and Security
Agreement to "Agreement", "hereunder" and "herein" shall mean a Loan Schedule
which incorporates this Master Loan and Security Agreement.
1. LOAN SCHEDULES. Debtor shall evidence its agreement to enter into
each Agreement incorporating the terms hereof by executing and delivering to
Secured Party a Loan Schedule in the form annexed hereto as Exhibit 1. Debtor's
execution of a Loan Schedule shall obligate Debtor to make all of the payments
set forth in the Schedule of Obligations as set forth in the Loan Schedule. The
Loan Schedule shall set forth the amount of the Loan, the Term of the Loan, the
number of payments to be made and the amount and dates upon which such payments
are due. The Loan Schedule shall also set forth the Time Balance which means the
aggregate amount of all payments which are payable under the Agreement evidenced
by such Loan Schedule. Secured Party shall have no obligation to enter into or
accept any Loan Schedule and no Loan Schedule shall be binding upon Secured
Party until accepted by Secured Party which acceptance shall be evidenced only
by the execution of such Loan Schedule by Secured Party.
2. GRANT OF SECURITY INTEREST. Debtor hereby grants to Secured Party a
security interest in the personal property referred to and/or described in each
Loan Schedule (hereinafter with all renewals, substitutions and replacements and
all parts, repairs, improvements, additions and accessories incorporated therein
or affixed thereto referred to as the "Equipment"), together with any and all
proceeds thereof and any and all insurance policies and proceeds with respect
thereto.
3. OBLIGATIONS SECURED. The aforesaid security interest is granted by
Debtor as security for (a) the payment of the Time Balance (as set forth in the
Loan Schedule) and the payment and performance of all other indebtedness and
obligations now or hereafter owing by Debtor to Secured Party, of any and every
kind and description under the Agreement evidenced by such Loan Schedule, and
any and all renewals and extensions of the foregoing, and all interest, fees,
charges, expenses and attorneys' fees accruing or incurred in connection with
any of the foregoing (all of which Time Balance, indebtedness and obligations
are hereinafter referred to as the "Liabilities") and (b) the payment and
performance of all other indebtedness and obligations now or hereafter owing by
Debtor to Secured Party, of any and every kind and description, howsoever
arising or evidenced including without limitation those arising under other Loan
Schedules, (all of which indebtedness and obligations are hereinafter referred
to as the "Other Liabilities"). Subject to Paragraph 16, any nonpayment of any
installment or other amounts due hereunder shall result in the obligation on the
part of Debtor promptly to pay also an amount equal to five percent (5%), (or
the maximum rate permitted by law, whichever is less) of the installment or
other amounts overdue.
4. DISCLAIMER OF WARRANTIES. DEBTOR ACKNOWLEDGES THAT SECURED PARTY
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN RESPECT OF THE EQUIPMENT, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY
PARTICULAR PURPOSE. Secured Party shall not be liable to Debtor for any loss,
damage or expense of any kind or nature caused, directly or indirectly, by any
Equipment secured hereunder or the use or maintenance thereof or the failure of
operation thereof, or the repair, service or adjustment thereof, or by any delay
or failure to provide any such maintenance, repairs, service or adjustment, or
by any interruption of service or loss of use thereof or for any loss of
business howsoever caused. The Equipment shall be shipped directly to Debtor by
the supplier thereof and Debtor agrees to accept such delivery. No defect or
unfitness of the Equipment, nor any failure or delay on the part of the
manufacturer or the shipper of the Equipment to deliver the Equipment or any
part
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thereof to Debtor, shall relieve Debtor of the obligation to pay the Time
Balance or any other obligation under this Agreement. Secured Party shall have
no obligation under this Agreement in respect of the Equipment and shall have no
obligation to install, erect, test, adjust or service the Equipment. Secured
Party agrees, so long as there shall not have occurred or be continuing any
Event of Default hereunder or event which with lapse of time or notice, or both,
might become an Event of Default hereunder, that Secured Party will permit
Debtor to enforce in Debtor's own name at Debtor's sole expense any supplier's
or manufacturer's warranty or agreement in respect of the Equipment to the
extent that such warranty or agreement is assignable.
5. ASSIGNMENT. Any transaction evidenced by a Loan Schedule shall be
assignable by Secured Party, and by its assigns, without the consent of Debtor,
but Debtor shall not be obligated to any assignee except upon written notice of
such assignment from Secured Party or such assignee. The obligation of Debtor to
pay and perform the Liabilities to such assignee shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever, and such
payments shall be made without interruption or abatement notwithstanding any
event or circumstance whatsoever, including, without limitation, the late
delivery, non-delivery, destruction or damage of or to the Equipment, the
deprivation or limitation of the use of the Equipment, the bankruptcy or
insolvency of Secured Party or Debtor or any disaffirmance of this Agreement by
or on behalf of Debtor and notwithstanding any defense, set-off, recoupment or
counterclaim or any other right whatsoever, whether by reason of breach of this
Agreement or of any warranty in respect of the Equipment or otherwise which
Debtor may now or hereafter have against Secured Party, and whether any such
event shall be by reason of any act or omission of Secured Party (including,
without limitation, any negligence of Secured Party) or otherwise; provided,
however, that nothing herein contained shall affect any right of Debtor to
enforce against Secured Party any claim which Debtor may have against Secured
Party in any manner other than by abatement, attachment or recoupment of,
interference with, or set-off, counterclaim or defense against, the
aforementioned payments to be made to such assignee. Debtor's undertaking herein
to pay and perform the Liabilities to an assignee of Secured Party shall
constitute a direct, independent and unconditional obligation of Debtor to said
assignee. Said assignee shall have no obligations under this Agreement or in
respect of the Equipment and shall have no obligation to install, erect, test,
adjust or service the Equipment. Debtor also acknowledges and agrees that any
assignee of Secured Party's interest in this Agreement shall have the right to
exercise all rights, privileges and remedies (either in its own name or in the
name of Secured Party) which by the terms of this Agreement are permitted to be
exercised by Secured Party.
6. DAMAGE TO OR LOSS OF THE EQUIPMENT; REQUISITION. Debtor assumes and
shall bear the entire risk of loss or damage to the Equipment from any and every
cause, whatsoever. No loss or damage to the Equipment or any part thereof shall
affect any obligation of Debtor with respect to the Liabilities and this
Agreement, which shall continue in full force and effect. Debtor shall advise
Secured Party in writing promptly of any item of Equipment lost or damaged and
of the circumstances and extent of such damage. If the Equipment is totally
destroyed, irreparably damaged, lost, stolen or title thereto shall be
requisitioned or taken by any governmental authority under the power of eminent
domain or otherwise, Debtor shall, at the option of Secured Party, replace the
same with like equipment in good repair, condition and working order, or pay to
Secured Party all Liabilities due and to become due, less the net amount of the
recovery, if any, actually received by Secured Party from insurance or otherwise
for such destruction, damage, loss, theft, requisition or taking. Whenever the
Equipment is destroyed or damaged and, in the sole discretion of Secured Party,
such destruction or damage can be repaired, Debtor shall, at its expense,
promptly effect such repairs as Secured Party shall deem necessary for
compliance with clause (a) of paragraph 8 below. Any proceeds of insurance
received by Secured Party with respect to such reparable damage to the Equipment
shall, at the election of Secured Party, be applied either to the repair of the
Equipment by payment by Secured Party directly to the party completing the
repairs, or to the reimbursement of Debtor for the cost of such repairs;
provided, however, that Secured Party shall have no obligation to make such
payment or any part thereof until receipt of such evidence as Secured Party
shall deem satisfactory that such repairs have been completed and further
provided that Secured Party may apply such proceeds to the payment of any of the
Liabilities or the Other Liabilities due if at the time such proceeds are
received by Secured Party there shall have occurred and be continuing any Event
of Default hereunder or any event which with lapse of time or notice, or both,
would become an Event of Default. Debtor shall, when and as requested by Secured
Party, undertake, by litigation or otherwise, in Debtor's name, the collection
of any claim against any person for such destruction, damage, loss, theft,
requisition or taking, but Secured Party shall not be obligated to undertake, by
litigation or otherwise, the collection of any claim against any person for such
destruction, damage, loss, theft, requisition
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or taking.
7. REPRESENTATIONS AND WARRANTIES OF DEBTOR. Debtor represents and
warrants that: it has the right, power and authority to enter into and carry out
the terms and provisions of this Agreement; this Agreement constitutes a valid
obligation of the Debtor and is enforceable in accordance with its terms; and
entering into this Agreement and carrying out its terms and provisions will not
violate the terms or constitute a breach of any other agreement to which Debtor
is a party.
8. AFFIRMATIVE COVENANTS OF DEBTOR. Debtor shall (a) cause the Equipment
to be kept in good condition and use the Equipment only in the manner for which
it was designed and intended so as to subject it only to ordinary wear and tear
and cause to be made all needed and proper repairs, renewals and replacements
thereto; (b) maintain at all times property damage, fire, theft and
comprehensive insurance for the full replacement value of the Equipment, with
loss payable provisions in favor of Secured Party and any assignee of Secured
Party as their interests may appear, and maintain public liability insurance in
amounts satisfactory to Secured Party, naming Secured Party and any assignee of
Secured Party as insureds with all of said insurance and loss payable provisions
to be in form, substance and amount and written by companies approved by Secured
Party, and deliver the policies therefor, or duplicates thereof, to Secured
Party; (c) pay or reimburse Secured Party for any and all taxes, assessments and
other governmental charges of whatever kind or character, however designated
(together with any penalties, fines or interest thereon) levied or based upon or
with respect to the Equipment, the Liabilities or this Agreement or upon the
manufacture, purchase, ownership, delivery, possession, use, storage, operation,
maintenance, repair, return or other disposition of the Equipment, or upon any
receipts or earnings arising therefrom, or for titling or registering the
Equipment, or upon the income or other proceeds received with respect to the
Equipment or this Agreement provided, however, that Debtor shall pay taxes on or
measured by the net income of Secured Party and franchise taxes of Secured Party
only to the extent that such net income taxes or franchise taxes are levied or
assessed in lieu of any other taxes, assessments or other governmental charges
hereinabove described; (d) pay all shipping and delivery charges and other
expenses incurred in connection with the Equipment and pay all lawful claims,
whether for labor, materials, supplies, rents or services, which might or could
if unpaid become a lien on the Equipment; (e) comply with all governmental laws,
regulations, requirements and rules, all instructions and warranty requirements
of Secured Party or the manufacturer of the Equipment, and with the conditions
and requirements of all policies of insurance with respect to the Equipment and
this Agreement; (f) xxxx and identify the Equipment with all information and in
such manner as Secured Party may request from time to time and replace promptly
any such marking or identification which are removed, defaced or destroyed; (g)
at any and all times during business hours, grant to Secured Party free access
to enter upon the premises wherein the Equipment shall be located and permit
Secured Party to inspect the Equipment; (h) reimburse Secured Party for all
charges, costs and expenses (including attorneys' fees) incurred by Secured
Party in defending or protecting its interests in the Equipment, in the
attempted enforcement or enforcement of the provisions of this Agreement or in
the attempted collection or collection of any of the Liabilities; (i) indemnify
and hold any assignee of Secured Party, and Secured Party, harmless from and
against all claims, losses, liabilities, damages, judgments, suits, and all
legal proceedings, and any and all costs and expenses in connection therewith
(including attorneys' fees) arising out of or in any manner connected with the
manufacture, purchase, ownership, delivery, possession, use, storage, operation,
maintenance, repair, return or other disposition of the Equipment or with this
Agreement, including, without limitation, claims for injury to or death of
persons and for damage to property, and give Secured Party prompt notice of any
such claim or liability; and (j) maintain a system of accounts established and
administered in accordance with generally accepted accounting principles and
practices consistently applied, and, within thirty (30) days after the end of
each fiscal quarter, deliver to Secured Party a balance sheet as at the end of
such quarter and statement of operations for such quarter, and, within one
hundred and twenty (120) days after the end of each fiscal year, deliver to
Secured Party a balance sheet as at the end of such year and statement of
operations for such year, in each case prepared in accordance with generally
accepted accounting principles and practices consistently applied and certified
by Debtor's chief financial officer as fairly presenting the financial position
and results of operation of Debtor, and, in the case of year end financial
statements, certified by an independent accounting firm acceptable to Secured
Party.
9. NEGATIVE COVENANTS OF DEBTOR. Debtor shall not (a) create, incur,
assume or suffer to exist any mortgage, lien, pledge or other encumbrance or
attachment of any kind whatsoever upon, affecting or with
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respect to the Equipment or this Agreement or any of Debtor's interests
hereunder; (b) make any changes or alterations in or to the Equipment except as
necessary for compliance with clause (a) of paragraph 8 above; (c) permit the
name of any person, association or corporation other than Secured Party to be
placed on the Equipment as a designation that might be interpreted as a claim of
interest in the Equipment; (d) part with possession or control of or suffer or
allow to pass out of its possession or control any of the Equipment or change
the location of the Equipment or any part thereof from the location shown above;
(e) assign or in any way dispose of all or any part of its rights or obligations
under this Agreement or enter into any lease of all or any part of the
Equipment; (f) change its name or address from that set forth above unless it
shall have given Secured Party no less than thirty (30) days prior written
notice thereof; (g) sell any shares of its capital stock or transfer any
ownership interest in the Debtor to any person, persons, entity or entities
(whether in one single transaction or in multiple transactions) which results in
a transfer of a majority interest in the ownership and/or the control of the
Debtor from the person, persons, entity or entities who hold ownership and/or
control of the Debtor as of the date of this Agreement; or (h) consolidate with
or merge into or with any other entity, or purchase or otherwise acquire all or
substantially all of the assets or stock or other ownership interest of any
person or entity or sell, transfer, lease or otherwise dispose of all or
substantially all of Debtor's assets to any person or entity.
10. EQUIPMENT PERSONALTY. The Equipment is, and shall at all times be
and remain, personal property notwithstanding that the Equipment or any part
thereof may now be, or hereafter become, in any manner affixed or attached to,
or imbedded in, or permanently resting upon, real property or attached in any
manner to real property by cement, plaster, nails, bolts, screws or otherwise.
If requested by Secured Party with respect to any item of Equipment, Debtor will
obtain and deliver to Secured Party waivers of interest or liens in recordable
form, satisfactory to Secured Party, from all persons claiming any interest in
the real property on which such item of Equipment is installed or located.
11. EVENTS OF DEFAULT AND REMEDIES. If any one or more of the following
events ("Events of Default") shall occur:
(a) Debtor shall fail to make any payment in respect of the Liabilities
when due; or
(b) any certification, statement, representation, warranty or financial
report or statement heretofore or hereafter furnished by or on behalf of Debtor
or any guarantor of any or all of the Liabilities proves to have been false in
any material respect at the time as of which the facts therein set forth were
stated or certified or has omitted any material contingent or unliquidated
liability or claim against Debtor or any such guarantor; or
(c) Debtor or any guarantor of any or all of the Liabilities shall fail
to perform or observe any covenant, condition or agreement to be performed or
observed by it hereunder or under any guaranty agreement; or
(d) Debtor or any guarantor of any or all of the Liabilities shall be in
breach of or in default in the payment and performance of any obligation
relating to any of the Other Liabilities; or
(e) Debtor or any guarantor of any of Debtor's obligations hereunder
shall be in breach of or in default in the payment or performance of any
obligation owing to any bank, lender, lessor or financial institution, howsoever
arising, present or future, contracted for or acquired, and whether joint,
several, absolute, contingent, secured, unsecured, matured or unmatured; or
(f) Debtor or any guarantor of any or all of the Liabilities shall cease
doing business as a going concern, make an assignment for the benefit of
creditors, admit in writing its inability to pay its debts as they become due,
file a petition commencing a voluntary case under any chapter of Title 11 of the
United States Code entitled "Bankruptcy" (the "Bankruptcy Code"), be adjudicated
an insolvent, file a petition seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
arrangement under any present or future statute, law, rule or regulation or file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, consent to the filing of such a petition or acquiescence in
the appointment of a trustee, receiver or liquidator of it or of all or any part
of its assets or properties, or take any action looking to its dissolution or
liquidation; or
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(g) an order for relief against Debtor or any guarantor of any or all of
the Liabilities shall have been entered under any chapter of the Bankruptcy Code
or a decree or order by a court having jurisdiction in the premises shall have
been entered approving as properly filed a petition seeking reorganization,
arrangement, readjustment, liquidation, dissolution or similar relief against
Debtor or any guarantor of any or all of the Liabilities under any present or
future statute, law, rule or regulation, or within thirty (30) days after the
appointment without Debtor's or such guarantor's consent or acquiescence of any
trustee, receiver or liquidator of it or such guarantor or of all or any part of
its or such guarantor's assets and properties, such appointment shall not be
vacated, or an order, judgment or decree shall be entered against Debtor or such
guarantor by a court of competent jurisdiction and shall continue in effect for
any period of ten (10) consecutive days without a stay of execution, or any
execution or writ or process shall be issued under any action or proceeding
against Debtor whereby the Equipment or its use may be taken or restrained; or
(h) Debtor or any guarantor of any or all of the Liabilities shall
suffer an adverse material change in its financial condition as compared to such
condition as at the date hereof, and as a result of such change in condition
Secured Party deems itself or any of the Equipment to be insecure;
then and in any such event, Secured Party may, at the sole discretion of Secured
Party, without notice or demand and without limitation of any rights and
remedies of Secured Party under the Uniform Commercial Code, take any one or
more of the following steps:
(1) Declare all of the Time Balance to be due and payable, whereupon the
same shall forthwith mature and become due and payable as provided for in
paragraph 16 below, provided, however, upon the occurrence of any of the events
specified in subparagraphs (f) and (g) above, all sums as specified in this
clause (1) shall immediately be due and payable without notice to Debtor (the
date on which Secured Party declares all of the Time Balance to be due and
payable is hereinafter referred to as the "Declaration Date");
(2) proceed to protect and enforce its rights by suit in equity, action
at law or other appropriate proceedings, whether for the specific performance of
any agreement contained herein, or for an injunction against a violation of any
of the terms hereof, or in aid of the exercise of any other right, power or
remedy granted hereby or by law, equity or otherwise; and
(3) at any time and from time to time, with or without judicial process
and the aid or assistance of others, enter upon any premises wherein any of the
Equipment may be located and, without resistance or interference by Debtor, take
possession of the Equipment on any such premises, and require Debtor to assemble
and make available to Secured Party at the expense of Debtor any part or all of
the Equipment at any place or time designated by Secured Party; and remove any
part or all of the Equipment from any premises wherein the same may be located
for the purpose of effecting the sale or other disposition thereof; and sell,
resell, lease, assign and deliver, grant options for or otherwise dispose of any
or all of the Equipment in its then condition or following any commercially
reasonable preparation or processing, at public or private sale or proceedings,
by one or more contracts, in one or more parcels, at the same or different
times, with or without having the Equipment at the place of sale or other
disposition, for cash and/or credit, and upon any terms, at such place(s) and
time(s) and to such persons, firms or corporations as Secured Party shall deem
best, all without demand for performance or any notice or advertisement
whatsoever, except that Debtor shall be given five (5) business days' written
notice of the place and time of any public sale or of the time after which any
private sale or other intended disposition is to be made, which notice Debtor
hereby agrees shall be deemed reasonable notice thereof. If any of the Equipment
is sold by Secured Party upon credit or for future delivery, Secured Party shall
not be liable for the failure of the purchaser to pay for same and in such event
Secured Party may resell such Equipment. Secured Party may buy any part or all
of the Equipment at any public sale and if any part or all of the Equipment is
of a type customarily sold in a recognized market or which is the subject of
widely distributed standard price quotations Secured Party may buy at private
sale and may make payment therefor by application of all or a part of the
Liabilities and of all or a part of any Other Liabilities. Any personalty in or
attached to the Equipment when repossessed may be held by Secured Party without
any liability arising with respect thereto, and any and all claims in connection
with such personalty shall be deemed to have been waived unless notice of such
claim is made by certified or registered mail upon Secured Party within three
business days after repossession.
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Secured Party shall apply the cash proceeds from any sale or other disposition
of the Equipment first, to the reasonable expenses of re-taking, holding,
preparing for sale, selling, leasing and the like, and to reasonable attorneys'
fees and other expenses which are to be paid or reimbursed to Secured Party
pursuant hereto, and second, to all outstanding portions of the Liabilities and
to any Other Liabilities in such order as Secured Party may elect, and third,
any surplus to Debtor, subject to any duty of Secured Party imposed by law to
the holder of any subordinate security interest in the Equipment known to
Secured Party; provided however, that Debtor shall remain liable with respect to
unpaid portions of the Liabilities owing by it and will pay Secured Party on
demand any deficiency remaining with interest as provided for in paragraph 16
below.
12. SECURED PARTY'S RIGHT TO PERFORM FOR DEBTOR. If Debtor fails to
perform or comply with any of its agreements contained herein Secured Party may
perform or comply with such agreement and the amount of any payments and
expenses incurred by Secured Party in connection with such performance or
compliance, together with interest thereon at the rate provided for in paragraph
16 below, shall be deemed a part of the Liabilities and shall be payable by
Debtor upon demand.
13. FURTHER ASSURANCES. Debtor will cooperate with Secured Party for the
purpose of protecting the interests of Secured Party in the Equipment,
including, without limitation, the execution of all Uniform Commercial Code
financing statements requested by Secured Party. Secured Party and any assignee
of Secured Party are each authorized to the extent permitted by applicable law
to file one or more Uniform Commercial Code financing statements disclosing any
security interest in the Equipment without the signature of Debtor or signed by
Secured Party or any assignee of Secured Party as attorney-in-fact for Debtor.
Debtor will pay all costs of filing any financing, continuation or termination
statements with respect to this Agreement, including, without limitation, any
documentary stamp taxes relating thereto. Debtor will do whatever may be
necessary to have a statement of the interest of Secured Party and of any
assignee of Secured Party in the Equipment noted on any certificate of title
relating to the Equipment and will deposit said certificate with Secured Party
or such assignee. Debtor shall execute and deliver to Secured Party, upon
request, such other instruments and assurances as Secured Party deems necessary
or advisable for the implementation, effectuation, confirmation or perfection of
this Agreement and any rights of Secured Party hereunder.
14. NON-WAIVER; ETC. No course of dealing by Secured Party or Debtor or
any delay or omission on the part of Secured Party in exercising any rights
hereunder shall operate as a waiver of any rights of Secured Party. No waiver or
consent shall be binding upon Secured Party unless it is in writing and signed
by Secured Party. A waiver on any one occasion shall not be construed as a bar
to or a waiver of any right and/or remedy on any future occasion. To the extent
permitted by applicable law, Debtor hereby waives the benefit and advantage of,
and covenants not to assert against Secured Party, any valuation, inquisition,
stay, appraisement, extension or redemption laws now existing or which may
hereafter exist which, but for this provision, might be applicable to any sale
or other disposition made under the judgment, order or decree of any court or
under the powers of sale and other disposition conferred by this Agreement or
otherwise. Debtor hereby waives any right to a jury trial with respect to any
matter arising under or in connection with this Agreement.
15. ENTIRE AGREEMENT; SEVERABILITY; ETC. This Agreement constitutes the
entire agreement between Secured Party and Debtor and all conversations,
agreements and representations relating to this Agreement or to the Equipment
are integrated herein. If any provision hereof or any remedy herein provided for
shall be invalid under any applicable law, such provision or remedy shall be
inapplicable and deemed omitted, but the remaining provisions and remedies
hereunder shall be given effect in accordance with the intent hereof. Neither
this Agreement nor any term hereof may be changed, discharged, terminated or
waived except in an instrument in writing signed by the party against which
enforcement of the change, discharge, termination or waiver is sought. This
Agreement shall in all respects be governed by and construed in accordance with
the internal laws of the State of New York, including all matters of
construction, validity and performance, and shall be deemed a purchase money
security agreement within the meaning of the Uniform Commercial Code. The
captions in this Agreement are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof. This Agreement shall
inure to the benefit of and be binding upon Secured Party and Debtor and their
respective successors and assigns, subject, however, to the limitations set
forth in this Agreement with respect to Debtor's assignment hereof. No right or
remedy referred to in this Agreement is intended to be exclusive but each shall
be cumulative and in addition to any other right or remedy referred to in
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this Agreement or otherwise available to Secured Party at law or in equity, and
shall be in addition to the provisions contained in any instrument referred to
herein and any instrument supplemental hereto. Debtor shall be liable for all
costs and expenses, including attorneys' fees and disbursements, incurred by
reason of the occurrence of any Event of Default or the exercise of Secured
Party's remedies with respect thereto. Time is of the essence with respect to
this Agreement and all of its provision.
16. PREPAYMENT; REBATE; INTEREST. Except for the installment payments of
the Time Balance as set forth in the Schedule of Obligations, the Debtor may not
prepay the Time Balance, in whole or in part, at any time. In the event Secured
Party declares all of the Time Balance to be due and payable pursuant to clause
(1) of paragraph 11 above, Debtor shall pay to Secured Party an amount equal to
the sum of (a) all accrued and unpaid amounts as of the Declaration Date plus
interest thereon, and (b) the present value of all future installments set forth
in this Agreement over the remaining unexpired term of this Agreement discounted
to present value using a discount rate of four percent (4%), provided that the
amount of interest earned by Secured Party computed as aforesaid shall not
exceed the highest amount permitted by applicable law. The Time Balance as
reduced to present value in accordance with the preceding sentence shall bear
interest from and after the Declaration Date, and all other Liabilities due and
payable under this Agreement (including past due installments) shall bear
interest from and after their respective due dates, at the lesser of 1.5% per
month or the highest rate permitted by applicable law, provided, however, that
Debtor shall have no obligation to pay any interest on interest except to the
extent permitted by applicable law.
17. CONSENT TO JURISDICTION. Debtor hereby irrevocably consents to the
jurisdiction of the courts of the State of New York and of any federal court
located in such state in connection with any action or proceeding arising out of
or relating to this Agreement or the transactions contemplated hereby. Any such
action or proceeding will be maintained in the United States District Court for
the Southern District of New York or in any court of the State of New York
located in the County of New York and Debtor waives any objections based upon
venue or forum non conveniens in connection with any such action or proceeding.
Debtor consents that process in any such action or proceeding may be served upon
it by registered mail directed to Debtor at its address set forth at the head of
this Agreement or in any other manner permitted by applicable law or rules of
court. Debtor hereby irrevocably appoints Secretary of State of the State of New
York as its agent to receive service of process in any such action or
proceeding.
18. NOTICES. Notice hereunder shall be deemed given if served personally
or by certified or registered mail, return receipt requested, to Secured Party
and Debtor at their respective addresses set forth at the head of this
Agreement. Any party hereto may from to time by written notice to the other
change the address to which notices are to be sent to such party. A copy of any
notice sent by Debtor to Secured Party shall be concurrently sent by Debtor to
any assignee of Secured Party of which Debtor has notice.
The Debtor agrees to all the provisions set forth above. This Agreement
is executed pursuant to due authorization. DEBTOR ACKNOWLEDGES RECEIPT OF A
SIGNED TRUE COPY OF THIS AGREEMENT.
Date 12-15, 1999 Accepted on 12-15, 1999
UNIVERSAL ACCESS, INC. CHARTER FINANCIAL, INC.
----------------------------------- ------------------------------------
(Debtor) (Secured Party)
By /s/ XXXXXX XXXXX By /s/ [SIGNATURE ILLEGIBLE]
--------------------------------- ----------------------------------
Its Vice President Finance Its Vice President
-------------------------------- ---------------------------------
(if Corporation, President or Vice (Title of Officer)
President should sign and give official
title; if Partnership, state partner;
if L.L.C., state member or manger)
Main Document - Master Loan and Security Agreement
8
RIDER TO MASTER LOAN AND SECURITY AGREEMENT NO. 4390
(THE "AGREEMENT") BETWEEN CHARTER FINANCIAL, INC.
AS SECURED PARTY ("SECURED PARTY") AND
UNIVERSAL ACCESS, INC. AS DEBTOR ("DEBTOR")
Secured Party and Debtor covenant and agree to amend the Agreement as follows:
1. In the seventh line of Section 8 (i) of the Agreement, after the words
"damage to property", add the words "(except for any claims, losses,
liabilities, damages, judgments, suits, proceedings, costs or expenses to
the extent arising from the gross negligence or willful misconduct of
Secured Party or its assignees)".
2. In the third line of Section 8 (j) of the Agreement, change "thirty (30)"
to "forty-five (45)".
3. In the third line of Section 9 (d) of the Agreement, delete the word
"above" and insert instead "on the applicable Loan Schedule".
4. In the first line of Section 9 (g) of the Agreement, before the words "sell
any shares", insert the words "without Secured Party's prior written
consent," and in the fifth line of Section 9 (g), after the words "of this
Agreement", insert the words ", except that Debtor may conduct a public
offering(s) of shares of capital stock in Debtor without Secured Party's
prior written consent".
5. In the first line of Section 9 (h) of the Agreement, before the words
"consolidate with or merge" insert the words "without Secured Party's prior
written consent,".
6. At the end of the fourth line of Section 9 (h) of the Agreement, add the
following provision, "With respect to the consent provisions under both
Sections 9 (g) and 9 (h) of this Agreement, Secured Party shall, in its
reasonable discretion, review and consider whether (i) Secured Party is
satisfied as to the creditworthiness of the successor entity and as to such
successor's conformance to the other standard criteria then used by Secured
Party for such purposes, and (ii) such successor entity is willing to
execute and deliver to Secured Party an agreement satisfactory in form and
substance to Secured Party, in its reasonable discretion, containing the
successor entity's effective assumption of all obligations of the Debtor
under the Agreement and all Loan Schedules thereunder. In the event that
Secured Party does not give such consent, the Debtor may prepay its
obligations under all of the Loan Schedules under the Agreement at the
closing of the transaction for which Debtor sought Secured Party's consent
by paying to Secured Party the sum of (x) any accrued and unpaid
installments due under each of the Loan Schedules under the Agreement,
together with interest thereon (if any) in accordance with the Agreement;
(y) the then present value of all remaining installments due under each of
the Loan Schedules of the Agreement, computed using a discount rate of six
percent (6%); and (z) any and all other amounts whatsoever due and owing to
Secured Party in accordance with the Agreement.
7. In the first line of Section 11 (a) of the Agreement, after the words "of
the Liabilities", add the words "within five (5) days of".
8. In the second line of Section 11 (c) of the Agreement, after the words "any
guaranty agreement", insert the words "ten (10) days after notice from
Secured Party of such failure".
9. In the second line of Section 11 (d) of the Agreement, after the words
"Other Liabilities",
1
9
insert the words "and such default is not cured within the time, if any,
specified therefor in any agreement governing the same".
10. In the second line of Section 11 (e) of the Agreement, after the words "any
obligation", insert the words "in excess of the aggregate of $100,000" and
in the fourth line of Section 11 (e) of the Agreement, after the word
"unmatured", add the words "and such default is declared and is not cured
within the time, if any, specified therefor in any agreement governing the
same".
11. In fifth line of Section 11 (g) of the Agreement, delete the words "or
within thirty (30)", insert instead the words ", except that if such order
results from an involuntary petition against Debtor or any guarantor, then
it shall not be an Event of Default until the expiration of thirty (30)
days after the filing of such involuntary proceeding, if such proceeding
remains pending or within forty-five (45)".
12. In the ninth line of Section 11 (g) of the Agreement, delete the words "ten
(10)" and insert instead "fifteen (15)" and in the eleventh line of such
section, after the words "or restrained", delete the word "or" and insert
instead the words ", unless such execution, writ or process is stayed or
discharged within fifteen (15) days"
13. Delete Section 11 (h) of the Agreement in its entirety.
14. In the eighteenth line of Section 15 of the Agreement, after the words
"expenses, including", insert the word "reasonable".
UNIVERSAL ACCESS, INC. CHARTER FINANCIAL, INC.
By: /s/ XXXXXX XXXXX By: [SIGNATURE ILLEGIBLE]
-------------------------------- ---------------------------------
Title: Vice President Finance Title: Vice President
----------------------------- ------------------------------
Date: 12-15-99 Date: 12-15-99
------------------------------ -------------------------------
10
RIDER TO MASTER LOAN AND SECURITY AGREEMENT NO. 4390
DATED 12-15-99, (THE "AGREEMENT") BY AND BETWEEN
UNIVERSAL ACCESS, INC. AS DEBTOR ("DEBTOR") AND
CHARTER FINANCIAL, INC. AS SECURED PARTY ("SECURED PARTY")
Debtor and Secured Party covenant and agree as follows:
1. Debtor shall remain in compliance with the following provisions at all times
during the term of the Agreement or any Loan Schedule thereunder:
(i) there shall be no material adverse change in the Debtor's
financial condition as compared to the Debtor's financial
projections dated November 1, 1999, a copy of which is annexed
hereto as exhibit 1; and
(ii) Debtor's total Unrestricted Cash shall at no time be less than
$15,000,000.
As used herein:
Unrestricted Cash means the minimum cash balance on Debtor's balance
sheet in the form of cash or marketable securities traded on a
recognized market which has not been pledged, encumbered, restricted or
otherwise assigned to or by any third party.
All other accounting terms not defined herein shall have the meanings
ascribed to them according to Generally Accepted Accounting Principles
consistently applied ("GAAP").
2. Notwithstanding anything to the contrary contained herein, in the event that
Debtor completes a public offering(s) of shares of capital stock in the Debtor
and raises an aggregate of at least $100,000,000 in new equity through such
offering(s), Debtor shall not be required to remain in compliance with the
covenant contained in Section 1 (i) hereinabove for the remaining term of the
Agreement or any Loan Schedule hereunder. In such event, all of the remaining
terms and conditions of this Rider, including without limitation Section 1 (ii)
hereinabove, shall remain in full force and effect for the remainder of such
term.
3. Debtor shall be in compliance with each of the covenants under this Rider at
all times during the term of the Agreement or any Loan Schedule thereunder. In
order to enable Secured Party to review Debtor's compliance, Debtor shall (a)
within ten (10) days of the end of each month, provide Secured Party with a
certification of its chief financial officer stating that Debtor has complied
with each of the covenants contained in this Rider, and (b) within twenty (20)
days of the end of each month, provide Secured Party with an internally prepared
balance sheet, a profit and loss statement and a statement of cash flows for
such month.
4. The failure of Debtor to conform or comply with the terms, conditions and
covenants of this Rider shall constitute an "Event of Default" under the
Agreement. In the event that Debtor fails to be in compliance with any of the
provisions set forth hereinabove, Debtor shall cure the Event of Default
resulting from such failure by delivering to Secured Party within two (2)
business days an irrevocable standby letter of credit issued by a recognized
financial institution acceptable to Secured Party in an amount equal to the sum
of the present value of the then remaining payments
1
11
due under the Agreement during the remaining term thereof, discounted at a rate
equal to four percent (4%), which letter of credit shall be substantially in the
form annexed hereto as exhibit 3 (the "LC"). Once an LC is required under this
Section 3, it shall be an Event of Default under the Agreement if at any time
prior to the end of the term of the Agreement the LC is not in full force and
effect or Secured Party receives notice that the LC will not be replaced or
renewed.
5. All other terms and conditions of the Agreement shall remain in full force
and effect. In the event that there is any conflict between the terms and
conditions of this Rider and the terms and conditions of the Agreement, the
terms and conditions of this Rider shall govern. All of the terms, conditions
and provisions hereunder shall be deemed to be an indivisible part of and
supplement to the Agreement.
UNIVERSAL ACCESS, INC. CHARTER FINANCIAL, INC.
By: /s/ XXXXXX XXXXX By: [SIGNATURE ILLEGIBLE]
-------------------------------- ---------------------------------
Title: Vice President Finance Title: Vice President
----------------------------- ------------------------------
Date: 12-15-99 Date: 12-15-99
------------------------------ -------------------------------
12
LOAN SCHEDULE NO. 01 UNDER
MASTER LOAN AND SECURITY AGREEMENT NO. 4390
Pursuant to a Master Loan and Security Agreement No. 4390 dated _____ ("Master
Agreement") between Charter Financial, Inc. ("Secured Party") having a place of
business at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and UNIVERSAL
ACCESS, INC. ("Debtor") a DELAWARE corporation having a place of business at 000
X. Xxxxxxxxx Xxxxx, Xxxxxxx , XX 00000 , Debtor hereby promises to pay to the
order of Secured Party the Loan Amount set forth in the schedule of obligations
below, in installments in the amounts and at the times specified below. This
Loan Schedule incorporates the terms and conditions of the Master Agreement and
constitutes an Agreement as referred to in the Master Agreement. Terms used
herein which are defined in the Master Agreement shall have the meanings as so
defined.
The Equipment in which Debtor grants to Secured Party a security interest in
accordance with the provisions of the Master Agreement is set forth and
described in Schedule A annexed hereto and made a part hereof. Said Equipment
shall be located at the addresses set forth and described in Schedule A at all
times until all payments hereunder have been paid in full.
--------------------------------------------------------------------------------
SCHEDULE OF OBLIGATIONS
--------------------------------------------------------------------------------
Loan Amount $2,283,780.00
Interest $ 527,712.00
Time Balance $2,811,492.00
Term of Loan Thirty-Six (36) months
Number of Payments 36
Payments Payable Monthly in advance
Amount of Each Payment $78,097.00
Debtor agrees to pay the Time Balance to Secured Party in thirty-six
(36) installments in the amount of $78,097.00 due and payable on the 15 day of
each month, commencing on 12-15-99 and continuing on the like date of each month
thereafter through and including 11-15-02.
The Debtor agrees to all the provisions set forth above. This Agreement
is executed pursuant to due authorization. DEBTOR ACKNOWLEDGES RECEIPT OF A
SIGNED TRUE COPY OF THIS AGREEMENT.
Date 12-15, 1999 Accepted on 12-15, 1999
UNIVERSAL ACCESS, INC. CHARTER FINANCIAL, INC.
(Debtor) (Secured Party)
By /s/ XXXXXX XXXXX By [SIGNATURE ILLEGIBLE]
--------------------------------- ----------------------------------
Its Vice President Finance Its Vice President
-------------------------------- ---------------------------------
(Title of Officer) (if Corporation, President or Vice President should sign and
give official title; if Partnership, state partner; if L.L.C., state member or
manger)
13
LOAN SCHEDULE NO. 03 UNDER
MASTER LOAN AND SECURITY AGREEMENT NO. 4390
Pursuant to a Master Loan and Security Agreement No. 4390 dated _____ ("Master
Agreement") between Charter Financial, Inc. ("Secured Party") having a place of
business at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and UNIVERSAL
ACCESS, INC. ("Debtor") a DELAWARE corporation having a place of business at 000
X. Xxxxxxxxx Xxxxx, Xxxxxxx , XX 00000 , Debtor hereby promises to pay to the
order of Secured Party the Loan Amount set forth in the schedule of obligations
below, in installments in the amounts and at the times specified below. This
Loan Schedule incorporates the terms and conditions of the Master Agreement and
constitutes an Agreement as referred to in the Master Agreement. Terms used
herein which are defined in the Master Agreement shall have the meanings as so
defined.
The Equipment in which Debtor grants to Secured Party a security interest in
accordance with the provisions of the Master Agreement is set forth and
described in Schedule A annexed hereto and made a part hereof. Said Equipment
shall be located at the addresses set forth and described in Schedule A at all
times until all payments hereunder have been paid in full.
--------------------------------------------------------------------------------
SCHEDULE OF OBLIGATIONS
--------------------------------------------------------------------------------
Loan Amount $ 702,501.00
Interest $ 162,327.00
Time Balance $ 864,828.00
Term of Loan Thirty-Six (36) months
Number of Payments 36
Payments Payable Monthly in advance
Amount of Each Payment $24,023.00
Debtor agrees to pay the Time Balance to Secured Party in thirty-six
(36) installments in the amount of $24,023.00 due and payable on the 15 day of
each month, commencing on 12-15-99 and continuing on the like date of each
month thereafter through and including 11-15-02.
The Debtor agrees to all the provisions set forth above. This Agreement
is executed pursuant to due authorization. DEBTOR ACKNOWLEDGES RECEIPT OF A
SIGNED TRUE COPY OF THIS AGREEMENT.
Date 12-15, 1999 Accepted on 12-15, 1999
UNIVERSAL ACCESS, INC. CHARTER FINANCIAL, INC.
(Debtor) (Secured Party)
By /s/ XXXXXX XXXXX By [SIGNATURE ILLEGIBLE]
--------------------------------- ----------------------------------
Its Vice President Finance Its Vice President
-------------------------------- ---------------------------------
(Title of Officer)
(if Corporation, President or Vice
President should sign and give official
title; if Partnership, state partner; if
L.L.C., state member or manger)
14
LOAN SCHEDULE NO. 02 UNDER
MASTER LOAN AND SECURITY AGREEMENT NO. 4390
Pursuant to a Master Loan and Security Agreement No. 4390 dated _____ ("Master
Agreement") between Charter Financial, Inc. ("Secured Party") having a place of
business at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and UNIVERSAL
ACCESS, INC. ("Debtor") a DELAWARE corporation having a place of business at 000
X. Xxxxxxxxx Xxxxx, Xxxxxxx , XX 00000 , Debtor hereby promises to pay to the
order of Secured Party the Loan Amount set forth in the schedule of obligations
below, in installments in the amounts and at the times specified below. This
Loan Schedule incorporates the terms and conditions of the Master Agreement and
constitutes an Agreement as referred to in the Master Agreement. Terms used
herein which are defined in the Master Agreement shall have the meanings as so
defined.
The Equipment in which Debtor grants to Secured Party a security interest in
accordance with the provisions of the Master Agreement is set forth and
described in Schedule A annexed hereto and made a part hereof. Said Equipment
shall be located at the addresses set forth and described in Schedule A at all
times until all payments hereunder have been paid in full.
--------------------------------------------------------------------------------
SCHEDULE OF OBLIGATIONS
--------------------------------------------------------------------------------
Loan Amount $ 314,080.00
Interest $ 72,560.00
Time Balance $ 386,640.00
Term of Loan Thirty-Six (36) months
Number of Payments 36
Payments Payable Monthly in advance
Amount of Each Payment $10,740.00
Debtor agrees to pay the Time Balance to Secured Party in thirty-six
(36) installments in the amount of $10,740.00 due and payable on the 15 day of
each month, commencing on 12-15-99 and continuing on the like date of each
month thereafter through and including 11-15-02.
The Debtor agrees to all the provisions set forth above. This Agreement
is executed pursuant to due authorization. DEBTOR ACKNOWLEDGES RECEIPT OF A
SIGNED TRUE COPY OF THIS AGREEMENT.
Date 12-15, 1999 Accepted on 12-15, 1999
UNIVERSAL ACCESS, INC. CHARTER FINANCIAL, INC.
(Debtor) (Secured Party)
By /s/ XXXXXX XXXXX By [SIGNATURE ILLEGIBLE]
--------------------------------- ----------------------------------
Its Vice President Finance Its Vice President
-------------------------------- ---------------------------------
(Title of Officer)
(if Corporation, President or Vice
President should sign and give official
title; if Partnership, state partner; if
L.L.C., state member or manger)
