Exhibit 10.11
GUARANTY
Dated March 22, 1999
from
NORTHPOINT COMMUNICATIONS HOLDINGS, INC.
as Guarantor
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in favor of
THE PURCHASERS REFERRED TO IN
THE NOTE PURCHASE AGREEMENT REFERRED TO HEREIN
T A B L E O F C O N T E N T S
Section Page
1. Guaranty; Limitation of Liability................................... 1
2. Guaranty Absolute................................................... 2
3. Waivers and Acknowledgments......................................... 3
4. Subrogation......................................................... 3
5. Payments Free and Clear of Taxes, Etc............................... 4
6. Representations, Warranties and Covenants........................... 6
7. Amendments, Etc..................................................... 6
8. Notices, Etc........................................................ 7
9. No Waiver; Remedies................................................. 7
10. Indemnification..................................................... 7
11. Continuing Guaranty; Assignments under the Note Purchase Agreement.. 7
12. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.............. 7
GUARANTY
GUARANTY dated March 22, 1999, made by NorthPoint Communications Holdings,
Inc., a Delaware corporation (the "Guarantor"), in favor of the Purchasers (as
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defined in the Note Purchase Agreement referred to below).
PRELIMINARY STATEMENT
The Purchasers are parties to the Note Purchase Agreement dated as of July
10, 1998 (said Agreement, as it may hereafter be amended, supplemented or
otherwise modified from time to time, being the "Note Purchase Agreement"; the
-----------------------
terms defined therein and not otherwise defined herein being used herein as
therein defined) with NorthPoint Communications, Inc., a Delaware corporation
(the "Company").
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The Company has consummated a reorganization (the "Reorganization")
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pursuant to which the Company became a wholly owned subsidiary of the Guarantor.
The Reorganization was effected by a merger between the Company and another
Delaware corporation formed solely for this purpose, which was a wholly owned
subsidiary of the Guarantor, with the Company as the surviving corporation of
such merger. As a result of the Reorganization, each of the holders of capital
stock of the Company immediately prior to the consummation of the Reorganization
became the only holders of capital stock of the Guarantor immediately after the
consummation of the Reorganization, each holding the same number of shares of
capital stock of the same class of the Guarantor with the same rights,
privileges, terms and conditions as shares of capital stock of the Company held
by such holders immediately prior to the consummation of the Reorganization.
The Guarantor owns all of the capital stock of the Company and has no other
significant assets.
In order to permit the Reorganization, the Company and the Purchasers each
desire to amend the Note Purchase Agreement pursuant to the First Amendment to
Note Purchase Agreement dated as of the date hereof ("Amendment No. 1"). It is
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a condition to the effectiveness of Amendment No. 1 that the Guarantor shall
execute and deliver this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Purchasers to execute and deliver Amendment No. 1, the Guarantor hereby agrees
as follows:
Section 1. Guaranty; Limitation of Liability. (a) The Guarantor hereby
---------------------------------
unconditionally and irrevocably guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Obligations of
the Company now or hereafter existing under the Note Documents, whether for
principal, interest, fees, expenses or otherwise (such Obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses (including
-----------------------
counsel fees and expenses) incurred by any Purchaser in enforcing any rights
under this Guaranty. Without limiting the generality of the foregoing, the
Guarantor's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by the Company or any other Obligor to the Purchasers under the
Note Documents but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding
involving the Company.
(b) The Guarantor hereby confirms that it is its intention that this
Guaranty and the Obligations of the Guarantor hereunder not constitute a
fraudulent transfer or conveyance for purposes of the United States Federal
Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state requirements of law covering the
protection of creditors' rights or the relief of debtors to the extent
applicable to this Guaranty and the Obligations of the Guarantor hereunder. To
effectuate the foregoing intention, the Guarantor hereby irrevocably agrees that
the Guaranteed Obligations and all of the other liabilities of the Guarantor
under this Guaranty shall be limited to the maximum amount as will, after giving
effect to such maximum amount and all of the other contingent and fixed
liabilities of such Guarantor that are relevant under such requirements of law,
and after giving effect to any collections from, any rights to receive
contributions from, or any payments made by or on behalf of, any of the other
Guarantors in respect of any of the Obligations of such Guarantor under its
Guaranty, result in the Guaranteed Obligations and all of the other liabilities
of the Guarantor under this Guaranty not constituting a fraudulent transfer or
conveyance.
(c) The Guarantor hereby unconditionally and irrevocably agrees that, in
the event any payment shall be required to be made under this Guaranty or any
other guaranty, such Guarantor will contribute, to the fullest extent permitted
by applicable law, such amounts to each of the Purchasers, each of the other
Guarantors and each other guarantor as would maximize the aggregate amount paid
in respect of its Obligations.
Section 2. Guaranty Absolute. The Guarantor guarantees that the
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Guaranteed Obligations will be paid strictly in accordance with the terms of the
Note Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Purchaser with respect thereto. The Obligations of the Guarantor under this
Guaranty are independent of the Guaranteed Obligations or any other Obligations
of the Company or any other Obligor under the Note Documents, and a separate
action or actions may be brought and prosecuted against the Guarantor to enforce
this Guaranty, irrespective of whether any action is brought against the Company
or any other Obligor or whether the Company or any other Obligor is joined in
any such action or actions. The liability of the Guarantor under this Guaranty
shall be irrevocable, absolute and unconditional irrespective of, and the
Guarantor hereby irrevocably waives any defenses it may now or hereafter have in
any way relating to, any or all of the following:
(a) any lack of validity or enforceability of the Note Documents or any
agreement or instrument relating thereto;
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(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Obligor under the Note Documents, or any other
amendment or waiver of or any consent to departure from the Note
Documents, including, without limitation, any increase in the Guaranteed
Obligations resulting from the issue of Rollover Notes or the extension
of additional credit to any Obligor or any of its Subsidiaries otherwise;
(c) any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of the Company or any of its Subsidiaries; or
(e) any failure of any Purchaser to disclose to the Company or the
Guarantor any information relating to the financial condition, operations,
properties or prospects of any other Obligor now or in the future known to
any Purchaser (the Guarantor waiving any duty on the part of the Purchasers
to disclose such information); or
(f) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
any Purchaser that might otherwise constitute a defense available to, or
a discharge of, the Company, the Guarantor or any other guarantor or
surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Purchaser or any other Person upon the
insolvency, bankruptcy or reorganization of the Company or otherwise, all as
though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) The Guarantor hereby waives
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promptness, diligence, notice of acceptance and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that any
Purchaser protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against the Company or any other
Person.
(b) The Guarantor hereby waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(c) The Guarantor acknowledges that it will receive substantial direct and
indirect benefits from the Reorganization and the financing arrangements
provided to the Company under the Note Purchase Agreement and that the waivers
set forth in this Section 3 are knowingly made in contemplation of such
benefits.
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Section 4. Subrogation. The Guarantor will not exercise any rights that
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it may now or hereafter acquire against the Company or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
the Guarantor's Obligations under this Guaranty or any other Note Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of any Purchaser against the Company or any other insider
guarantor, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from the Company or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Obligations and all other amounts payable under this Guaranty shall
have been paid in full in cash and the Commitments of the Purchasers shall have
been expired or been terminated. If any amount shall be paid to the Guarantor
in violation of the preceding sentence at any time prior to the later of (a) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty and (b) the maturity date of the Notes or the
Rollover Notes, as the case may be, such amount shall be held in trust for the
benefit of the Purchasers and shall forthwith be paid to the Purchasers to be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms
of the Note Purchase Agreement, or to be held as collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising. If
(i) the Guarantor shall make payment to MS or any Other Purchaser of all or any
part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and
all other amounts payable under this Guaranty shall be paid in full in cash and
(iii) the maturity date of the Notes (or Rollover Notes) shall have occurred, MS
and the Other Purchasers will, at the Guarantor's request and expense, execute
and deliver to the Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
the Guarantor of an interest in the Guaranteed Obligations resulting from such
payment by the Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any and all
--------------------------------------
payments made by the Guarantor hereunder shall be made free and clear of, and
without deduction for, any and all present or future taxes, income taxes and
branch profits taxes that are imposed by the United States of America and net
income taxes and franchise taxes (whether based on income or capital) that are
imposed on such holder of the Notes (or Rollover Notes) by the state or foreign
jurisdiction under the laws of which such holder of the Notes (or Rollover
Notes) is organized or any political subdivision thereof (all such nonexcluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder, under the Notes (or Rollover Notes) or the Note
Documents being hereinafter referred to as "Taxes"). If the Guarantor shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any holder of Notes (or Rollover Notes), (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
such holder of Notes (or Rollover Notes) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the
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Guarantor shall make such deductions and (iii) the Guarantor shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Guarantor agrees to pay any present or future
transfer, stamp, documentary, excise, property or other similar taxes,
assessments, charges or levies that arise from any payment made hereunder or
under the Notes (or Rollover Notes) or the other Note Documents or from the
execution, delivery or registration of, performance under, or otherwise with
respect to, this Agreement, any Note (or Rollover Note) or any of the other Note
Documents, and all reasonable costs, expenses, taxes, assessments and other
charges incurred in connection with any filing or perfection of any lien, pledge
or security interest contemplated under any of the Collateral Documents or any
of the other documents referred to herein or therein (hereinafter referred to as
"Other Taxes").
(c) The Guarantor will indemnify each holder of Notes (or Rollover Notes)
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section) paid by such Purchaser and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Purchaser makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes by or on behalf
of the Guarantor, the Guarantor will furnish to each holder of Notes (or
Rollover Notes), at its address referred to in the Note Purchase Agreement, the
original receipt of payment thereof or a certified copy of such receipt. In the
case of any payment hereunder by or on behalf of the Guarantor through an
account or branch outside the United States or on behalf of the Guarantor by a
payor that is not a United States person, if the Guarantor determines that no
Taxes are payable in respect thereof, the Guarantor shall furnish, or shall
cause such payor to furnish, to such holder, at such address, an opinion of
counsel acceptable to MS stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
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and "United States person" shall have the meanings specified in Section 7701 of
--------------------
the Internal Revenue Code.
(e) Upon the reasonable request in writing of the Guarantor, each holder of
the Notes (or Rollover Notes) organized under the laws of a jurisdiction outside
the United States shall, on or prior to the date of its execution and delivery
of this Agreement, in the case of each original purchaser of the Notes (or
Rollover Notes), and on the date on which it becomes a holder of the Notes (or
Rollover Notes), in the case of each subsequent holder of the Notes (or Rollover
Notes), (but only so long thereafter as such holder of the Notes (or Rollover
Notes) remains lawfully able to do so), provide the Guarantor with two original
Internal Revenue Service forms 1001 or 4224 or, (in the case of a holder of the
Notes (or Rollover Notes) that has certified in writing to the Guarantor that it
is not a "bank" (as defined in Section 881(c)(3)(A) of the Internal Revenue
Code), form W-8 (and, if such holder of the Notes (or Rollover Notes) delivers a
form W-8, a certificate representing that such holder of the Notes (or Rollover
Notes) is not a
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"bank" for purposes of Section 881(c) of the Internal Revenue Code, is not a 10-
percent shareholder (within the meaning of Section 871(h)(3)(B) of the Internal
Revenue Code) of the Company and is not a controlled foreign corporation related
to the Company (within the meaning of Section 864(d)(4) of the Internal Revenue
Code)), as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such holder of the Notes (or Rollover
Notes) is exempt from or entitled to a reduced rate of United States withholding
tax on payments pursuant to this Agreement, the Notes (or Rollover Notes) held
thereby or the other Note Documents or, in the case of a holder of the Notes (or
Rollover Notes) that has provided a form W-8, certifying that such holder of the
Notes (or Rollover Notes) is a foreign corporation, partnership, estate or
trust. If the form provided by a holder of the Notes (or Rollover Notes)
pursuant to this subsection (e) at the time such holder of the Notes (or
Rollover Notes) first becomes a party to this Agreement indicates a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such holder of the
Notes (or Rollover Notes) provides the appropriate form certifying that a lesser
rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001,
4224 or W-8 (or the related certificate described above) that the holder of the
Notes (or Rollover Notes) reasonably considers to be confidential, the holder of
the Notes (or Rollover Notes) shall give notice thereof to the Guarantor and
shall not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a holder of the Notes (or Rollover
Notes) has failed to provide the Guarantor with the appropriate form or document
described in subsection (e) of this Section 5 (other than if such failure is due
to a change in law occurring after the date on which a form originally was
required to be provided or if such form otherwise is not required under such
subsection (e)), such holder of the Notes (or Rollover Notes) shall not be
entitled to additional amounts or indemnification under subsection (a) or (c) of
this Section 5 with respect to Taxes imposed by the United States by reason of
such failure; provided, however, that should a holder of the Notes (or Rollover
Notes) become subject to Taxes because of its failure to deliver a form required
hereunder, the Company shall take such steps as such holder of the Notes (or
Rollover Notes) shall reasonably request to assist such holder of the Notes (or
Rollover Notes) to recover such Taxes.
(g) Any holder of the Notes (or Rollover Notes) claiming any additional
amounts payable pursuant to this Section 5 shall use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
file any certificate or document reasonably requested by the Company or to
change the jurisdiction of its applicable lending office if the making of such a
filing or such change would avoid the need for or reduce the amount of any such
additional amounts that may thereafter accrue and would not, in the sole
determination of such holder, be otherwise disadvantageous to such holder.
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(h) Without prejudice to the survival of any other agreement of the
Guarantor hereunder or under any other Note Document, the agreements and
obligations of the Guarantor contained in this Section 5 shall survive the
payment in full of the Guaranteed Obligations and all other amounts payable
under this Guaranty.
Section 6. Representations, Warranties and Covenants. The Guarantor
-----------------------------------------
represents and warrants that the representations and warranties contained in
Section 5 of the Note Purchase Agreement with respect to the Guarantor are true
and accurate. The Guarantor further represents, warrants and covenants as
follows:
6.1. Organization; Power and Authority.
---------------------------------
The Guarantor and each of its Subsidiaries are Persons duly organized,
validly existing and in good standing under the laws of their respective
jurisdictions of organization and are duly qualified as foreign corporations or
other entities and are in good standing in each other jurisdiction in which the
ownership, lease or operation of their property and assets or the conduct of
their businesses requires such qualification, other than in any such
jurisdiction in which the failure to be so qualified or in good standing, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. The Guarantor and each of its Subsidiaries have all
corporate and other necessary power and authority, and the legal right, to own
or to hold under lease all of the property and assets they purport to own or
hold under lease and to conduct the business they conduct and propose to
conduct. The Guarantor has all corporate and other necessary power and
authority, and the legal right, to execute and deliver this Guaranty and the
other Note Documents to which it is or is to be a party, to perform its
Obligations hereunder and thereunder and to consummate all of the transactions
contemplated hereby and thereby.
6.2. Authorization, Enforceability, Etc.
-----------------------------------
This Guaranty has been duly authorized, executed and delivered by the
Guarantor and constitutes the legal, valid and binding obligations of the
Guarantor, enforceable against the Guarantor in accordance with its terms,
except as such enforceability may be limited by the effect of applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally.
6.3. Compliance with Laws, Other Instruments, Etc.
---------------------------------------------
The execution, delivery and performance by the Guarantor of this Guaranty
and the consummation of the other transactions contemplated hereby and the
consummation of the Reorganization do not (a) contravene the Guarantor's
certificate of incorporation or bylaws, (b) violate any Requirement of Law, (c)
conflict with or result in the breach of, or constitute a default under, any
loan or purchase agreement, indenture, mortgage, deed of trust, lease,
instrument, contract or other agreement binding on or affecting the Guarantor or
any of its
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Subsidiaries or any of their respective property or assets or (d) result in or
require the creation or imposition of any Lien upon or with respect to any of
the property or assets of any of the Guarantor or any of its Subsidiaries.
Neither the Guarantor nor any of its Subsidiaries is in violation of any of
the terms of its certificate of incorporation or bylaws (or similar
organizational documents) or any Requirement of Law or in breach of any loan
or purchase agreement, indenture, mortgage, deed of trust, lease, instrument,
contract or other agreement referred to in the immediately preceding sentence,
the violation or breach of which, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
6.4. Governmental Authorizations, Etc.
---------------------------------
No Governmental Authorization, and no consent, approval or authorization
of, or notice to, or other action by, any Person, is required for the due
execution, delivery or performance by the Guarantor of this Guaranty and the
consummation of the other transactions contemplated hereby and the consummation
of the Reorganization, except for such Governmental Authorizations, and such
consents, approvals, authorizations, notices and other actions, as are described
on Schedule 6.4 attached hereto, all of which have been obtained or made on or
prior to the date of the Reorganization and are in full force and effect.
6.5. Existing Indebtedness.
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The Guarantor has no outstanding Indebtedness other than this Guaranty.
6.6. No Significant Subsidiaries.
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The Guarantor has no direct Subsidiaries other than the Company. The
Guarantor has no significant assets other than the capital stock of the Company.
6.7. No Conditions Precedent; No Reliance.
------------------------------------
There are no conditions precedent to the effectiveness of this Guaranty
that have not been satisfied or waived. The Guarantor has, independently and
without reliance upon any Purchaser and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Guaranty.
6.8. Mandatory Redemption of the Notes (or Rollover Notes) by the Company.
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Upon receipt by the Guarantor of the Net Cash Proceeds from (a) the
issuance or incurrence by the Guarantor of any Indebtedness (including, without
limitation, the Refinancing Securities), (b) the sale or issuance by the
Guarantor or any of its Subsidiaries (other than the Company and its
Subsidiaries) of any shares of its capital stock (or other ownership or profit
interests therein), any securities convertible into or exchangeable for shares
of its capital stock (or other ownership or profit interests therein) or any
warrants, options or other rights for the
8
purchase or acquisition of any shares of its capital stock (or other ownership
or profit interests therein) and (c) any Asset Sale, the Guarantor shall
contribute such proceeds to the Company to the extent necessary for the
Company to satisfy its obligation to redeem the outstanding Notes (or Rollover
Notes) pursuant to Section 7.3 of the Note Purchase Agreement.
6.9. Furnishing of Rule 144A Information.
-----------------------------------
The Guarantor agrees that, for so long as it is not subject to Section 13
or 15(d) of the Exchange Act, it will furnish to any holder of the Notes or
Rollover Notes or to any prospective purchaser of any Notes or Rollover Notes
designated by such holder that is a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act), upon the request of such holder, on or
prior to the date such Notes or Rollover Notes are to be sold to such
prospective purchaser, the following information (which shall be reasonably
current in relation to the date of such sale): (a) copies of such reports and
other information the Guarantor would have been required to file with the
Securities and Exchange Commission had it been subject to Section 13 or 15(d) of
the Exchange Act; (b) quarterly and annual reports substantially equivalent to
those which would be required under the Exchange Act and (c) the information
required under Rule 144A under the Securities Act.
Section 7. Amendments, Etc. No amendment or waiver of any provision of
----------------
this Guaranty and no consent to any departure by the Guarantor therefrom shall
in any event be effective unless the same shall be in writing and signed by the
Purchasers, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
--------
however, that no amendment, waiver or consent shall, unless in writing and
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signed by all of the Purchasers, (a) limit the liability of the Guarantor
hereunder, (b) postpone any date fixed for payment hereunder or (c) change the
number of Purchasers required to take any action hereunder.
Section 8. Notices, Etc. All notices and other communications provided
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for hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered to it,
if to the Guarantor, addressed to it at 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX
00000, Fax No. (000) 000-0000, Attention: Xxxxxxx X. Xxxxxxx, if to MS or any
Other Purchaser, at its address specified in the Note Purchase Agreement, or as
to any party at such other address as shall be designated by such party in a
written notice to each other party. All such notices and other communications
shall, when mailed, telegraphed, telecopied or telexed, be effective when
deposited in the mails, delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerback, respectively.
Section 9. No Waiver; Remedies. No failure on the part of any Purchaser
-------------------
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
9
Section 10. Indemnification. Without limitation on any other Obligations
---------------
of the Guarantor or remedies of the Purchasers under this Guaranty, the
Guarantor shall, to the fullest extent permitted by law, indemnify, defend and
save and hold harmless each Purchaser from and against, and shall pay on demand,
any and all losses, liabilities, damages, costs, expenses and charges (including
the fees and disbursements of such Purchaser's legal counsel) suffered or
incurred by such Purchaser as a result of any failure of any Guaranteed
Obligations to be the legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms.
Section 11. Continuing Guaranty; Assignments under the Note Purchase
--------------------------------------------------------
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
---------
force and effect until the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty, (b) be
binding upon the Guarantor, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Purchasers and their successors,
transferees and assigns. Without limiting the generality of the foregoing
clause (c), any Purchaser may assign or otherwise transfer all or any portion of
its rights and obligations under the Note Purchase Agreement (including, without
limitation, all or any portion of the Note or Notes held by it) to any other
Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Purchaser herein or otherwise.
Section 12. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a)
-------------------------------------------------------
This Guaranty shall be governed by, and construed in accordance with, the laws
of the State of New York.
(b) The Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty or the Note Purchase Agreement to which it
is or is to be a party, or for recognition or enforcement of any judgment, and
the Guarantor hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such federal court.
The Guarantor agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Guaranty shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Guaranty or the Note Purchase Agreement to which it
is or is to be a party in the courts of any jurisdiction.
(c) The Guarantor irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Guaranty or the Note Purchase Agreement to which it
is or is to be a party in any New York State or federal
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court. The Guarantor hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(d) The Guarantor hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to the Note Purchase Agreement, the
transactions contemplated thereby or the actions of MS or any Other Purchaser in
the negotiation, administration, performance or enforcement thereof.
[Signature Page Follows]
11
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
NORTHPOINT COMMUNICATIONS HOLDINGS, INC.
By_______________________________________
Name:
Title:
