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HomeMy WebLinkAbout01-0588L PARTIES Debforname (last nome first if individual) and mailing address: NorthPoint Communications, Inc. 303 2nd Street San Francisco CA 94107 Oebtorname (last name first if individual) and mailing address: la Debtor name (last name first if individual) and mailing address: lb Secured Party[es)name(s) (last name first if individual) and address for security interest information: Canadian Imperial Bank of Commerce, as Administrative Agent 425 Lexington Avenue New York NY 10017 Assignee(s) of Secured Paff~ame(s) (last name first if individual) and address for security interest information: 2 2a Special Types of Pmtle¢Check if applicable): J-lThe terms "Debtor" and "Secured Pady" mean "Lessee" and "Lessor", respectively. tithe terms "Debtor, and "Secured Pady" mean !'Consignee" and "Consignor"', respective¥. f-IDebtor ~s a Transm!tt~ng Utility. 3 SECURED PARTY SIGNATURE(S) FINANCING STATEMENT Uniform Commercial Code Form UCC-1 -~ .... ,~ IMPORTANT- Please read instructions before c:~, '~:J~',z =lllng No.(stamped by filing officer): Date, Time, Ellln~(?~rl?lj~ta~Fp~,d ~l(~,~]~/er) C)jLdS~..::,._~iqD C, OUNrTY '~.eJc ~ 3'9 .o-o p~,*h'qYt VANA 5 Code and is to be filed with the Jcheck ~ppl~cable box). ~Secretaw of the Commonwealth, ~Prothonota~ of Cumberland Coumy ~othonom~ County. ~real estate Records of County. 6 Number of Additional Sh~elJf anY) 7 Optional SDeclul IdentlflcatJo~ax. 10 chara~ers): 8 ' 'Y COL~TE~AL Identi~ collateral by item and/or type: ~es, i~es~em prope~, gJed~ed sh~es, pledged debt ~d ~y di~iQc~ds ~er~ ~d [] Icheck only if desired) Products of the collateral are also covered. 9 Identify related real estatiJ applicable. The cotlateral is, or includes (check appropriate box(es) - a. ncropsgrowing or to be grown on - b. rJgoods which are or are to become flxtureon - c. r-lmlneralsor the like (including oil and gas) as extracted on - d. J-]accounts resulting from the sale ef mlner~the like (including oil and gas) at the welthead or minehead on - the follawing real estate: Street Address: Describe at:Book of (check one} rJDeeds r"JModgages, at Page(s)__ for Ccunty. Uniform p,~r,?! ~den'~ifier~_~ .......... [] Described on Additional Sheet. This statement is flied wlth only the Secured Party's slgnalur-~ Name of record owne(required only if no Debtor has an interest of record): fo perfect a secudty interest in collateral (check applicable box(es))- a. []acquired after a change of name, Identity or corporal~ __ l 0 structureof the Debtor. b. []as to which the filing has lapsed. c. already subject fo a secudty interest in another count/in Pennsylvania - []when the collateral was movedo this county. r-Jwhen the Debtor's residence or place of business was movedto this county. d. already subject to a security interest in another Jurisdiction J~Jwhen the collateral was movedo Pennsylvania. r'lwhen the Debtor's location was movedb Pennsylvania. e. r-Jwhich is praceedsof the collateral described in block 9, in which a security interest was previously perfected describe proceeds in block 9, if purchased with cash broceeds and not adequately described on the adequately described on the original financing statement. Secured Party Signature(s): {Required only if box(es) i$ checked above): Canadian Imperial Bank of Commerce, as Administrative Agent lb CSC ID:i 15939 PA-Cumberland County Prothonotapy RETURN RECEIPT TO: CSC The United States Corporation Company 6th Floor, $0 State Street Albany, NY 12207-2543 11 4 ~C~C~ Approved by the Secretow of the Commonwealth of Pennsylvania jJ~., /0~, ¢//y 12 EXHIBIT A TO UCC-1 FINANCING STATEMENT NORTHPOINT COMMUNICATIONS, INC., as Debtor (Tax I.D. No. 94-3270260) CANADIAN IMPERIAL BANK OF COMMERCE, as Secured Party This financing statement covers all right, title and interest of Debtor in and to all of the following, in each case whether now or hereafter existing or in which Debtor now has or hereafter acquires an interest and wherever the same may be located (collectively, the "Collateral"): 1. All "Investment Property", which term means: (a) all right, title and interest of Debtor, whether now owned or hereafter acquired, in all investment property (as defined in the Uniform Commercial Code as in effect from time to time in the State of New York (the "UCC") and all shares of capital stock owned by Debtor, and the certificates representing such shares and any interest of Debtor in the entries on the books of any securities intermediary pertaining to such shares, and all dividends, cash, warrants, options, fights, instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares (all of the foregoing being referred to herein collectively as the "Pledged Stock"); (b) all right, title and interest of Debtor, whether now owned or hereafter acquired, of all indebtedness owed to Debtor issued by the obligors named therein, the instruments evidencing such indebtedness, and all interest, cash, instruments and other property or proceeds from fmae to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such indebtedness (all of the foregoing being referred to herein collectively as the "Pledged Debt"); (c) all of Debtor's right, title and interest as a limited and/or general partner in all partnerships, (the "Partnershil~s"), whether now owned or hereafter arxtnired, including, without limitation, all of Debtor's right, title and interest in, to and under the partnership agreements (as such agreements have heretofore been and may hereafter be amended, restated, supplemented or otherwise modified from time to time, collectively, the "Partnershi0 Agreements") to which it is a party (including, if Debtor is a general panner of any Partnership, the right to vote with respect to and to manage and administer the business of such Partnership), together with all other rights, interests, claims and other property of Debtor in any manner arising out of or relating to its limited and/or general partnership interest in the Partnerships, whatever their respective k/nd or character, whether they are tangible or intangible property, and wheresoever they may exist or be located, and further including, without limitation, (1) all of the rights of Debtor as a limited and/or general partner: (A) (I) to receive money due and to become due (including without limitation profits, dividends, distributions, interest, income from par~ership properties and operations, proceeds of sale of partnership assets and returns of capital) under or pursuant to the Partnership Agreements, (II)to receive payments upon termination of the Partnership Agreements, and (III)to receive any other payments or distributions, whether cash or noncash, in respect of Debtor's limited and/or general parmership interest; (B) in and with respect to claims and causes of action rising out of or relating to the NYDOCS03/564150.3 1 Partnerships; and (C)to have access to the Partnerships' books and records and to other information concerning or affecting the Partnerships; and (2) any "certificate of interest" or "certificates of interest" (or other certificates or instruments however designated or titled) issued by the Partnerships and evidencing Debtors interest as a limited and/or general partner in the Partnerships (collectively, the "Certificates") and any interest of Debtor in the entries on the books of any securities intermediary pertaining to Debtor's interest as a limited and/or general partner in the Partnerships (all of the foregoing being referred to herein collectively as the "Parmership Interests"); (d) all of Debtor's right, title and interest as a member of all limited hability companies (the "LLCs'), including, without limitation, all of Debtor's right, title and interest in, to and under the limited liability company interests, whether now owned or hereafter acquired, including, without limitation, all of Debtor's right, title and interest in, to and under the operating agreements with respect to any such LLC (as such agreements have heretofore been and may hereafter be amended, restated, supplemented or otherwise modified from time to time, each, an "LLC Agreement") to which it is a party, regardless of whether such right, title and interest arises under such LLC Agreement, including (1) all rights of Debtor to receive distributions of any kind, in cash or otherwise, due or to become due under or pursuant to each such LLC Agreement or otherarise in respect of such Person, (2) all rights of Debtor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to each such Person, (3) all claims of Debtor for damages arising out of, or for the breach of, or for a default under, each such LLC Agreement, (4) any certificated or uncertificated security evidencing any of the foregoing issued by such Person to Debtor and (5) to the extent not included in the foregoing, all proceeds of any and all of the foregoing (all of the foregoing being referred to herein collectively as the "LLC Interests"; the Pledged Stock, the Pledged Debt, the Partnership Interests and the LLC Interests be'mg herein collectively referred to as the "Pledged Interests"); (e) all additional shares of, limited and/or general partnership interests in and limited liability company interests in, and all securities (or other equity interests) convertible into and warrants, options and other rights to purchase or otherwise acquire, stock of any issuer of the Pledged Stock, limited and/or general partnership interests in the Partnerships, and limited liability company interests in the LLCs, from fane to time acquired by Debtor in any manner (which shares or interests shall be deemed to be part of the Pledged Interests), the certificates or other instruments representing such additional shares or interests, securities, warrants, options or other rights and any interest of Debtor in the entries on the books of any securities intermediary pertaining to such additional shares or interests, and all additional indebtedness from time to time owed to Debtor by any obligor on the Pledged Debt and the instraments evidencing such indebtedness, and all interest, cash, instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such indebtedness; (all of the foregoing being referred to herein collectively as the "Additional Pledged Interests"), and all dividends, distributions, cash, warrants, options, rights, insmnuents, payments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Additional Pledged Interests; and (f) all shares of, limited and/or general partnership interests in, and limited liability company interests in, and all securities (or other equity interests) convertible into and warrants, options and other rights to purchase or otherwise acquire, stock of, limited and/or general NYDOCS03/564150.3 2 partnership interests in, or limited liability company interests in any Person that becomes, as a result of any occurrence, a direct Subsidiary of Debtor (which shares or interests shall be deemed to be part of the Pledged Interests), the certificates or other instruments representing such shares, interests, securities, warrants, options or other rights and any interest of Debtor in the entries on the books of any securities intermediary pertaining to such shares or interests and all dividends, distributions, cash, warrants, rights, instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares, interests, securities, warrants, options or other rights, and all indebtedness from time to time owed to Debtor by any Person that becomes, as a result of any occurrence, a Subsidiary of Debtor, and the instruments evidencing such indebtedness, and all interest, cash, instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such indebtedness; 2. all "Intellectual Prooerty", which term means: (a) all United States and foreign trademarks, service marks, designs, logos, indicia, trade names, corporate names, company names, business names, fictitious business names, trade styles and/or other source and/or business identifiers, and all trademark or service mark registrations and applications (except for U.S. "intent to use" applications for trademark or service mark registrations filed pursuant to Section l(b) of the Lan_ham Act, unless and until an Amendment to Allege Use or a Statement of Use under Sections l(c) and l(d) of said Act has been filed), owned or used by the Debtor in its business, or hereafter adopted and used by Debtor, together with the goodwill of the Debtor's business connected with the use of, and symbolized by each such mark, and the right to sue for past infringement or dilution of any of the foregoing or for any injury to goodwill, and all proceeds of the foregoing, including, without limitation, license royalties, income, payments, claims, damages, and proceeds of suit, (all of the foregoing collectively, the "Trademarks"); Co) all United States and foreign patents and patent applications and rights and interests in patents and patent applications including, without limitation, all re-issues, divisions, continuations, renewals, reexaminations, extensions and continuations-in-part thereof, all rights (but not obligations corresponding thereto), including, without limitation, the right to sue for past, present and future infringements in the name of Debtor or in the name of Secured Party, in each case, at the option of Secured Party, and all proceeds of the foregoing including, without limitation, licenses, royalties, income, payments, claims, damages, and proceeds of suit of any of the foregoing, (all of the foregoing being collectively referred to as the "Patents"); it being understood that the rights and interest included herein hereby shall include, without limitation, all rights and interests pursuant to licensing or other contracts in favor of Debtor pertaining to patent applications and patents presently or in the future owned or used by third parties but, in the case of third parties which are not Affiliates of Debtor, only to the extent permitted by licensing or other contracts and, if not so permitted, only with the consent of third parties; and (c) all Un/ted States and foreign published and unpublished works of authorship including, without limitation, computer programs, computer data bases, other computer software, including without limitation, object code and source code, mask works, semiconductor chips, masks, cell libraries, layouts, drawings, designs, schematics, including any and all soRware implementations of algorithms, models and methodologies, all copyrights, all regulations and NYDOCS03/564150.3 3 applications therefor, all copyright licenses (but with respect to such copyright licenses, only to the extent permitted by such licensing arrangements and, if not so permitted, only with the consent of the other party thereto) (all of the foregoing being referred to herein collectively as the "Col~.vrights"), including, without limitation, each of the Copyrights, rights, titles and interests in and to the Copyrights and works pmtectable by copyright, which are presently, or in the future may be, owned, created (as a work for hire for the benefit of Debtor or otherwise), authored (as a work for hire for the benefit of Debtor or otherwise), acquired or used (whether pursuant to a license or otherwise but only to the extent permitted by agreements governing such license or other use and, if not so permitted, only with the consent of the other party thereto) by Debtor, in whole or in part, and all Copyrights with respect thereto and all registrations therefor, heretofore or hereafter granted or applied for, and all renewals and extensions thereof, throughout the world, including all proceeds thereof (such as, by way of example and not by limitation, license royalties and proceeds of infringement suits), the right (but not the obligation) to renew and emend such Copyrights and to register works protectable by copyright and the right (but not the obligation) to sue in the name of Debtor or in the name of Secured Party, in each case, at the option of Secured Party, for past, present and future infringements of the Copyrights; all trade secrets and all other confidential or proprietary information, technology, know-how inventions, processes, formulae, algorithms, models and methodologies, now or hereafter owned or used in, or contemplated at any time for use in, the business of Debtor (all of the foregoing being collectively called a "Trade Secret"), whether or not such Trade Secret has been reduced to a writing or other tangible form, including all documents and things embodying, incorporating, or referring in any way to such Trade Secret, the right to sue for past infringement of any Trade Secret, and all proceeds of the foregoing, including, without limitation, licenses, royalties, income, payments, claims, damages, and proceeds of suit; 3. the Cash Concentration Account, together with all amounts on deposit from time to time in any of Debtor's deposit accounts, all securities accounts, and all interest, cash and cash balances, (wherever located), instruments, securities, Financial Assets and other property fi.om time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing; 4. all of Debtor's right, title and interest in, to and under any equipment in all of its forms, all accessions or additions thereto, all parts thereof, whether or not at any time of determination incorporated or installed therein or attached thereto, and all replacements therefor, wherever located, now or hereafter existing (all of the foregoing being referred to herein collectively as the "Erluii~ment"); 5. all of Debtor's right, title and interest in, to and under any inventory in all of its forms, including, but not limited to, (i)all goods held by Debtor for sale or lease or to be furnished under contracts of service or so leased or fum/shed, (ii) all raw materials, work in process, finished goods, and materials used or consumed inthe manufacture, packing, shipping, advertising, selling, leasing, furnishing or production of inventory or otherwise used or consumed in Debtor's business, (iii) all goods in which Debtor has an interest in mass or a joint or other interest or right of any kind, (iv) all goods which are returned to or repossessed by Debtor, and all accessions thereto and products thereof (all of the foregoing being referred to herein collectively as the "Inventory."), and (v) all negotiable and non-negotiable documents of NYDOCS03/564150.3 4 rifle, including, without limitation, warehouse receipts, dock receipts and bills of lading issued by any Person covering any Inventory; 6. all of Debtor's right, title and interest in, to and under any accounts, contract rights, chattel paper, documents, insmunents, general intangibles, payment intangibles and other rights and obligations of any kind (all of the foregoing being referred to herein collectively as the "Accounts") and all of Debtor's rights in, to and under all security agreements, leases and other contracts securing or otherwise relating to any Accounts (all of the foregoing being referred to herein collectively as the "Related Contracts"); 7. all of Debtor's right, title and interest in, to and under all agreements and contracts to which Debtor is a party as of the date hereof, or to which Debtor becomes a party after the date hereof, as each agreement may be amended, supplemented or otherwise modified from time to time (all of the foregoing being referred to herein collectively as the "Assigned A~reements"), including (i) all rights of Debtor to receive moneys due or to become due under or pursuant to the Assigned Agreements, (ii) all rights of Debtor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to the Assigned Agreements, (iii) all claims of Debtor for damages arising out of any breach of or default under the Assigned Agreements, and (iv) all rights of Debtor to terminate, amend, supplement, modify or exercise rights or options under the Assigned Agreements, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder; 8. to the extent not otherwise included in any other paragraph of this Exhibit A, all other general intangibles, including tax refunds, rights to payment or performance, choses in action, lawsuits and judgments taken on any rights or claims included in the Collateral; 9. all books, records, ledger cards, files, correspondence, computer programs, tapes, disks and related data processing software that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon; and 10. to the extent not covered by clauses (1) through (9) of this Exhibit A, all other personal property of Debtor, all proceeds, products, rents and profits of or from any and all of the foregoing Collateral and, to the extent not otherwise included, all payments under insurance (whether or not Secured Party is the loss payee thereof), or any indemnity, warranty or guaranty, payable by reason of loss or damage to or otherwise with respect to any of the foregoing Collateral. For purposes herein, the term "proceeds" means all proceeds as such term is defined in the UCC, and shall include, without limitation, whatever is receivable or received when Collateral or proceeds are sold, exchanged, collected or otherwise disposed of, whether such disposition is voluntary or involuntary. For purposes of this Exhibit A, the following terms have the following meanings: "Affiliate" shall mean, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, "control" (including correlative meanings, the terms "controlling", "controlled by" and "under common control with"), as applied to any Person, means the possession, directly or NYDOCS03/564150.3 5 indirectly, of the power (i) to vote 10% or more of the securities having ordinary voting power for the election of directors of such Person or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ownerstfip of voting securities or by contract or otherwise. "Cash Concentration Account" shall mean Account No. 0700496236 maintained by the Administrative Agent at Union Bank of California. "Financial Assets" shall have the definition ascribed thereto in the UCC. "Person" shall mean and include natural persons, corporations, limited partnerships, general parmerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governmental authorities. "Subsidiary" shal! mean, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, dSrectly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the pementage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a "qualifying share" of the former Person shall be deemed to be outstanding. NYDOCS03/56~.150.3 6