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Lucent Technologies Inc.
Loan Agreement
Borrower: OnePoint Communications Corp.
Address: Two Conway Park
150 Field Drive, Suite 300
Lake Forest, Illinois 60045
Phone No. (847) 582-8710
Fax No. (847) 582-8801
Date: July 26, 2000 (the "Closing Date")
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THIS LOAN AGREEMENT (this "Agreement") is entered into on the above date between
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LUCENT TECHNOLOGIES INC. ("Lender"), whose address is 600 Mountain Avenue,
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Murray Hill, N.J. 07974 and the borrower named above ("Borrower"), whose chief
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executive office is located at the above address ("Borrower's Address"). The
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Schedule to this Agreement (the "Schedule") shall for all purposes be deemed to
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be an integral part of this Agreement. (Definitions of certain terms used in
this Agreement are set forth in Section 8 below.)
1. CREDIT FACILITY.
1.1 Advances.
(a) Availability. Subject to the terms and conditions of this Agreement,
Lender agrees to advance to Borrower from time to time during the commitment
period set forth on the Schedule (the "Commitment Period") such advances as
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Borrower may request under this Section 1 (individually, an "Advance");
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provided, however, that Lender shall not be obligated to make an Advance to the
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Borrower to the extent that such Advance when aggregated with all prior
Advances, would exceed the portion of the Commitment set forth on the Schedule
(the "Commitment") available to Borrower at such time.
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(b) Request for Advance. Borrower shall request each Advance by
delivering to Lender an irrevocable written request in the form of Exhibit A,
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appropriately completed (a "Request for Advance"), which specifies, among other
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things (i) the principal amount of the requested Advance, which shall be in the
amount of $50,000 or an integral multiple of $10,000 in excess thereof; (ii) the
use of the Advance and (iii) the date of the requested Advance, which shall be a
Business Day. Unless otherwise consented to by Lender, Borrower shall give each
Request for Advance to Lender at least five (5) Business Days before the date of
the requested Advance. Each Request for Advance shall be delivered by first-
class mail or facsimile to Lender at the office or facsimile number and during
the hours specified in Section 9.2. No more than the maximum number of Advances
set forth on the Schedule shall be made to Borrower and, unless otherwise set
forth on the Schedule, Borrower may request only one (1) Advance in each
calendar month.
(c) Interest. All outstanding Advances and all other monetary Obligations
shall bear interest at the rate set forth on the Schedule, except where
expressly set forth to the contrary in this Agreement. Borrower shall pay
interest on each outstanding Advance in arrears as set forth on the Schedule.
(d) Repayment of Principal. Borrower shall repay the principal amount of
the Advances in full on or before the Maturity Date.
(e) Purpose. The proceeds of each Advance shall be used by Borrower
exclusively (i) to finance Borrower's acquisition of network equipment, (ii) to
satisfy Borrower's accounts payable (if any) to Lender and/or its Affiliates and
(iii) for its working capital purposes, including operational and capital and
general corporate expenditures. Notwithstanding the foregoing, in no event
shall Borrower use the proceeds of any Advance to purchase, lease or otherwise
acquire network or similar equipment necessary for its business from any person
other than Lender or its Affiliates, provided that Lender or its Affiliates
offers equipment that has the functionality that Borrower desires.
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1.2 Reduction or Cancellation of Commitment; Effect. Borrower may,
upon five (5) Business Days written notice to Lender, permanently reduce the
Commitment by the amount set forth on the Schedule or cancel the Commitment in
its entirety; provided, however, that Borrower may not reduce the Commitment
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prior to the Maturity Date, if, after giving effect to such reduction, the
aggregate principal amount of all Advances then outstanding would exceed the
Commitment. From the effective date of any reduction of the Commitment, the
commitment fees (if any) payable pursuant to Section 1.3 shall be computed on
the basis of the Commitment as so reduced. Once reduced or cancelled, the
Commitment may not be increased or reinstated without the prior written consent
of Lender.
1.3 Fees. Borrower shall pay Lender the fee(s) set forth on the
Schedule, which are in addition to all interest and other sums payable to Lender
and are not refundable.
1.4 Prepayments.
(a) Terms of all Prepayments. Upon the prepayment of any Advance (whether
such prepayment is an optional prepayment under Subsection 1.4(b), a mandatory
prepayment required by Subsection 1.4(c) or a mandatory prepayment required by
any other provision of this Agreement or the other Credit Documents, including a
prepayment upon acceleration), Borrower shall pay to Lender all accrued interest
to the date of such prepayment on the amount prepaid.
(b) Optional Prepayments. At its option, Borrower may, upon five (5)
Business Days notice to Lender, prepay any Advance in part, in an aggregate
principal amount of $50,000 or more, or in whole. Borrower shall not have the
ability to re-borrow any Advance to the extent it has been repaid.
(c) Mandatory Prepayments. Borrower shall repay the principal amount of
all Advances in whole on the date Borrower repays, repurchases or redeems all of
the outstanding Indenture Notes.
1.5 Other Payment Terms.
(a) Place and Manner. Borrower shall make all payments due to Lender
hereunder by payments to Lender's office located at the address specified in
Section 9.2 or by wire transfer to an account specified by Lender. Borrower
shall make all payments hereunder in lawful money of the United States and in
same day or immediately available funds not later than 12:00 p.m., East Coast
time on the date due.
(b) Date. Whenever any payment due hereunder shall fall due on a day other
than a Business Day, such payment shall be made on the next succeeding Business
Day, and such extension of time shall be included in the computation of interest
or fees, as the case may be.
(c) Late Payments. If any amount required to be paid by Borrower under
this Agreement or the other Credit Documents (including principal or interest
payable on any Advance, any fee or other amount) remains unpaid after such
amount is due, Borrower shall pay interest on the aggregate, outstanding balance
of such amount from the date due until such amount is paid in full at a per
annum rate equal to the Default Rate.
1.6 Application of Payments. All payments hereunder shall be applied
first to unpaid fees, costs and expenses then due and payable under this
Agreement or the other Credit Documents, second to accrued interest then due and
payable under this Agreement or the other Credit Documents and finally to reduce
the principal amount of outstanding Advances.
1.7 Notes. The obligation of Borrower to repay the Advances initially
shall be evidenced by a promissory note in the form of Exhibit B (the "Note")
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which note shall be (i) payable to the order of Lender, (ii) in the amount of
$15,000,000, (iii) dated the Closing Date and (iv) otherwise appropriately
completed. Borrower authorizes Lender to record on the schedule annexed to the
Note the date and amount of each Advance made by Lender and of each payment or
prepayment of principal thereon made by Borrower, and agrees that all such
notations shall constitute prima facie evidence of the matters noted; provided,
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however, that any failure by a Lender to make, or any error by Lender in making,
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any such notation shall not affect Borrower's Obligations. Borrower further
authorizes Lender to attach to and make a part of the Note continuations of the
schedule attached thereto as necessary. If the outstanding Advances are to
exceed $15,000,000, Borrower shall execute a new, replacement Note in the form
of Exhibit B, which Note shall be (i) payable to the order of Lender, (ii) in
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the aggregate amount of the Advances made and outstanding as of such date, (iii)
dated the Closing Date and (iv) otherwise appropriately completed.
1.8 Taxes on Payments. All payments made by Borrower under this
Agreement and the other Credit Documents shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp, documentary or other taxes, any duties, or any other levies,
imposts, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority (except
net income taxes and franchise taxes in lieu of net income taxes imposed on
Lender by its jurisdiction of incorporation) (all such non-excluded taxes,
duties, levies, imposts, charges, fees, deductions and withholdings being
hereinafter called "Taxes"). If any Taxes are required to be withheld from
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any amounts payable to Lender
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hereunder or under the other Credit Documents, the amounts so payable to Lender
shall be increased to the extent necessary to yield to Lender (after payment of
all Taxes) interest or any such other amounts payable hereunder at the rates or
in the amounts specified in this Agreement and the other Credit Documents.
2. GUARANTEES.
2.1 Execution of Guarantees by Guarantors. The payment and performance by
Borrower of the Obligations shall be guaranteed in full pursuant to Guarantees
in the form of Exhibit C, duly executed by each direct or indirect majority
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owned subsidiary of Borrower that is also a guarantor under the Indenture
(collectively, the "Subsidiary Guarantees").
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2.2 Further Assurances. Borrower agrees, at its expense, to cause each
direct or indirect majority owned subsidiary now or hereafter in existence to
execute all documents and take all actions, as Lender, may deem reasonably
necessary or useful in order to fully consummate the transactions contemplated
pursuant to the Subsidiary Guarantees.
3. CONDITIONS PRECEDENT.
3.1 Initial Conditions Precedent. The obligation of Lender to make the
initial Advance is subject to receipt by Lender, on or prior to the Closing
Date, of each item set forth on the Schedule, each in form and substance
satisfactory to Lender.
3.2 Conditions Precedent to Each Advance. The obligation of Lender to make
each Advance (including the initial Advance) is subject to the further
conditions that (a) Borrower shall have delivered to Lender the Request for
Advance in accordance with this Agreement; and (b) on the date such Advance is
to be made and after giving effect to such Advance, the following shall be true
and correct: (i) the representations and warranties of Borrower and the other
Loan Parties set forth in Section 4 and in the other Credit Documents are true
and correct in all material respects as if made on such date (except for
representations and warranties expressly made as of a specified date, which
shall be true as of such date); (ii) no Default has occurred and is continuing
or will result from such Advance; and (iii) all of the Credit Documents are in
full force and effect. The submission by Borrower to Lender of each Request for
Advance shall be deemed to be a representation and warranty by Borrower that
each of the statements set forth above is true and correct as of the date of
such notice.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER.
In order to induce Lender to enter into this Agreement and to make the
Advances, Borrower represents and warrants to Lender as follows, and Borrower
covenants that the following representations will continue to be true, and that
Borrower will at all times comply with all of the following covenants:
4.1 Corporate Existence. Borrower is, and will continue to be, a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation. Borrower is and will continue to be
qualified and licensed to do business in all jurisdictions in which any failure
to do so would have a Material Adverse Effect.
4.2 Legal Authority. The execution, delivery and performance by each
Loan Party of each Credit Document executed, or to be executed, by such Loan
Party and the consummation of the transactions contemplated thereby (a) are
within the power of such Loan Party and (b) have been duly authorized by all
necessary actions on the part of such Loan Party.
4.3 Enforceability. Each Credit Document executed, or to be executed,
by each Loan Party has been, or will be, duly executed and delivered by such
Loan Party and constitutes, or will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against such Loan Party in accordance
with its terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to or affecting the enforcement of creditors'
rights generally and general principles of equity.
4.4 No Contravention. The execution and delivery by each Loan Party
of the Credit Documents executed by such Loan Party and the performance and
consummation of the transactions contemplated thereby do not (a) violate any
Requirement of Law applicable to such Loan Party; (b) violate any provision of,
or result in the breach or the acceleration of, or entitle any other Person to
accelerate (whether after the giving of notice or lapse of time or both), any
contractual obligation of such Loan Party; or (c) result in the creation or
imposition of any lien (or the obligation to create or impose any lien) upon any
property, asset or revenue of such Loan Party.
4.5 Approvals. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Authority or other
Person (including, without limitation, the shareholders of any Person) is
required in connection with the execution and delivery of the Credit Documents
executed by the Loan Parties or the performance or consummation of the
transactions contemplated thereby, except for those which have been made or
obtained and are in full force and effect.
4.6 No Violation or Default. No Loan Party is in violation of or in
default with respect to (a) any Requirement of Law applicable to such Loan Party
or
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(b) any contractual obligation of such Loan Party (nor is there any waiver in
effect which, if not in effect, would result in such a violation or default),
where, in each case, such violation or default is reasonably likely to have a
Material Adverse Effect.
4.7 Name; Trade Names and Styles. The name of Borrower set forth in
the heading to this Agreement is its correct name. Set forth on the Schedule are
all prior names of Borrower and all of Borrower's present and prior trade names.
Borrower shall give Lender reasonably prompt written notice of any change in its
name or if it begins doing business under any other name. Borrower has complied,
and will in the future comply, with all laws relating to the conduct of business
under a fictitious business name.
4.8 Other Rights. Each Loan Party owns, licenses or otherwise has
the full right to use, under validly existing agreements, all material licenses,
trademarks, trade names and all rights with respect thereto, which are required
to conduct their businesses as now conducted.
4.9 Place of Business. The address set forth in the heading to this
Agreement is Borrower's chief executive office. Borrower will give Lender
reasonably prompt written notice of the opening of any additional place of
business or if it changes its chief executive office.
4.10 Title to Assets. Borrower owns and has good and marketable
title, or a valid leasehold interest in, all of its properties and assets as
reflected in the most recent financial statements delivered to Lender (except
those assets and properties disposed of in the ordinary course of business or
otherwise in compliance with the Indenture since the date of such financial
statements) and all respective assets and properties acquired by Borrower since
such date (except those disposed of in the ordinary course of business or
otherwise in compliance with the Indenture). Such assets and properties are
subject to no Lien, except for Permitted Liens. Borrower has complied with all
material obligations under all material leases to which it is a party and enjoys
peaceful and undisturbed possession under such leases.
4.11 Books and Records. Borrower has maintained and will maintain at
Borrower's Address complete and accurate books and records, comprising an
accounting system in accordance with generally accepted accounting principles.
4.12 Litigation. Except as disclosed and set forth on the Schedule,
there is no claim, suit, litigation, proceeding or investigation pending or (to
best of Borrower's knowledge) threatened by or against or affecting Borrower in
any court or before any Governmental Authority (or any basis therefor known to
Borrower) which is reasonably likely to result, either separately or in the
aggregate, in (a) any Material Adverse Effect or (b) a material adverse effect
on the ability of Borrower to pay or perform the Obligations in accordance with
the terms of this Agreement and the other Credit Documents or the rights and
remedies of Lender under this Agreement, the other Credit Documents or any
related document, instrument or agreement. Borrower will use its reasonable best
efforts to promptly inform Lender in writing of any material claim, proceeding
or litigation in the future instituted by or against Borrower involving any
claim.
4.13 Financial Condition, Statements and Reports. All financial
statements now or in the future delivered to Lender have been, and will be,
prepared in conformity with generally accepted accounting principles and now and
in the future will completely and accurately reflect the financial condition of
Borrower, at the times and for the periods therein stated. Between the last date
covered by any such statement provided to Lender and the date hereof, there has
been no Material Adverse Effect.
4.14 Tax Returns and Payments; Pension Contributions. Borrower has
timely filed, and will timely file, all tax returns and reports required by
foreign, federal, state and local law, and Borrower has timely paid, and will
timely pay, all foreign, federal, state and local taxes, assessments, deposits
and contributions now or in the future owed by Borrower. Borrower may, however,
defer payment of any contested taxes, provided that Borrower in good faith
contests Borrower's obligation to pay the taxes by appropriate proceedings
promptly and diligently instituted and conducted. Borrower is unaware of any
claims or adjustments proposed for any of Borrower's prior tax years which could
result in additional taxes becoming due and payable by Borrower. Borrower has
paid, and shall continue to pay all amounts necessary to fund all present and
future pension, profit sharing and deferred compensation plans in accordance
with their terms, and Borrower has not and will not withdraw from participation
in, permit partial or complete termination of, or permit the occurrence of any
other event with respect to, any such plan which could result in any material
liability of Borrower, including any liability to the Pension Benefit Guaranty
Corporation or its successors or any other Governmental Authority.
4.15 Compliance with Law. Borrower has complied, and will comply, in
all material respects, with all provisions of all foreign, federal, state and
local laws and regulations relating to Borrower, including, but not limited to,
those relating to Borrower's ownership of real or personal property, the conduct
and licensing of Borrower's business, and all environmental matters.
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4.16 No Material Adverse Effect. No event has occurred and no
condition exists which is reasonably likely to have a Material Adverse Effect.
4.17 Subsidiaries. The Schedule sets forth each of Borrower's
majority owned subsidiaries, each such subsidiary's jurisdiction of organization
and the number of shares and percentages of shares of each such class owned
directly or indirectly by Borrower.
4.18 Accuracy of Information Furnished. The Credit Documents and the
other certificates, statements and information (excluding projections) furnished
by each Loan Party in connection with the Credit Documents and the transactions
contemplated thereby, taken as a whole, do not contain any untrue statement of a
material fact. All projections furnished by Borrower in connection with this
Agreement and the transactions contemplated thereby have been based upon
reasonable assumptions and represent, as of their respective dates of
presentations, Borrower's reasonable estimates of the future performance of
Borrower.
4.19 Use of Proceeds. All proceeds of all Advances shall be used
solely for lawful business purposes and in accordance with Subsection 1.1(e).
5. ADDITIONAL DUTIES OF THE BORROWER.
5.1 Insurance. Borrower shall at all times, and shall cause each
other Loan Party at all times to, insure all of the tangible personal property
assets and carry such other business insurance, in such form and amounts as are
ordinarily carried by other owners in similar businesses conducted in the
locations where Borrower's business is conducted on the date hereof.
5.2 Reports. Borrower, at its expense, shall provide Lender with
the written reports set forth on the Schedule, and such other written reports
with respect to Borrower and the other Loan Parties on a consolidated basis
(including budgets, sales projections, operating plans and other financial
documentation), as Lender shall from time to time reasonably specify.
5.3 Access to Books and Records. At reasonable times, and five (5)
Business Day's notice, Lender, or its agents, shall have the right to audit and
copy Borrower's and each other Loan Party's books and records. Lender shall take
reasonable steps to keep confidential all information obtained in any such
inspection or audit, but Lender shall have the right to disclose any such
information to its auditors, regulatory agencies, and attorneys, and pursuant to
any subpoena or other legal process.
5.4 Equity Infusion. Borrower or one or more of the Loan Parties
shall receive an equity infusion from one or more investors pursuant to the sale
and issuance of its Equity Securities as follows: (i) on or prior to January 31,
2001, Borrower or one or more of the Loan Parties shall have issued and sold
Equity Securities the net proceeds of which exceed $50,000,000 in the aggregate
measured from the Closing Date forward; and (ii) on or prior to April 30, 2001,
Borrower or one or more of the Loan Parties shall have issued and sold Equity
Securities the net proceeds of which exceed $75,000,000 in the aggregate
measured from the Closing Date forward.
5.5 Negative Covenants. Without Lender's prior written consent,
Borrower shall not do, and shall not permit any other Loan Party to (a) pay
total compensation, including salaries, fees, bonuses, commissions, and all
other payments, whether directly or indirectly, in money or otherwise, to
Borrower's executives, officers and directors (or any relative thereof) in an
amount in excess of the amount set forth on the Schedule; (b) violate or fail to
comply with any of the covenants contained in the Indenture as in existence on
the date hereof; provided however that (i) the references to "Holders of the
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Notes" or "Holder of a Note", each as used and defined in the Indenture, shall
be deemed to be references to the Lender, (ii) references to the "Trustee", as
used and defined in the Indenture, shall be deemed to be references to the
Lender, (iii) references to the "Indenture", as used and defined in the
Indenture, shall be deemed to be references to this Agreement, (iv) references
to the "Company", as used and defined in the Indenture, shall be deemed to be
references to Borrower, (v) references to the "Pledge Agreement", as used and
defined in the Indenture, shall be ignored, and (vi) references to the "Notes",
as used and defined in the Indenture, shall be deemed to be references to the
Notes as used and defined in this Agreement; provided further that all other
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similar terms used and defined in the Indenture that have a meaning similar to
terms used and defined in this Agreement shall be deemed to be modified such
that the interpretation of such covenants are consistent in both the Indenture
and this Agreement; or (c) amend the Indenture without the prior written consent
of Lender.
5.6 Indemnity. Borrower hereby agrees to indemnify Lender and hold
Lender harmless from and against any and all claims, debts, liabilities,
demands, obligations, actions, causes of action, penalties, costs and expenses
(including attorneys' fees), of every nature, character and description, which
Lender may sustain or incur based upon or arising out of any of the Obligations,
any actual or alleged failure to collect and pay over any Taxes relating to
Borrower or its employees, any relationship between Lender and Borrower pursuant
to this Agreement, or any other matter, cause or thing whatsoever occurred,
done, omitted or suffered to be done by Lender relating to Borrower or the
Obligations (except any such amounts sustained or incurred as the result of the
gross negligence or willful misconduct of Lender or any of its directors,
officers, employees, agents, attorneys, or any
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other person affiliated with or representing Lender). Notwithstanding any
provision in this Agreement to the contrary, the indemnity agreement set forth
in this Section shall survive any termination of this Agreement and shall for
all purposes continue in full force and effect.
5.7 Subsidiary Guarantees from each of Mid-Atlantic RMTS Holdings,
LLC and VIC-RMTS-DC, LLC. On or prior to the earlier to occur of (i) thirty (30)
days after the Closing Date and (ii) the first Advance being made by Borrower to
Lender under Tranche 2, Borrower shall provide Lender with Subsidiary Guarantees
in the form of Exhibit C, duly executed by each or Mid-Atlantic RMTS Holdings,
LLC and VIC-RMTS-DC, LLC.
6. TERM.
6.1 Maturity Date. This Agreement shall continue in effect until the
maturity date set forth on the Schedule (the "Maturity Date"), subject to
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Section 6.2 below.
6.2 Payment of Obligations. On the Maturity Date or on any earlier
effective date of termination, Borrower shall pay and perform in full all
Obligations, whether evidenced by installment notes or otherwise, and whether or
not all or any part of such Obligations are otherwise then due and payable.
Notwithstanding any termination of this Agreement, the Subsidiary Guarantees and
all of the terms and provisions of this Agreement shall continue in full force
and effect until all Obligations have been paid and performed in full. No
termination shall in any way affect or impair any right or remedy of Lender, nor
shall any such termination relieve Borrower of any Obligation to Lender, until
all of the Obligations have been paid and performed in full.
7. EVENTS OF DEFAULT AND REMEDIES.
7.1 Events of Default. The occurrence of any of the following events
shall constitute an "Event of Default" under this Agreement, and Borrower shall
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give Lender immediate written notice thereof: (a) Borrower shall (i) fail to pay
when due any principal of any Advance or (ii) fail to pay within five (5)
Business Days after the same becomes due, any interest, fees or other amount
required under the terms of this Agreement or any of the other Credit Documents;
(b) the total Advances outstanding at any time shall exceed the Commitment; (c)
Borrower or any other Loan Party shall fail to comply with any of the financial
covenants (if any) set forth on the Schedule or shall fail to perform any other
non-monetary Obligation set forth in this Agreement or any other Credit Document
which by its nature cannot be cured; (d) except as otherwise provided in Section
(k) below, Borrower or any other Loan Party shall fail to perform any other non-
monetary Obligation set forth in this Agreement or any other Credit Document,
which failure is not cured within ten (10) Business Days after receipt by
Borrower of written notice thereof; (e) any representation, warranty,
certificate, information or other statement (financial or otherwise) made or
furnished by or on behalf of Borrower or any other Loan Party to Lender in or in
connection with this Agreement or any of the other Credit Documents, or as an
inducement to Lender to enter into this Agreement, shall be false, incorrect,
incomplete or misleading in any material respect when made or furnished; (f) (i)
Borrower or any other Loan Party shall fail to make any payment on account of
any debt of such Person (other than the Obligations but including obligations,
if any, under any Indenture Note) when due (whether at scheduled maturity, by
required prepayment, upon acceleration or otherwise) and such failure shall
continue beyond any period of grace provided with respect thereto, if the amount
of such debt exceeds $1,500,000 or the effect of such failure is to cause, or
permit the holder or holders thereof to cause, debt of such Loan Party (other
than the Obligations but including obligations, if any, under any Indenture
Note) in an aggregate amount exceeding $1,500,000 to become redeemable, due or
otherwise payable (whether at scheduled maturity, by required prepayment, upon
acceleration or otherwise) or (ii) Borrower or any other Loan Party shall
otherwise fail to observe or perform any agreement, term or condition contained
in any agreement or instrument relating to any debt of such Person (other than
the Obligations but including obligations, if any, under any Indenture Note), or
any other event shall occur or condition shall exist, if the effect of such
failure, event or condition is to cause, or permit the holder or holders thereof
to cause, debt of Borrower and/or such other Loan Party (other than the
Obligations but including obligations, if any, under any Indenture Note) in an
aggregate amount exceeding $1,500,000 to become redeemable, due or otherwise
payable (whether at scheduled maturity, by required prepayment, upon
acceleration or otherwise); (g) dissolution, termination of existence,
insolvency or business failure of Borrower or any other Loan Party, or
appointment of a receiver, trustee or custodian, for all or any part of the
property of, assignment for the benefit of creditors by, or the commencement of
any proceeding by Borrower or any other Loan Party under any reorganization,
bankruptcy, insolvency, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, now or in the future in effect;
(h) commencement of any proceeding against Borrower or any other Loan Party
under any reorganization, bankruptcy, insolvency, arrangement, readjustment of
debt, dissolution or liquidation law or statute of any jurisdiction, now or in
the future in effect, which is not cured by the dismissal thereof within thirty
(30) days after the date commenced; (i) revocation or termination of, or
limitation or denial of liability under, any Credit Document by any Loan Party;
(j) any Loan Party shall generally not pay its debts as they become due; or
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(k) Borrower fails, for any reason, to maintain all material licenses necessary
to conduct its business. Lender may cease making any Advances hereunder during
any of the above cure periods, and thereafter if an Event of Default has
occurred.
7.2 Remedies. Upon the occurrence of any Event of Default, and at any
time thereafter, Lender, at its option, and without notice or demand of any kind
(all of which are hereby expressly waived by Borrower), may do any one or more
of the following: (a) cease making Advances or otherwise extending credit to
Borrower under this Agreement or any other document or agreement; and (b)
accelerate and declare all or any part of the Obligations to be immediately due,
payable, and performable, notwithstanding any deferred or installment payments
allowed by any instrument evidencing or relating to any Obligation. All
reasonable attorneys' fees, expenses, costs, liabilities and obligations
incurred by Lender with respect to the foregoing shall be added to and become
part of the Obligations, shall be due on demand, and shall bear interest at a
rate equal to the highest interest rate applicable to any of the Obligations.
Without limiting any of Lender's rights and remedies, from and after the
occurrence of any Event of Default, the interest rate applicable to the
Obligations shall be increased such that the per annum rate shall be equal to
the Prime Rate plus twelve and one half percent (12.5%) (such increased rate,
the "Default Rate").
------------
8. DEFINITIONS; OTHER TERMS.
8.1 Definitions. As used in this Agreement, the following terms
-----------
have the following meanings:
"Advance" has the meaning set forth in Subsection 1.1(a).
-------
"Affiliate" means, with respect to any Person, a relative, partner,
---------
shareholder, director, officer, or employee of such Person, or any parent or
subsidiary of such Person, or any Person controlling, controlled by or under
common control with such Person.
"Business Day" means a day other than a Saturday or a Sunday or day on
------------
which commercial banks in the state of New Jersey are closed for business.
"Change of Control" shall means the occurrence of either of the following:
-----------------
(i) the acquisition after the date hereof by any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934
(as amended, the "Exchange Act")) of (A) beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under the Exchange Act) of twenty percent (20%) or more of the outstanding
Equity Securities of Borrower entitled to vote for members of the board of
directors, or (B) all or a material portion of the assets of Borrower; (ii) the
first day on which a majority of the members of the Board of Directors of
Borrower are not Continuing Directors (defined as any member of the Board of
Directors of Borrower who (A) was a member of such Board of Directors on the
date of the Loan Agreement or (B) was nominated for election or elected to such
Board of Directors with the approval of a majority of the Continuing Directors
who were members of such Board of Directors at the time of such nomination or
election); (iii) the first day on which SBC Communications, Inc. fails to hold,
whether directly or indirectly, 9.9% or more of the total Equity Securities
(measured by voting power rather than the number of shares) of Borrower; or (iv)
the first day on which Borrower's existing long distance telephone contract (or
any replacement thereof) terminates and is not replaced by a contract having no
less favorable economic terms than Borrower's long distance telephone contract
in existence as of May 21, 1998, and a term (assuming exercise of any renewal
options) ending after the Maturity Date.
"Closing Date" has the meaning set forth in the heading to this Agreement.
------------
"Commitment" has the meaning set forth in Subsection 1.1(a).
----------
"Commitment Period" has the meaning set forth in Subsection 1.1(a).
-----------------
"Continuing Directors" means any member of the Board of Directors of
--------------------
Borrower who (i) was a member of such Board of Directors on the date of this
Agreement or (ii) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors who were
members of such Board of Directors at the time of such nomination or election.
"Credit Documents" means and includes this Agreement, the Side Letter, the
----------------
Subsidiary Guarantees, and all other documents, instruments and agreements
delivered by Borrower or any other Loan Party in connection with this Agreement.
"Default" means any event which with notice or passage of time or both,
-------
would constitute an Event of Default.
"Default Rate" has the meaning set forth in Section 7.2.
------------
"Equity Securities" of any Person means (a) all common stock, preferred
-----------------
stock, participations, shares, partnership interests or other equity interests
in and of such Person, including membership interests in limited liability
companies (regardless of how designated and whether or not voting or non-
voting), and (b) all
-7-
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Lucent Technologies Inc. Loan Agreement
--------------------------------------------------------------------------------
warrants, options and other rights to acquire any of the foregoing.
"Event of Default" means any of the events set forth in Section 7.1 of this
----------------
Agreement.
"Governmental Authority" means any domestic or foreign national, state or
----------------------
local government, any political subdivision thereof, any department, agency,
authority or bureau of any of the foregoing, or any other entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indenture" means that certain Indenture dated as of May 21, 1998 among
---------
Borrower, the subsidiary guarantors defined therein and Harris Trust and Savings
Bank, a true and correct copy of which is attached as Exhibit D.
---------
"Indenture Notes" means, collectively, those certain Series B 14 1/2%
---------------
Senior Notes Due 2008 issued pursuant to the Indenture.
"Loan Parties" shall mean Borrower and each other Person that executes and
------------
delivers to Lender a Credit Document pursuant to this Agreement.
"Material Adverse Effect" means a material adverse effect on the business,
-----------------------
assets, operations or financial condition of Borrower and its subsidiaries,
taken as a whole.
"Maturity Date" has the meaning set forth on the Schedule.
-------------
"Note" has the meaning set forth in Section 1.7.
----
"Obligations" means all present and future Advances, advances, debts,
-----------
liabilities, obligations, guaranties, covenants, duties and indebtedness at any
time owing by Borrower to Lender, whether evidenced by this Agreement or any
note or other instrument or document, whether arising from an extension of
credit, loan, guaranty, indemnification or otherwise, whether direct or indirect
(including, without limitation, those acquired by assignment and any
participation by Lender in Borrower's debts owing to others), absolute or
contingent, due or to become due.
"Permitted Assignment" means a transfer or assignment of this Agreement
--------------------
(whether by operation of law or otherwise) in connection with a merger by
Borrower with and into an entity or wholly owned subsidiary of an entity whose
long term debt is rated "A" or higher by Standard and Poor's Rating Services or
"A2" or higher by Moody's Investors Service, Inc.
"Permitted Liens" means liens permitted under the Indenture as in effect
---------------
on the date hereof.
"Person" means an individual, a partnership, a corporation (including a
------
business trust), a joint stock company, an unincorporated association, a limited
liability company, a joint venture, a trust or other entity or a Governmental
Authority.
"Request for Advance" has the meaning set forth in Subsection 1.1(b).
-------------------
"Requirement of Law" applicable to any Person means (a) the articles or
------------------
certificate of incorporation and by-laws, partnership agreement or other
organizational or governing documents of such Person, (b) any rule of any
Governmental Authority applicable to such Person, (c) any license, permit,
approval or other authorization granted by any Governmental Authority to or for
the benefit of such Person or (d) any judgment, decision or determination of any
Governmental Authority or arbitrator, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
"Side Letter" means that certain Side Letter, dated as of the date hereof,
-----------
executed by Borrower in favor of Lender.
"Subsidiary Guarantees" has the meaning set forth in Section 2.1.
---------------------
"Taxes" has the meaning set forth in Section 1.8.
-----
9. GENERAL PROVISIONS.
9.1 Calculation of Interest and fees. All calculations of interest
and fees under this Agreement and the other Credit Documents for any period (a)
shall include the first day of such period and exclude the last day of such
period and (b) shall be calculated on the basis of a year of 365 or 366 days, as
appropriate, for actual days elapsed.
9.2 Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Borrower or Lender under this Agreement or the other Credit Documents shall be
in writing and faxed, mailed or delivered, if to Borrower, at the Borrower's
Address, or if to Lender, at the address or facsimile number set forth below (or
to such other facsimile number or address for any party as indicated in any
notice given by that party to the other party). All such notices and
communications shall be effective (a) when sent by an overnight courier service
of recognized standing, on the second Business Day following the deposit with
such service; (b) when mailed, first class postage prepaid and addressed as
aforesaid through the United States Postal Service, upon receipt; (c) when
delivered by hand, upon delivery; and (d) when faxed, upon confirmation of
receipt:
-8-
<PAGE>
Lucent Technologies Inc. Loan Agreement
-------------------------------------------------------------------------------
Lender:
Lucent Technologies Inc.
600 Mountain Avenue
Murray Hill, NJ 07974
Tel No. (908) 582-1780
Fax No. (908) 582-3101
Attn: Annette Fasciano
Each Request for Advance shall be given by Borrower to Lender's office located
at the address referred to above during Lender's normal business hours;
provided, however, that any such notice received by Lender after 12:00 p.m. East
-------- -------
Coast time on any Business Day shall be deemed received by Lender on the next
Business Day. In any case where this Agreement authorizes notices, requests,
demands or other communications by Borrower to Lender to be made by telephone or
facsimile, Lender may conclusively presume that anyone purporting to be a person
designated in any incumbency certificate or other similar document received by
Lender is such a person.
9.3 Severability. Should any provision of this Agreement be held by
any court of competent jurisdiction to be void or unenforceable, such defect
shall not affect the remainder of this Agreement, which shall continue in full
force and effect.
9.4 Integration. This Agreement and such other written agreements,
documents and instruments as may be executed in connection herewith are the
final, entire and complete agreement between Borrower and Lender and supersede
all prior and contemporaneous negotiations and oral representations and
agreements, all of which are merged and integrated in this Agreement. There are
no oral understandings, representations or agreements between the parties which
are not set forth in this Agreement or in other written agreements signed by the
parties in connection herewith.
9.5 Waivers. The failure of Lender at any time or times to require
Borrower to strictly comply with any of the provisions of this Agreement or any
other present or future agreement between Borrower and Lender shall not waive or
diminish any right of Lender later to demand and receive strict compliance
therewith. Any waiver of any default shall not waive or affect any other
default, whether prior or subsequent, and whether or not similar. None of the
provisions of this Agreement or any other agreement now or in the future
executed by Borrower and delivered to Lender shall be deemed to have been waived
by any act or knowledge of Lender or its agents or employees, but only by a
specific written waiver signed by an authorized officer of Lender and delivered
to Borrower. Borrower waives demand, protest, notice of protest and notice of
default or dishonor, notice of payment and nonpayment, unless expressly required
by this Agreement.
9.6 Amendment. The terms and provisions of this Agreement may not be
waived or amended, except in a writing executed by Borrower and a duly
authorized officer of Lender.
9.7 Time of Essence. Time is of the essence in the performance by
Borrower of each and every obligation under this Agreement.
9.8 Attorneys Fees and Costs. Borrower shall reimburse Lender for all
reasonable attorneys' fees and all other reasonable costs incurred by Lender
pursuant to, or in connection with, or relating to this Agreement (whether or
not a lawsuit is filed), including, but not limited to, any reasonable
attorneys' fees and costs Lender incurs in order to do the following: prepare
and negotiate this Agreement and the documents relating to this Agreement;
obtain legal advice in connection with this Agreement or Borrower; commence,
intervene in, or defend any action or proceeding; initiate any complaint to be
relieved of the automatic stay in bankruptcy; file or prosecute any bankruptcy
claim or third-party claim; and otherwise represent Lender in any litigation
relating to Borrower. All attorneys' fees and costs to which Lender may be
entitled pursuant to this Section shall immediately become part of Borrower's
Obligations and shall be due on demand.
9.9 Benefit of Agreement. The provisions of this Agreement shall be
binding upon and inure to the benefit of the respective successors, assigns,
heirs, beneficiaries and representatives of Borrower and Lender; provided,
--------
however, that Borrower may only assign or transfer any of its rights under
-------
this Agreement pursuant to a Permitted Assignment or upon the prior written
consent of Lender, which such consent shall not be unreasonably withheld, and
any other prohibited assignment or transfer of this Agreement shall be void. No
consent by Lender to any assignment shall release Borrower from its liability
for the Obligations. Lender may, at any time, sell and assign, or grant
participating interests in, to any other Person not a direct competitor of
Borrower, all or a portion of its rights and obligations under this Agreement
and the other Credit Documents. Borrower agrees that it shall perform such acts,
and provide such information, as Lender may reasonably request to assist Lender
with any such assignment or participation.
9.10 Limitation of Actions. Any claim or cause of action by Borrower
against Lender, its directors, officers, employees, agents, accountants or
attorneys, based upon, arising from, or relating to this Agreement, or any other
present or future document or agreement, or any other transaction contemplated
hereby or thereby or relating hereto or thereto, or any other matter, cause or
thing whatsoever, occurred, done, omitted or suffered to be done by Lender, its
directors, officers, employees, agents, accountants or attorneys,
-9-
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Lucent Technologies Inc. Loan Agreement
--------------------------------------------------------------------------------
shall be barred unless asserted by Borrower by the commencement of an action or
proceeding in a court of competent jurisdiction by the filing of a complaint
within one year after the first act, occurrence or omission upon which such
claim or cause of action, or any part thereof, is based, and the service of a
summons and complaint on an officer of Lender, or on any other person authorized
to accept service on behalf of Lender, within thirty (30) days thereafter.
Borrower agrees that such one-year period is a reasonable and sufficient time
for Borrower to investigate and act upon any such claim or cause of action. The
one-year period provided herein shall not be waived, tolled, or extended except
by the written consent of Lender in its sole discretion. This provision shall
survive any termination of this Agreement or any other present or future
agreement.
9.11 Paragraph Headings; Construction. Paragraph headings are only
used in this Agreement for convenience. Borrower and Lender acknowledge that the
headings may not describe completely the subject matter of the applicable
paragraph, and the headings shall not be used in any manner to construe, limit,
define or interpret any term or provision of this Agreement. The term
"including", whenever used in this Agreement, shall mean "including (but not
limited to)". This Agreement has been fully reviewed and negotiated between the
parties and no uncertainty or ambiguity in any term or provision of this
Agreement shall be construed strictly against Lender or Borrower under any rule
of construction or otherwise.
9.12 Governing Law; Jurisdiction; Venue. This Agreement and all acts
and transactions hereunder and all rights and obligations of Lender and Borrower
shall be governed by the laws of the State of New York. As a material part of
the consideration to Lender to enter into this Agreement, Borrower (i) agrees
that all actions and proceedings relating directly or indirectly to this
Agreement shall, at Lender's option, be litigated in courts located within New
York, and that the exclusive venue therefor shall be New York County; (ii)
consents to the jurisdiction and venue of any such court and consents to service
of process in any such action or proceeding by personal delivery or any other
method permitted by law; and (iii) waives any and all rights Borrower may have
to object to the jurisdiction of any such court, or to transfer or change the
venue of any such action or proceeding.
9.13 MUTUAL WAIVER OF JURY TRIAL. BORROWER AND LENDER EACH HEREBY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING
OUT OF, OR IN ANY WAY RELATING TO, THIS AGREEMENT OR ANY OTHER PRESENT OR FUTURE
INSTRUMENT OR AGREEMENT BETWEEN LENDER AND BORROWER, OR ANY CONDUCT, ACTS OR
OMISSIONS OF LENDER OR BORROWER OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH LENDER OR BORROWER, IN
ALL OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
Borrower:
ONEPOINT COMMUNICATIONS CORP.
By______________________________________________
President, Vice President or Chief Financial Officer
By______________________________________________
Secretary or Ass't. Secretary
Lender:
LUCENT TECHNOLOGIES INC.
By______________________________________________
Title___________________________________________
-10-
<PAGE>
Lucent Technologies Inc.
Schedule to
Loan Agreement
Borrower: OnePoint Communications Corp.
Address: Two Conway Park
150 Field Drive, Suite 300
Lake Forest, Illinois 60045
Phone No. (847) 582-8710
Fax No. (847) 582-8801
Date: July 26, 2000 (the "Closing Date")
------------
This Schedule forms an integral part of the Loan of even date herewith between
LUCENT TECHNOLOGIES INC. ("Lender") and the above-named borrower ("Borrower").
------ --------
===============================================================================
1. CREDIT FACILITY
Commitment Period
(Subsection 1.1(a)): July 26, 2000 to September 30, 2000.
Commitment
(Subsection 1.1(a)): $20,000,000 which shall be available to Borrower
in two (2) tranches. The first tranche in an
amount of $5,000,000 ("Tranche 1") shall be
---------
available to Borrower on the Closing Date. The
second tranche in the amount of $15,000,000
("Tranche 2") shall be available to Borrower upon
---------
the occurrence and satisfaction of the following
conditions: (a) Advances of $5,000,000 under
Tranche 1; (b) evidence in form and substance
reasonably satisfactory to Lender that Borrower
has entered into a definitive merger agreement
pursuant to which Borrower will be merged with and
into a communications company or one of its
subsidiaries acceptable to Lender in its
reasonable discretion, together with a copy of
resolutions duly adopted by such entities board of
directors or other authorizing authority approving
such merger agreement; and (c) execution and
delivery by Borrower of an irrevocable, binding
commitment to acquire on or prior to December 31,
2004 at least $150,000,000 worth of
telecommunications and related equipment
manufactured by Lender and/or its affiliates,
inclusive of amounts included in existing
commitments by Borrower to Lucent.
Maximum number
of Advances
(Subsection 1.1(b)): Five (5).
S-1
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Lucent Technologies Inc. Schedule to Loan Agreement
--------------------------------------------------------------------------------
Interest Rate
(Subsection 1.1(c)): A per annum rate equal to the "Prime Rate" in
effect from time to time, plus 7.0%; provided,
--------
however, that ninety (90) days after the
--------
occurrence of a Change of Control, the rate of
interest payable by Borrower hereunder shall be
increased to a per annum rate equal to the "Prime
Rate" in effect from time to time, plus 12.5%.
"Prime Rate" shall mean, with respect to any
----------
Advance, the rate of interest specified as the
"prime rate" in The Wall Street Journal. The Prime
-----------------------
Rate will change, at the option of Lender, on (i)
each date on which the Prime Rate changes or (ii)
the first business day of each calendar month that
such Advance is outstanding or, if The Wall Street
---------------
Journal is not published on such day or such rate
-------
is not specified therein on such day for any
reason, the rate of interest specified as the
Prime Rate in the most recent issue of The Wall
-------
Street Journal specifying the Prime Rate prior to
--------------
such day.)
Interest Payments
(Subsection 1.1(c)): Borrower shall pay interest on the first day of
each calendar month, commencing with the first
calendar month after the date of each Advance.
Commitment
Reductions
(Subsection 1.2): In the amount of One Hundred Thousand Dollars
($100,000) or an integral multiple of One Hundred
Thousand Dollars ($100,000) in excess thereof.
Fees
(Section 1.3): (i) On the Closing Date, Borrower shall pay to
Lender a one-time origination fee equal to
$150,000. Thereafter, on the date Borrower
receives each Advance under Tranche 2, Borrower
shall pay to Lender additional origination fees
equal to three percent (3.0%) of the amount of
such Advance. Such fees may be borrowed by
Borrower as a portion of each such Advance.
(ii) Borrower shall pay an administrative fee for
the period beginning on the Closing Date and
ending on the Maturity Date equal to $1,500 per
year. Borrower shall pay the administrative fee in
arrears on the first day of each calendar quarter
commencing on September 1, 2000.
(iii) Borrower shall pay a commitment fee on the
daily average unutilized portion of the Commitment
equal to two percent (2.0%) per annum for the
period beginning on the Closing Date and ending on
the last day of the Commitment Period. Borrower
shall pay the commitment fee in arrears on the
first day of each calendar quarter commencing on
the first calendar quarter after the Closing Date.
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Lucent Technologies Inc. Schedule to Loan Agreement
--------------------------------------------------------------------------------
================================================================================
2. CONDITIONS PRECEDENT
(Section 3.1):
Lender shall have received the following, each in
form and substance satisfactory to Lender:
(a) The Credit Documents, duly executed by Lender
and each Loan Party other than the Subsidiary
----- ----
Guarantees from each of Mid-Atlantic RMTS
Holdings, LLC and VIC-RMTS-DC, LLC which
Borrower covenants and agrees to provide to
Lender after the Closing Date pursuant to
Section 5.7 of the Agreement.
(b) The Certificate or Articles of Incorporation
or Certificate of Formation of each Loan
Party, certified as of a recent date prior to
the Closing Date by the Secretary of State
(or comparable official) of its jurisdiction
of organization.
(c) Secretary Certificates and Incumbency
Certificates of each Loan Party, dated the
Closing Date, attaching thereto (i) the
incumbency, signatures and authority of the
officers of the Loan Party authorized to
execute, deliver and perform the Credit
Documents and (ii) a true and correct copy of
the bylaws, operating agreements, and
resolutions of such Loan Party as in effect
on the Closing Date
(d) Favorable written opinion from counsel for
the Loan Parties, dated the Closing Date,
addressed to Lender, covering such legal
matters as Lender may reasonably request
(including without limitation that the
execution, deliver and performance by
Borrower of the Credit Documents does not
conflict with the Indenture, subject to
and substance reasonably satisfactory to
Lender.
(e) Certificates of Good Standing (or comparable
certificates) for each Loan Party, certified
as of a recent date prior to the Closing Date
by the Secretaries of State (or comparable
official) of the states in which each Loan
Party is organized.
(f) Such other instruments, agreements,
certificates and other documents as Lender
may reasonably request.
S-3
<PAGE>
===============================================================================
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER
(Section 4.1):
Prior Names of
Borrower
(Section 4.7): None.
Prior Trade
Names of Borrower
(Section 4.7): None.
Existing Trade
Names of Borrower
(Section 4.7): OnePoint Communications.
Material Adverse
Litigation (Section 4.12): None.
Subsidiaries (Section 4.17):
<TABLE>
<CAPTION>
Jurisdiction of Issued Shares
Name of Subsidiary Organization Shares/Units Held by OnePoint
------------------ ----------- ------------ ------------------
<S> <C> <C> <C>
OnePoint Communications-Colorado, LLC Delaware 100 100
OnePoint Communications-Illinois, LLC Delaware 100 100
OnePoint Communications-Georgia, LLC Delaware 100 100
OnePoint Communications Holdings, LLC Delaware 100 100
Mid-Atlantic RMTS Holdings, LLC/1/ Delaware 10 9.9
VIC-RMTS-DC, LLC/2/ Delaware 28.710 25.265
OnePoint Services, LLC Delaware Common:
6,600,700 4,370,700
Preferred:
1,629,300 1,629,300
RCP Communications, Inc./3/ Arizona /1/2,000 2,000
</TABLE>
____________________________________
/1/ OnePoint interests held by OnePoint Communications Holdings, LLC.
/2/ OnePoint interests held by OnePoint Communications Holdings, LLC and Mid-
Atlantic RMTS Holdings, LLC.
/3/ OnePoint interests held by OnePoint Services, LLC.
S-4
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Lucent Technologies Inc. Schedule to Loan Agreement
--------------------------------------------------------------------------------
================================================================================
4. REPORTING
(Section 5.2): Borrower shall provide Lender with the following:
1. Within 90 days after each year-end, consolidated
and consolidating financial statements of Borrower
and its subsidiaries audited by an independent
public accounting firm acceptable to Lender.
2. Within 45 days after each quarter-end, quarterly
unaudited consolidated and consolidating financial
statements of Borrower and its subsidiaries.
3. Within 30 days prior to the commencement of each
fiscal year, a budget and business plan for
Borrower for such fiscal year.
4. Contemporaneously with the delivery of the
quarterly and year-end financial statements, a
compliance certificate of the Borrower which
states that (i) no Event of Default has occurred
and is continuing and (ii) Borrower is in
compliance with each of the covenants set forth in
the Credit Documents (the "Compliance
----------
Certificate").
-----------
5. Such other instruments, agreements, certificates,
opinions, statements, documents and information
relating to the operations or condition (financial
or otherwise) of Borrower or its subsidiaries, and
compliance by Borrower with the terms of this
Agreement and the other Credit Documents as Lender
may from time to time reasonably request.
================================================================================
5. COVENANTS
(Section 5.5):
1. Without Lender's prior written consent, Borrower
shall not pay total compensation, including
salaries, withdrawals, fees, bonuses, commissions,
drawing accounts and other payments, whether
directly or indirectly, in money or otherwise,
during any fiscal year to all of Borrower's
executives, officers and directors (or any
relative thereof) as a group in excess of market
rates for similarly situated executives, officers
and directors.
================================================================================
6. TERM
(Section 6.1) The "Maturity Date" shall be June 2, 2008.
Borrower: Lender:
ONEPOINT COMMUNICATIONS CORP. LUCENT TECHNOLOGIES INC.
By_____________________________ By________________________
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Lucent Technologies Inc. Schedule to Loan Agreement
--------------------------------------------------------------------------------
President, Vice President or Chief Financial Title______________________
Officer
By_________________________________
Secretary or Ass't. Secretary
S-6
<PAGE>
EXHIBIT A
---------
REQUEST FOR ADVANCE
-------------------
_____________, 20__ [Insert date]
To: Lucent Technologies Inc. Financing Operations (Fax No. (908) 582-3101)
Reference is made to the Loan Agreement (the "Loan Agreement") between OnePoint
Communications Corp. ("Borrower") and Lucent Technologies Inc. ("Lender") dated
as of July 26, 2000. Capitalized terms used herein shall have the same meaning
given to them in the Loan Agreement.
In accordance with Subsection 1.1(b) of the Loan Agreement, Borrower hereby
requests the following Advance:
Request Number: ______________
Business Day of Advance (at least 5
Business Days from the date hereof): ______________
Use of proceeds:
A. Amount to finance Borrower's acquisition of
network equipment: $______________
B. Amount to satisfy Borrower's existing accounts
payable owed to Lender and/or any Affiliate: $______________
C. Amount for working capital purposes: $______________
D. Amount for other purposes: $______________
E. Total amount of Advance requested (A + B + C + D): $______________
The funds related to the Advance should be remitted by wire transfer based on
the following instructions:
Bank: __________________________________
Bank city, state: __________________________________
Bank ABA or routing number: __________________________________
Account name: __________________________________
Account number: __________________________________
Reference: __________________________________
In connection with the proposed Advance, Borrower hereby certifies that as of
the date hereof:
(i) the representations and warranties of Borrower and the other Loan Parties
set forth in Section 4 of the Loan Agreement and in the other Credit
Documents are true and correct in all material respects as of the date
hereof (except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(ii) no Default has occurred and is continuing or will result from such
Advance; and
(iii) all of the Credit Documents are in full force and effect.
ONEPOINT COMMUNICATIONS CORP.
By:_______________________
Name:
Title:
A-1
<PAGE>
EXHIBIT B
---------
PROMISSORY NOTE
---------------
$________________ Murray Hill, New Jersey
July 26, 2000
FOR VALUE RECEIVED, ONEPOINT COMMUNICATIONS CORP., a Delaware corporation
("Borrower"), hereby promises to pay to the order of LUCENT TECHNOLOGIES INC.
--------
("Lender"), whose address is 600 Mountain Avenue, Murray Hill, N.J., 07974, the
-------
principal sum of ______________ DOLLARS ($__________) or such lesser amount as
shall equal the aggregate outstanding principal balance of the Advances made by
Lender to Borrower pursuant to the Loan Agreement referred to below (as amended
from time to time, the "Loan Agreement"), on or before the Maturity Date
--------------
specified in the Loan Agreement; and to pay interest on said sum, or such lesser
amount, at the rates and on the dates provided in the Loan Agreement.
Borrower shall make all payments hereunder to Lender as indicated in the
Loan Agreement, in lawful money of the United States and in same day or
immediately available funds.
Borrower hereby authorizes Lender to record on the schedule(s) annexed to
this note the date and amount of each Advance and of each payment or prepayment
of principal made by Borrower and agrees that all such notations shall
constitute prima facie evidence of the matters noted; provided, however, that
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the failure of Lender to make any such notation shall not affect Borrower's
obligations hereunder.
This note is the Note referred to in the Loan Agreement, dated as of July
26, 2000 between Borrower and Lender. This note is subject to the terms of the
Loan Agreement, including the rights of prepayment and the rights of
acceleration of maturity set forth therein. Terms used herein have the meanings
assigned to those terms in the Loan Agreement, unless otherwise defined herein.
This note shall be governed by and construed in accordance with the laws of
the State of New York.
ONEPOINT COMMUNICATIONS CORP.
By: ________________________________
Name:___________________________
Title:__________________________
B-1
<PAGE>
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Unpaid
Type of Amount of Interest Principal Paid Principal Notation
Date Loan Loan Period or Prepaid Balance Made By
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<S> <C> <C> <C> <C> <C> <C>
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</TABLE>
<PAGE>
EXHIBIT C
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FORM OF SUBSIDIARY GUARANTY
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See Attached
<PAGE>
EXHIBIT D
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INDENTURE
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See Attached
