LOAN AGREEMENT
Borrower: OnePoint Communications Corp.
Address: Two Xxxxxx Park
000 Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
Phone No. (000) 000-0000
Fax No. (000) 000-0000
Date: November 17, 2000 (the "Closing Date")
THIS LOAN AGREEMENT (this "Agreement") is entered into on the above
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date between VERIZON INVESTMENTS, INC. ("Lender"), and the borrower named above
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("Borrower"), whose chief executive office is located at the above address
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("Borrower's Address"). The Schedule to this Agreement (the "Schedule") shall
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for all purposes be deemed to 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
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advances as Borrower may request under this Section 1 (individually, an
"Advance"); provided, however, that Lender shall not be obligated to make an
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Advance to the 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 as set forth on the Schedule; (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. The maximum number of Advances and the permitted timing of the
Advances is set forth on the Schedule.
(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 (a) for
any purpose that is restricted under any other loan agreement, credit facility,
capital lease agreement, the Indenture or other financing arrangement to which
the Borrower or any subsidiary of the Borrower is a party, (b) for any purpose
for which a consent or waiver is required from the Lender under that certain
Definitive Merger Agreement dated August 4, 2000 (the "Merger Agreement") by and
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among Lender, Sphere Merger Corp., Borrower, Ventures in Communications II,
L.L.C. ("XXX XX") and VenCom, L.L.C. ("VenCom"), (c) to declare or pay any
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dividend or to make any other payment or distribution to any holder of any
Equity Interest (as such term is defined in the Indenture) of Borrower or any
direct or indirect parent of the Borrower (including without limitation XXX XX,
VenCom, Ventures in Communications, L.L.C or Xxxxx X. Xxxxxxxxx) or to purchase,
redeem or otherwise acquire or retire for value any Equity Interest of Borrower
or any direct or indirect parent of the Borrower (including without limitation
XXX XX, VenCom, Ventures in Communications, L.L.C or Xxxxx X. Xxxxxxxxx). The
execution and delivery of this Agreement and the Credit Documents, and the
making of any Advances hereunder shall not be deemed or construed to be a waiver
or consent under the Merger Agreement, or (d) to make any loans or advances to
any executive officer or director of Borrower or any Subsidiary.
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
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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 Note. The obligation of Borrower to repay the Advances shall be
evidenced by a promissory note in the form of Exhibit B (the "Note") which Note
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shall be (i) payable to the order of Lender, (ii) in the principal amount of
$25,000,000, (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.
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 any
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amounts payable to Lender 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
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majority 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.
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3. CONDITIONS PRECEDENT.
3.1 Initial Conditions Precedent. The obligation of Lender to enter
into this Agreement is subject to (a) receipt by Lender, on or prior to the date
set forth above, of each item set forth on the Schedule, each in form and
substance satisfactory to Lender and (b) consummation of the Equity Funding
Obligation (as defined in the Merger Agreement).
3.2 Conditions Precedent to Initial Advance. The obligation of
Lender to make the initial Advance is subject to the receipt by Lender of an
income statement, balance sheet and statement of cash flow, each in form and
substance substantially similar to those submitted by Borrower to its board of
directors and executive officers ("Financial Statements"), for (i) Borrower's
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financial results for the ten month period ended October 31, 2000, presented on
a monthly basis, and (ii) Borrower's projected financial results for the year
ending December 31, 2000 presented on a monthly basis. In addition, the initial
Advance shall not be made on or before the date that is 15 calendar days after
date of the consummation of the Equity Funding Obligation.
3.3 Conditions Precedent to Each Advance. The obligation of Lender
to make each Advance is subject to the further conditions that (a) Borrower
shall have delivered to Lender the Request for Advance in accordance with this
Agreement; (b) on the date of such Advance, Borrower shall not have more than
$3,000,000 in unrestricted cash available to it; (c) the Borrower shall have
delivered the Financial Statements required pursuant to Section 5.2; (d) the
Merger Agreement shall not have been terminated pursuant to Section 7.1(b)
thereof and the termination date of the Merger Agreement shall have been
extended to at least January 4, 2001; and (e) 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 Event of Default has occurred and is
continuing or will result from such Advance; (iii) all of the Credit Documents
are in full force and effect; and (iv) Borrower has performed in all respects
all obligations and covenants under the Merger Agreement required to be
performed by it as of the date of such Advance. 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.
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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. The execution and delivery of
this Agreement, does not violate any provision of the Indenture and shall not
result in the occurrence of an Event of Default under the Indenture.
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 (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.
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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 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 financial 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.
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.
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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 Intentionally omitted.
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 (or make any loans or advances), 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 or as modified with the consent
of Lender; provided, however, that (i) the references to "Holders of the Notes"
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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 similar terms
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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; provided, however, that the Borrower shall be permitted to amend the
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Indenture as contemplated by the Merger Agreement.
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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 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.
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
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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 (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").
------------
7.3 Rights to Set-Off. Borrower hereby waives any and all rights
-----------------
Borrower may have to withhold or set-off against any amount due from or payable
by Lender for any claim or payment to which Borrower may be entitled under the
Merger Agreement. In the event that the Borrower has a claim for payment
against Lender or any Affiliate of Lender, Lender, in its sole discretion, shall
have the right to pay such claim by forgiving or canceling, in part or in whole,
the outstanding principal amount, accrued interest and any fees due and payable
to Lender under this Agreement and the Note.
-9-
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 mean the occurrence of any 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); or (iii) 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;
provided, however, that a Change of Control shall not be deemed to have occurred
-------- -------
upon the merger of Sphere Merger Corp. with and into the Borrower pursuant to
the terms and conditions of the Merger Agreement.
"Closing Date" has the meaning set forth in the introductory paragraph
------------
hereto.
"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, the Note 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.
------------
-10-
"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 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 Xxxxxx 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 conditions of Borrower and its
subsidiaries, taken as a whole.
"Maturity Date" has the meaning set forth on the Schedule.
-------------
"Merger Agreement" has the meaning set forth in Section 1.1.
----------------
"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 & Poor's Rating Services
or "A2" or higher by Xxxxx'x 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.
-11-
"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:
Lender:
Verizon Investments, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. X'Xxxxxx
0000 Xxxx Xxxxxx
00/xx/ Xxxxx
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-12-
and
Xxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxxxxx
0/xx/ Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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.
-13-
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, 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
-14-
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 Assistant Secretary
Lender:
VERIZON INVESTMENTS, INC.
By____________________________________
Name__________________________________
Title_________________________________
-15-
Verizon Investments, Inc.
Schedule to
Loan Agreement
Borrower: OnePoint Communications Corp.
Address: Two Xxxxxx Park
000 Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
Phone No. (000) 000-0000
Fax No. (000) 0000000
Date: November 17, 2000 (the "Closing Date")
This Schedule forms an integral part of the Loan of even date herewith between
VERIZON INVESTMENTS, INC. ("Lender") and the above-named borrower
------
("Borrower").
--------
1. CREDIT FACILITY
Commitment Period
(Subsection 1.1(a)): Closing Date until December 31, 2000.
(Subsection 1.1(a)): $25,000,000 shall be available to Borrower from time to
time up to December 31, 2000, which may be borrowed in
three tranches, in the following amounts and on the
following dates :
(1) Initial Tranche: The Initial Tranche shall be for
$8,000,000 and may be drawn on or after the 15th
calendar day following the consummation of the Equity
Funding Obligation.
(2) Second Tranche: The Second Tranche shall be for
$8,000,000 and may be drawn on or after the date that
is the 10/th/ calendar day after the date of funding of
the Initial Tranche.
(3) Third Tranche: The Third Tranche shall be for
$9,000,000 and may be drawn on or after the date that
is the 10/th/ calendar day after the date of funding of
the Second Tranche.
Maximum number
of Advances
(Subsection 1.1(b)): Three (3).
Interest Rate
(Subsection 1.1(e)): 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
S-1
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 date Borrower receives each Advance,
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.
2. CONDITIONS PRECEDENT
(Section 3.1):
To induce the Lender to enter into this Agreement,
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.
(b) Secretary Certificates and Incumbency
Certificates of each Loan Party, dated the
Closing Date, certifying that none of its
organizational documents have been amended or
otherwise changed since August 24, 2000,
S-2
and 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 resolutions of
such Loan Party as in effect on the Closing
Date
(c) 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 factual assumptions)
and otherwise in form and substance reasonably
satisfactory to Lender.
(d) 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.
(e) Evidence that the Equity Funding Obligation
has been consummated.
(f) Such other instruments, agreements,
certificates and other documents as Lender may
reasonably request.
3. REPRESENTATIONS, WAS 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):
Jurisdiction of Issued Shares
Name of Subsidiary Organization Shares/Units Held by OnePoint
------------------ ------------ ------------ ----------------
OnePoint Communications - Colorado, LLC Delaware 100 100
S-3
OnePoint Communications-Illinois, LLC Delaware 100 100
OnePoint Communications-Georgia, LLC Delaware 100 100
OnePoint Communications-Holdings, LC Delaware 100 100
Mid-Atlantic RMTS Holdings, LLC/1/ Delaware 10 9.9
VTC-RMTS-DC, LLC/2/ Delaware 28.710 25.265
OnePoint Services, LLC Xxxxxxxx Xxxxxx 00.000
XxxXxxxx Services, LLC Delaware 6,600,700 4,370,700
Preferred:
1,629,300 1,629,300
RCP Communications, Inc./3/ Arizona 2,000 2,000
4. Reporting
(Section 5.2): Borrower shall provide Lender with the following:
1. At least every 30 calendar days commencing on
the Closing Date and continuing during the
Commitment Period, historical Financial
Statements (as defined in Section 3.2 of the
Agreement) for the period commencing at the
beginning of the then current fiscal year and
ending on the last day of the preceding month
and projected financial results for the
remaining portion of the then current fiscal
year. Financial Statements provided hereunder
shall be in form and substance substantially
similar to those provided to Borrower's board
of directors and executive officers.
2. 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.
3. Within 45 days after each quarter-end,
quarterly unaudited consolidated and
consolidating financial statements of
Borrower and its subsidiaries.
4. Within 30 days prior to the commencement of
each fiscal year, a budget and business plan
for Borrower for such fiscal year.
_______________
/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
5. Contemporaneously with the delivery of the
quarterly and year-end financial statements
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").
-----------------------
6. 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 (or
make any loans or advances), 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. VERIZON INVESTMENTS, INC.
By___________________________________ By___________________________________
President, Vice President or Chief Name
Financial Officer Title
By___________________________________
Secretary or Assistant Secretary
S-5
EXHIBIT A
---------
REQUEST FOR ADVANCE
-------------------
______________,20___[insert date]
To: Verizon Investments, Inc. ( Fax No. __________________)
Reference is made to the Loan Agreement (the "Loan Agreement") between OnePoint
Communications Corp. ("Borrower") and Verizon Investments, Inc. ("Lender") dated
as of November __, 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) Borrower does not have $3,000,000 of unrestricted cash on hand;
(ii) 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);
(iii) no Default has occurred and is continuing or will result from such
Advance;
A-1
(iv) all of the Credit Documents are in full force and effect; and
(v) Borrower has performed in all respects all obligations and covenants
under the Merger Agreement required to be performed by it as of the date hereof.
ONEPOINT COMMUNICATIONS CORP.
By:________________________________
Name:______________________________
Title:_____________________________
A-2
PROMISSORY NOTE
---------------
$25,000,000 Philadelphia, Pennsylvania
November 17, 2000
FOR VALUE RECEIVED, ONEPOINT COMMUNICATIONS CORP., a Delaware
corporation ("Borrower"), hereby promises to pay to the order of VERIZON
--------
INVESTMENTS, INC. ("Lender"), the principal sum of TWENTY-FIVE MILLION DOLLARS
------
($25,000,000) 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 of even date herewith by and between Lender and Borrower (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 the failure of Lender to make any such notation shall not affect Borrower's
obligations hereunder.
Borrower hereby waives any and all rights Borrower may have to
withhold or set-off against any amount due from or payable by Lender for any
claim or payment to which Borrower may be entitled under the Merger Agreement.
In the event that the Borrower has a claim for payment against Lender or any
Affiliate of Lender, Lender, in its sole discretion, shall have the right to pay
such claim by forgiving or canceling, in part or in whole, the outstanding
principal amount, accrued interest and any fees due and payable to Lender under
this Note.
This note is the Note referred to in the Loan Agreement. 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:________________________________
LOANS AND PAYMENTS OF PRINCIPAL
-------------------------------
Type of Amount of Interest Amount of Principal Unpaid Notation
Date Loan Loan Period Paid or Prepaid Principal Balance Made By
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_____________________________________________________________________________________________________________________________
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_____________________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________________
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_____________________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________________
EXHIBIT C
---------
FORM OF SUBSIDIARY GUARANTY
---------------------------
GUARANTY
THIS GUARANTY, dated as of November 17, 2000, is executed by [NAME OF SUBSIDIARY
GUARANTOR] ("Guarantor"), in favor of Verizon Investments, Inc. ("Lender").
--------- ------
RECITALS
--------
(a) Pursuant to that certain Loan Agreement dated as of November 17, 2000
(as amended, restated or otherwise modified from time to time, the "Loan
----
Agreement"), between OnePoint Communications Corp., a Delaware corporation
---------
("Borrower") and Lender, Lender has agreed to extend certain credit facilities
----------
to Borrower upon the terms and subject to the conditions set forth therein.
(b) Guarantor is a direct or indirect subsidiary of Borrower and Guarantor
expects to derive substantial benefit from the credit facilities to be made
available to Borrower pursuant to the Loan Agreement.
(c) Lender's obligation to extend the credit facilities to borrower under
the Loan Agreement are subject, among other conditions, to receipt by Lender of
this Guaranty, duly executed by Guarantor.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Guarantor hereby agrees with Lender as follows:
1. DEFINITIONS AND INTERPRETATION.
(a) Definitions. When used in this Guaranty, the following terms shall
have the following respective meanings:
"Adjusted Net Worth" shall mean, with respect to Guarantor at any
------------------
time, the remainder of (a) the fair value of the assets of Guarantor as of such
dated, minus (b) the fair value of the liabilities of Guarantor as of such date
(excluding, however, any liability of Guarantor hereunder), such assets and
liabilities to be determined in accordance with any state or federal fraudulent
conveyance or transfer law which is applicable to this Guaranty.
"Borrower" shall have the meaning given to that term in Recital A
-------- ---------
hereof.
"Disallowed Post-Commencement Interest and Expenses" shall mean
--------------------------------------------------
interest computed at the rate provided for in the Loan Agreement and claims for
reimbursement, costs, expenses or indemnities under the terms of any of the
Credit Documents accruing or claimed at any time after the commencement of any
Insolvency Proceeding, if the claim for such interest, reimbursement, costs,
expenses or indemnities is not allowable, allowed or enforceable against
Borrower in such Insolvency Proceeding.
C-1
"Guaranteed Obligation" shall mean all present and future Advances,
---------------------
advances, debts, liabilities, obligations, guaranties, covenants, duties and
indebtedness at any time owing by Borrower to Lender, pursuant to the Loan
Agreement or any other Credit Document, whether absolute or contingent, due or
to become due.
"Guarantor" shall have the meaning given to that term in the introductory
--------- ------------
paragraph hereof.
---------
"Insolvency Proceeding" shall mean any case or proceeding under the United
---------------------
States Bankruptcy code or any other similar law, rule or regulation of the
United States or any jurisdiction or any other action or proceeding for the
reorganization, liquidation, appointment of a receiver, rearrangement of debts,
marshalling of assets or similar action relating to Borrower or Guarantor, their
respective creditors or any substantial part of their respective assets, whether
or not any such case, proceeding or action is voluntary or involuntary.
"Lender" shall have the meaning given to that term in the introductory
------ ------------
paragraph hereof.
---------
"Loan Agreement" shall have the meaning given to that term in Recital A
-------------- ---------
hereof.
"Material Adverse Effect" shall mean, with respect to the Guarantor, a
-----------------------
material adverse effect on the business, assets, operations or financial
condition of Guarantor.
"Maximum Guaranty Amount" shall mean, at any time, the greatest of (a)
-----------------------
ninety-five percent (95%) of the Adjusted Net Worth of Guarantor at such time,
(b) ninety-five percent (95%) of the Adjusted Net Worth of guarantor on the date
hereof and (c) the value derived by Guarantor from the Guaranteed Obligations
incurred at or prior to such time.
Unless otherwise defined herein, all other capitalized terms used herein
and defined in the Loan Agreement shall have the respective meanings given to
those terms in the Loan Agreement.
(b) Other Interpretive Provisions. The rules of construction set forth in
Paragraph 9 of the Loan Agreement shall, to the extent not inconsistent with the
---------------------------------
terms of this Guaranty, apply to this Guaranty and are hereby incorporated by
reference. Guarantor acknowledges receipt of copies of the Loan Agreement and
the other Credit Documents. Headings in this Guaranty are for convenience of
reference only and are not part of the substance hereof. All terms defined in
this guaranty in the singular form shall have comparable meanings when used in
the plural form and vice versa. References in this Guaranty to any document,
instrument or agreement (i) shall include all exhibits, schedules and other
attachments thereto, (ii) shall include all documents, instruments or agreements
issued or executed in replacement thereof and (iii) shall mean such document,
instrument or agreement, or replacement or predecessor thereto, as amended,
modified and supplemented from time to time and in effect at any given time.
References in this Guaranty to any statute or other law (A) shall include any
successor statute or law, (B) shall include all rules and regulations
promulgated under such statute or law (or any successor statute or law), and (C)
shall mean such statute or law (or successor statute or law) and such rules and
regulations, as amended, modified, codified or reenacted from time to time and
in effect at any given time. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Guaranty shall refer to this Guaranty
as a whole and not to any particular provision of this Guaranty. The words
"include" and "including' and words of similar import when used in this
Guaranty shall not be construed to be limiting or exclusive.
2. GUARANTY.
(a) Payment Guaranty. Guarantor unconditionally guarantees and promises
to pay and perform as and when due, whether at stated maturity, upon
acceleration or otherwise, any
C-2
and all of the Guaranteed Obligations. If any Insolvency Proceeding relating to
Borrower is commenced, Guarantor further unconditionally guarantees and promises
to pay and perform, upon the demand of Lender, any and all of the Guaranteed
Obligations (including any and all Disallowed Post-Commencement Interest and
Expenses) in accordance with the terms of the Credit Documents, whether or not
such obligations are then due and payable by Borrower and whether or not such
obligations are modified, reduced or discharged in such Insolvency Proceeding.
This Guaranty is a guaranty of payment and not of collection.
(b) Continuing Guaranty. This Guaranty is an irrevocable continuing
guaranty of the Guaranteed Obligations which shall continue in effect until all
obligations of Lender to extend credit to Borrower have terminated and all of
the Guaranteed Obligations have been fully, finally and indefeasibly paid. If
any payment on any Guaranteed Obligation is set aside, avoided or rescinded or
otherwise recovered from Lender, such recovered payment shall constitute a
Guaranteed Obligation hereunder and, if this Guaranty was previously released or
terminated, it automatically shall be fully reinstated, as if such payment was
never made.
(c) Independent Obligation. The liability of Guarantor hereunder is
independent of the Guaranteed Obligations, and a separate action or actions may
be brought and prosecuted against Guarantor irrespective of whether action is
brought against Borrower or any other guarantor of the Guaranteed Obligations or
whether Borrower or any other guarantor of the Guaranteed Obligations is joined
in any such action or actions.
(d) Fraudulent Transfer Limitation. If, in any action to enforce this
Guaranty, any court of competent jurisdiction determines that enforcement
against Guarantor of the full amount of the Guaranteed Obligations is not lawful
under or would be subject to avoidance under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code or any applicable provision of any comparable law of any state
or other jurisdiction, the liability of Guarantor under this Guaranty shall be
limited to the maximum amount lawful and not subject to such avoidance.
(e) Maximum Guaranty Amount. The liability of Guarantor under this
Guaranty shall not at any time exceed the Maximum guaranty Amount; provided,
--------
however, that Lender may permit the Guaranteed Obligations to exceed the
-------
foregoing limitation without affecting Guarantor's liability hereunder.
(f) Termination. This Guaranty shall continue to be in full force and
effect and applicable to any guaranteed Obligations arising thereunder which
arise because prior payments of Guaranteed Obligations are rescinded or
otherwise required to be surrendered by Lender after receipt.
3. REPRESENTATIONS AND WARRANTIES.
Guarantor hereby represents and warrants to Lender as follows:
(a) Due Organization, Qualification, Etc. Guarantor is a limited liability
company duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization and is duly qualified and in good standing in
each jurisdiction where the nature of its business or properties requires such
qualification, except where the failure to qualify could not have a Material
Adverse Effect.
(b) Authority. The execution, delivery and performance by Guarantor of
this Guaranty are within the power of Guarantor and have been duly authorized by
all necessary actions on the part of Guarantor.
C-3
(c) Enforceability. This Guaranty has been duly executed and delivered by
Guarantor and constitutes a legal, valid and binding obligation of Guarantor,
enforceable against it 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 principals
of equity.
(d) Non-Contravention. The execution, delivery and performance by
Guarantor of this Guaranty and the performance and consummation of the
transactions contemplated hereby do not (i) violate any Requirement of Law
applicable to Guarantor, (ii) 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
Guarantor or (iii) result in the creation of imposition of any lien (or the
obligation to create or impose any lien) upon any property, asset or revenue of
Guarantor.
(e) 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, delivery and performance of this
Guaranty, except for those which have been made or obtained and are in full
force and effect.
(f) No Violation. Guarantor is not in violation of or in default with
respect to (a) any Requirement of Law applicable to Guarantor or (b) any
contractual obligation of Guarantor (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.
(g) Litigation. No claim, suit, litigation proceeding or investigation
pending or (to best of Guarantor's knowledge) threatened by or against or
affecting Guarantor in any court or before any Governmental Authority (or any
basis therefor known to Guarantor) which is (i) reasonably likely to result,
either separately or in the aggregate, in any Material Adverse Effect or (ii)
seeks to enjoin, either directly or indirectly, the execution, delivery or
performance of this Guaranty by Guarantor.
4. AUTHORIZATIONS, WAIVERS, ETC.
(a) Authorizations. Guarantor authorizes Lender, in its discretion,
without notice to Guarantor, irrespective of any change in the financial
condition of Borrower, Guarantor or any other guarantor of the Guaranteed
Obligations since the date hereof, and without affecting or impairing in any way
the liability of Guarantor hereunder, from time to time to:
(i) Create new Guaranteed Obligations and renew, compromise,
extend, accelerate or otherwise change the time for payment or performance of,
or otherwise amend or modify the Credit Documents or change the terms of the
Guaranteed Obligations or any part thereof, including increase or decrease of
the rate of interest thereon;
(ii) Otherwise exercise any right or remedy it may have against
Borrower, Guarantor, any other guarantor of the Guaranteed Obligations or any
security;
(iii) Settle, compromise with, release or substitute any one or more
makers, endorsers or guarantors of the Guaranteed Obligations; and
(iv) Assign the Guaranteed Obligations, this Guaranty or the other
Credit Documents in whole or in part to the extent provided in the Loan
Agreement.
C-4
(b) Waivers. Guarantor hereby waives:
(i) Any right to require Lender to (A) proceed against Borrower or
any other guarantor of the Guaranteed Obligations or (B) pursue any other remedy
in Lender's power whatsoever;
(ii) Any defense arising by reason of the application by Borrower of
the proceeds of any borrowing;
(iii) Any defense resulting from the absence, impairment or loss of
any right of reimbursement, subrogation, contribution or other right or remedy
of Guarantor against Borrower, any other guarantor of the Guaranteed
Obligations;
(iv) Any setoff or counterclaim of Borrower or any defense which
results from any disability or other defense of Borrower or the cessation or
stay of enforcement from any cause whatsoever of the liability of Borrower
(including, without limitation, the lack of validity or enforceability of any of
the Credit Documents);
(v) Any defense based upon any law, rule or regulation which
provides that the obligation of a surety must not be greater or more burdensome
than the obligation of the principal;
(vi) Until all obligations of Lender to extend credit to Borrower
have terminated and all of the Guaranteed Obligations have been fully, finally
and indefeasibly paid, any right of subrogation, reimbursement, indemnification
or contribution and other similar right to enforce any remedy which Lender or
any other Person now has or may hereafter have against Borrower on account of
the Guaranteed Obligations;
(vii) All presentments, demands for performance, notices of non-
performance, notices delivered under the Credit Documents, protests, notice of
dishonor, and notices of acceptance of this Guaranty and of the existence,
creation or incurring of new or additional Guaranteed Obligations;
(viii) The benefit of any statute of limitations to the extent
permitted by law;
(ix) Any right to be informed by Lender of the financial condition
of Borrower or any other guarantor of the Guaranteed Obligations or any change
therein or any other circumstances bearing upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations;
(x) Until all obligations of Lender to extend credit to Borrower
have terminated and all of the Guaranteed Obligations have been fully finally
and indefeasibly paid, any right to revoke this Guaranty; and
(xi) Any defense arising from an election for the application of
Section 1111(b)(2) of the United States Bankruptcy Code which applies to the
Guaranteed Obligations.
(c) Financial Condition of Borrower, Etc. Guarantor is fully aware of the
financial condition and affairs of Borrower. Guarantor has executed this
Guaranty without reliance upon any representation, warranty, statement or
information concerning Borrower furnished to Guarantor by Lender and has,
independently and without reliance on Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of the
financial condition and affairs of Borrower and of other circumstances affecting
the risk of nonpayment or nonperformance of the Guaranteed Obligations.
Guarantor is in a position to obtain, and
C-5
assumes full responsibility for obtaining, any additional information about the
financial condition and affairs of Borrower and of other circumstances affecting
the risk of nonpayment or nonperformance of the Guaranteed Obligations and will,
independently and without reliance upon Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
appraisals and decisions in taking or not taking action in connection with this
Guaranty.
5. MISCELLANEOUS.
(a) Notices. Except as otherwise provided herein, all notices, requests,
demands, consents, instructions or other communications to or upon Guarantor or
Lender under this Guaranty shall be in writing and faxed, mailed or delivered 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 the 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;
If to Lender:
Verizon Investments, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. X'Xxxxxx
0000 Xxxx Xxxxxx
00/xx/ Xxxxx
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxxxxx
0/xx/ Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
C-6
If to Guarantor:
x/x XxxXxxxx Xxxxxxxxxxxxxx Xxxx.
Xxx Xxxxxx Xxxx
000 Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) Payments. Guarantor shall make all payments due to Lender hereunder by
payment to Lender's office located at the address set forth in Subparagraph 5(a)
-----------------
hereof, or at such other office as Lender may designate or by wire to an account
specified by Lender, on demand, in United States Dollars. If any amounts
required to be paid by Guarantor under this Guaranty remain unpaid after such
amount is due, Guarantor shall pay interest on the aggregate, outstanding
balance of such amounts from the date due until those amounts are paid in full
at a per annum rate equal to the Default Rate.
(c) Expenses. To the extent not otherwise paid by Borrower pursuant to the
Credit Agreement, Guarantor 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 Guaranty (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
Guaranty; obtain legal advice in connection with this Guaranty or Guarantor;
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 Guarantor. All attorneys' fees and costs to which Lender
may be entitled pursuant to this Section shall immediately become part of the
Guaranteed Obligations and shall be due on demand.
(d) Waivers; Amendments. This Guaranty may not be amended or modified, nor
may any of its terms be amended or modified, nor may any of its terms be waived,
except by written instruments signed by Guarantor and Lender. Each waiver or
consent under any provision hereof shall be effective only in the specific
instances for the purpose for which given. No failure or delay on Lender's part
in exercising any right hereunder shall operate as a waiver thereof or of any
other right nor shall any single or partial exercise of any such right preclude
any other further exercise thereof or of any other right.
(e) Assignment. This Guaranty shall be binding upon and inure to the
benefit of Lender and Guarantor and their respective successors and assigns;
provided, however, that Lender may sell, assign and delegate their respective
-------- -------
rights and obligations hereunder as permitted by the Loan Agreement. All
references in this Guaranty to any Person shall be deemed to include all
permitted successors and assigns of such Person.
(f) Cumulative Rights, etc. The rights, powers and remedies of Lender under
this Guaranty shall be in addition to all rights, powers and remedies given to
Lender by virtue of any applicable law, rule or regulation of any Governmental
Authority, the Loan Agreement, any other Credit Document or any other agreement,
all of which rights, powers, and remedies shall be cumulative and may be
exercised successively or concurrently without impairing Lender's rights
hereunder.
(g) Payments Free of Taxes, Etc. All payments made by Guarantor under this
Guaranty shall be made by Guarantor free and clear of and without deduction for
any and all present and future taxes, levies, charges, deductions and
withholdings. In addition, Guarantor
C-7
shall pay upon demand any stamp or other taxes, levies or charges of any
jurisdiction with respect to the execution, delivery, registration, performance
and enforcement of this Guaranty. If any taxes, levies, charges or other amounts
are required to be withheld from any amounts payable to Lender hereunder, the
amounts so payable to Lender shall be increased to the extent necessary to yield
to Lender (after payment of all such amounts) any such amounts payable hereunder
in the amounts specified in this Guaranty. Upon request by Lender, Guarantor
shall furnish evidence satisfactory to Lender that all requisite authorizations
and approvals by, and notices to and filings with, governmental authorities and
regulatory bodies have been obtained and made and that all requisite taxes,
levies and charges have been paid.
(h) Partial Invalidity. If at any time any provision of this Guaranty is or
becomes illegal, invalid or unenforceable in any respect under the law or any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions of this Guaranty nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be affected
or impaired thereby.
(i) Governing Law. This Guaranty shall be governed by and construed in
accordance with the laws of the State of New York without reference to conflicts
of law rules.
(j) Jury Trial. EACH OF GUARANTOR AND LENDER, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS GUARANTY.
(k) Limitation of Liability. NO CLAIM MAY BE MADE BY GUARANTOR AGAINST
LENDER OR THE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS OF
LENDER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT
OF ANY CLAIM (WHETHER BASED UPON ANY BREACH OF CONTRACT, TORT, BREACH OF
STATUTORY DUTY OR ANY OTHER THEORY OF LIABILITY) ARISING OUT OF OR RELATED TO
THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTY, OR ANY ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION THEREWITH, AND GUARANTOR HEREBY WAIVES, RELEASES AND
AGREES NOT TO XXX UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT NOW
ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed as of
the day and year first above written.
[NAME OF SUBSIDIARY GUARANTOR]
By:________________________________
Name:______________________________
Title:_____________________________
C-8
EXHIBIT D
---------
INDENTURE
---------
See Attached
D-1
ONEPOINT COMMUNICATIONS CORP.
November 17, 2000
Verizon Investments, Inc.
Re: Loan Agreement dated as of November __, 2000, by and between
OnePoint Communications Corp. and Verizon Investments, Inc.
-----------------------------------------------------------
Reference is made to that certain Loan Agreement dated as of November
17, 2000 (the "Loan Agreement") among OnePoint Communications Corp. (the
--------------
"Borrower"), and Verizon Investments, Inc. (the "Lender"). Capitalized terms
--------- ------
used herein and not otherwise defined shall have the meanings given to such
terms in the Loan Agreement.
In addition to the indemnities set forth in Section 5.6 of the Loan
Agreement, Borrower agrees that it shall indemnify Lender from and against any
and all liabilities, losses, damages and expenses of any kind or nature and from
all suits, claims or demands arising on account of or in connection with any
claim by one or more of the holders of the Series B 14 1/2% Senior Notes Due
2008 issued pursuant to the Indenture that the transactions evidenced by the
Credit Documents violates the covenants and agreements of Borrower contained in
the Indenture. Notwithstanding any provision in the Loan Agreement to the
contrary, the indemnity agreement set forth in this letter shall survive any
termination of this letter or the Loan Agreement and shall for all purposes
continue in full force and effect.
This letter shall be governed by and construed in accordance with the
State of New York.
Very truly yours,
ONEPOINT COMMUNICATIONS CORP.
By:________________________________
Name:______________________________
Title:_____________________________
ACCEPTED AND AGREED:
--------------------
VERIZON INVESTMENTS, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
