EXHIBIT 10.1
BRIDGE LOAN AGREEMENT
This Agreement, dated as of April 14, 2000, is between BroadStream
Communications Corporation, a Delaware corporation (the "Borrower") and Advanced
Radio Telecom Corp., a Delaware corporation (the "Lender").
WHEREAS, pursuant to this Agreement, the Lender is extending to the
Borrower a $30,000,000 loan (the "Loan"), which will mature on the Final
Maturity Date;
WHEREAS, the Loan is guaranteed by Commco Partners, LLC, a Delaware limited
liability company (the "Parent"), and by Xxxxx Xxxxxxx and is secured by a
pledge of the stock of the Borrower and its Subsidiaries; and
WHEREAS, the proceeds of the Loan shall be used solely for the purposes
specified in this Agreement;
NOW, THEREFORE, in consideration of the premises and the respective
covenants and representations and warranties herein contained, the parties
hereto agree as follows:
1. Definitions; Certain Rules of Construction. Certain capitalized terms are
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used in this Agreement and in the other Credit Documents with the specific
meanings defined below in this Section 1. Except as otherwise explicitly
specified to the contrary or unless the context clearly requires otherwise, (a)
the capitalized term "Section" refers to sections of this Agreement, (b) the
capitalized term "Exhibit" refers to exhibits to this Agreement, (c) references
to a particular Section include all subsections thereof, (d) the word
"including" shall be construed as "including without limitation," (e) accounting
terms not otherwise defined herein have the meaning provided under GAAP, (f)
references to a particular statute or regulation include all rules and
regulations thereunder and any successor statute, regulation or rules, in each
case as from time to time in effect and (g) references to a particular Person
include such Person's successors and assigns to the extent not prohibited by
this Agreement and the other Credit Documents.
"Acquisition" means the acquisition by the Lender, pursuant to the
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Acquisition Agreement, of certain licenses granted by the Federal Communications
Commission.
"Acquisition Agreement" means the Asset Purchase Agreement dated as of the
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date hereof among the Lender, the Borrower, the Parent, BroadStream Corporation,
Commco, LLC and Xxxxx Xxxxxxx.
"Additional Pledge Agreement" is defined in Section 6.5.
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"Affiliate" means, with respect to the Borrower (or any other specified
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Person), any other Person directly or indirectly controlling, controlled by or
under direct or indirect common control with the Borrower (or such specified
Person), and shall include (a) any officer or director or general partner of the
Borrower (or such specified Person), (b) any Person of which the Borrower (or
such specified Person) or any Affiliate (as defined in clause (a) above) of the
Borrower (or such specified Person) shall, directly or indirectly, beneficially
own either (i) at least 10% of the outstanding equity securities having the
general power to vote or (ii) at least 10% of all equity interests and (c) any
Person directly or indirectly controlling the Borrower (or such specified
Person) through a management agreement, voting agreement or other contract.
"Agreement" means this Bridge Loan Agreement as from time to time amended,
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modified and in effect.
"Bankruptcy Code" means Title 11 of the United States Code.
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"Bankruptcy Default" means an Event of Default referred to in Section
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8.1.10.
"Borrower" is defined in the Preamble of this Agreement.
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"Borrowing Certificate" is defined in Section 5.2.1.
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"By-laws" means all written by-laws, rules, regulations and all other
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documents relating to the management, governance or internal regulation of any
Person other than an individual, all as from time to time in effect.
"Business Day" means a day other than a Saturday, Sunday or other day on
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which commercial banks in New York, New York are authorized or required by law
to close.
"Cash Equivalents" means:
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(a) negotiable certificates of deposit, time deposits (including
sweep accounts), demand deposits and bankers' acceptances having a maturity
of nine months or less and issued by any United States financial
institution having capital and surplus and undivided profits aggregating at
least $100,000,000 and rated at least Prime-1 by Moody's or A-1 by S&P;
(b) corporate obligations having a maturity of nine months or less
and rated at least Prime-1 by Moody's or A-1 by S&P;
(c) any direct obligation of the United States of America or any
agency or instrumentality thereof, or of any state or municipality thereof,
(i) which has a remaining maturity at the time of purchase of not more than
one year and (ii) which, in
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the case of obligations of any state or municipality, is rated at least AAA
by Moody's or AAA by S&P; and
(d) any mutual fund or other pooled investment vehicle rated at least
AAA by Moody's or AA by S&P which invests principally in obligations
described above.
"CERCLA" means the federal Comprehensive Environmental Response,
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Compensation and Liability Act of 1980.
"Charter" means the articles of organization, certificate of incorporation,
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statute, constitution, joint venture agreement, partnership agreement, trust
indenture, limited liability company agreement or other charter document of any
Person other than an individual, each as from time to time in effect.
"Closing Date" means the Initial Closing Date and each other date on which
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any extension of credit is made pursuant to Section 2.1.
"Code" means the federal Internal Revenue Code of 1986.
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"Credit Documents" means:
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(a) this Agreement, the Note, the Guarantee Agreements, the Initial
Pledge Agreements and the Additional Pledge Agreement, each as from time to
time in effect; and
(b) any other present or future agreement or instrument from time to
time entered into among the Parent, any of its Subsidiaries or any other
Obligor, on one hand, and the Lender, on the other hand, relating to,
amending or modifying this Agreement or any other Credit Document referred
to above or which is stated to be a Credit Document, each as from time to
time in effect.
"Credit Obligations" means all present and future liabilities, obligations
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and Indebtedness of the Parent, any of its Subsidiaries or any other Obligor,
and any permitted successor or assign of the foregoing, owing to the Lender
under or in connection with this Agreement or any other Credit Document,
including obligations in respect of principal, interest, amounts provided for in
Section 9 and other charges, indemnities and expenses from time to time owing
hereunder or under any other Credit Document (all whether accruing before or
after a Bankruptcy Default and regardless of whether allowed as a claim in
bankruptcy or similar proceedings).
"Credit Security" means all assets now or from time to time hereafter
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subjected to a security interest, mortgage or charge (or intended or required so
to be subjected pursuant to the Initial Pledge Agreements, the Additional Pledge
Agreement or any other Credit
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Document) to secure the payment or performance of any of the Credit Obligations,
including the assets described in section 2 of the Initial Pledge Agreements and
the Additional Pledge Agreement.
"Default" means any Event of Default and any event or condition which with
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the passage of time or giving of notice, or both, would become an Event of
Default.
"Distribution" means, with respect to the Borrower (or other specified
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Person):
(a) the declaration or payment of any dividend or distribution on or
in respect of any shares of any class of capital stock of or other equity
interests in the Borrower (or such specified Person);
(b) the purchase, redemption or other retirement of any shares of any
class of capital stock of or other equity interest in the Borrower (or such
specified Person) or any of its Subsidiaries, or of options, warrants or
other rights for the purchase of such shares, directly, indirectly through
a Subsidiary or corporate parent or otherwise;
(c) any other distribution on or in respect of any shares of any
class of capital stock of or equity or other beneficial interest in the
Borrower (or such specified Person);
(d) any payment of principal, interest or fees with respect to, or
any purchase, redemption or defeasance of, any Financing Debt of the
Borrower (or such specified Person) or any of its Subsidiaries which by its
terms or the terms of any agreement is subordinated to the payment of the
Credit Obligations; and
(e) any payment, loan or advance by the Borrower (or such specified
Person) to, or any other Investment by the Borrower (or such specified
Person) in, the holder of any shares of any class of capital stock of or
equity interest in the Borrower (or such specified Person) or any of its
Subsidiaries, or any Affiliate of such holder (including the payment of
management and transaction fees and expenses);
provided, however, that the term "Distribution" shall not include (i) dividends
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payable in perpetual common stock of or other similar equity interests in the
Borrower (or such specified Person), (ii) payments in the ordinary course of
business in respect of (A) reasonable compensation paid to employees, officers
and directors, (B) advances and reimbursements to employees for travel expenses,
drawing accounts, relocation costs and similar expenditures, or (C) rent paid
to, or accounts payable for services rendered or goods sold by, non-Affiliates
that own capital stock of or other equity interests in the Borrower (or such
specified Person) or any of its Subsidiaries, (iii) payments, loans or advances
by the Borrower to BroadStream Corporation or (iv) distributions of cash by a
wholly-owned Subsidiary to the Borrower.
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"Environmental Laws" means all applicable federal, state or local
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statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment, including the federal Occupational Health and
Safety Act.
"ERISA" means the federal Employee Retirement Income Security Act of 1974.
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"ERISA Group Person" means the Parent, any of its Subsidiaries and any
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Person which is a member of the controlled group or under common control with
the Parent or any of its Subsidiaries within the meaning of section 414 of the
Code or section 4001(a)(14) of ERISA.
"Event of Default" is defined in Section 8.1.
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"Exchange Act" means the federal Securities Exchange Act of 1934.
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"Final Maturity Date" means the earlier to occur of (a) the termination of
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the Acquisition Agreement pursuant to section 12 thereof, and (b) the date that
is 90 days following the Closing (as defined in the Acquisition Agreement).
"Financial Officer" of the Borrower (or other specified Person) means its
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chief executive officer, chief financial officer, chief operating officer,
chairman, president, treasurer, controller or any of its vice presidents whose
primary responsibility is for its financial affairs, in each case whose
incumbency and signatures have been certified to the Lender by the secretary or
other appropriate attesting officer of the Borrower (or such specified Person).
"Financing Debt" means each of the items described in clauses (a) through
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(d) and (f) of the definition of the term "Indebtedness" and, without
duplication, any Guarantees of such items.
"GAAP" means generally accepted accounting principles as from time to time
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in effect, including the statements and interpretations of the United States
Financial Accounting Standards Board.
"Guarantee" means, with respect to the Borrower (or other specified
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Person):
(a) any guarantee by the Borrower (or such specified Person) of the
payment or performance of, or any contingent obligation by the Borrower (or
such specified Person) in respect of, any Indebtedness or other obligation
of any primary obligor;
(b) any other arrangement whereby credit is extended to a primary
obligor on the basis of any promise or undertaking of the Borrower (or such
specified Person), including any binding "comfort letter" or "keep well
agreement" written by the
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Borrower (or such specified Person), to a creditor or prospective creditor
of such primary obligor, to (i) pay the Indebtedness of such primary
obligor, (ii) purchase an obligation owed by such primary obligor, (iii)
pay for the purchase or lease of assets or services regardless of the
actual delivery thereof or (iv) maintain the capital, working capital,
solvency or general financial condition of such primary obligor;
(c) any liability of the Borrower (or such specified Person), as a
general partner of a partnership in respect of Indebtedness or other
obligations of such partnership;
(d) any liability of the Borrower (or such specified Person) as a
joint venturer of a joint venture in respect of Indebtedness or other
obligations of such joint venture;
(e) any liability of the Borrower (or such specified Person) with
respect to the tax liability of others as a member of a group (other than a
group consisting solely of the Borrower and its Subsidiaries) that is
consolidated for tax purposes; and
(f) reimbursement obligations, whether contingent or matured, of the
Borrower (or such specified Person) with respect to letters of credit,
bankers acceptances, surety bonds and other financial guarantees,
in each case whether or not any of the foregoing are reflected on the balance
sheet of the Borrower (or such specified Person) or in a footnote thereto;
provided, however, that the term "Guarantee" shall not include endorsements for
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collection or deposit in the ordinary course of business. The amount of any
Guarantee and the amount of Indebtedness resulting from such Guarantee shall be
the maximum amount that the guarantor may become obligated to pay in respect of
the obligations (whether or not such obligations are outstanding at the time of
computation).
"Guarantee Agreements" is defined in Section 5.1.4.
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"Guarantor" means each of the Parent and Xxxxx Xxxxxxx.
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"Hazardous Material" means any pollutant, toxic or hazardous material or
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waste, including any "hazardous substance" or "pollutant" or "contaminant" as
defined in section 101(14) of CERCLA or any other Environmental Law or regulated
as toxic or hazardous under RCRA or any other Environmental Law.
"Indebtedness" means all obligations, contingent or otherwise, which in
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accordance with GAAP are required to be classified upon the balance sheet of the
Borrower (or other specified Person) as liabilities, but in any event including
(without duplication):
(a) indebtedness for borrowed money;
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(b) indebtedness evidenced by notes, debentures or similar
instruments;
(c) capitalized leases;
(d) the deferred purchase price of assets, services or securities,
including related noncompetition, consulting and stock repurchase
obligations (other than ordinary trade accounts payable on customary terms
in the ordinary course of business), and any long-term contractual
obligations;
(e) mandatory redemption, repurchase or dividend rights on capital
stock (or other equity), including provisions that require the exchange of
such capital stock (or other equity) for Indebtedness from the issuer;
(f) reimbursement obligations, whether contingent or matured, with
respect to letters of credit, bankers acceptances, surety bonds, other
financial guarantees and Hedge Agreements (without duplication of other
Indebtedness supported or guaranteed thereby);
(g) unfunded pension liabilities;
(h) obligations that are immediately and directly due and payable out
of the proceeds of or production from property;
(i) liabilities secured by any Lien existing on property owned or
acquired by the Borrower (or such specified Person), whether or not the
liability secured thereby shall have been assumed; and
(j) all Guarantees in respect of Indebtedness of others.
"Indemnified Party" is defined in Section 9.2.
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"Initial Closing Date" means the date on which all of the conditions set
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forth in Section 5 have been satisfied or waived and the Lender has made the
initial extension of credit pursuant to Section 2.1.
"Initial Pledge Agreements" is defined in Section 5.1.5.
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"Investment" means, with respect to the Borrower (or other specified
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Person):
(a) any share of capital stock, partnership or other equity interest,
evidence of Indebtedness or other security issued by any other Person;
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(b) any loan, advance or extension of credit to, or contribution to
the capital of, any other Person;
(c) any Guarantee of the obligations of any other Person;
(d) any acquisition of all, or any division or similar operating unit
of, the business of any other Person or the assets comprising such
business, division or unit; and
(e) any other similar investment.
The investments described in the foregoing clauses (a) through (e) shall be
included in the term "Investment" whether they are made or acquired by purchase,
exchange, issuance of stock or other securities, merger, reorganization or any
other method; provided, however, that the term "Investment" shall not include
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(i) trade and customer accounts receivable for property leased, goods furnished
or services rendered in the ordinary course of business and payable within one
year in accordance with customary trade terms, (ii) deposits, advances or
prepayments to suppliers for property leased or licensed, goods furnished and
services rendered in the ordinary course of business, (iii) advances to
employees for relocation and travel expenses, drawing accounts and similar
expenditures, (iv) stock or other securities acquired in connection with the
satisfaction or enforcement of Indebtedness or claims due to the Borrower (or
such specified Person) or as security for any such Indebtedness or claim or (v)
demand deposits in banks or similar financial institutions.
In determining the amount of outstanding Investments:
(A) the amount of any Investment shall be the cost thereof minus any
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returns of capital in cash on such Investment (determined in accordance
with GAAP without regard to amounts realized as income on such Investment);
(B) the amount of any Investment in respect of a purchase described
in clause (d) above shall include the amount of any Financing Debt assumed
in connection with such purchase or secured by any asset acquired in such
purchase (whether or not any Financing Debt is assumed) or for which any
Person that becomes a Subsidiary is liable on the date on which the
securities of such Person are acquired; and
(C) no Investment shall be increased as the result of an increase in
the undistributed retained earnings of the Person in which the Investment
was made or decreased as a result of an equity interest in the losses of
such Person.
"Legal Requirement" means any present or future requirement imposed upon
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the Lender or the Borrower and its Subsidiaries by any law, statute, rule,
regulation, directive, order, decree or guideline (or any interpretation thereof
by courts or of administrative bodies)
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of the United States of America or any state or political subdivision of any of
the foregoing, or by any board, governmental or administrative agency of the
United States of America or where the Borrower or any of its Subsidiaries owns
property or conducts its business, or any political subdivision of any of the
foregoing.
"Lender" means Advanced Radio Telecom Corp., a Delaware corporation.
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"Lien" means, with respect to the Borrower (or any other specified Person):
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(a) any lien, encumbrance, mortgage, pledge, charge or security
interest of any kind upon any property or assets of the Borrower (or such
specified Person), whether now owned or hereafter acquired, or upon the
income or profits therefrom (excluding in any event a financing statement
filed by a lessor under an operating lease not intended to be a secured
financing);
(b) the acquisition of, or the agreement to acquire, any property or
asset upon conditional sale or subject to any other title retention
agreement, device or arrangement (including a capitalized lease);
(c) the sale, assignment, pledge or transfer for security of any
accounts, general intangibles or chattel paper of the Borrower (or such
specified Person), with or without recourse;
(d) in the case of securities, any purchase option, call or similar
purchase right of a third party; and
(e) the transfer of any tangible property or assets for the purpose
of subjecting such items to the payment of previously outstanding
Indebtedness in priority to payment of the general creditors of the
Borrower (or such specified Person).
"Loan" is defined in the Recitals of this Agreement.
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"Material Adverse Change" means, since any specified date or from the
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circumstances existing immediately prior to the happening of any specified
event, a material adverse change in (a) the business, assets, financial
condition, income or prospects of the Parent and its Subsidiaries (on a
consolidated basis), whether as a result of (i) general economic conditions
affecting the telecommunications industry, (ii) difficulties in obtaining
supplies and raw materials, (iii) fire, flood or other natural calamities, (iv)
environmental pollution, (v) regulatory changes, judicial decisions, war or
other governmental action or (vi) any other event or development, whether or not
related to those enumerated above or (b) the ability of any Obligor to perform
material obligations under the Credit Documents or (c) the rights and remedies
of the Lender under the Credit Documents.
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"Material Agreements" is defined in Section 7.2.2.
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"Material Financing Debt" means any Financing Debt (other than the Credit
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Obligations) outstanding in an aggregate amount of principal (whether or not
due) and accrued interest exceeding $50,000.
"Moody's" means Xxxxx'x Investors Service, Inc.
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"Multiemployer Plan" means any Plan that is a "multiemployer plan" as
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defined in section 4001(a)(3) of ERISA.
"Note" is defined Section 2.1.4.
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"Obligor" means the Borrower, the Parent, each other Guarantor and each
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other Person guaranteeing or providing collateral for the Credit Obligations.
"Parent" is defined in the Recitals of this Agreement.
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"PBGC" means the Pension Benefit Guaranty Corporation or any successor
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entity.
"Person" means any present or future natural person or any corporation,
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association, partnership, joint venture, limited liability, joint stock or other
company, business trust, trust, organization, business or government or any
governmental agency or political subdivision thereof.
"Plan" means, at any date, any pension benefit plan subject to Title IV of
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ERISA maintained, or to which contributions have been made or are required to be
made, by any ERISA Group Person within six years prior to such date.
"RCRA" means the federal Resource Conservation and Recovery Act, 42 U.S.C.
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section 690, et seq.
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"S&P" means Standard & Poor's, a division of The McGraw Hill Companies,
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Inc.
"Securities Act" means the federal Securities Act of 1933.
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"Subsidiary" means any Person of which the Parent (or other specified
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Person) shall at the time, directly or indirectly through one or more of its
Subsidiaries, (a) own at least 50% of the outstanding capital stock (or other
shares of beneficial interest) entitled to vote generally, (b) hold at least 50%
of the partnership, joint venture or similar interests or (c) be a general
partner or joint venturer.
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2. The Loan.
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2.1. Loan. Subject to all the terms and conditions of this Agreement and
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so long as no Default exists, from time to time on and after the Initial Closing
Date and prior to the Final Maturity Date the Lender will make loans to the
Borrower in such amounts as may be requested by the Borrower in accordance with
Section 2.2, subject to the requirements set forth in Section 2.4. The sum of
the aggregate principal amount of loans made under this Section 2.1 shall in no
event exceed $30,000,000.
2.2. Borrowing Requests. The Borrower may from time to time request a loan
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under Section 2.1 by providing to the Lender a notice. Such notice must be
received by the Lender not later than noon (Seattle, Washington time) on the
first Business Day prior to the requested Closing Date for such loan. The
notice must specify (a) the amount of the requested loan, (b) the requested
Closing Date therefor, which shall be a Business Day, and (c) the intended use
of proceeds therefor. In connection with each such loan, the Borrower shall
furnish to the Lender a Borrowing Certificate.
2.3. Note. The Loan shall be evidenced by a note of the Borrower in
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substantially the form of Exhibit 2.3 (the "Note"), payable to the Lender.
2.4. Application of Proceeds.
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2.4.1. Permitted Applications. The Borrowing Certificate shall specify
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that the intended use of proceeds is solely for payment of one or more of: (a)
payables incurred on or after the date of this Agreement for the construction of
networks to satisfy the "substantial service" requirement set forth in Section
101.17(a) of the rules of the Federal Communications Commission for the renewal
of Future Licenses (as defined in the Acquisition Agreement), provided that such
construction will be completed first for licenses identified on Schedule 1(b) to
the Acquisition Agreement as "First Build Licenses" before licenses identified
as "Other Markets;" (b) general and administrative expenses of the Borrower
incurred on or after the date of this Agreement in connection with the
construction activities described in clause (a) above, the consummation of the
Acquisition (excluding legal, accounting and other professional fees related
thereto), obligations under existing leases, the Borrower's Las Vegas operations
or commercial activities related to license perfection; and (c) subject to the
prior approval of the Lender, which approval shall not be unreasonably withheld,
payables outstanding as of the date of this Agreement in an amount not to exceed
$3,000,000; provided, however, that the amounts to be borrowed in any calendar
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month (including the partial month of April 2000) under clauses (a) or (b) above
shall not exceed $3,000,000 through October 2000, $1,500,000 through January
2001 and $0 thereafter; and provided, further, that to the extent not used in
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any month, unused amounts shall be carried forward into subsequent months.
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2.4.2. Specifically Prohibited Applications. The Borrower will not,
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directly or indirectly, apply any part of the proceeds of the Loan for any
purpose that has not been specified by the Borrower in a Borrowing
Certificate. Except as provided in clause (c) of Section 2.4.1, the
proceeds of the Loan shall not be available to repay liabilities of the
Borrower existing on the date hereof or for the payment of obligations of
the Borrower to employees of the Borrower or any of its Affiliates under
any contract, whether or not presently in effect, including, without
limitation, any bonus, severance or other extraordinary payment, except for
the payment of salaries, the reimbursement of travel and similar out-of-
pocket expenses and payments under benefit plans available to all
employees, each in the ordinary course of business.
3. Interest. The Loan shall accrue and bear interest at a rate per annum
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equal to 10%. For purposes of this Agreement, interest shall be computed on the
basis of a 360-day year for actual days elapsed.
4. Payment.
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4.1. Payment at Maturity. On the Final Maturity Date or any accelerated
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maturity of the Loan, the Borrower will pay to the Lender an amount equal to the
Loan then due, together with all accrued and unpaid interest with respect
thereto and all other Credit Obligations then outstanding.
4.2. Voluntary Prepayments. The Borrower may from time to time prepay all
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or any portion of the Loan, without premium or penalty of any type. The Borrower
shall give the Lender at least one Business Day prior notice of its intention to
prepay the Loan, specifying the date of payment and the total amount of the Loan
to be paid on such date.
4.3. Mandatory Prepayments. Following the Closing of the Acquisition (as
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defined in the Acquisition Agreement), upon the receipt of proceeds by the
Borrower from any sale, pledge or other disposition of the shares of common
stock of the Lender issued to the Borrower under the Acquisition Agreement, the
Borrower shall within one Business Day pay to the Lender as a prepayment of the
Loan the lesser of (a) the amount of such proceeds and (b) the outstanding
amount of the Loan; provided, however, that any such proceeds received by the
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Borrower may be applied in the following order: first, to the payment of trade
payables outstanding as of the date hereof in an amount not to exceed $14
million, second, to the payment of amounts for which the proceeds of the Loan
would have been available pursuant to Section 2.4.1(a) or (b) (including the
limitations in the first proviso of Section 2.4.1) if the Closing (as defined in
the Acquisition Agreement) had not occurred, and, third, to the prepayment of
the Loan.
4.4. Reborrowing. No portion of the Loan prepaid pursuant to Section 4.2
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or Section 4.3 may be reborrowed.
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5. Conditions to Extending Credit.
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5.1. Conditions on Initial Closing Date. The obligation of the Lender to
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make the initial extension of credit pursuant to Section 2.1 shall be subject to
the satisfaction, on or before the Initial Closing Date, of the conditions set
forth in this Section 5.1 as well as the further conditions in Section 5.2. If
the conditions set forth in this Section 5.1 are not met on or prior to the
Initial Closing Date, the Lender shall have no obligation to make any extensions
of credit hereunder.
5.1.1. Note. The Borrower shall have duly executed and delivered to
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the Lender the Note.
5.1.2. Legal Opinions. On the Initial Closing Date, the Lender shall
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have received from Xxxxxx & Xxxxxxx LLP and Davenport, Evans, Xxxxxxx &
Xxxxx, L.L.P., special counsels for the Parent and its Subsidiaries,
opinions with respect to the transactions contemplated by the Credit
Documents, which opinions shall be in form and substance reasonably
satisfactory to the Lender. The Parent authorizes and directs its special
counsels to furnish the foregoing opinions.
5.1.3. Acquisition Agreement. The Lender, the Parent, the Borrower,
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BroadStream Corporation, Commco, LLC and Xxxxx Xxxxxxx shall have entered
into the Acquisition Agreement.
5.1.4. Guarantee Agreement. Each of the Guarantors shall have duly
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authorized, executed and delivered to the Lender a guarantee agreement in
substantially the form of Exhibit 5.1.4 (the "Guarantee Agreements").
5.1.5. Initial Pledge Agreements. Each of the Parent and the
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Borrower shall have duly authorized, executed and delivered to the Lender
(a) a pledge agreement in substantially the form of Exhibit 5.1.5 (the
"Initial Pledge Agreements") and (b) each of the documents required to be
delivered thereunder.
5.1.6. Proper Proceedings. This Agreement, each other Credit
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Document and the transactions contemplated hereby and thereby shall have
been authorized by all necessary corporate or other proceedings. All
necessary consents, approvals and authorizations of any governmental or
administrative agency or any other Person of any of the transactions
contemplated hereby or by any other Credit Document shall have been
obtained and shall be in full force and effect.
5.1.7. General. All legal and corporate proceedings in connection
-------
with the transactions contemplated by this Agreement shall be reasonably
satisfactory in form and substance to the Lender and the Lender shall have
received copies of all documents, including certified copies of the Charter
and By-Laws of the Borrower and
-13-
the other Obligors, records of corporate proceedings, certificates as to
signatures and incumbency of officers and opinions of counsel, which the
Lender may have reasonably requested in connection therewith, such
documents where appropriate to be certified by proper corporate or
governmental authorities.
5.2. Conditions to Each Extension of Credit. The obligations of the
--------------------------------------
Lender to make any extension of credit pursuant to Section 2 shall be subject to
the satisfaction, on or before the Closing Date for such extension of credit, of
the following conditions:
5.2.1. Borrowing Certificate. The representations and warranties
---------------------
contained in Section 7 shall be true and correct on and as of such Closing
Date with the same force and effect as though made on and as of such date
(except as to any representation or warranty which refers to a specific
earlier date); no Default shall exist on such Closing Date prior to or
immediately after giving effect to the requested extension of credit; and
the Borrower shall have furnished to the Lender in connection with the
requested extension of credit a certificate to these effects, in
substantially the form of Exhibit 5.2.1, signed by a Financial Officer (the
"Borrowing Certificate").
5.2.2. Lender Approval. The Lender: (a) with respect to clauses
---------------
(a) and (b) of Section 2.4.1, shall not reasonably have disapproved the use
of proceeds specified in the Borrowing Certificate as being inconsistent
with the permitted applications provided in Section 2.4.1; and (b) with
respect to clause (c) of Section 2.4.1, shall have approved the proposed
use of proceeds specified in the Borrowing Certificate.
5.2.3. Acquisition. The Closing (as defined in the Acquisition
-----------
Agreement) shall not have occurred.
6. General Covenants. The Borrower covenants that, until all of the Credit
-----------------
Obligations shall have been paid in full and until the Lender's obligation to
extend credit under this Agreement and any other Credit Document shall have been
irrevocably terminated, the Borrower and its Subsidiaries will comply with the
following provisions:
6.1. Taxes and Other Charges; Accounts Payable.
-----------------------------------------
6.1.1. Taxes and Other Charges. Each of the Borrower and its
-----------------------
Subsidiaries shall duly pay and discharge, or cause to be paid and
discharged, before the same becomes in arrears, all taxes, assessments and
other governmental charges imposed upon such Person and its properties,
sales or activities, or upon the income or profits therefrom, as well as
all claims for labor, materials or supplies which if unpaid might by law
become a Lien upon any of its property; provided, however, that any such
-------- -------
tax, assessment, charge or claim need not be paid if the validity or amount
thereof shall at the time be contested in good faith by appropriate
proceedings and if such Person shall, in accordance with GAAP, have set
aside on its books adequate reserves with respect
-14-
thereto; and provided, further, that each of the Borrower and its
-------- -------
Subsidiaries shall pay or bond, or cause to be paid or bonded, all such
taxes, assessments, charges or other governmental claims immediately upon
the commencement of proceedings to foreclose any Lien which may have
attached as security therefor (except to the extent such proceedings have
been dismissed or stayed).
6.1.2. Accounts Payable. Each of the Company and its Subsidiaries
----------------
shall promptly pay when due, or in conformity with customary trade terms,
all payables incurred on or after the date hereof incident to the
operations of such Person not referred to in Section 6.1.1; provided,
--------
however, that any such payables need not be paid if the validity or amount
-------
thereof shall at the time be contested in good faith and if such Person
shall, in accordance with GAAP, have set aside on its books adequate
reserves with respect thereto.
6.2. Conduct of Business, etc.
------------------------
6.2.1. Types of Business. The Borrower and its Subsidiaries shall
-----------------
engage only in the business of (a) constructing the Licenses (as defined in
the Acquisition Agreement), (b) other activities directly related thereto
and (c) other activities described in Section 2.4.1.
6.2.2. Maintenance of Properties. Each of the Borrower and its
-------------------------
Subsidiaries:
(a) shall keep its properties in such repair, working order and
condition, and shall from time to time make such repairs, replacements,
additions and improvements thereto, as are necessary for the efficient
operation of its businesses and shall comply at all times in all material
respects with all material franchises, licenses and leases to which it is
party so as to prevent any loss or forfeiture thereof or thereunder, except
where (i) compliance is at the time being contested in good faith by
appropriate proceedings and (ii) failure to comply with the provisions
being contested has not resulted, and does not create a material risk of
resulting, in the aggregate in any Material Adverse Change; and
(b) shall do all things necessary to preserve, renew and keep in full
force and effect and in good standing its legal existence and authority
necessary to continue its business.
6.2.3. Statutory Compliance. Each of the Borrower and its Subsidiaries
--------------------
shall comply in all material respects with all valid Legal Requirements
applicable to it, except where (a) compliance therewith shall at the time
be contested in good faith by appropriate proceedings and (b) failure so to
comply with the provisions being contested has not resulted, and does not
create a material risk of resulting, in the aggregate in any Material
Adverse Change.
-15-
6.2.4. Compliance with Material Agreements. Each of the Borrower
-----------------------------------
and its Subsidiaries shall comply in all material respects with the
Material Agreements (to the extent not in violation of the other provisions
of this Agreement or any other Credit Document), except that this paragraph
shall not require the payment of payment obligations under the Material
Agreements that were incurred prior to the date of this Agreement, whether
or not such payment obligations actually arise after the date of this
Agreement; provided, however, that the Borrower shall not incur any
-------- -------
additional obligations under the Material Agreements after the date hereof
except for payment obligations for which the proceeds of the Loan are
available pursuant to Section 2.4.1(a) or (b) (including the limitations in
the first proviso of Section 2.4.1). Without the prior written consent of
the Lender, no Material Agreement shall be amended, modified, waived or
terminated in any manner that would have in any material respect an adverse
effect on the interests of the Lender.
6.3. Liability Insurance. Each of the Borrower and its Subsidiaries shall
-------------------
maintain with financially sound and reputable insurers insurance against
liability for hazards, risks and liability to persons and property, including
product liability insurance, to the extent, in amounts and with deductibles at
least as favorable as those generally maintained by businesses of similar size
engaged in similar activities; provided, however, that it may effect workers'
-------- -------
compensation insurance or similar coverage with respect to operations in any
particular state or other jurisdiction through an insurance fund operated by
such state or jurisdiction or by meeting the self-insurance requirements of such
state or jurisdiction.
6.4. Reports.
-------
6.4.1. Notice of Litigation, Defaults, etc. The Borrower shall
-----------------------------------
promptly furnish to the Lender notice of any litigation or any
administrative or arbitration proceeding which results, or creates a risk
of resulting, in a Material Adverse Change. Promptly upon acquiring
knowledge thereof, the Borrower shall notify the Lender of the existence of
any Default or Material Adverse Change, specifying the nature thereof and
what action the Company or any of its Subsidiaries has taken, is taking or
proposes to take with respect thereto.
6.4.2. ERISA Reports. The Borrower shall furnish to the Lender as
-------------
soon as available the following items with respect to any Plan:
(a) any request for a waiver of the funding standards or an extension
of the amortization period,
(b) notice of any reportable event (as defined in section 4043 of
ERISA), unless the notice requirement with respect thereto has been waived
by regulation,
-16-
(c) any notice received by any ERISA Group Person that the PBGC has
instituted or intends to institute proceedings to terminate any Plan, or
that any Multiemployer Plan is insolvent or in reorganization,
(d) notice of the possibility of the termination of any Plan by its
administrator pursuant to section 4041 of ERISA, and
(e) notice of the intention of any ERISA Group Person to withdraw, in
whole or in part, from any Multiemployer Plan.
6.4.3. Other Information; Audit. From time to time at reasonable
------------------------
intervals upon request of the Lender, each of the Borrower and its
Subsidiaries shall furnish to the Lender such other information regarding
the business, assets, financial condition, income or prospects of the
Borrower and its Subsidiaries as such officer may reasonably request,
including copies of all tax returns, licenses, agreements, leases and
instruments to which any of the Borrower or its Subsidiaries is party. The
Lender's authorized officers and representatives shall have the right
during normal business hours upon reasonable notice and at reasonable
intervals to examine the books and records of the Borrower and its
Subsidiaries, to make copies and notes therefrom for the purpose of
ascertaining compliance with or obtaining enforcement of this Agreement or
any other Credit Document.
6.5. Additional Pledge of Securities. Upon the Closing (as defined in the
-------------------------------
Acquisition Agreement), one or more of the Obligors, or the permitted successors
and assigns of one or more of the Obligors, shall enter into a pledge agreement
in substantially the form of Exhibit 6.5 (the "Additional Pledge Agreement"),
pursuant to which each such Obligor, or its permitted successors and assigns,
will pledge to the Lender, as additional security for the Credit Obligations,
shares of common stock of the Lender issued to each such Obligor, or its
predecessor, as consideration for the Acquisition, which shares shall initially
have a fair market value of not less than three times the outstanding principal
amount of the Loan as of the Closing (as defined in the Acquisition Agreement),
and shall deliver each of the documents required to be delivered thereunder.
6.6. Indebtedness. Neither the Borrower nor any of its Subsidiaries shall
------------
create, incur, assume or otherwise become or remain liable with respect to any
Indebtedness, including Guarantees of Indebtedness of others and reimbursement
obligations, whether contingent or matured, under letters of credit or other
financial guarantees by third parties, (or become contractually committed to do
so), except the following:
6.6.1. Indebtedness in respect of the Credit Obligations.
-17-
6.6.2. To the extent that payment thereof shall not at the time be
required by Section 6.1, Indebtedness in respect of taxes, assessments,
governmental charges and claims for labor, materials and supplies.
6.6.3. Guarantees by the Borrower of Indebtedness and other
obligations incurred by its Subsidiaries and permitted by the other
provisions of this Section 6.6 and the Guarantee by BroadStream Corporation
of the promissory note payable by the Borrower to the ELAR Cellular
referenced in Exhibit 7.2.2.
6.6.4. Indebtedness in respect of deferred taxes arising in the
ordinary course of business.
6.6.5. Indebtedness described in Exhibit 7.2.1 or 7.4, including
accounts payable outstanding on the date hereof that may constitute
Indebtedness; provided, however, that this Section 6.6.5 shall not include
-------- -------
any additional obligations under such Indebtedness incurred after the date
hereof.
6.6.6. Indebtedness secured by Liens permitted by Section 6.7.5.
6.6.7. Indebtedness in respect of ordinary trade accounts payable on
customary terms (with payment terms not to exceed 60 days) in the ordinary
course of business, the payment of which the proceeds of the Loan would
have been available pursuant to Section 2.4.1(a) or (b) (including the
limitations in the first proviso of Section 2.4.1).
6.7. Liens. Neither the Borrower nor any of its Subsidiaries shall create,
-----
incur or enter into, or suffer to be created or incurred or to exist, any Lien
(or become contractually committed to do so), except the following:
6.7.1. Liens on the Credit Security that secure the Credit
Obligations.
6.7.2. Liens to secure taxes, assessments and other governmental
charges, to the extent that payment thereof shall not at the time be required by
Section 6.1.
6.7.3. Restrictions under federal and state securities laws on the
transfer of securities.
6.7.4. Liens outstanding on the date hereof and described in Exhibit
7.3.
6.7.5. Liens on shares of common stock of the Lender held by the
Borrower that have not been pledged to the Lender pursuant to the Additional
Pledge Agreement; provided, however, that, except for shares of common stock of
-------- -------
the Lender initially pledged to the Lender and returned to the pledgor in
accordance with Section 3 of the
-18-
Additional Pledge Agreement, not more than 25% of the aggregate number of
the shares that are issued at the Closing (as defined in the Acquisition
Agreement) may be subject to such Liens.
6.8. Investments and Acquisitions. Neither the Borrower nor any of its
----------------------------
Subsidiaries shall have outstanding, acquire or hold any Investment (including
any Investment consisting of the acquisition of any business) (or become
contractually committed to do so), except the following:
6.8.1. Investments in Cash Equivalents permitted by the other
provisions of this Agreement.
6.8.2. Investments in wholly owned Subsidiaries.
6.8.3. Guarantees permitted by Section 6.6.
6.8.4. The Acquisition as contemplated by the Acquisition Agreement.
6.8.5. The acquisition of the Plaincom Licenses (as defined in the
Acquisition Agreement).
6.9. Distributions. Neither the Borrower nor any of its Subsidiaries
-------------
shall make any Distribution (or become contractually committed to do so), except
for the Permitted Liquidation (as defined in the Acquisition Agreement) and
pursuant to any other plan of liquidation that has been approved in advance by
the Lender in its sole discretion.
6.10. Asset Dispositions and Mergers. Neither the Borrower nor any of its
------------------------------
Subsidiaries shall merge or enter into a consolidation or sell, lease, exchange,
sell and lease back, sublease or otherwise dispose of any of its assets (or
become contractually committed to do so), except for the following:
6.10.1. To the Lender pursuant to the Acquisition Agreement.
6.10.2. Pursuant to the Permitted Liquidation (as defined in the
Acquisition Agreement);
6.10.3. The disposition of the assets described in Exhibit 6.10.3;
provided, however, that the fair market value of the assets that are
-------- -------
disposed of shall not exceed $5,000,000 in the aggregate;
6.10.4. The disposition of assets other than the assets listed on
Exhibit 6.10.3 that are no longer useful in the business of the Company or
such Subsidiary or in connection with the transactions contemplated by the
Acquisition Agreement; provided,
--------
-19-
however that the aggregate fair market value (book value, if greater) of
-------
all assets disposed of under this Section 6.10.4 shall not be material; and
6.10.5. Following the Closing (as defined in the Acquisition
Agreement), sales of common stock of the Lender held by the Borrower.
6.11. Issuance of Stock by Subsidiaries; Subsidiary Distributions.
------------------------------------------------------------
6.11.1. Issuance of Stock by Subsidiaries. No Subsidiary shall
---------------------------------
issue or sell any shares of its capital stock or other evidence of
beneficial ownership to any Person.
6.11.2. No Restrictions on Subsidiary Distributions. Except for this
-------------------------------------------
Agreement and the Credit Documents, neither the Borrower nor any Subsidiary
shall enter into or be bound by any agreement (including covenants
requiring the maintenance of specified amounts of net worth or working
capital) restricting the right of any Subsidiary to make Distributions or
extensions of credit to the Borrower (directly or indirectly through
another Subsidiary).
6.12. Voluntary Prepayments of Other Indebtedness. Neither the Borrower
-------------------------------------------
nor any of its Subsidiaries shall make any voluntary prepayment of principal of
or interest on any Financing Debt (other than the Credit Obligations) or make
any voluntary redemptions or repurchases of Financing Debt (other than the
Credit Obligations).
6.13. Negative Pledge Clauses. Neither the Borrower nor any of its
-----------------------
Subsidiaries shall enter into any agreement, instrument, deed or lease which
prohibits or limits the ability of the Borrower or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any of their respective
properties, assets or revenues, whether now owned or hereafter acquired, or
which requires the grant of any collateral for such obligation if collateral is
granted for another obligation, except the following:
6.13.1. This Agreement and the other Credit Documents.
6.13.2. The Acquisition Agreement.
6.13.3. Covenants in documents creating Liens permitted by Section
6.7 prohibiting further Liens on the assets encumbered thereby.
6.14. ERISA, etc. Each of the Borrower and its Subsidiaries shall comply,
and shall cause all ERISA Group Persons to comply, in all material respects,
with the provisions of ERISA and the Code applicable to each Plan. Each of the
Borrower and its Subsidiaries shall meet, and shall cause all ERISA Group
Persons to meet, all minimum funding requirements applicable to them with
respect to any Plan pursuant to section 302 of ERISA or section 412 of the Code,
without giving effect to any waivers of such requirements or extensions of the
-20-
related amortization periods which may be granted. At no time shall the
accumulated benefit obligations under any Plan that is not a Multiemployer Plan
exceed the fair market value of the assets of such Plan allocable to such
benefits by more than $100,000. The Borrower and its Subsidiaries shall not
withdraw, and shall cause all other ERISA Group Persons not to withdraw, in
whole or in part, from any Multiemployer Plan so as to give rise to withdrawal
liability exceeding $100,000 in the aggregate. At no time shall the actuarial
present value of unfunded liabilities for post-employment health care benefits
(other than COBRA continuation coverage benefits), whether or not provided under
a Plan, calculated in a manner consistent with Statement No. 106 of the
Financial Accounting Standards Board, exceed $100,000.
6.15. Transactions with Affiliates. Neither the Borrower nor any of its
----------------------------
Subsidiaries shall effect any transaction with any of their respective
Affiliates (except for the Borrower and its Subsidiaries) on a basis less
favorable to the Borrower and its Subsidiaries than would be the case if such
transaction had been effected with a non-Affiliate.
6.16. Environmental Laws.
------------------
6.16.1. Compliance with Law and Permits. Each of the Borrower and its
-------------------------------
Subsidiaries shall use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep in effect all
necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters and remain in material
compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws.
6.16.2. Notice of Claims, etc. Each of the Borrower and its
---------------------
Subsidiaries shall immediately notify the Lender, and provide copies upon
receipt, of all written claims, complaints, notices or inquiries from
governmental authorities relating to the condition of its facilities and
properties or compliance with Environmental Laws, and shall promptly cure
and have dismissed with prejudice to the reasonable satisfaction of the
Lender any actions and proceedings relating to compliance with
Environmental Laws.
7. Representations and Warranties. In order to induce the Lender to extend
------------------------------
credit to the Borrower hereunder, the Borrower represents and warrants as
follows:
7.1. Organization and Business.
-------------------------
7.1.1. The Parent. The Parent is a duly organized and validly
----------
existing limited liability company, in good standing under the laws of
Delaware, with all power and authority, corporate or otherwise, necessary
to (a) enter into and perform each Credit Document to which it is party,
(b) guarantee the Credit Obligations, (c) grant the Lender the security
interests in the Credit Security owned by it to secure the Credit
Obligations and (d) own its properties and carry on the business now
conducted or
-21-
proposed to be conducted by it. Certified copies of the Charter and By-laws of
the Parent have been previously delivered to the Lender and are correct and
complete.
7.1.2. Subsidiaries. Each Subsidiary of the Parent is duly organized,
------------
validly existing and in good standing under the laws of the jurisdiction in
which it is organized, with all power and authority, corporate or otherwise,
necessary to (a) enter into and perform this Agreement and each other Credit
Document to which it is party, (b) guarantee (in the case of the Borrower,
incur) the Credit Obligations, (c) grant the Lender the security interest in the
Credit Security owned by such Subsidiary to secure the Credit Obligations and
(d) own its properties and carry on the business now conducted or proposed to be
conducted by it. Certified copies of the Charter and By-laws of each Subsidiary
of the Parent have been previously delivered to the Lender and are correct and
complete.
7.1.3. Qualification. Each of the Parent and its Subsidiaries is duly and
-------------
legally qualified to do business as a foreign corporation or other entity and is
in good standing in each state or jurisdiction in which such qualification is
required and is duly authorized, qualified and licensed under all laws,
regulations, ordinances or orders of public authorities, or otherwise, to carry
on its business in the places and in the manner in which it is conducted, except
for failures to be so qualified, authorized or licensed which would not in the
aggregate result, or create a material risk of resulting, in any Material
Adverse Change.
7.1.4. Capitalization. No options, warrants, conversion rights, preemptive
--------------
rights or other statutory or contractual rights to purchase shares of capital
stock or other securities of the Borrower or any Subsidiary now exist, nor has
the Parent or any Subsidiary authorized any such right, nor is any Subsidiary
obligated in any other manner to issue shares of its capital stock or other
securities, except, in each case with respect to the Borrower, as set forth on
Exhibit 7.1.
7.2. Financial Statements and Other Information; Material Agreements.
---------------------------------------------------------------
7.2.1. Financial Statements and Other Information. The Borrower has
------------------------------------------
previously furnished to the Lender copies of the audited consolidated balance
sheet of the Borrower and its Subsidiaries as at December 31, 1999 and the
audited consolidated statements of operations and the audited consolidated
statements of changes in stockholders' deficit and of cash flows of the Borrower
and its Subsidiaries for the fiscal year of the Borrower then ended. Such
audited consolidated financial statements (including the notes thereto) were
prepared in accordance with GAAP and fairly present in all material respects the
financial position of the Borrower and its Subsidiaries on a consolidated basis
at the respective dates thereof and the results of their operations for the
periods covered thereby. Except as set forth on Exhibit 7.2.1, 7.3 or 7.4 and
except as may arise in connection with the activities described in Section
-22-
2.4.1(a) or (b), neither the Borrower nor any of its Subsidiaries has any
known contingent liability material to the Borrower and its Subsidiaries on
a consolidated basis which is not reflected in the balance sheet referred
to above or in the notes thereto.
7.2.2. Material Agreements. The Borrower has previously furnished
-------------------
to the Lender correct and complete copies, including all exhibits,
schedules and amendments thereto, of the agreements and instruments, each
as in effect on the date hereof, listed in Exhibit 7.2.2, which constitute
all agreements and instruments material to the Borrower and its
Subsidiaries on a consolidated basis (the "Material Agreements").
7.3. Agreements Relating to Financing Debt, Investments, etc. Exhibit 7.3
-------------------------------------------------------
sets forth as of the date hereof:
7.3.1. The amounts (as of the dates indicated in Exhibit 7.3, as so
supplemented) of all Financing Debt of the Borrower and its Subsidiaries
and all agreements which relate to such Financing Debt.
7.3.2. All Liens and Guarantees with respect to such Financing
Debt.
7.3.3. All agreements which directly or indirectly require the
Parent or any Subsidiary to make any Investment.
7.3.4. All trademarks, tradenames, service marks, service names and
patents owned by the Parent and its Subsidiaries that are registered with
the federal Patent and Trademark Office (or with respect to which
applications for such registration have been filed).
7.3.5. All copyrights owned by the Parent and its Subsidiaries that
are registered with the federal Copyright Office.
7.3.6. All internet domain names owned by the Parent and its
Subsidiaries and the related registry information.
The Borrower has furnished the Lender correct and complete copies of any
agreements described above in this Section 7.3 requested by the Lender.
7.4. Changes in Condition. Since December 31, 1999, neither the Borrower
--------------------
nor any of its Subsidiaries has incurred any Indebtedness except as shown on
Exhibit 7.4 or as permitted to be incurred hereunder.
7.5. Title to Assets. The Parent and its Subsidiaries have good and
---------------
marketable title to their assets, subject to no Liens except for Liens permitted
by Section 6.7.
-23-
7.6. Operations in Conformity With Law, etc. The operations of the Parent
--------------------------------------
and its Subsidiaries as now conducted or proposed to be conducted are not in
violation of, nor is the Parent or its Subsidiaries in default under, any Legal
Requirement presently in effect, except for such violations and defaults as do
not and will not, in the aggregate, result, or create a material risk of
resulting, in any Material Adverse Change. The Parent has received no notice of
any such violation or default and has no knowledge of any basis on which the
operations of the Parent or its Subsidiaries, as now conducted and as currently
proposed to be conducted after the date hereof, would be held so as to violate
or to give rise to any such violation or default.
7.7. Litigation. Except as would not, individually or in the aggregate,
----------
result in a Material Adverse Change, no litigation, at law or in equity, or any
proceeding before any court, board or other governmental or administrative
agency or any arbitrator is pending or, to the knowledge of the Borrower or any
other Obligor, threatened, which involves the Parent, the Borrower or any
Guarantor or their assets, or which seeks to enjoin the consummation, or which
questions the validity, of any of the transactions contemplated by this
Agreement or any other Credit Document. Except as would not, individually or in
the aggregate, result in a Material Adverse Change, no judgment, decree or order
of any court, board or other governmental or administrative agency or any
arbitrator has been issued against or binds the Parent or any of its
Subsidiaries.
7.8. Authorization and Enforceability. The Borrower has taken all
--------------------------------
corporate action required to execute, deliver and perform this Agreement and
each other Credit Document to which it is a party, and each of the Parent and
each other Obligor has taken all corporate action required to execute, deliver
and perform each Credit Document to which it is party. No consent of
stockholders of the Parent or any of its Subsidiaries is necessary in order to
authorize the execution, delivery or performance of this Agreement or any other
Credit Document to which the Parent or any of its Subsidiaries is party. Each of
this Agreement and each other Credit Document constitutes the legal, valid and
binding obligation of each Obligor party thereto and is enforceable against such
Obligor in accordance with its terms.
7.9. No Legal Obstacle to Agreements. Neither the execution and delivery
-------------------------------
of this Agreement or any other Credit Document, nor the making of any borrowings
hereunder, nor the guaranteeing of the Credit Obligations, nor the securing of
the Credit Obligations with the Credit Security, nor the consummation of any
transaction referred to in or contemplated by this Agreement or any other Credit
Document, nor the fulfillment of the terms hereof or thereof or of any other
agreement, instrument, deed or lease contemplated by this Agreement or any other
Credit Document, has constituted or resulted in or will constitute or result in:
(a) any breach or termination of the provisions of any agreement,
instrument, deed or lease to which the Parent, any of its Subsidiaries or
any other Obligor is a party or by which it is bound, or of the Charter or
By-laws of the Parent, any of its Subsidiaries or any other Obligor;
-24-
(b) the violation of any law, statute, judgment, decree or
governmental order, rule or regulation applicable to the Parent, any of its
Subsidiaries or any other Obligor;
(c) the creation under any agreement, instrument, deed or lease of
any Lien (other than Liens on the Credit Security which secure the Credit
Obligations) upon any of the assets of the Parent, any of its Subsidiaries
or any other Obligor; or
(d) any redemption, retirement or other repurchase obligation of the
Parent, any of its Subsidiaries or any other Obligor under any Charter, By-
law, agreement, instrument, deed or lease.
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made by the Parent, any of its Subsidiaries or any other Obligor
in connection with the execution, delivery and performance of this Agreement or
any other Credit Document, the transactions contemplated hereby or thereby, the
making of any borrowing hereunder, the guaranteeing of the Credit Obligations or
the securing of the Credit Obligations with the Credit Security (other than
filings necessary to perfect the Lender's security interest in the Credit
Security) and consents required from the Federal Communications Commission to
transfer control upon any foreclosure by Lender under the Initial Pledge
Agreements.
7.10. Defaults. Neither the Parent nor any of its Subsidiaries is in
--------
default under any provision of its Charter or By-laws or of this Agreement or
any other Credit Document. Except for the failure to make required payments
under Indebtedness described in Exhibit 7.4, whether or not such required
payment obligations actually arise after the date of this Agreement (provided
that this exception shall not apply to additional required payment obligations
under such Indebtedness incurred after the date of this Agreement), neither the
Parent nor any of its Subsidiaries is in default under any provision of any
agreement, instrument, deed or lease to which it is party or by which it or its
property is bound so as to result, or create a material risk of resulting, in
any Material Adverse Change.
7.11. Tax Returns. Each of the Parent and its Subsidiaries has filed all
-----------
material tax and information returns which are required to be filed by it and
has paid, or made adequate provision for the payment of, all taxes which have or
may become due pursuant to such returns or to any assessment received by it,
other than taxes and assessments being contested by the Parent and its
Subsidiaries in good faith by appropriate proceedings and for which adequate
reserves have been taken in accordance with GAAP. Neither the Parent nor any of
its Subsidiaries knows of any material additional assessments or any basis
therefor. The Parent reasonably believes that the charges, accruals and
reserves on the books of the Parent and its Subsidiaries in respect of taxes or
other governmental charges are adequate.
-25-
7.12. Pension Plans. Each Plan (other than a Multiemployer Plan) and, to
-------------
the knowledge of the Parent and its Subsidiaries, each Multiemployer Plan is in
material compliance with the applicable provisions of ERISA and the Code. Each
Multiemployer Plan and each Plan that constitutes a "defined benefit plan" (as
defined in ERISA) are set forth in Exhibit 7.12. Each ERISA Group Person has met
all of the funding standards applicable to all Plans that are not Multiemployer
Plans, and no condition exists which would permit the institution of proceedings
to terminate any Plan that is not a Multiemployer Plan under section 4042 of
ERISA. To the knowledge of the Parent and each Subsidiary, no Plan that is a
Multiemployer Plan is currently insolvent or in reorganization or has been
terminated within the meaning of ERISA.
7.13. Environmental Regulations.
-------------------------
7.13.1. Environmental Compliance. Each of the Parent and its
------------------------
Subsidiaries is in compliance in all material respects with the Clean Air Act,
the Federal Water Pollution Control Act, the Marine Protection Research and
Sanctuaries Act, RCRA, CERCLA and any other Environmental Law in effect in any
jurisdiction in which any properties of the Parent or any of its Subsidiaries
are located or where any of them conducts its business, and with all applicable
published rules and regulations (and applicable standards and requirements) of
the federal Environmental Protection Agency and of any similar agencies in
states or foreign countries in which the Parent or its Subsidiaries conducts its
business other than those which in the aggregate have not resulted, and do not
create a material risk of resulting, in a Material Adverse Change.
7.13.2. Environmental Litigation. No suit, claim, action or
------------------------
proceeding of which the Parent or any of its Subsidiaries has been given notice
or otherwise has knowledge is now pending before any court, governmental agency
or board or other forum, or to the Parent's or any of its Subsidiaries
knowledge, threatened by any Person (nor to the Parent's or any of its
Subsidiaries' knowledge, does any factual basis exist therefor) for, and neither
the Parent nor any of its Subsidiaries have received written correspondence from
any federal, state or local governmental authority with respect to:
(a) noncompliance by the Parent or any of its Subsidiaries with any
Environmental Law;
(b) personal injury, wrongful death or other tortious conduct
relating to materials, commodities or products used, generated, sold,
transferred or manufactured by the Parent or any of its Subsidiaries
(including products made of, containing or incorporating asbestos, lead or
other Hazardous Material; or
(c) the release into the environment by the Parent or any of its
Subsidiaries of any Hazardous Material generated by the Parent or any of
its Subsidiaries whether or
-26-
not occurring at or on a site owned, leased or operated by the Parent or
any of its Subsidiaries.
7.13.3. Hazardous Material. Exhibit 7.13 contains a list as of the
------------------
date hereof of all waste disposal or dump sites at which Hazardous Material
generated by either the Parent or any of its Subsidiaries has been disposed
of directly by the Parent or any of its Subsidiaries and all independent
contractors to whom the Parent and its Subsidiaries have delivered
Hazardous Material, or to the Parent's or any of its Subsidiaries'
knowledge, where Hazardous Material finally came to be located, and
indicates all such sites which are or have been included (including as a
potential or suspect site) in any published federal, state or local
"superfund" or other list of hazardous or toxic waste sites. Any waste
disposal or dump sites at which Hazardous Material generated by either the
Parent or any of its Subsidiaries has been disposed of directly by the
Parent or any of its Subsidiaries and all independent contractors to whom
the Parent or any of its Subsidiaries have delivered Hazardous Material, or
to the Parent's or any of its Subsidiaries' knowledge, where Hazardous
Material finally came to be located, has not resulted, and does not create
a material risk of resulting, in a Material Adverse Change.
7.13.4. Environmental Condition of Properties. None of the
-------------------------------------
properties owned or leased by the Parent or any of its Subsidiaries has
been used as a treatment, storage or disposal site for Hazardous Material,
other than as disclosed in Exhibit 7.13. No Hazardous Material is present
in any real property currently or formerly owned or operated by the Parent
or any of its Subsidiaries except that which has not resulted, and does not
create a material risk of resulting, in a Material Adverse Change.
7.14. Acquisition Agreement. The Acquisition Agreement is a valid and
---------------------
binding contract as to each of the Obligors that is a party thereto. The
representations and warranties of each such Obligor set forth in the Acquisition
Agreement are true and correct in all respects as of the date hereof with the
same force and effect as though made on and as of the date hereof.
7.15. Disclosure. Neither this Agreement nor any other Credit Document nor
----------
any financial statement, report, notice, mortgage, assignment or certificate
furnished or to be furnished to the Lender by or on behalf of the Parent or any
of its Subsidiaries in connection with the transactions contemplated hereby or
by such Credit Document contains any untrue statement of material fact or omits
to state a material fact necessary in order to make the statements contained
herein or therein with respect to the subject matter hereof or thereof not
misleading in light of the circumstances under which they were made.
8. Defaults.
--------
8.1. Events of Default. The following events are referred to as "Events
-----------------
of Default":
-27-
8.1.1. Payment. The Borrower shall fail to make any payment in
-------
respect of principal or interest on or in respect of any of the Credit
Obligations owed by it as the same shall become due and payable, whether at
maturity or by acceleration or otherwise.
8.1.2. Covenants. The Parent, any of its Subsidiaries or any other
---------
Obligor shall fail to perform or observe any other covenant, agreement or
provision to be performed or observed by it under this Agreement or any
other Credit Document, and such failure shall not be rectified or cured to
the written satisfaction of the Lender within five days after the earlier
of (a) notice thereof by the Lender to the Borrower or (b) a Financial
Officer shall have actual knowledge thereof.
8.1.3. Representations and Warranties. Any representation or
------------------------------
warranty of or with respect to the Parent, any of its Subsidiaries or any
other Obligor made to the Lender in, pursuant to or in connection with this
Agreement or any other Credit Document, or in any financial statement,
report, notice, mortgage, assignment or certificate delivered to the Lender
by the Parent, any of its Subsidiaries or any other Obligor in connection
herewith or therewith, shall be false in any material respect on the date
as of which it was made.
8.1.4. Material Financing Debt Cross Default, etc.
------------------------------------------
(a) the Parent or any of its Subsidiaries shall fail to perform or
observe the terms of any agreement or instrument relating to any Material
Financing Debt (other than with respect to payment obligations under
Material Financing Debt described in Exhibit 7.3.1 that were incurred prior
to the date of this Agreement, whether or not such payment obligations
actually arise after the date of this Agreement (provided that this
exception shall not apply to additional payment obligations under such
Material Financing Debt incurred after the date of this Agreement)), and
such failure shall continue, without having been duly cured, waived or
consented to, beyond the period of grace, if any, specified in such
agreement or instrument, and such failure shall permit the acceleration of
such Material Financing Debt;
(b) all or any part of any Material Financing Debt (other than with
respect to payment obligations under Material Financing Debt described in
Exhibit 7.3.1 that were incurred prior to the date of this Agreement,
whether or not such payment obligations actually arise after the date of
this Agreement (provided that this exception shall not apply to additional
payment obligations under such Material Financing Debt incurred after the
date of this Agreement)) of the Parent or any of its Subsidiaries shall be
accelerated or shall become due or payable prior to its stated maturity for
any reason whatsoever (except with respect to voluntary prepayments or
mandatory contingent
-28-
payments that do not result from a default thereunder or the occurrence of
an event similar to an Event of Default hereunder);
(c) other than the use of a deposit account by U.S. Bank National
Association in connection with the letter of credit issued for the benefit
of Science Applications International Corporation referenced in Exhibit
7.2.2, any Lien on any property of the Parent or any of its Subsidiaries
securing any Material Financing Debt (other than a Lien arising with
respect to payment obligations under Material Financing Debt described in
Exhibit 7.3.1 that were incurred prior to the date of this Agreement,
whether or not such payment obligations actually arise after the date of
this Agreement (provided that this exception shall not apply to additional
payment obligations under such Material Financing Debt incurred after the
date of this Agreement)) shall be enforced by foreclosure or similar
action; or
(d) any holder of any Material Financing Debt shall exercise any
right of rescission with respect to the issuance thereof or put, mandatory
prepayment (other than with respect to payment obligations under Material
Financing Debt described in Exhibit 7.3.1 that were incurred prior to the
date of this Agreement, whether or not such payment obligations actually
arise after the date of this Agreement (provided that this exception shall
not apply to additional payment obligations under such Material Financing
Debt incurred after the date of this Agreement)) or repurchase rights
against the Parent or any of its Subsidiaries with respect to such Material
Financing Debt (other than any such rights that may be satisfied with
"payment in kind" notes or other similar securities).
8.1.5. Ownership; Liquidation; etc. Except as permitted by Section
---------------------------
6.9 or Section 6.10:
(a) the Parent shall cease to own, directly or indirectly, all the
capital stock of its Subsidiaries; or
(b) the Parent or any of its Subsidiaries or any other Obligor shall
initiate any action to dissolve, liquidate or otherwise terminate its
existence.
8.1.6. Enforceability, etc. Any Credit Document shall cease for
-------------------
any reason (other than the scheduled termination thereof in accordance with
its terms) to be enforceable in accordance with its terms or in full force
and effect; or any party to any Credit Document shall so assert in a
judicial or similar proceeding; or the security interests created by this
Agreement or any other Credit Documents shall cease to be enforceable and
of the same effect and priority purported to be created hereby.
8.1.7. Judgments. A final judgment (a) which, with other
---------
outstanding final judgments against the Parent and its Subsidiaries,
exceeds an aggregate of $25,000 in
-29-
excess of applicable insurance coverage shall be rendered against the
Parent or any of its Subsidiaries, or (b) which grants injunctive relief
that results, or creates a material risk of resulting, in a Material
Adverse Change and in either case if (i) within 30 days after entry
thereof, such judgment shall not have been discharged or execution thereof
stayed pending appeal or (ii) within 30 days after the expiration of any
such stay, such judgment shall not have been discharged.
8.1.8. ERISA. Any "reportable event" (as defined in section 4043
-----
of ERISA) shall have occurred that reasonably could be expected to result
in termination of a Plan or the appointment by the appropriate United
States District Court of a trustee to administer any Plan or the imposition
of a Lien in favor of a Plan; or any ERISA Group Person shall fail to pay
when due amounts aggregating in excess of $100,000 which it shall have
become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or
notice of intent to terminate a Plan shall be filed under Title IV of ERISA
by any ERISA Group Person or administrator; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee to
be appointed to administer any Plan or a proceeding shall be instituted by
a fiduciary of any Plan against any ERISA Group Person to enforce section
515 or 4219(c)(5) of ERISA and such proceeding shall not have been
dismissed within 30 days thereafter; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that
any Plan must be terminated.
8.1.9. Bankruptcy, etc. The Parent, any of its Subsidiaries or any
---------------
other Obligor shall:
(a) commence a voluntary case under the Bankruptcy Code or authorize,
by appropriate proceedings of its board of directors or other governing
body, the commencement of such a voluntary case;
(b) (i) have filed against it a petition commencing an involuntary
case under the Bankruptcy Code that shall not have been dismissed within 60
days after the date on which such petition is filed, or (ii) file an answer
or other pleading within such 60-day period admitting or failing to deny
the material allegations of such a petition or seeking, consenting to or
acquiescing in the relief therein provided, or (iii) have entered against
it an order for relief in any involuntary case commenced under the
Bankruptcy Code;
(c) seek relief as a debtor under any applicable law, other than the
Bankruptcy Code, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the
rights of creditors, or consent to or acquiesce in such relief;
-30-
(d) have entered against it an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii) ordering or
approving its liquidation or reorganization as a debtor or any modification
or alteration of the rights of its creditors or (iii) assuming custody of,
or appointing a receiver or other custodian for, all or a substantial
portion of its property; or
(e) make an assignment for the benefit of, or enter into a
composition with, its creditors, or appoint, or consent to the appointment
of, or suffer to exist a receiver or other custodian for, all or a
substantial portion of its property.
8.2. Certain Actions Following an Event of Default. If any one or more
---------------------------------------------
Events of Default shall occur and be continuing, then in each and every such
case:
8.2.1. Terminate Obligation to Extend Credit. The Lender's
-------------------------------------
obligation to make any further extensions of credit under the Credit
Documents shall automatically terminate.
8.2.2. Specific Performance; Exercise of Rights. The Lender shall
----------------------------------------
proceed to protect and enforce its rights by suit in equity, action at law
and/or other appropriate proceeding, either for specific performance of any
covenant or condition contained in this Agreement or any other Credit
Document or in any instrument or assignment delivered to the Lender
pursuant to this Agreement or any other Credit Document, or in aid of the
exercise of any power granted in this Agreement or any other Credit
Document or any such instrument or assignment.
8.2.3. Acceleration. The Lender shall by notice in writing to the
------------
Borrower declare all or any part of the unpaid balance of the Credit
Obligations then outstanding to be immediately due and payable.
8.2.4. Enforcement of Payment; Credit Security; Setoff. The Lender
-----------------------------------------------
shall proceed to enforce payment of the Credit Obligations in such manner
as it may elect.
8.2.5. Cumulative Remedies. To the extent not prohibited by
-------------------
applicable law which cannot be waived, all of the Lender's rights hereunder
and under each other Credit Document shall be cumulative.
8.3. Annulment of Defaults. Once an Event of Default has occurred, such
---------------------
Event of Default shall be deemed to exist and be continuing for all purposes of
the Credit Documents until the Lender shall have waived such Event of Default in
writing, stated in writing that the same has been cured to the Lender's
reasonable satisfaction or entered into an amendment to this Agreement which by
its express terms cures such Event of Default, at which time such Event of
Default shall no longer be deemed to exist or to have continued. No such action
by the Lender shall extend to or affect any subsequent Event of Default or
impair any rights of
-31-
the Lender upon the occurrence thereof. The making of any extension of credit
during the existence of any Default or Event of Default shall not constitute a
waiver thereof.
8.4. Waivers. To the extent that such waiver is not prohibited by the
-------
provisions of applicable law that cannot be waived, each of the Parent and the
other Obligors waives:
(a) all presentments, demands for performance, notices of
nonperformance (except to the extent required by this Agreement or any
other Credit Document), protests, notices of protest and notices of
dishonor;
(b) any requirement of diligence or promptness on the part of the
Lender in the enforcement of its rights under this Agreement or any other
Credit Document;
(c) any and all notices of every kind and description which may be
required to be given by any statute or rule of law; and
(d) any defense (other than indefeasible payment in full) which it
may now or hereafter have with respect to its liability under this
Agreement or any other Credit Document or with respect to the Credit
Obligations.
9. Indemnity. The Borrower shall indemnify the Lender and hold the Lender
---------
harmless from any liability, loss or damage resulting from the violation by the
Borrower of Section 2.2. In addition, the Borrower shall indemnify the Lender
and each of the Lender's directors, officers, employees, agents, attorneys,
accountants and consultants (the Lender and each of such directors, officers,
employees, agents, attorneys, accountants and consultants is referred to as an
"Indemnified Party") and hold each of them harmless from and against any and all
claims, damages, liabilities and reasonable expenses (including reasonable fees
and disbursements of counsel with whom any Indemnified Party may consult in
connection therewith and all reasonable expenses of litigation or preparation
therefor) which any Indemnified Party may incur or which may be asserted against
any Indemnified Party in connection with (a) the Indemnified Party's compliance
with or contest of any subpoena or other process issued against it in any
proceeding involving the Parent or any of its Subsidiaries or their Affiliates,
(b) any litigation or investigation involving the Parent, any of its
Subsidiaries or their Affiliates, or any officer, director or employee thereof,
(c) the existence or exercise of any security rights with respect to the Credit
Security in accordance with the Credit Documents, or (d) this Agreement, any
other Credit Document or any transaction contemplated hereby or thereby;
provided, however, that the foregoing indemnity shall not apply (i) to
-------- -------
litigation commenced by the Borrower against the Lender which seeks enforcement
of any of the rights of the Borrower hereunder or under any other Credit
Document and is determined adversely to the Lender in a final nonappealable
judgment or (ii) to the extent such claims, damages, liabilities and expenses
result from the Indemnified Party's own gross negligence or willful misconduct.
THE BORROWER EXPRESSLY ACKNOWLEDGES
-32-
THAT IT MAY BE REQUIRED TO INDEMNIFY PERSONS AGAINST THEIR OWN NEGLIGENCE.
10. Successors and Assigns. All of the terms and provisions of this Agreement
----------------------
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective transferees, successors and assigns.
11. Notices. Except as otherwise specified in this Agreement or any other
-------
Credit Document, any notice required to be given pursuant to this Agreement or
any other Credit Document shall be given in writing. Any notice, consent,
approval, demand or other communication in connection with this Agreement or any
other Credit Document shall be deemed to be given if given in writing (including
by telecopy) addressed as provided below (or to the addressee at such other
address as the addressee shall have specified by notice actually received by the
addressor), and if either (a) actually delivered in fully legible form to such
address or (b) in the case of a letter, unless actual receipt of the notice is
required by any Credit Document five days shall have elapsed after the same
shall have been deposited in the United States mails, with first-class postage
prepaid and registered or certified.
If to the Parent or any of its Subsidiaries, to:
0000 Xxx Xxx Xxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxxx Law Firm
000 Xxxxx Xxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Lender, to:
Advanced Radio Telecom Corp.
000 000xx Xxxxxx, XX, Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
with a copy to:
-33-
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
12. Amendments; Course of Dealing; No Implied Waivers. This Agreement may be
-------------------------------------------------
amended by the parties hereto at any time, but only by an instrument in writing
duly executed and delivered on behalf of each of the parties hereto. No course
of dealing between the Lender, on one hand, and the Borrower or any other
Obligor, on the other hand, shall operate as a waiver of any of the Lender's
rights under this Agreement or any other Credit Document or with respect to the
Credit Obligations. In particular, no delay or omission on the part of the
Lender in exercising any right under this Agreement or any other Credit Document
or with respect to the Credit Obligations shall operate as a waiver of such
right or any other right hereunder or thereunder. A waiver on any one occasion
shall not be construed as a bar to or waiver of any right or remedy on any
future occasion. No waiver, consent or amendment with respect to this Agreement
or any other Credit Document shall be binding unless it is in writing and signed
by the Lender.
13. General Provisions.
------------------
13.1. Defeasance. When all Credit Obligations have been paid, performed
----------
and reasonably determined by the Lender to have been indefeasibly discharged in
full, this Agreement and the other Credit Documents shall terminate and, at the
Borrower's written request, accompanied by such certificates and other items as
the Lender shall reasonably deem necessary, the Credit Security shall revert to
the Obligors and the right, title and interest of the Lender therein shall
terminate. Thereupon, on the Obligors' demand and at their cost and expense, the
Lender shall execute proper instruments, acknowledging satisfaction of and
discharging this Agreement and the other Credit Documents, and shall redeliver
to the Obligors any Credit Security then in its possession; provided, however,
-------- -------
that Sections 9 and 13 shall survive the termination of this Agreement.
13.2. No Strict Construction. The parties have participated jointly in
----------------------
the negotiation and drafting of this Agreement and the other Credit Documents
with counsel sophisticated in financing transactions. In the event an ambiguity
or question of intent or interpretation arises, this Agreement and the other
Credit Documents shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement and the other
Credit Documents.
13.3. Certain Obligor Acknowledgments. Each of the Borrower and the other
-------------------------------
Obligors acknowledges that:
-34-
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Credit Documents;
(b) the Lender does not have any fiduciary relationship with or
duty to the Obligors arising out of or in connection with this Agreement or
any other Credit Document, and the relationship between the Lender, on one
hand, and the Obligors, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby or thereby among the Obligors and the Lender.
13.4. Interpretation; Governing Law; etc. Time is (and shall be) of the
----------------------------------
essence in this Agreement and the other Credit Documents. All covenants,
agreements, representations and warranties made in this Agreement or any other
Credit Document or in certificates delivered pursuant hereto or thereto shall be
deemed to have been relied on by the Lender, notwithstanding any investigation
made by the Lender on its behalf, and shall survive the execution and delivery
to the Lender hereof and thereof. The invalidity or unenforceability of any
provision hereof shall not affect the validity or enforceability of any other
provision hereof, and any invalid or unenforceable provision shall be modified
so as to be enforced to the maximum extent of its validity or enforceability.
The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof. This Agreement and the other
Credit Documents constitute the entire understanding of the parties with respect
to the subject matter hereof and thereof and supersede all prior and
contemporaneous understandings and agreements, whether written or oral. This
Agreement may be executed in any number of counterparts which together shall
constitute one instrument. This Agreement shall be governed by and construed in
accordance with the laws (other than the conflict of laws rules) of the State of
Delaware.
[The rest of this page has been intentionally left blank.]
-35-
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
ADVANCED RADIO TELECOM CORP.
By: ________________________________
Name:
Title:
BROADSTREAM COMMUNICATIONS
CORPORATION
By: ________________________________
Name:
Title:
