ASSUMPTION, ASSIGMENT AND RESTATEMENT AGREEMENT
Exhibit 10.55
THIS ASSUMPTION, ASSIGNMENT AND RESTATEMENT AGREEMENT (the "AGREEMENT") is
made and entered into as of the 19th day of November, 2001, by and among (i)
Network Access Solutions Corporation, a Delaware corporation, or its permitted
designee ("NAS"), (ii) Covad Communications Company, a California corporation
("COVAD"), (iii) Ardent, Inc., a Virginia corporation, and (iv) Ardent
Communications, Inc., a Delaware corporation (together, with Ardent, Inc.,
"ARDENT," and, collectively with Covad and NAS, the "PARTIES").
WHEREAS, Ardent is engaged in the business of supplying broadband Internet
access solutions and web services (collectively, the "BUSINESS");
WHEREAS, on October 10, 2001 (the "PETITION DATE"), Ardent filed voluntary
chapter 11 petitions commencing cases in the United States Bankruptcy Court for
the District of Columbia (the "BANKRUPTCY COURT"), Case Nos. 01-02085 and
01-02086;
WHEREAS, NAS and Ardent executed an Asset Purchase Agreement, dated as of
October 25, 2001, whereby NAS agreed to purchase certain of the assets of Ardent
related to or used by Ardent in connection with the Business and to assume
certain executory contracts of Ardent related to the Business (collectively, the
"ACQUIRED ASSETS") (as more particularly defined in ARTICLE 1 thereof) in
accordance with Sections 105, 363 and 365 of the Bankruptcy Code (the "PURCHASE
AGREEMENT");
WHEREAS, pursuant to the Services Agreement, dated as of August 2, 1999
(the "SERVICES AGREEMENT"), and the ISP Customer Agreement for Telespeed
Services, dated October 29, 1998 (the "COVAD ISP AGREEMENT"), each by and
between Ardent and Covad, Covad agreed to provide digital subscriber line
("DSL") service to certain customers of Ardent (together, the "COVAD AGREEMENTS"
which term shall include all amendments made hereunder);
WHEREAS, Ardent is currently liable to Covad for $4,878,403.12 for services
rendered under the Covad Agreements prior to the Petition Date (the
"PRE-PETITION AMOUNT"), and is currently liable for $980,962.57 for services
rendered under the Covad Agreements after the Petition Date and prior to
Closing, as defined herein (the "POST-PETITION AMOUNT");
WHEREAS, in connection with the Purchase Agreement, Ardent wishes to assume
and assign to NAS the Covad Agreements, as modified by this Agreement, pursuant
to Section 365 of the Bankruptcy Code, and Covad will agree, and not object, to
the assumption and assignment of the Covad Agreements upon the execution of this
Agreement and related agreements;
WHEREAS, NAS and Covad wish to restate the Covad Agreements following the
assumption and assignment of such agreements pursuant to the terms hereof; and
WHEREAS, pursuant to the Purchase Agreement, NAS is obligated to pay to
Covad the Pre-Petition amount less $178,403.12 and Ardent is obligated to pay to
Covad $178,403.12, plus the Post-Petition Amount.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth in this Agreement, the sufficiency of which the Parties
acknowledge, it is agreed as follows:
1. CURE OF PRE-PETITION DEFAULTS
(a) NAS hereby agrees to pay to Covad $4,700,000 in cash over time
pursuant to the terms of a secured promissory note, a form of which is attached
hereto as EXHIBIT 1 (the "Note"). Pursuant to the Note, NAS shall pay $3,000,000
in cash at closing by wire transfer. The Note and all of its terms are hereby
incorporated in this agreement as if fully set forth herein.
(b) Ardent hereby agrees to pay to Covad $178,403.12 in cash at
closing by wire transfer.
(c) NAS hereby agrees to provide to Covad a Letter of Credit, a form
of which is attached hereto as EXHIBIT 2 to secure performance of NAS'
obligations to Covad under this and all other agreements between NAS and Covad
(e.g. Services Agreements) through the term of all agreements.
(d) Except as it is contemplated herein, Covad hereby covenants that
it will not seek from NAS any further compensation, payment or reimbursement of
any kind for any amounts due, liabilities, causes of action, breach of warranty,
contract payment or any other obligation of any sort under the Covad Agreements
arising prior to the Closing, as defined herein.
(e) Covad hereby covenants that it will not object to, and will
support, Ardent's motion pursuant to Section 365 of the Bankruptcy Code to
assume the Covad Agreements and assign them to NAS. Covad further covenants that
the protections inuring to Covad under this Agreement constitute "adequate
assurance of future performance" under the Covad Agreements, as that phrase is
used in Section 365 of the Bankruptcy Code, and that the payments to be made
pursuant to this Agreement constitute the cure of all defaults as required by
Section 365. Nothing herein shall prevent Covad from entering into any
negotiations with any other prospective purchaser of the Acquired Assets
concerning the assumption and assignment of the Covad Agreements.
2. PAYMENT OF POST-PETITION AMOUNT
Ardent covenants and agrees that it will pay to Covad cash at closing in
the amount of $178,403.12, plus the Post-Petition Amount. Ardent and Covad
stipulate that if the Closing occurs on November 19, 2001, the Post-Petition
Amount will be $980,962.57. If the Closing occurs after November 19, 2001,
Ardent and Covad shall seek to agree on the final amount of the Post-Petition
Amount, and if they are unable to agree on such amount, the final amount shall
be determined by the Bankruptcy Court on motion after notice. At the Closing,
Ardent shall pay so much of the Post-Petition Amount as is not disputed between
Ardent and Covad or as determined by the Bankruptcy Court, as applicable. Such
amount however, will in all events exceed $1,000,000.00. Upon such payment of
the entire Post-Petition Amount and pursuant to section 365(k) of the Bankruptcy
Code, Ardent shall be relieved from any further liability with respect to the
Covad Agreements arising after Closing. In addition, Ardent shall remain liable,
and shall pay when due, additional costs and charges that will accrue as of the
Closing Date but which are not invoiced at that time (e.g. disconnect charges,
cancellation fees, etc.)
3. ASSUMPTION, ASSIGNMENT AND RESTATEMENT OF COVAD AGREEMENTS
(a) Covad hereby consents to the assumption and assignment by Ardent
to NAS of all liabilities and obligations of Ardent under the Covad Agreements.
(b) NAS and Covad hereby agree that the Services Agreement shall be
restated so as to conform in all material respects to the DSL Services
Agreement, a form of which is attached hereto as EXHIBIT 3.
(c) NAS and Covad hereby agree that the Covad ISP Agreement shall be
restated so as to conform in all material respects to the DSL+IP Services
Agreement, a form of which is attached hereto as EXHIBIT 4.
(d) NAS and Covad hereby agree that any costs or fees associated with
the services rendered by Covad to NAS under the Covad Agreements
shall be based on "Tier 3" for end-user lines among the Acquired
Assets and "Tier 4" for all other lines, as described more fully
in the DSL and DSL + IP Services Agreement.
(e) NAS hereby grants Covad a security interest in all of the Covad
supplied lines among the Acquired Assets to secure payment of the
monthly charges relating to the Covad supplied lines among
Acquired Assets.
4. OPERATIONAL PLATFORM FOR ACQUIRED ASSETS
(a) NAS agrees that all Covad supplied end-user lines among the
Acquired Assets shall remain on the Covad network and will not be
moved to the separate NAS network not provided by Covad. In the
event that an end-user circuit is cancelled and re-provisioned or
otherwise serviced on the NAS network or a non-Covad network, NAS
shall pay Covad $750.00 (seven hundred and fifty dollars)
("Transfer Charge") per end-user circuit (one thousand five
hundred dollars) in addition to all cancellation and disconnect
fees. The Transfer Charge shall not apply to lines cancelled or
disconnected in the normal course of business and that are not
repositioned or otherwise serviced on a non-Covad network.
(b) NAS agrees that a minimum of 75% of Covad supplied end-user lines
among the Acquired Assets shall be migrated to Covad's DSL + IP
platform within 90 days of closing. NAS shall submit a plan to
affect this migration within 30 days of closing. To the extent
that NAS wishes to migrate less than 75%, it shall submit a plan
to Covad identifying the end-user lines that it will not migrate
to DSL + IP within 30 days of Closing. Covad, in its sole
discretion shall have the right to reject the proposal to maintain
lines on the DSL only platform. In any event, the percentage of
lines migrated to DSL + IP within 90 days shall not fall below 60%
of the Acquired Assets. In the event that NAS fails to migrate 75%
of Covad supplied lines among the Acquired Assets within 90 days,
Covad, in its sole discretion, shall have the right to charge for
DSL + IP pricing for lines that have not been operationally
transitioned until the percentage of lines being charged for
DSL + IP equals 75%. Pricing for the lines not migrated shall
reflect the representative mix of lines as of Closing. If the
migration to Covad's DSL+IP platform is not accomplished within
the specified timeframe due to failure to perform by Covad, all
lines that have not been migrated shall be priced for DSL only
according to the terms agreed to herein.
(c) NAS shall not be liable for any of the normal non-recurring
charges associated with transfer of lines from Ardent to NAS or
from DSL only to DSL + IP.
(d) NAS and Covad agree that if Covad or its successor(s) fails to
perform under the terms of the Services Agreements as attached in
Exhibit 4, NAS shall not be liable for the Transfer Charge in the
event that it migrates or transitions end user lines from the
Acquired Assets.
5. CLOSING
The Parties' obligations hereunder are subject to the condition that Covad
shall have received a wire transfer of the $3,000,000.00 according to the
following wire instructions:
Covad Communications Company
Acct # 4038-832663
ABA# 121 000 248
▇▇▇▇▇ Fargo Bank
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6. GENERAL PROVISIONS
(a) No amendment, waiver or consent with respect to any provision of
this Agreement shall in any event be effective, unless the same shall be in
writing and signed by the Parties, and then such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
(b) Any notice required to be given hereunder shall be sufficient if
in writing, and sent by courier service (with proof of service), facsimile
transmission, hand delivery (with proof of service) or certified or registered
mail (return receipt requested and first-class postage pre-paid), addressed as
follows:
If to NAS:
Network Access Solutions Corporation
Three Dulles Tech Center
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Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: 202-663-8007
If to Covad:
Covad Communications Company
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Covad Communications Company
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Attention: General Counsel
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If to Ardent, Inc. or Ardent Communications, Inc.:
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Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(or to such address as any party shall specify by written notice so given), and
shall be deemed to have been delivered as of the date so personally delivered or
mailed.
(c) Each provision of this Agreement shall be construed in such a
manner so as to give such provision the fullest legal force and effect possible.
To the extent any provision hereof (or part of such provision) is held to be
unenforceable or invalid when applied to a particular set of facts, or
otherwise, the unenforceability or invalidity of such provisions (or part
thereof) shall not affect the enforceability or validity of the remaining
provisions hereof (or the remaining parts of such provision), which shall remain
in full force and effect, nor shall such unenforceability or invalidity render
such provision (or part thereof) inapplicable to other facts in the context of
which such provision (or part thereof) would be held legally enforceable and/or
valid.
(d) This Agreement shall inure to the benefit of, and shall be binding
upon, the Parties and their respective heirs, executors or administrators,
personal or legal representatives, successors and assigns.
(e) The headings in this Agreement are inserted for convenience and
reference only and are not intended to be used in construing or interpreting any
of the provisions of this Agreement.
(f) This Agreement shall be construed and enforced in accordance with
the internal laws of the State of Delaware, without resort to any conflicts or
choice of laws principles.
(g) This Agreement may be executed in two (2) or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute the same instrument.
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IN WITNESS WHEREOF, each of the Parties has executed this Agreement as of
the day and year first above written.
NETWORK ACCESS SOLUTIONS CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇
Title: CEO
COVAD COMMUNICATIONS COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Title: Vice President, Corporate Development
ARDENT, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: CFO
ARDENT, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: CFO
EXHIBIT 1
FORM OF PROMISSORY NOTE
EXHIBIT 2
FORM OF LETTER OF CREDIT