EXHIBIT 10.9
ADVANCED RADIO TELECOM CORP.
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement made as of July 3, 1998 (the "Agreement")
among Advanced Radio Telecom Corp., a Delaware corporation ("ART"), Astrolink
Communications, Inc., a Delaware corporation ("Seller"), ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇, Rise ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Eaton, Erlick,
Ochser, Clark and ▇▇▇▇▇ are referred to herein as the "Selling Stockholders"
and, together with Seller, the "Sellers").
WHEREAS, ART wishes to purchase, and Seller wishes to sell, certain assets,
property and rights of Seller, listed in Section 1.1 hereof, and defined as the
"Assets" therein, in exchange for that number of shares of ART's Common Stock,
$.001 par value per share (the "Common Stock"), set forth in Section 1.3 hereof
(the "Transaction");
WHEREAS, the Assets comprise more than ninety (90%) of the assets of
Seller; and
WHEREAS, ART and the Sellers desire the Transactions to qualify as a "tax
free" reorganization under Section 368(a) of the Internal Revenue Code of 1986,
as amended.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and representations and warranties herein contained, the parties
hereto agree as follows:
1. Sale of Assets.
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1.1. Sale of Assets. Subject to and upon the terms and conditions of this
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Agreement, Seller agrees to sell and transfer to ART and ART agrees to acquire
from Seller, free and clear of any pledge, lien, options, warrants, security
interest, mortgage claim, charge, liability, right of first refusal, lease,
management agreement, contractual restrictions on transfer or other encumbrance
of any kind whatsoever (the "Liens"), at the Closing (defined below) all of
Seller's right, title and interest in, to and under the following assets (the
"Assets"):
(a) the 38 GHz radio authorizations granted by the Federal
Communications Commission (the "FCC") listed on Schedule 1.1 hereto (the
"Authorizations") and all other licenses, permits, authorizations and
approvals from all Federal, state, municipal, county, local and any other
governmental or quasi governmental department, commission, board, bureau,
agency, court or other instrumentality (collectively, the "Governmental
Authorities") with respect to the foregoing
1.2. No Assumption of any Liabilities. ART will not assume, satisfy or
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perform any of the debts, liabilities, obligations or commitments of Seller
other than liabilities under any
Leases included in the Assets arising after the Closing Date. Seller will retain
all such debts, liabilities, obligations and commitments.
1.3. Consideration. Subject to and upon the terms and conditions of this
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Agreement, in consideration of sale and transfer of the Assets to ART, ART will
issue to the Seller at the Closing 154,114 shares of its Common Stock, subject
to adjustment for stock splits, stock combinations, stock dividends or
reclassifications (the "Consideration").
1.4. Contingent Licenses.
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(a) If prior to the later of (i) January 1, 1999 and (ii) the
Closing Date, the FCC grants Seller any licenses ("Future Licenses") by
Final Order (as herein defined) with respect to any of the pending
applications ("Pending Licenses") listed under the heading "Pending
Licenses" on Schedule 1.1, then Sellers and ART shall enter into an asset
purchase agreement pursuant to which Seller shall sell and ART shall
acquire such granted Future License, which agreement shall be substantially
in the form of this Agreement, provided, that the term "Consideration"
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shall be that number of shares of Common Stock set forth opposite the
Pending License relating to such Future License on Schedule 1.1 and the
term "Authorizations" shall mean the Future Licenses subject to such asset
purchase agreement, and provided further, that, at ART's option, the
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issuance of Consideration for such Future Licenses need not be registered
under the Securities Act of 1933, as amended (the "Act").
1.5. Option Licenses.
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(a) Subject to the terms of this Section 1.5, Seller hereby grants
ART an option (the "Buy Option") to buy from Seller any Future License not
granted by Final Order prior to the later of (i) January 1, 1999 and (ii)
the Closing Date. Such Buy Option may be exercised with respect to any
Future License by written notice to Seller by ART at any time before ninety
(90) days after the grant of such Future License by Final Order and until
the first anniversary of the later of (i) January 1, 1999 and (ii) the
Closing.
(b) In the event of the exercise of the Buy Option, the purchase and
sale of the relevant Future License shall be made pursuant to one or more
agreements in substantially the form of this Agreement, which the parties
agree to execute within thirty (30) days of the exercise of the respective
option, provided, that the term "Consideration" shall be that number of
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shares of Common Stock set forth opposite the Pending License relating to
such Future License on Schedule 1.1 and the term "Authorizations" shall
mean the Future Licenses subject to such asset purchase agreement, and
provided further, that, at ART's option, the issuance of consideration for
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such Future Licenses need not be registered under the Act.
(c) ART acknowledges that the Sellers intend to cause Seller to
liquidate within one
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year of the Closing. The Sellers agree that any Future Licenses or Pending
Applications which may be included in the Seller's assets at the time of
such liquidation shall be placed in a liquidating trust and the Selling
Stockholders shall cause such trust to be bound by the obligations of the
Seller pursuant to Sections 1.4 and 1.5 of this Agreement. ART agrees that
the Seller may so liquidate subject to the trust being so bound.
2. Closing.
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2.1. The closing of the Transaction (the "Closing") shall take place on
such date and at such time within 30 days of the satisfaction of the conditions
contained in Sections 9 and 10 as mutually agreed by the parties (the "Closing
Date") (i) at the offices of Ropes & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or (ii) at such other place and time as the parties agree.
2.2. Deliveries by the Company at Closing. At Closing, the Seller shall
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deliver to ART:
(a) any Bills of Sale or other instruments of assignment reasonably
required or requested by ART to transfer, convey and assign the Assets to
ART;
(b) certified copies of resolutions of the shareholders and the
board of directors of Seller authorizing Seller to enter into and perform
its obligations under this Agreement;
(c) a copy of the charter documents of Seller certified by the
appropriate public official and a copy of the by-laws of Seller certified
by its Secretary; and
(d) all such other documents and instruments as ART or its counsel
shall reasonably request to consummate or evidence the transactions
contemplated hereby.
2.3. Deliveries by ART at Closing. At Closing, ART shall deliver to
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Seller one or more stock certificates representing the Consideration registered
in the name of the Seller (or in the name of the Selling Stockholders as the
Seller may direct) and such documents and instruments as Seller or its counsel
shall reasonably request to consummate or evidence the transactions contemplated
hereby.
2.4. Certifications; Opinions. At Closing, ART and Seller shall deliver
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the certificates, opinion of counsel and other documents described in Sections 9
and 10 hereof, respectively, unless waived.
2.5. Form of Documents and Instruments. All of the documents and
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instruments delivered at Closing shall be in form and substance, and shall be
executed and delivered in a manner, reasonably satisfactory to the parties'
respective counsel.
3. Representations and Warranties of Seller and the Selling Stockholders
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Seller and each
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Selling Stockholder jointly and severally represent and warrant to ART as
follows:
3.1. Entity Status. Seller is a Delaware corporation duly organized,
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validly existing and in good standing in the state of its jurisdiction of
organization. Seller has full power and authority to carry on its business as
and where now conducted, and to own or lease and to operate its properties and
assets where such properties and assets are now owned, leased or operated by it
and where such business is now conducted by it. Seller, as of the Closing, will
be qualified to do business and is in good standing in each of the jurisdictions
in which the nature of its business or the property owned or leased by it make
such qualification necessary. Seller has delivered to ART complete and correct
copies of any organizational, by-laws or charter documents applicable to it,
each as amended and in effect on the date hereof. The Selling Stockholders own
100% of the outstanding capital stock of Seller, and there are no outstanding
subscriptions, options, warrants or other rights convertible into or exercisable
for, or any agreements to issue, capital stock of Seller.
3.2. Authority for Agreement; Conflicts.
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(a) Seller and each of the Selling Stockholders have all necessary
power and authority, corporate or otherwise, to enter into, execute and
deliver this Agreement and the other documents to be delivered by Sellers
at the Closing (such other documents are collectively the "Seller
Documents") and to perform fully his or its obligations hereunder and the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement and the applicable Seller Documents by Seller
has been duly authorized by all necessary corporate action.
(b) This Agreement has been, and the Seller Documents, at the
Closing, will have been, duly and validly executed and delivered by Seller
and each Selling Stockholder and this Agreement constitutes, and the Seller
Documents will constitute, the legal, valid and binding obligation of
Seller and each Selling Stockholder and this Agreement is, and the Seller
Documents will be, enforceable by and against Seller and each Selling
Stockholder in accordance with its respective terms, except as
enforceability thereof may be limited by applicable bankruptcy,
reorganization, insolvency or other laws affecting creditors' rights
generally or by general principles of equity, regardless of whether such
enforceability is considered in equity or at law.
(c) The execution and delivery of this Agreement and the Seller
Documents by Seller and each Selling Stockholder and (assuming the FCC has
granted its consent to the assignment of the Authorizations to ART and that
such consent is in full force and effect at the time of the Closing) the
consummation of the transactions contemplated hereby and thereby will not
conflict with or result in any violations of or defaults under: (i) any
statute, regulation, order, judgment or decree of any federal, state or
local governmental body or regulatory authority applicable to Seller,
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any Selling Stockholder or any of the Assets; (ii) any other statute,
regulation, order, judgment or decree applicable to Seller, any Selling
Stockholder or any of the Assets under or in any other applicable
jurisdiction; (iii) any mortgage, indenture, lease, agreement, instrument
or other obligation to which Seller or any Selling Stockholder is a party
or by which any of the Assets are bound; or (iv) any permit, concession,
grant, franchise, license, of or applicable to Seller or any Selling
Stockholder. Such execution, delivery and consummation will not result in
the creation of any Lien upon any of the Assets.
3.3. Consents and Approvals of Governmental Authorities. Except for the
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consent of the FCC to the assignment of the Authorizations to ART, no consent,
approval or filing with any governmental or regulatory authority is required to
be made or obtained by Seller or any Selling Stockholder in connection with its
execution and delivery of and performance of its or his obligations under, this
Agreement.
3.4. FCC Regulatory Matters.
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(a) The Seller is in compliance with the Federal Communications Act
of 1934, as amended (the "Communications Act"), and the rules, regulations
and policies of the FCC promulgated thereunder applicable to either Seller
or the Assets, and Seller is in compliance with all other federal, state
and local laws, rules, regulations and ordinances applicable to either
Seller or the Assets and is not in default under any order, writ,
injunction or decree of any court or governmental agency or instrumentality
applicable to either Seller or the Assets, except for any non-compliance or
default which in either case would not have a material adverse effect on
the Sellers' ability to consummate the transactions contemplated by this
Agreement or on the Assets.
(b) FCC Authorizations. Schedule 1.1 sets forth for each
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Authorization the name of the licensee, the call sign, the Authorization
expiration date, the coverage area of such Authorization by latitude and
longitude and the status of any applications for assignment, transfer or
waiver of FCC rules filed with the FCC. Schedule 1.1 sets forth for each
Pending Licensee, the name of the applicant, the FCC file number and the
coverage area of such Authorization by latitude and longitude. Seller has
provided to ART true and correct copies of the authorizations received by
it from the FCC. None of the Authorizations and Pending Licenses are
subject to any Lien, and Seller validly holds each of the Authorizations
and Pending Licenses. Seller is qualified under all laws, rules and
regulations to hold the Authorizations held by it.
(c) Fees. All franchise, license or other fees and charges that
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have become due and payable with respect to the Assets pursuant to any
applications, filings, recordings and registrations with, and all
validations or exemptions, approvals, orders or authorizations, consents,
authorizations, certificates and permits from, the FCC, any state public
utility commission and any other federal, state or local regulatory or
governmental bodies or authorities, including any subdivision thereof, have
been paid.
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(d) Authorization Compliance. The Authorizations are valid and in
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full force and effect without materially adverse conditions except for such
conditions as are generally applicable to FCC 38 GHz authorizations or
holders of FCC 38 GHz authorizations. No event has occurred and is
continuing that could: (i) result in the revocation, termination or adverse
modification of any Authorization listed on Schedule 1.1; or (ii)
materially and adversely affect any rights of Seller thereunder prior to
Closing or of ART after Closing, except in either case for events which
affect holders of FCC 38 GHz authorizations generally. Seller has no reason
to believe that the Authorizations will not be renewed by the FCC in the
ordinary course. The current ownership and operation by Seller, as
applicable, of the Authorizations comply in all material respects with all
the regulations and policies of the FCC, provided, however, that Seller
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makes no representation as to whether any action by ART under the Services
Agreement dated as of November 1, 1996 between Seller and ART (the
"Services Agreement") is in compliance with any law including the
regulations and policies of the FCC.
(e) Reports. Any and all reports and filings required to be filed
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with the FCC by Seller with respect to the Authorizations have been filed
and Seller has provided true and correct copies of all such reports and
filings to ART. All such reports and filings were accurate and complete in
all material respects on the date thereof. From the date hereof through the
Closing, all such required reports and filings will be filed by Seller on a
timely basis.
(f) Disclosure. Seller knows of no facts pertaining to its
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qualifications to be an FCC licensee which would cause the FCC not to issue
its approval with respect to, or otherwise prevent, the transfer to ART
pursuant to this Agreement of the Authorizations.
3.5. Equipment. Schedule 1.1 includes a correct description of any
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Equipment included in the Assets. Any Equipment included in the Assets is in
good operating condition and repair, is suitable, adequate and sufficient for
the purposes for which it is used and complies with any applicable FCC rules and
regulations and other applicable laws, provided, that Seller makes no
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representation as to the absence of any defect in such Equipment which has
arisen as a result of the actions of ART under the Services Agreement.
3.6. Title to the Transferred Assets; Liens; Other Assets. Seller has
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good, indefeasible and transferable title to all of the Assets, free and clear
of all Liens.
3.7. Leases. Schedule 1.1 includes a correct description of each Lease
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included in the Assets, including the name of the Landlord, the address of the
leased location, the monthly rent and any unusually burdensome terms. A true,
complete and correct copy of each Lease included in the Assets has been provided
to ART. Each such Lease is a legal, valid, binding enforceable agreement, in
full force and effect. Consummation of the transactions contemplated hereby will
not cause a default under or permit the termination or modification of any such
Lease. No party to any such Lease is in default thereunder.
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3.8. Contracts. Except for this Agreement and the Services Agreement,
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Seller is not a party to any contract, commitment or similar agreement or
arrangement, whether written or oral, by which any of the Assets is bound or
affected.
3.9. Litigation. Other than proceedings affecting holders of FCC 38 GHz
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authorizations generally, there are no actions, claims, proceedings, suits and
investigations pending, or, to the best knowledge of each of Sellers threatened
against any of Seller, the Assets or any of its properties, assets or rights
before any court, arbitrator or administrative or governmental body: (i)
relating to the Assets or which seek to revoke, rescind, cancel, modify or
refuse to renew any Authorization or; (ii) relating to the transactions
contemplated hereby, nor is there any basis for any such action. There is no
judgment, order or decree affecting the Assets or the transactions contemplated
hereby.
3.10. Disclosure. Neither this Agreement nor any exhibit or schedule
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hereto nor any statement, list or certificate delivered to ART at or prior to
the Closing in connection with this Agreement contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statement contained herein and therein in the context in which they were made
not misleading. Except as otherwise disclosed herein, none of Seller or the
Selling Stockholders know of any information or fact that has or could have a
material adverse effect on the Assets.
3.11. Taxes. Seller has timely filed all requisite federal, state and
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local 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 may have or
may become due and there are no assessments or any basis therefor. There are no
examinations in progress or claims against Seller for federal or other taxes
(including penalties and interest) for any period and no notice of any claim,
whether pending or threatened, for taxes has been received.
3.12. Brokerage. There are no claims for brokerage commissions or
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finder's fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement made by or
on behalf of any of the Sellers.
3.13. Sophistication. Each of the Sellers has knowledge and experience in
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financial and business matters and investments in general and is capable of
evaluating the merits and risks of the acquisition of the Common Stock issued as
the consideration in exchange for the Assets. Each of the Sellers is an
"accredited investor" as such term is defined in the rules promulgated under the
Act.
3.14. Prospectus. Sellers have each received at least twenty business days
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prior to taking the stockholder vote to approve this transaction a copy of ART's
Prospectus dated April 22, 1998, as amended through the date of this Agreement
(as amended, the "Prospectus"), which is part of the Registration Statement on
Form S-4 (the "Registration Statement") filed with the Securities and
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Exchange Commission (the "SEC") under the Act, covering the issuance of the
Consideration to the Seller.
4. Representations and Warranties by ART. ART represents and warrants as
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follows:
4.1. Corporate Status; Authority.
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(a) ART is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has full corporate
power and authority to carry on its business as now conducted and to own or
lease and operate its properties as and in the places where such business
is now conducted and as such properties are now owned, leased or operated.
(b) ART has all necessary corporate power and authority to execute
and deliver this Agreement and to carry out its obligations hereunder. At
the Closing Date, the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby shall have been duly
authorized by the Board of Directors of ART. This Agreement constitutes the
valid and legally binding obligation of ART and is enforceable against it
in accordance with its terms, except as enforceability thereof may be
limited by applicable bankruptcy, reorganization, insolvency or other laws
affecting creditors' rights generally or by general principles of equity,
regardless of whether such enforceability is considered in equity or at
law. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, will not conflict with or result in
any violation of or default under any provision of the charter documents or
by-laws of ART or any material mortgage, indenture, lease, agreement or
other instrument, permit, concession, grant, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to it
or any of its respective properties.
4.2. Litigation. There are no judicial or administrative actions, suits,
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proceedings or investigations pending, or to the knowledge of ART threatened,
that question the validity of this Agreement or of any action taken or to be
taken pursuant to or in connection with the provisions of this Agreement, nor
does ART know of any basis for any such action, suit, proceeding or
investigation.
4.3. Consents and Approvals of Government Authorities. Except for the
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approval by the FCC of the transfer or change of control, as applicable, of the
Authorizations and except for any consent, approval of filing which will have
been made or obtained prior to Closing, no consent, approval or filing with any
court or governmental or regulatory authority is required to be made or obtained
by ART in connection with its execution, delivery and performance of this
Agreement.
4.4. Prospectus. ART has furnished each of the Sellers a copy of the
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Prospectus, which is part of the Registration Statement filed with the SEC under
the Act, covering the issuance of
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the Consideration to the Seller. The Prospectus does not, as amended as of the
date hereof, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4.5. Stock. The Registration Statement is effective, and to ART's
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knowledge, there is no stop order pending, threatened or in effect with respect
to the Registration Statement. The Common Stock issued as the Consideration,
when issued hereunder, will be duly authorized, validly issued, fully paid and
nonassessable.
4.6. Brokerage. There are no claims for brokerage commissions or finder's
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fees or similar compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement made by or on behalf of
ART.
4.7. Qualifications. ART knows of no facts pertaining to its
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qualifications to be an FCC licensee which would cause the FCC not to issue its
approval with respect to, or otherwise prevent, the transfer to ART pursuant to
this Agreement of the Authorizations.
5. Expenses. Each party to this Agreement shall assume and bear all of its
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own respective expenses, costs and fees incurred or assumed by each in the
preparation and execution of this Agreement and compliance herewith, whether or
not the transaction herein provided for shall be consummated. Notwithstanding
the foregoing, ART will be responsible, at its sole cost and expense, for
preparing and filing any assignment applications with the FCC required for the
transfer or assignment of the Authorizations.
6. Survival of Representations and Warranties. All representations,
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warranties and agreements of each of Seller, the Selling Stockholders and ART
contained herein (including all schedules and exhibits hereto) or in any
document, statement, certificate or other instrument referred to herein or
delivered at the Closing in connection with the transactions contemplated hereby
shall survive the execution and delivery of this Agreement, any investigation by
ART of the Sellers or the Assets, the Closing and the consummation of the
transactions contemplated by this Agreement until July __, 2001.
7. Indemnities.
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7.1. Indemnification by the Sellers. The Sellers shall jointly and
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severally indemnify ART and its successors and assigns for any and all damages,
claims, losses, liabilities, and expenses, including without limitation
reasonable legal and accounting expenses (collectively, "Losses"), which may
arise out of: (i) any breach of any Sellers' covenants and agreements hereunder;
(ii) any inaccuracy or misrepresentation in any representation or warranty of
any Seller hereunder, in each case as such representation or warranty would read
if all qualifiers as to materiality and as to knowledge and any disclosure
schedules were deleted from it, and any inaccuracy or misrepresentation in any
certificate or document delivered in accordance with the
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terms of this Agreement by any Seller; (iii) any liabilities (accrued,
contingent, known, unknown or otherwise) of Seller not assumed by ART; or (iv)
any claim or action asserted by any third party arising out of or in connection
with any event, act or omission relating to any of the Assets occurring prior to
the Closing Date; provided, however, that Sellers shall not be obligated under
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this Section 7.1 to make any indemnification unless and until the aggregate of
such Losses of ART exceeds $10,000, in which case Sellers shall be liable for
all such Losses of ART.
7.2. Indemnification by ART. ART shall indemnify and hold harmless the
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Sellers from and against any and all Losses which may arise out of: (i) ART's
breach of any of the covenants and agreements made in this Agreement by ART; or
(ii) any inaccuracy or misrepresentation in any representation or warranty of
ART hereunder, in each case as such representation or warranty would read if all
materiality and knowledge standards and disclosure schedules were deleted from
it, or any inaccuracy or misrepresentation in any certificate or document
delivered in conjunction with this Agreement; provided, however, that ART shall
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not be obligated under this Section 7.2 to make any indemnification unless and
until the aggregate of such Losses of Seller exceeds $10,000, in which case ART
shall be liable for all of such Losses of Sellers.
8. Covenants.
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8.1. FCC and Other Approval. Subject to Section 5, the Sellers and ART
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will use their best efforts to join in and submit timely such applications (the
"Applications") to the FCC as are appropriate requesting the FCC's written
consent to the assignment of the Authorizations to ART or designees of ART.
8.2. Further Assurances. At any time and from time to time at or after
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the Closing, at the request of ART and without further consideration, the Seller
will execute and deliver such other instruments of sale, transfer, conveyance,
assignment and confirmation and take such action as ART may reasonably determine
is necessary to transfer, convey and assign to ART, and to confirm ART's title
to or interest in the Assets to put ART in actual possession and operating
control of the Assets and to assist ART in exercising all rights with respect
thereto.
8.3. Public Announcements. Neither Seller nor any of the Selling
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Stockholders will, at any time, without the prior written consent of ART, make
any announcement, issue any press release or make any statement to any third
party with respect to this Agreement any of the specific matters discussed
between the parties.
8.4. Information and Access; Compliance. During the period from the date
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of this Agreement and continuing until the Closing Date or until the termination
of this Agreement pursuant to Section 11 hereof, Seller shall afford to the
officers, independent certified public accountants, counsel and other
representatives of ART, access to the properties, books, records and personnel
of Seller used in or relating to the Assets. Seller shall take all reasonable
actions necessary to comply promptly with all legal requirements which may be
imposed on Seller with respect to this Agreement and the transactions
contemplated hereby (including furnishing promptly
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upon request all information required by the FCC in connection with transfer of
the Authorizations) and shall take all reasonable actions necessary to cooperate
promptly with and furnish information to ART in connection with any such
requirements imposed upon ART in connection with this Agreement and the
transactions contemplated hereby. Seller shall not take any action which , or
reasonably fail to take any action the failure of which, would cause its
disqualification as an assignor of the Authorizations or would materially
adversely affect the Assets or ART's rights with respect thereto.
8.5. Conduct of Business by Sellers. Sellers covenant that the Seller
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shall not:
(a) sell, transfer, convey or otherwise dispose of any of the Assets
or the Pending Licenses or any right thereto or interest therein,
(b) encumber with any Lien, or agree to encumber with any Lien, in
any way, or enter into any consensual restriction with respect to, any of
the Assets or the Pending Licenses or any right thereto or interest
therein, or
(c) enter into any contract, agreements or understanding with
respect to any of the Assets or the Pending Licenses.
(d) enter into any agreements or commitments for any of 8.5(a)
through 8.5(c).
9. Conditions Precedent to ART's Obligations. All obligations of ART under
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this Agreement are subject to the fulfillment to the reasonable satisfaction of
ART prior to or at the Closing of each of the following conditions, any of which
may be waived by ART in its sole discretion:
9.1. Representations and Warranties. The representations and warranties
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made by the Sellers in this Agreement (including all exhibits and schedules
hereto), shall be true and correct in all material respects when made and shall
be repeated and shall be true and correct in all material respects at and as of
the Closing Date, and ART shall have received a certificate dated the date of
the Closing signed by the chief executive officer of Seller to the foregoing
effect.
9.2. Consents. All filings with and consents from all federal, state and
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local governmental agencies required to consummate the transactions contemplated
by this Agreement shall have been made or received, as applicable.
9.3. FCC Authorizations. Without limiting the generality of Section 9.2,
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the FCC shall have authorized the assignment of all of the Authorizations by a
Final Order (as defined below), without any conditions or restrictions that
materially affect the value of the Authorizations or operations pursuant to the
Authorizations or any conditions or restrictions materially different than the
normal authorizations issued by the FCC to other 38 GHz license holders at the
date of this Agreement. In the event that any FCC order approving the transfer
of the Authorizations to ART imposes such conditions, this condition shall not
be satisfied until such conditions are removed or
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eliminated, and Sellers shall fully cooperate in obtaining the removal or
elimination of such restrictions. "Final Order" means an action by the FCC
granting its consent to the assignment of a Authorization, with respect to which
no request for stay, petition for rehearing, reconsideration or appeal is
pending, and as to which the time for filing any petition for rehearing,
reconsideration or appeal has expired and with respect to which the time for
agency reconsideration or review taken on its own motion has expired, or in the
event of the filing of such request, petition or appeal, an action which shall
have been reaffirmed or upheld and with respect to which the time for seeking
further administrative or judicial review shall have expired.
9.4. Performance by Seller; Certificate. Seller shall have performed and
----------------------------------
complied with all agreements and conditions required by this Agreement to be
performed or complied with by them prior to or at the Closing, and the chief
executive officer of Seller shall deliver to ART a certificate dated the Closing
Date to such effect.
9.5. Absence of Errors and Omissions. ART shall not have discovered any
-------------------------------
material error, misstatement or omission in any of the representations or
warranties, or any material failure to perform or satisfy any covenants or
conditions required by this Agreement to be performed or satisfied by the
Sellers on or prior to the date of Closing.
9.6. Opinions of Counsel for Seller. ART shall have received favorable
------------------------------
opinions addressed to it and dated the Closing Date of counsel and FCC counsel
for Seller, reasonably satisfactory to ART, in form and substance acceptable to
ART and its counsel.
9.7. Absence of Litigation. No action or proceeding shall have been
---------------------
instituted or threatened prior to or at the Closing Date before any court or
governmental body or authority pertaining to the transactions contemplated
hereby, the result of which could prevent or make illegal the consummation of
such transactions or which could be materially adverse to the Assets.
9.8. UCC Searches. ART shall have received Uniform Commercial Code
------------
(including fixture filings) and state and federal tax and judgment lien searches
against Seller all dated within 20 days of the Closing Date.
9.9. Release of Liens. All of the Assets shall be free and clear of all
----------------
Liens and ART shall have received evidence of the release of all Liens and the
termination of all financing statements, if any, as may be reasonably requested
by ART.
9.10. Registration Statement. The Registration Statement shall be
----------------------
effective, and no stop order shall be pending or in effect with respect to the
Registration Statement.
10. Conditions Precedent to the Obligations of the Sellers. The obligations of
------------------------------------------------------
the Sellers to consummate the transactions contemplated hereby shall be subject
to the fulfillment by ART, prior to or at the Closing, of each of the following
conditions:
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10.1. Representations and Warranties. The representations and warranties
------------------------------
made by ART in this Agreement shall be true and correct in all material respects
when made and shall be repeated and shall be true and correct in all material
respects at and as of the Closing Date, except as specifically provided for
herein, and Seller shall have received a certificate dated the date of Closing
signed by an officer of ART to the foregoing effect.
10.2. Government Consents. All filings with and consents from all federal,
-------------------
state and local governmental agencies required to consummate the transactions
contemplated hereby shall have been obtained at or prior to the Closing,
including the consent of the FCC to the assignment or transfer of the
Authorization to ART.
10.3. Performance of ART. ART shall have performed and complied with all
------------------
agreements and conditions required by this Agreement to be performed or complied
with by it prior to or at the Closing and an officer of ART shall deliver a
certificate or certificates to Seller to such effect.
10.4. Absence of Litigation. No action or proceeding shall have been
---------------------
instituted or threatened prior to or at the Closing Date before any court or
governmental body or authority pertaining to the transactions contemplated
hereby, the result of which could prevent or make illegal the consummation of
such transactions.
10.5. Consideration. The Consideration shall have been delivered to
-------------
Seller.
11. Termination. This Agreement may be terminated by the parties as set forth
-----------
in this Section 11:
(a) at any time by the mutual written consent of Seller and ART;
(b) by ART at any time after the first anniversary of the date of
this Agreement, if the conditions set forth in Section 9 shall not have
been complied with or performed and such noncompliance or nonperformance
shall not have been cured or eliminated by the Sellers by such time;
(c) by Seller at any time after the first anniversary of the date of
this Agreement (the "Seller Date"), if the conditions set forth in Section
10 hereof shall not have been complied with or performed and such
noncompliance or nonperformance shall not have been cured or eliminated by
ART by such time; provided that if prior to the Seller Date, the FCC has
issued an order, that is not yet a Final Order, approving the transfer or
change in control, as applicable, of the Authorizations, to ART, ART may
extend the Seller Date until the second anniversary of the date of this
Agreement by notice to Seller; or
(d) by the Sellers on the one hand, or by ART on the other, if there
shall have been a breach of any material representation, warranty, covenant
or agreement on the part of
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the other set forth or contemplated by this Agreement, which breach cannot
be cured prior to the Closing;
provided, however, that the terminating party may not terminate its obligations
under this Agreement if such terminating party has breached this Agreement in
any material respect.
Notwithstanding any termination of this Agreement pursuant to this Section
11, the provisions of Sections 7 and 8.3 hereof shall remain in full force and
effect. No termination of this Agreement pursuant to Section 11(b), (c) or (d)
shall relieve a breaching party of any liability hereunder for any such breach
occurring prior to termination.
12. Entire Agreement; Assignability. This Agreement, together with the
-------------------------------
schedules and exhibits hereto, constitutes the entire agreement between the
parties hereto pertaining to the subject matter hereof and supersedes all prior
and contemporaneous agreements, understandings, negotiations and discussions,
whether oral or written, of the parties, and there are no warranties,
representations or other agreements between the parties in connection with the
subject matter hereof except as specifically set forth herein. This Agreement
does not in any way affect or amend the Services Agreement, dated November 1,
1996, as amended, between the Seller and ART; provided, however, such Services
-------- -------
Agreement shall terminate at the Closing with respect to any Authorization
acquired by ART hereunder. This Agreement may not be assigned by any of the
Sellers without the prior written consent of ART and any such attempted
assignment shall be null and void.
13. Amendment. This Agreement may be amended at any time, but only by an
---------
instrument in writing duly executed and delivered on behalf of ART and Seller.
14. Headings. Section headings are not to be considered part of this Agreement
--------
and are included solely for convenience and are not intended to be full or
accurate descriptions of the contents thereof. References to Sections are to
portions of this Agreement unless the context requires otherwise.
15. Exhibits, etc. Exhibits, schedules and other documents referred to in this
-------------
Agreement are an integral part of this Agreement.
16. 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.
17. Notices, etc. All notices, requests, demands and other communications
------------
hereunder shall be in writing and shall be deemed to have been duly given on the
date of delivery if delivered or mailed, first-class postage prepaid,
(a) if to any of the Sellers, to:
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Astrolink Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(b) if to ART to:
Advanced Radio Telecom Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
with a copy to:
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
18. Governing Law. This Agreement and the rights and obligations of the
-------------
parties hereto arising out of this Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to the
internal conflict of law provisions thereof.
19. Severability. The provisions of this Agreement are severable, and if any
------------
one or more provisions are deemed illegal or unenforceable, the remaining
provisions shall remain in full force and effect.
20. Counterparts. This Agreement may be executed simultaneously in any number
------------
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
ADVANCED RADIO TELECOM CORP.
By: ________________________________
Name:
Title:
ASTROLINK COMMUNICATIONS, INC.
By: ________________________________
Name:
Title:
SELLING STOCKHOLDERS:
____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
Rise ▇. ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
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SCHEDULE 1.1 - ASSETS
---------------------
AUTHORIZATIONS
Maximum Maximum Minimum Minimum
Owner Location Call Sign Latitude Longitude Latitude Longitude
----- -------- --------- -------- --------- -------- ---------
Astrolink Anchorage, AK WPNI225 61-45-55 ▇▇▇-▇▇-▇▇ 60-00-00 ▇▇▇-▇▇-▇▇
Astrolink ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ 31-00-00 91-55-00 30-00-00 90-55-00
LA
Astrolink ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 49-00-00 ▇▇▇-▇▇-▇▇ 48-15-00 ▇▇▇-▇▇-▇▇
WA
Astrolink Biloxi- WPJD369 31-00-00 89-20-10 30-00-00 87-55-10
Gulfport, MS
Astrolink Fargo, ND WPNH556 47-15-00 97-00-00 46-15-00 96-00-00
Astrolink ▇▇▇▇▇▇▇▇▇▇- ▇▇▇▇▇▇▇ 35-20-00 82-45-00 34-20-00 ▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ WPNE200 36-47-27 ▇▇▇-▇▇-▇▇ 36-00-00 ▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 34-20-00 ▇▇▇-▇▇-▇▇ 33-40-15 ▇▇▇-▇▇-▇▇
CA
Astrolink ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 35-00-00 ▇▇▇-▇▇-▇▇ 34-00-00 ▇▇▇-▇▇-▇▇
CA
PENDING LICENSES
Channel Maximum Maximum Minimum Minimum
Applicant City, State Number Latitude Longitude Latitude Longitude Shares
--------- ----------- --------- -------- --------- -------- --------- ------
Astrolink Austin, TX 14A/14B 30-50-15 98-18-49 29-45-20 97-09-35 39,288
Astrolink ▇▇▇▇▇▇▇▇, ▇▇ ▇▇/▇▇ 40-30-00 83-29-00 39-30-00 82-30-00 55,285
Astrolink Santa Fe, NM 7A/7B 36-50-00 ▇▇▇-▇▇-▇▇ 35-50-00 ▇▇▇-▇▇-▇▇ 3,260
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