LOAN AGREEMENT
This Loan Agreement dated as of January 24, 2001 ("Agreement") is made by
and between World Wide Wireless Communications, Inc., a Nevada corporation (the
"Company"), and Andrew Corporation, a Delaware corporation ("Andrew").
RECITALS
WHEREAS, the Company is indebted to Andrew for $1,800,458.36 incurred in
connection with the purchase of certain products and services from Andrew (the
"Obligations"), the payment of which is past due.
WHEREAS, this Agreement is intended to document the Obligations (which will
be evidenced by a note), and Andrew is willing to accept payment of the
Obligations as provided, and under the terms and conditions set forth, herein.
AGREEMENT
NOW, THEREFORE, in order to induce Andrew to accept payment of the
Obligations as provided herein and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, and intending to be
legally bound, the Company hereby represents, warrants, covenants and agrees as
follows:
1. REPAYMENT OF OBLIGATIONS.
1.1. On the date of this Agreement, the Company shall pay to Andrew
$100,000 (the "Initial Payment").
1.2. Beginning on February 15, 2001, the Company shall pay to Andrew
$100,000 on the 15th day of each month on the terms specified in the Note;
provided, however, that:
(a) after such time as the Company's Registration Statement on
Form SB-2 (Reg. No. 333-38158) has been declared effective by the
Securities and Exchange Commission, the Company shall pay to Andrew an
additional $150,000 on the 15th day of each month, commencing with the
next monthly payment due, on the terms specified in the Note; and
(b) in the event that investors introduced by Union Atlantic L.C.
or any affiliate thereof ("Investors") acquire equity in the Company
with an aggregate value greater than the total of both operating and
non-operating expenses ("Total Expenses") as set forth in the attached
Exhibit 1 during the one-month period beginning on the 16th day of a
month and ending on the 15th day of the following month (such
aggregate value for such period being the "Monthly Purchased Equity
Value"), then the Company shall pay to Andrew on such 15th day an
additional amount
equal to 50% of the Monthly Purchased Equity Value in excess of Total
Expenses on the terms specified in the Note.
2. CONDITIONS TO EFFECTIVENESS; COVENANT.
2.1. The Company shall have executed and delivered a Promissory Note
evidencing the Obligations substantially in the form of the attached Exhibit 2
(the "Note").
2.2. Andrew shall have received the Initial Payment.
2.3. The Company shall have issued to Andrew a warrant to purchase not
less than 200,000 shares of common stock of the Company ("Common Stock") at an
exercise price equal to the closing sale price per share of the Common Stock on
the date of this Agreement on the Nasdaq National Market (or if no such sale
price is reported, the average of the high and low bid prices so reported), in
form and substance satisfactory to Andrew. The Company shall issue to Andrew
another warrant to purchase up to an additional 300,000 shares of Common Stock,
on a pari passu basis with those Investors that participate in the bridge loan,
to the extent those investors receive warrant coverage (relative to the amount
loaned by them) greater than Andrew. In no event shall Andrew be issued warrants
to initially purchase more than 500,000 share of Common Stock (the warrants
actually issued to Andrew being hereinafter referred to as the "Warrants").
2.4. The Company shall have entered into with Andrew a Registration
Rights Agreement relating to the shares of common stock issuable pursuant to the
Warrant, in form and substance satisfactory to Andrew (the "Registration Rights
Agreement").
2.5. The Company shall have delivered to Andrew (i) an opinion of
counsel for the Company covering the execution and enforceability of this
Agreement, the Note, the Warrant and the Registration Rights Agreement and (ii)
a certified copy of the resolutions of its Board of Directors authorizing the
transactions contemplated hereby.
3. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
Andrew that:
3.1. The Company is existing and in good standing under the laws of
the State of Nevada, is duly qualified, in good standing and authorized to do
business in each jurisdiction where failure to do so might have a material
adverse impact on the consolidated assets, condition or prospects of the
Company; the execution, delivery and performance of this Agreement, the Note,
the Warrant and all related documents and instruments are within the Company's
powers and have been authorized by all necessary corporate action.
3.2. The execution, delivery and performance of this Agreement, the
Note, the Warrant, the Registration Rights Agreement and all related documents
and instruments have received any and all necessary governmental approval, and
do not and will not contravene or conflict with any provision of law or of the
charter or bylaws of the Company or any agreement affecting the Company or its
property.
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4. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute and "Event of Default" under this Agreement:
(a) failure to pay, when and as due, any principal or other amounts
payable under this Agreement or the Note, or failure to comply with or
perform any agreement or covenant of the Company contained herein; or
(b) any representation, warranty, schedule, certificate, financial
statement, report, notice, or other writing furnished by or on behalf of
the Company to Andrew is false or misleading in any material respect on the
date as of which the facts therein set forth are stated or certified; or
(c) this Agreement shall be repudiated or become unenforceable
incapable of performance by the Company or the Company shall fail to
perform any agreement or covenant contained herein; or
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, liquidation, dissolution, or similar proceeding, domestic or
foreign, is instituted by or against the Company, or the Company shall take
any steps toward, or to authorize, such a proceeding; or
(e) the Company shall make a general assignment for the benefit of its
creditors, shall enter into any composition or similar agreement, or shall
suspend the transaction of all or a substantial portion of its usual
business.
5. RIGHTS AND REMEDIES UPON DEFAULT.
5.1. Upon the occurrence and during the continuance of any Event of
Default specified in Sections 6(a)-(c), Andrew at its option may declare the
Note immediately due and payable without notice or demand of any kind. Upon the
occurrence of any Event of Default specified in Sections 6(d)-(e), the Note
shall be immediately and automatically due and payable without action of any
kind on the part of Andrew. Upon the occurrence and during the continuance of
any Event of Default, Andrew may exercise any rights and remedies under the Note
and any related document or instrument at law or in equity.
5.2. Andrew may, by written notice to the Company, at any time and
from time to time, waive any Event of Default, which shall be for such period
and subject to such conditions as shall be specified in any such notice. In the
case of any such waiver, Andrew and the Company shall be restored to their
former position and rights hereunder, and any Event of Default so waived shall
be deemed to be cured and not continuing; but no such waiver shall extend to or
impair any subsequent or other Event of Default. No failure to exercise, and no
delay in exercising, on the part of Andrew of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
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5.3. The Company also agrees to pay all fees, costs and expenses of
Andrew, including reasonable attorneys' fees, incurred in connection with the
enforcement or protection of any of its rights and remedies hereunder.
6. MISCELLANEOUS.
6.1. Amendments, Waivers, etc. None of the terms or provisions of this
Agreement may be amended, waived, altered or modified except by an instrument in
writing duly executed by the Company and Andrew.
6.2. Termination of this Agreement. This Agreement shall terminate
upon indefeasible payment in full of the Obligations.
6.3. Home Office Payment. All payments made by the Company to Andrew
in connection with this Agreement or the Notes shall be made by electronic
transfer of immediately available funds to the account of Andrew Corporation,
Bank of America NT & SA, 231 South LaSalle Street, Chicago, Illinois 60697,
Account No. 86663-00194, ABA #071000039, or to such other account(s) as Andrew
may specify from time to time in writing to the Company.
6.4. Notices. All notices, requests and other required communications
hereunder shall be in writing and shall be deemed to have been given or made (i)
if delivered personally, when so delivered, (ii) if sent by facsimile, on the
date sent (provided that there is written confirmation of receipt and a
conforming notice or communication is delivered as set forth herein), (iii) if
mailed by registered or certified mail (postage paid, return receipt requested),
on the date five days after deposit in the mail, or (iv) if by Federal Express
or another nationally recognized overnight courier service, on the next business
day; in each case addressed as set forth on the signature page hereto, or to
such other address as may be hereafter designated in writing by the respective
parties hereto.
6.5. Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of either party hereto shall bind
and inure to the benefit of its successors and assigns whether so expressed or
not, except that the Company may not transfer or assign any of its rights or
interest hereunder without the prior written consent of Andrew.
6.6. Governing Law. In all respects, including all matters of
construction, validity and performance, this Agreement, the Note and the
obligations arising hereunder or thereunder shall be governed by, and construed
and enforced in accordance with, the laws of the State of Illinois applicable to
contracts made and performed in such state, without regard to the principles
thereof regarding conflict of laws.
6.7. Attorneys Fees. The prevailing party in any legal dispute between
the parties shall be entitled to reimbursement in full for all legal fees and
costs incurred by it.
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6.8. Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signature(s) on each counterpart
were upon the same instrument.
6.9. Entire Agreement. This Agreement contains the entire
understanding of the pates and supersedes all previous oral and written
communications, agreements and understandings between the parties with respect
to the subject matter herein.
IN WITNESS WHEREOF, each of the parties hereto has caused this Loan
Agreement to be executed and delivered by its duly authorized officer on the
date first set forth above.
WORLD WIDE WIRELESS COMMUNICATIONS, INC.
By:
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Name:
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Title:
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Address for Notices:
520 Third Street, Suite 101
Oakland, CA 94607
Attention: _____________
Telephone: (510) 839-6100
Facsimile: (510) 839-7088
ANDREW CORPORATION
By:
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Name:
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Title:
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Address for Notices:
10500 W. 153rd Street
Orland Park, IL 60462
Attention: Treasurer
Telephone: (708) 873-2551
Facsimile: (708) 349-5287
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