Exhibit 10.14
FIRST ADDENDUM AND AMENDMENT TO THE
MASTER SPECTRUM ACQUISITION AGREEMENT
By and Between
CLEARWIRE CORPORATION
And
HISPANIC INFORMATION AND TELECOMMUNICATIONS NETWORK, INC.
Dated as of March 29, 2004
TABLE OF CONTENTS
PAGE
----
Article 1. MSAA ......................................................... 2
Section 1.01 Application of the MSAA .............................. 2
Section 1.02 Rules of Interpretation .............................. 2
Article 2. Acquisition of New York Spectrum Rights ...................... 3
Section 2.01 New York Spectrum Rights Closing ..................... 3
Section 2.02 NY IUA Lease Rates ................................... 3
Article 3. Consideration ................................................ 3
Section 3.01 MSAA Consideration ................................... 3
Section 3.02 New York Spectrum Consideration ...................... 3
Article 4. Closing ...................................................... 3
Section 4.01 Closing .............................................. 3
Section 4.02 New York Closing Deliveries .......................... 4
Section 4.03 Further Assurances ................................... 4
Article 5. Representations and Warranties of HITN ....................... 4
Section 5.01 MSAA Representations and Warranties .................. 4
Section 5.02 Authorization of Agreement ........................... 4
Section 5.03 FCC Licenses ......................................... 5
Section 5.04 Compliance with MSAA ................................. 5
Article 6. Representations and Warranties of Clearwire .................. 6
Section 6.01 MSAA Representations and Warranties .................. 6
Section 6.02 Authorization of Agreement ........................... 6
Article 7. Covenants .................................................... 6
Section 7.01 Educational Programming Requirements ................. 6
Article 8. Conditions ................................................... 7
Section 8.01 Conditions to the Obligations of Clearwire ........... 7
Article 9. Amendment to MSAA ............................................ 7
Section 9.01 Amendment to Adjustment of Share Consideration ....... 7
Section 9.02 Amendment to Definitions ............................. 8
Article 10. Miscellaneous ............................................... 8
Section 10.01 Entire Agreement; Amendments and Waivers ............. 8
Section 10.02 Governing Law ........................................ 9
Section 10.03 Notices .............................................. 9
Section 10.04 Publicity ............................................ 10
Section 10.05 Severability ......................................... 10
Section 10.06 Binding Effect; Assignment ........................... 10
Section 10.07 Remedies ............................................. 10
Section 10.08 Resolution of Certain Disputes ....................... 11
Section 10.09 Counterparts ......................................... 11
PAGE 1 - FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT
FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION AGREEMENT
FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT ("First Addendum"), dated as of March 29, 2004 (the "Effective Date"),
by and between Clearwire Corporation, a Delaware corporation ("Clearwire"), and
Hispanic Information and Telecommunications Network, Inc., a New York nonprofit
corporation ("HITN"). Capitalized terms that are not specifically defined in
this First Addendum shall have the meaning set forth in the MSAA.
RECITALS:
WHEREAS, Clearwire (formerly Flux U.S. Corporation) and HITN are the
parties to that certain Master Spectrum Acquisition Agreement ("MSAA") dated
November 13, 2003 pursuant to which HITN agreed, among other things, to lease to
Clearwire the Commercial Spectrum Capacity under ITFS FCC Licenses;
WHEREAS, HITN desires to lease to Clearwire, and Clearwire desires to
lease from HITN, the Commercial Spectrum Capacity for the C2 and C3 Channels for
the FCC License, call sign WHR829 in New York, New York (the "New York Spectrum
Rights"), consisting of 9,994,000 CPOPs, free and clear of any Liens; and
WHEREAS, HITN and Clearwire desire to amend the MSAA to include the
New York Spectrum Rights, and to provide that, except as explicitly provided
otherwise in this First Addendum, all of the terms of the MSAA will apply to the
New York Spectrum Rights.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, and agreements set forth in this First
Addendum and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
legally to be bound, agree as follows:
Article 1.
MSAA
Section 1.01 Application of the MSAA. Except as explicitly provided
otherwise in this First Addendum, all of the terms and conditions of the MSAA
shall apply to the New York Spectrum Rights as if the New York Spectrum Rights
had been originally included in the MSAA, including without limitation
indemnification rights as set forth in Section 8.01 thereof. For purposes of
Section 8.01 of the MSAA, references to "Article 4" thereof shall include
Article 5 of this First Addendum, references to "Article 5" thereof shall
include Article 6 of this First Addendum, and references to "this Agreement"
shall include this First Addendum.
Section 1.02 Rules of Interpretation. The rules of interpretation
applicable to the MSAA, including Exhibit A thereof, shall apply to this First
Addendum. Except as amended hereby, the MSAA shall remain in full force and
effect in accordance with its terms. In the event of a conflict between the
terms of this First Addendum and the terms of the MSAA (as to the New York
Spectrum Rights), the terms of this First Addendum shall control.
PAGE 2 - FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT
Article 2.
ACQUISITION OF NEW YORK SPECTRUM RIGHTS
Section 2.01 New York Spectrum Rights Closing. Upon the terms and
subject to conditions set forth in the MSAA and this First Addendum, at the New
York Closing, HITN shall lease to Clearwire, and Clearwire shall lease from
HITN, all of the New York Spectrum Rights, pursuant to the IUA attached as
Exhibit A hereto (the "NY IUA").
Section 2.02 NY IUA Lease Rates. The net present value of the
aggregate lease payments under the NY IUA (over a full term of thirty (30)
years, using a discount rate of ten percent (10%) per annum and a growth rate of
three percent (3%) per annum) shall equal Nine Cents ($0.09) per CPOP leased
therein, substantially in accordance with the pro forma schedule of lease
payments attached as Exhibit B hereto.
Article 3.
CONSIDERATION
Section 3.01 MSAA Consideration. Article 2 of the MSAA shall not apply
to the New York Spectrum Rights. All consideration to be received by HITN with
respect to the New York Spectrum Rights shall be set forth in this Article 3 and
in the NY IUA. For clarity, the CPOPs attributable to the New York Spectrum
Rights shall be counted as additional CPOPs for purposes of the Warrant
Agreement.
Section 3.02 New York Spectrum Consideration. The total consideration
for the New York Closing Spectrum Rights (the "New York Spectrum
Consideration"), in addition to the lease payments set forth in the NY IUA in
accordance with Section 2.02, shall equal the sum of the following:
(a) A sum of money (the "New York Closing Cash Consideration") equal
to Two Million Nine Hundred Ninety-Eight Thousand Two Hundred Dollars
($2,998,200).
(b) A stock certificate representing One Million Two Hundred
Ninety-Nine Thousand Two Hundred Twenty (1,299,220) shares of Class A Common
Stock (the "New York Closing Equity Consideration").
(c) A portion of the Contingent Consideration described in Section
2.03 of the MSAA, at the time, in the manner, and to the extent owing in
accordance therewith, with respect to the CPOPs that HITN delivers to Clearwire
at the New York Closing pursuant to the NY IUAs duly executed and delivered in
accordance with Section 2.01.
Article 4.
CLOSING
Section 4.01 Closing. The closing with respect to the New York
Spectrum Rights (the "New York Closing", which for purposes of the MSAA will
also be a Subsequent
PAGE 3 - FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT
Closing Date) will occur at the offices of Xxxxx Xxxxxx Xxxxxxxx LLP, 0000
Xxxxxxx Xxxxxx, 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, at 10:00 a.m. Seattle
time on the date that is promptly as practical after the satisfaction or waiver
of the conditions set forth in Article 7 of the MSAA and Article 8 of this First
Addendum (the "New York Closing Date").
Section 4.02 New York Closing Deliveries. At the New York Closing:
(a) HITN shall deliver or cause to be delivered to Clearwire the NY
IUAs, duly executed by an authorized representative of HITN.
(b) Clearwire shall deliver or cause to be delivered to HITN each of
the following, duly executed by an authorized representative of Clearwire: (i)
the NY IUAs, (ii) the New York Closing Cash Consideration by wire transfer in
immediately available funds to HITN, and (iii) a stock certificate representing
the New York Closing Equity Consideration.
Section 4.03 Further Assurances. Upon the terms and subject to the
conditions of this First Addendum, each of the parties hereto shall use its
reasonable best efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, proper or advisable consistent with
applicable law to consummate and make effective in the most expeditious manner
practicable the transactions contemplated hereby.
Article 5.
REPRESENTATIONS AND WARRANTIES OF HITN
HITN hereby represents and warrants to Clearwire that:
Section 5.01 MSAA Representations and Warranties. The representations
and warranties of HITN set forth in Sections 4.01, 4.03, 4.04(f), (g) and (h),
4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12 and 4.13 of the MSAA are true and
correct as of the Effective Date and will be true and correct as of the New York
Closing Date. Each of the representations and warranties set forth in the MSAA
with respect to the FCC Licenses shall include the FCC License for ITFS Channels
applicable to the New York Spectrum Rights as if the New York Spectrum Rights
were originally included in the MSAA. All references in the MSAA to an IUA shall
be deemed to include the NY IUA.
Section 5.02 Authorization of Agreement. HITN has all requisite
corporate power and authority (i) to enter into, deliver and carry out the
transactions contemplated by the MSAA and this First Addendum and each other
agreement, document, or instrument or certificate contemplated by this First
Addendum, (ii) to enter into and deliver all documents required or necessary to
be executed by HITN in connection with the consummation of the transactions
contemplated by the MSAA and this First Addendum (the "HITN NY Documents"), and
(iii) to consummate the transactions contemplated hereby and thereby. This
Agreement has been and the HITN NY Documents when delivered will be duly and
validly executed and delivered by HITN and (assuming the due authorization,
execution and delivery by the other parties hereto and thereto) this First
Addendum constitutes and the HITN NY Documents will constitute when delivered
the legal, valid and binding obligations of HITN, enforceable against it in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization,
PAGE 4 - FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT
moratorium and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
Section 5.03 FCC Licenses. In addition to the representations and
warranties set forth in Section 4.04 of the MSAA, throughout the term of this
Agreement and the Term of the NY IUA:
(a) HITN holds all of the FCC Licenses relating to the New York
Spectrum Rights (the "NY FCC Licenses"). Except as set forth on Schedule 5.03 of
the disclosure schedule attached hereto by HITN (the "HITN NY Schedule"), the
New York Spectrum may be leased by HITN to Clearwire and no Person other than
HITN has any right, title or interest in or to the New York Spectrum or the NY
FCC Licenses relating thereto, nor does any Person other than HITN have any
right to acquire, lease or otherwise use the New York Spectrum, whether such
right may be currently existing or available, or would become effective upon the
occurrence of one or more specific events, notices, the passage of time or any
of the above.
(b) To the best knowledge of HITN, (i) the grant, renewal or
assignment of the NY FCC Licenses to the existing licensee thereof was approved
by the FCC by final order and the NY FCC Licenses are validly issued and in full
force and effect; (ii) except with respect construction permit extension
requests, there is no Proceeding pending before the FCC or threatened with
respect to any NY FCC License; (iii) HITN and its Affiliates have made on a
timely basis all payments to any applicable Government Agency with respect to
the NY FCC Licenses, including all payments due to the FCC and all required
copyright royalty fee payments and all required Statements of Account to the
U.S. Copyright Office relating to retransmission of television and radio
broadcast signals; and (iv) HITN is otherwise in compliance with the
requirements of the compulsory copyright license described in Section 111 of the
Copyright Act and with all applicable rules and regulations of the Copyright
Office.
(c) To the best knowledge of HITN, HITN has complied with and is in
compliance with all FCC Rules and requirements of the NY FCC Licenses,
including, without limitation, all requirements relating to the broadcast of
educational programming generally applicable to ITFS Licenses to the extent
practical and HITN has not received any notification from the FCC that it is in
violation of such requirements.
(d) Except as set forth on Section 5.03 of the HITN NY Schedule, to
the best Knowledge of HITN, HITN has not entered into any agreements allowing
and it has not allowed any material interferences with respect to the Channels
from any other FCC licensees.
(e) The protected service area ("PSA") covered by the New York
Spectrum Rights gives HITN access (except as set forth in Section 5.03(d)
above), to 9,994,000 CPOPs.
Section 5.04 Compliance with MSAA. HITN is in compliance with and has
not breached or otherwise defaulted under the MSAA. To the best knowledge of
HITN, no condition exists or event has occurred and is continuing which, with or
without the lapse of time or the giving of notice, or both, would constitute a
breach or default by HITN thereunder:
PAGE 5 - FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT
Article 6.
REPRESENTATIONS AND WARRANTIES OF CLEARWIRE
Clearwire hereby represents and warrants to HITN that:
Section 6.01 MSAA Representations and Warranties. The representations
and warranties of Clearwire as set forth in Article 5 of the MSAA are true and
correct as of the Effective Date, except to the extent that such representations
and warranties are made as of a specific date, in which case such representation
and warranty shall be true and correct as of such date only.
Section 6.02 Authorization of Agreement. Clearwire has all requisite
corporate power and authority to execute and deliver this First Addendum and
each other agreement, document, or instrument or certificate contemplated by
this First Addendum or to be executed by Clearwire in connection with the
consummation of the transactions as contemplated by this First Addendum (the
"Clearwire NY Documents" and together with the HITN NY Documents, the "NY
Documents"), and to consummate the transactions contemplated hereby and thereby.
This Agreement have been and the Clearwire NY Documents will be when delivered
duly and validly executed and delivered by Clearwire and (assuming the due
authorization, execution and delivery by the other parties hereto and thereto)
this Agreement constitutes and the Clearwire NY Documents will constitute when
delivered the legal, valid and binding obligations of Clearwire, enforceable
against it in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
Article 7.
COVENANTS
Section 7.01 Educational Programming Requirements. The following
sentence shall be added to Section 6.04 of the MSAA to clarify the parties'
agreement: "From the First Closing Date, or with respect to the NY Spectrum the
Effective Date, through the Term of each IUA, HITN shall comply with the FCC
Rules or other requirements of the FCC or the FCC Licenses with respect to the
provision of education content and programming services to the extent practical
in HITN's sole determination. Clearwire shall assist HITN in complying with all
such requirements"
Section 7.02 Post Closing Covenants. Within ten (10) days of the NY
Closing, HITN shall have notified, in writing, each party who previously leased
or used the New York Spectrum Rights ("Prior User") of HITN's intent to
terminate, in no more than 30 days therefrom, any existing lease or capacity use
agreement or other arrangement that such party alleges may be in effect (the
"Termination Notice"). If any such party or any other Person makes a Claim (as
defined below) prior to January 10, 2005 and such Claim is Not Resolved (as
defined below), then on January 10, 2005, or such earlier date as a resolution
of the type described in
PAGE 6 - FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT
subparagraph (ii) below is effective, HITN will (a) surrender to Clearwire those
shares of Class A Common Stock issued to HITN pursuant to Article 3 of this
First Addendum, (b) reimburse Clearwire, by wire transfer in immediately
available funds to the account designated by Clearwire, all amounts paid to HITN
pursuant to Article 3,and (c) reimburse Clearwire for all monthly lease royalty
payments made to HITN pursuant to the NY IUA through that date, and (d)
reimburse Clearwire for any other amounts paid to HITN or on behalf of HITN
pursuant to this First Addendum or the NY IUA with respect to the New York
Spectrum Rights. "Claim" shall mean any claim with respect to all or any part of
the Channels or the New York Spectrum Rights made by a Prior User as a result of
which it is reasonably certain that Clearwire's rights pursuant to the NY IUA
may be unenforceable, and which claim is (1) made with a governmental entity
having jurisdiction over such matter, (2) subject of an arbitration in which
HITN is a party, (3) subject of mediation in which HITN is a party, or (4)
subject of a settlement or otherwise resolved by HITN (whether or not a claim
has been filed before a governmental entity having jurisdiction, in arbitration
or mediation) by a binding agreement between HITN and a party other than
Clearwire. "Not Resolved" shall mean that the Claim is either (i) not resolved
prior to January 10, 2005 by a binding settlement agreement executed by all of
the parties to such claim or by court order for which all appeal periods have
expired, and/or (ii) resolved by a binding settlement agreement executed by all
of the parties to such claim or by court order for which all appeal periods have
expired in a manner pursuant to which Clearwire is not entitled to full use of
the New York Spectrum Rights pursuant to the NY IUA without limitation (whether
or not such resolution obtained prior to January 10, 2005). In the event that a
Prior User of the NY Channels fails to terminate its usage of the Channels
within 30 days of its receipt of the Termination Notice, notwithstanding the
foregoing, at Clearwire's written request, HITN shall in no more than 14 days
therefrom file a request with the Federal Communications Commission to order the
Prior User to cease and desist from any further usage of the Channels and HITN
shall thereafter diligently pursue such request. Upon the reimbursement of the
shares and cash as set forth in this Section 7.02, the NY IUA shall terminate
and be of no further force or effect.
Article 8.
CONDITIONS
Section 8.01 Conditions to the Obligations of Clearwire. The
obligation of Clearwire to effect any and all of the NY Closing hereunder shall
be subject to the satisfaction at or prior to the New York Closing Date of each
of the conditions set forth in Article 7 of the MSAA, any of which may be waived
in writing, solely and exclusively by Clearwire.
Article 9.
AMENDMENT TO MSAA
Section 9.01 Amendment to Adjustment of Share Consideration. Section
2.04 (a), (b) and (c) shall be amended to read as follows:
"(a) Clearwire shall issue additional shares of Class A Common Stock
to HITN in accordance with this Section 2.04 if, but only if, both of
the following conditions are satisfied upon the third (3rd)
anniversary of the First Closing Date
PAGE 7 - FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT
("Third Anniversary"): (i) FFW has received, and has not returned to
Clearwire, a number of shares of Class B Common Stock of Clearwire
solely in exchange for contributing to Clearwire base station
equipment or rights to purchase base station equipment ("Base Station
Equipment") pursuant to an irrevocable, noncontingent commitment
("Equipment Agreement") with any Base Station Equipment suppliers
designated by FFW (the "Equipment Supplier") and (ii) any of the Base
Station Equipment is Non-Deployed Equipment or Below-Market Equipment.
(b) "Non-Deployed Equipment" means both (i) the difference between
$40,000,000 worth of Base Station Equipment and the value of the Base
Station Equipment that Clearwire orders from the Equipment Supplier on
or prior to the Third Anniversary (in each case, calculated in
accordance with Section 1 of the Equipment Agreement, as reasonably
determined by Clearwire) and (ii) Base Station Equipment that
Clearwire received from the Equipment Supplier but that Clearwire
neither (A) installed in the network of Clearwire, one or more
Affiliates of Clearwire, and/or one or more joint ventures in which
Clearwire is a participant nor (B) sold, leased, assigned, or
otherwise transferred.
(c) "Below-Market Equipment" means the Base Station Equipment that
Clearwire has sold, leased, assigned, or otherwise transferred in
exchange for cash or non-cash consideration (including the value of
any tangible or intangible benefits) that is less than the value of
such Base Station Equipment, calculated in accordance with Section 1
of the Equipment Agreement, all as reasonably determined by
Clearwire."
Section 9.02 Amendment to Definitions. The following definitions set
forth in Exhibit A of the MSAA shall be amended as follows and such definitions
as amended shall replace all references in the MSAA to the definitions so
amended:
(a) The term "NextNet" shall be deleted in its entirety.
(b) The term "NextNet Equipment" shall be amended to be "Base Station
Equipment".
(c) The term "NextNet Agreement" shall be amended to be "Equipment
Agreement".
(d) The term "Equipment Supplier" shall be added to Exhibit A of the
MSAA as follows:
""Equipment Supplier" has the meaning set forth in Section 2.04(a)."
Article 10.
MISCELLANEOUS
Section 10.01 Entire Agreement; Amendments and Waivers. This First
Addendum (including the annexes, schedules and exhibits hereto) and the MSAA
represents the
PAGE 8 - FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT
entire understanding and agreement between the parties hereto with respect to
the subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this First Addendum signed by the party against whom enforcement of
any such amendment, supplement, modification or waiver is sought. No action
taken pursuant to this First Addendum, including without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant, or agreement contained herein or in the MSAA. The waiver by
any party hereto of a breach of any provision of this First Addendum or the MSAA
shall not operate or be construed as a further or continuing waiver of such
breach or as a waiver of any other or subsequent breach. No failure on the part
of any party to exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of such right, power, or remedy by such party preclude any other or
further exercise thereof or the exercise of any other right, power, or remedy.
All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law.
Section 10.02 Governing Law. THE VALIDITY, MEANING AND EFFECT OF THIS
FIRST ADDENDUM SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THAT STATE,
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES
OF CONFLICTS OF LAWS THEREOF.
Section 10.03 Notices. All notices and other communications under this
First Addendum shall be in writing and shall be deemed given when delivered
personally or mailed by certified mail, return receipt requested, to the parties
(and shall also be transmitted by facsimile to the Persons receiving copies
thereof) at the following addresses (or to such other address as a party may
have specified by notice given to the other party pursuant to this provision):
If to Clearwire, to: Clearwire Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Attention: R. Xxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
With a copy to: Xxxxx Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
If to HITN, to: Hispanic Information and
Telecommunications Network, Inc.
000 Xxxxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
PAGE 9 - FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT
Attention: Xxxx Xxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
With a copy to: Day, Xxxxx & Xxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
With a copy to: RJGLaw LLC
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
Section 10.04 Publicity. No public release, announcement or other form
of publicity concerning this First Addendum, the MSAA or the NY Documents, shall
be issued by either party without the prior consent of the other party, except
as such release or announcement may be required by law, regulation or the rules
or regulations of any securities exchange, in which case the party required to
make the release or announcement shall, to the extent possible, allow the other
party reasonable time to comment on such release or announcement in advance of
such issuance. The parties shall use reasonable efforts to consult in good faith
with each other with a view to agreeing upon any press release or public
announcement relating to the transactions contemplated hereby prior to the
consummation thereof.
Section 10.05 Severability. If any provision of this First Addendum or
the MSAA is invalid or unenforceable, the balance of this First Addendum and
MSAA shall remain in effect.
Section 10.06 Binding Effect; Assignment. This First Addendum shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. Nothing in this First Addendum shall create or
be deemed to create any third party beneficiary rights in any person or entity
not a party to this First Addendum. No assignment of this First Addendum or of
any rights or obligations hereunder may be made by either HITN or Clearwire (by
operation of law or otherwise) without the prior written consent of the other
parties hereto (which consent will not be unreasonably withheld) and any
attempted assignment without the required consents shall be void.
Section 10.07 Remedies. The parties recognize that, in the event that
a party should refuse to perform any provisions of this Agreement, monetary
damages alone will not be adequate. The non-defaulting party shall therefore be
entitled, in addition to any other remedies which may be available, including
money damages, to obtain specific performance of the terms of this First
Addendum. Notwithstanding any other provision herein, no remedy conferred by any
of the specific provisions of this First Addendum and the MSAA is intended to be
exclusive of any other remedy, and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute
PAGE 10 - FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT
or otherwise. The election of any one or more remedies by a party shall not
constitute a waiver of the right to pursue other available remedies at any time.
Section 10.08 Resolution of Certain Disputes. Section 10.12 of the
MSAA shall apply to disputes under this First Addendum or the NY IUA.
Section 10.09 Counterparts. This First Addendum may be executed in one
or more counterparts, each of which will be deemed to be an original copy of
this First Addendum and all of which, when taken together, will be deemed to
constitute one and the same agreement.
[THE REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK.]
PAGE 11 - FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT
Each party has caused this First Addendum and Amendment to the Master
Spectrum Acquisition Agreement to be duly executed by its duly authorized
officer or representative on the date first above written.
CLEARWIRE CORPORATION
By: /s/ R. Xxxxxx Xxxxxxx
-------------------------------------
Name: R. Xxxxxx Xxxxxxx
Title: Vice President
HISPANIC INFORMATION AND
TELECOMMUNICATIONS NETWORK, INC.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
----------------------------------
Title: President
---------------------------------
PAGE 12 - FIRST ADDENDUM AND AMENDMENT TO THE MASTER SPECTRUM ACQUISITION
AGREEMENT
