Exhibit 10.34
MOVABLE HYPOTHEC AGREEMENT
BETWEEN: XXXX CANADA, a corporation having a place of business at 0000 xx Xx
Xxxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting and
represented by its undersigned representative(s), duly authorized as
he/she/they so declare(s);
(hereinafter called the "LENDER");
(Notice of Address of the Lender to be published at the Register of
personal and movable real right.)
AND: CLEARWIRE CORPORATION, a corporation having its principal office or
place of business at 0000 Xxxx Xxxxxxxxxx Xxxx. XX, Xxxxx 000,
Xxxxxxxx, XX 00000, herein acting and represented by its undersigned
representative(s), duly authorized for the purposes hereof by virtue of
a resolution of the board of directors;
(hereinafter called the "GRANTOR").
WHEREAS as continuing collateral security for the fulfilment of the Obligations,
the Grantor has agreed to hypothecate all of its right, title and interest both
present and future, in and to the movable property, assets and rights more fully
described herein.
NOW, THEREFORE, THE PARTIES HERETO HAVE AGREED AS FOLLOWS:
1. DEFINITIONS
In this Agreement, unless there is something in the subject matter or
context inconsistent therewith, the following words and expressions shall
have the following meanings:
1.1 "AFFILIATE" means any Person, however organized, that, directly or
indirectly, Controls, is Controlled by or is under common Control with
the applicable party. For purposes of this Agreement, "CONTROL", and
variations of "CONTROL" means: (a) ownership of a majority of the
voting power of those classes of voting stock entitled to vote in the
election of directors, whether as a result of equity ownership
interests, voting agreements or otherwise; or (b) ownership of a
majority of the beneficial interests in income and capital of an
entity other than a corporation.
1.2 "AGENT" means any agent, receiver, manager or any other Person
appointed by the Lender or by a court of competent jurisdiction to
possess and administer all or any of the Collateral following the
occurrence of an Event of Default.
1.3 "AGREEMENT" means this Movable Hypothec Agreement, all of the
Schedules hereto, and every agreement or other instrument amending,
supplementing or implementing the same; "this Agreement", "hereto",
"these presents", "hereof, "herein", "hereby", "hereunder" and all
similar expressions refer to this Agreement and not to any particular
article, section or other portion hereof.
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1.4 " COLLATERAL" means collectively all present and future property of
the Grantor which consists of (a) telecommunications equipment or
other corporeal movable property used in the business of providing
person-to-person speech or speech related multi-media communications
using internet protocol which is located on premises in the Province
of Quebec owned or controlled by the Lender or any of the Lender's
Affiliates, (b) any licenses, permits and consents, including any
software licenses, of the Borrower that directly relate to the
operation of the assets described in (a) (which, for the avoidance of
doubt, shall not include any spectrum licenses of the Borrower), and
(c) all Proceeds.
1.5 "CREDIT Agreement" means the credit agreement between the Grantor and
the Lender dated as of July 19, 2005, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
1.6 "EVENT OF DEFAULT" has the meaning ascribed to it in the Credit
Agreement.
1.7 "GRANTOR" means CLEARWIRE CORPORATION and includes its successors and
permitted assigns.
1.8 "LENDER" means XXXX CANADA and includes its successors and assigns.
1.9 "LIENS" means mortgages, pledges, liens, hypothecs, charges, security
agreements or other encumbrances or other arrangements that in
substance secure payment or performance of an obligation, statutory
and other non-consensual liens or encumbrances and includes lease,
reservations of ownership, title retention agreements, restrictions,
development or similar agreements, rights-of-way, title defect,
adverse claims or interests, trusts or deemed trusts, options to
acquire or the interests of a vendor or lessor under any conditional
sale agreement or capital lease, and "Lien" means any one of such
Liens.
1.10 "OBLIGATIONS" means the payment of all money now or hereafter owing to
the Lender pursuant to the provisions of the Credit Agreement.
1.11 "PERMITTED LIENS" has the meaning ascribed to it in the Credit
Agreement.
1.12 "PERSON" means any individual, entity or organization, and includes an
individual, a corporation, a partnership, a trust, an unincorporated
organization or association, the government of a country or any
political subdivision thereof, or any agency or department of any such
government, and the executors, administrators or other legal
representatives of an individual in such capacity.
1.13 "PROCEEDS" means all proceeds and movable property in any form derived
directly or indirectly from any dealing with all or any part of the
Collateral and any insurance or payment that indemnifies or
compensates for such property lost, damaged or destroyed, and proceeds
of proceeds and any part of any such proceeds but shall not include
any customer accounts receivable of the Grantor generated in the
ordinary course of the Grantor's business.
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2. HYPOTHEC
2.1 As continuing collateral security for the due and punctual payment and
performance of the Obligations, the Grantor hereby hypothecates the
Collateral, in favour of the Lender, with effect as and from this
date, for the principal sum of TWENTY MILLION DOLLARS ($20,000,000),
in lawful money of Canada, together with interest thereon at the rate
of twenty-five percent (25%) per annum, calculated semi-annually and
not in advance.
2.2 The hypothec created herein shall have effect from this date to secure
the Obligations.
2.3 The full amount of the foregoing hypothec shall be and remain
continuing collateral security in favour of the Lender for the full
payment and performance of the Obligations, and such hypothec shall be
and remain in full force and effect notwithstanding the repayment,
prepayment, payment, reduction or readvance at any time and from time
to time of the Obligations or any part thereof, or the fact that at
any time and from time to time, there may be no Obligations
outstanding, the whole until the entire Obligations shall have been
entirely repaid and satisfied to the satisfaction of the Lender and
such hypothec shall not be reduced unless and until a release,
discharge or other written instrument executed by the Lender is
delivered in which it shall be expressly stated that the amounts
therein referred to are in reduction of the hypothec hereby created.
2.4 For the full term of the Obligations, their renewal and any
modifications thereto, the hypothec created hereunder shall subsist
and secure the Obligations together with any such renewal,
modification and undertaking, until full and final cancellation by the
Lender of the hypothec and other rights granted hereunder.
2.5 The hypothec created pursuant to this Agreement is not and shall not
be construed as a floating hypothec within the meaning of Articles
2715 and following of the Civil Code of Quebec.
3. COVENANTS OF THE GRANTOR
3.1 Unless compliance with the following covenants is waived by the Lender
in writing or unless non-compliance with any such covenants is
otherwise consented to by the Lender in writing, the Grantor covenants
and agrees that:
3.1.1 EXISTENCE - It shall: (i) maintain its corporate existence in
good standing under the laws of its jurisdiction of incorporation
or formation; (ii) continue to conduct its business substantially
as now conducted; (iii) do, or cause to be done, all things
necessary to keep in full force and effect all permits and all
properties, rights, franchises, licenses and qualifications to
carry on its business in all jurisdictions where such business is
currently being carried on;
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3.1.2 CONDUCT OF BUSINESS - It shall from time to time make, or cause
to be made, all needful and proper repairs, renewals and
replacements to the Collateral as may be properly advantageous to
its business at all times;
3.1.3 NOTIFICATION TO LENDER -The Grantor shall promptly notify the
Lender of:
3.1.3.1 CLAIMS AND LIENS - any claim or Lien made or asserted
against any of the Collateral; and
3.1.3.2 PROCEEDINGS - any suit, action or proceeding affecting
any of the Collateral or which could affect the Grantor;
and the Grantor shall, at its own expense, defend the Collateral
against any and all such claims, liens, charges, security
interests or other encumbrances and against any and all such
suits, actions or proceedings;
3.1.4 ENCUMBRANCES - The Grantor shall not create, incur, assume,
permit or suffer to exist any Lien, on or with respect to any of
the Collateral, except for Permitted Liens;
3.1.5 PAYMENT OF OBLIGATIONS - It shall pay and discharge or cause to
be paid and discharged promptly all charges, taxes, rates,
levies, assessments, fees and duties payable by it before any of
them shall become past due which relate to any of the Collateral;
3.1.6 MAINTENANCE OF COLLATERAL AND BOOKS - The Grantor shall at all
times keep accurate and complete records of the Collateral as
well as proper books of account for its business all in
accordance with generally accepted accounting principles,
consistently applied;
3.1.7 RISK AND INSURANCE - The Grantor bears the sole risk of any
loss, damage, destruction or confiscation of or to the
Collateral. The Grantor shall maintain insurance on all of the
Collateral with financially sound and reputable insurers
including, without limitation, all-risk property insurance, and
with such coverage and against such loss or damage to the full
insurable value of such property with the Lender as a named
insured and with loss payable to the Lender as its interest may
appear. The Grantor shall also obtain such other insurance
coverage as the Lender may reasonably require from time to time.
All such policies of insurance shall provide that such insurance
coverage shall not be changed or cancelled except on thirty (30)
days' notice to the Lender. If the Grantor fails to so insure,
the Lender may insure the Collateral and the premiums for such
insurance shall be added to the balance of the Obligations
secured under this Agreement as they exist at the date of the
payment of such premium by the Lender;
3.1.8 PROCEEDS IN TRUST - The Grantor shall and shall be deemed to
hold all Proceeds as mandatary for the Lender, separate and apart
from other
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money, instruments or property, for the benefit of the Lender
until all amounts owing by the Grantor to the Lender have been
paid in full;
3.1.9 CHANGES AND OTHER NAMES - The Grantor shall not, unless the
Grantor gives the Lender at least thirty (30) days prior written
notice, (i) change its name as it appears in official filings in
the jurisdiction of its organization; (ii) change its chief
executive office, principal place of business or domicile (within
the meaning of the Civil Code of Quebec); (iii) change the
locations at which Collateral is held or stored, except for the
addition of new locations in Canada that are owned or controlled
by the Lender or any of the Lender's Affiliates; (iv) change the
type of entity that it is; (v) change its jurisdiction of
incorporation or organization; and
3.1.10 NO AFFECTING THE SECURITY - It shall not do, permit or suffer
to be done anything to adversely affect the ranking or validity
of the hypothec described in this Agreement.
3.2 If, at any time, the Collateral or any part thereof is not destined to
remain in the Province of Quebec, the Grantor must immediately inform
the Lender of this fact and provide it with all information it may
request with respect thereto. Upon request by the Lender, the Grantor
shall sign any security or additional document reasonably required in
order to allow the Lender to preserve the security constituted hereby
on such property or to grant to the Lender security in the
jurisdiction where the property shall be located equivalent to that in
virtue of the hypothec constituted by this Agreement, the whole at the
Grantor's expense.
3.3 The Grantor shall do, execute, acknowledge and deliver or cause to be
done, executed, acknowledged and delivered all such further acts,
deeds, hypothecs, security agreements and assurances in law as the
Lender may reasonably require for the better assuring, hypothecating,
securing, charging and confirming unto the Lender and for perfecting
the hypothec hereby created in the Collateral or intended so to be or
which the Grantor may hereafter become bound to hypothecate in favour
of the Lender and for the better accomplishing and effectuating of
this Agreement.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Grantor represents and warrants to the Lender the matters set out
below:
4.1.1 STATUS - The Grantor is a corporation, duly incorporated, and
validly existing under the laws of the jurisdiction of its
incorporation or formation.
4.1.2 AUTHORITY - The Grantor has all necessary corporate power,
authority, and capacity (a) to own its assets; (b) to carry on
business as presently conducted; and (c) to enter into and carry
out its obligations under this Agreement and to grant the
hypothec described in this Agreement.
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4.1.3 OWNERSHIP OF COLLATERAL FREE OF CHARGES - The Grantor is the
owner of or has rights in the Collateral free and clear of all
Liens whatsoever other than the Permitted Liens.
4.1.4 NON-CONFLICT - Neither the execution nor the performance of this
Agreement requires the approval of any regulatory agency having
jurisdiction over the Grantor nor is this Agreement in
contravention of or in conflict with the articles, by-laws or
resolutions of the directors or shareholders of the Grantor or of
the provisions of any agreement to which the Grantor is a party
or by which any of its property may be bound or of any statute,
regulation, by-law, ordinance or other law, or of any judgment,
decree, award, ruling or order to which the Grantor or any of its
property may be subject.
4.1.5 ENFORCEABILITY - This Agreement constitutes a valid and legally
binding obligation of the Grantor enforceable against it in
accordance with its terms subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general principles of equity.
4.1.6 NO OTHER CORPORATE NAMES OR STYLES - The Grantor does not carry
on business under or use any name or style other than the name(s)
specified in this Agreement including, without limitation, any
names in the French language.
4.1.7 PLACE OF BUSINESS OF GRANTOR - The Grantor's chief executive
office is located at
0000 Xxxx Xxxxxxxxxx Xxxx. XX
Xxxxx 000
Xxxxxxxx, XX 00000
4.1.8 RELIANCE AND SURVIVAL - All representations and warranties of
the Grantor made in this Agreement or in any certificate or other
document delivered by or on behalf of the Grantor to or for the
benefit of the Lender are material, shall survive and shall not
merge upon the execution and delivery of this Agreement and shall
continue in full force and effect. The Lender shall be deemed to
have relied upon such representations and warranties
notwithstanding any investigation made by or on behalf of the
Lender at any time.
5. DEFAULTS
5.1 Upon the occurrence of an Event of Default, the security created under
this Agreement shall become enforceable, and the Lender shall, in
addition to any other rights, recourses or remedies it has pursuant to
the Credit Agreement or at law, forthwith be entitled to exercise any
and all hypothecary rights prescribed by the Civil Code of Quebec. In
exercising any of the rights, recourses or remedies available
hereunder, under the Credit Agreement or at law, the Lender may at its
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discretion, in respect of all or any part of the Collateral, exercise
such rights, recourses and remedies as are available hereunder, under
the Credit Agreement or at law, as it elects to exercise, without
prejudicing the other rights, recourses and remedies available to the
Lender in respect of all or part of the Collateral. The Lender may
exercise any of such rights, recourses and remedies in respect of all
or any part of the Collateral, simultaneously or successively.
5.2 The acceptance by the Lender or an Agent following the occurrence of
an Event of Default of any sum owing to the Lender under the
Obligations or the exercise by the Lender or an Agent of any right or
recourse hereunder, under the Credit Agreement or otherwise, shall not
preclude the Lender from exercising any other right or recourse, all
rights and recourses of the Lender being cumulative and not
alternative.
5.3 The Lender shall be entitled, in its discretion, to perform on behalf
of the Grantor, any of the Grantor's obligations hereunder upon the
occurrence of an Event of Default. In addition and upon such
occurrence, the Lender shall be entitled to do such things and
undertake such expenditures as it considers appropriate to protect,
preserve and enforce the rights, remedies and recourses of the Lender
hereunder, under the Credit Agreement or at law.
5.4 Any action taken by or on behalf of the Lender to remedy any Event of
Default shall not constitute a waiver of such Event of Default, nor be
deemed to have released the Grantor therefrom. The failure by the
Lender to insist upon the strict performance of any of the covenants
provided in this Agreement or the Credit Agreement or to exercise any
option or right hereunder shall not be construed as a waiver or
relinquishment for the future of any such covenant, right or option.
5.5 If a prior notice of the Lender's intention to exercise a hypothecary
right is given to the Grantor, the Grantor shall, and shall cause any
other Person in possession of the Collateral subject to such prior
notice and then belonging to the Grantor, to immediately surrender
same to the Lender and shall execute, and cause to be executed all
agreements and documents required to evidence such surrender to the
Lender.
6. ADDITIONAL RIGHTS OF THE LENDER
The Grantor agrees that upon the occurrence of an Event of Default, the
following provisions shall apply to supplement the provisions of any
applicable laws and without limiting any other provisions of this Agreement
or the Credit Agreement dealing with the same subject matter:
6.1 The Lender shall be the irrevocable mandatary and agent of the
Grantor, with power of substitution, in respect of all matters
relating to the enforcement of all rights, recourses and remedies of
the Lender. The Lender shall, as regards all of the powers,
authorities and discretions vested in it hereunder, have the absolute
and unfettered discretion as to the exercise thereof whether in
relation to the manner or as to the mode or time for their exercise.
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6.2 Without limiting the generality of Section 6.1, the Grantor agrees
that the Lender may, but is not obliged to, at the expense of the
Grantor, for the purposes of protecting or realizing upon the value of
the Collateral or its rights:
6.2.1 cease or proceed with, in any way the Lender sees fit, the
operation, administration and maintenance of the Collateral,
including, without limitation, the generality of the foregoing:
6.2.1.1 sign any loan agreement, security document, lease,
service contract, maintenance contract or any other
agreement, contract, deed or other document in the name of
and on behalf of the Grantor in connection with the
Collateral or any enterprise of the Grantor operated thereon
and renew, cancel or amend from time to time any such
agreement, contract, deed or other document;
6.2.1.2 maintain, repair, renovate, operate, alter, complete,
preserve or extend any part of the Collateral in the name of
the Grantor;
6.2.1.3 reimburse for and on behalf of the Grantor any third
person having a claim against any part of the Collateral;
6.2.1.4 borrow money or lend its own funds for any purposes
related to the Collateral; and
6.2.1.5 receive the revenues, rents, fruits, products and profits
from the Collateral and endorse any cheque, securities or
other instrument;
6.2.2 dispose of any part of the Collateral likely to rapidly
depreciate or decrease in value;
6.2.3 use the information it has concerning the Grantor or any
information obtained during the exercise of its rights except as
may be otherwise provided in the Credit Agreement or any
confidentiality agreement;
6.2.4 use, administer and exercise any other right pertaining to the
Collateral; and
6.2.5 do all such other things and sign all documents in the name of
the Grantor as the Lender may deem necessary or useful for the
purposes of exercising its rights, recourses and remedies
hereunder, under the Credit Agreement or at law.
6.3 In the event of the exercise by the Lender of any right, recourse or
remedy following the occurrence of an Event of Default:
6.3.1 the Lender shall only be accountable to the Grantor to the
extent of its commercial practice and within the delays normally
observed by the
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Lender and the Lender shall not be obliged to, with respect to
the Collateral or any enterprise operated by or on behalf of the
Grantor;
6.3.1.1 make inventory, take out insurance or furnish any
security;
6.3.1.2 advance any sums of money in order to pay any expenses,
not even those expenses that may be necessary or useful; or
6.3.1.3 maintain the use for which the Collateral or the
enterprise of the Grantor is normally intended, make it
productive or continue its use;
and shall not be held liable for any loss whatsoever other than
as a result of its gross negligence or intentional fault;
6.3.2 any and all sums of money remitted to or held by the Lender may
be invested at its discretion, without the Lender being bound by
any legislative provisions relating to the investment or
administration of the property of others; the Lender is not
obliged to invest or pay interest on amounts collected even where
such amounts exceed the amounts due by the Grantor;
6.3.3 the Lender may itself, directly or indirectly, become the owner
of the whole or any part of the Collateral to the extent not
prohibited by law;
6.3.4 the Lender may, at the time it exercises its rights, renounce to
a right belonging to the Grantor, make settlements and grant
discharges and mainlevees, upon any consideration deemed
appropriate by the Lender, acting in its entire discretion;
6.3.5 in the event the Lender exercises its hypothecary right of
taking in payment and the Grantor requires the Lender to sell the
whole or any part of the Collateral, the Grantor acknowledges
that the Lender shall not be required to renounce to its
hypothecary right of taking in payment unless, prior to the
expiration of the time limit to surrender, the Lender (i) shall
have received security, which the Lender deems satisfactory, to
the effect that the sale will be made at a price sufficient to
enable the Lender to be paid its claim in full, (ii) shall have
been reimbursed the costs it shall have incurred, and (iii) shall
have been advanced all amounts necessary for the sale of the
Collateral;
6.3.6 in the event that the Lender sells the whole or any part of the
Collateral, it will not be required to obtain any prior appraisal
from a third party; and
6.3.7 the sale of the Collateral may be made with legal warranty on
the part of the Grantor or, at the option of the Lender, with
total or partial exclusion of warranty.
6.4 The Lender shall only be bound to exercise reasonable prudence and
diligence in the execution of its rights and performance of its
obligations under the terms of
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this Agreement or at law and the Lender shall not be responsible for
prejudice that may result from its fault or that of its agents or
representatives, with the exception of its gross negligence or
intentional fault.
6.5 The Lender shall not be responsible in respect of any obligations
undertaken in the exercise of its powers under the terms of this
Agreement or at law, even in any case where the Lender may have
exceeded its powers, or by reason of any delay, omission or any other
act made in good faith by the Lender or its representatives with the
exception of obligations undertaken or acts made further to gross
negligence or intentional fault.
7. APPOINTMENT OF AGENTS
The Lender may appoint any one or more Agents who shall be entitled to
perform the powers vested in the Lender pursuant to this Agreement and at
law in which case the following provisions shall apply:
7.1 each Agent appointed by the Lender shall be the irrevocable mandatary
and agent of the Grantor in respect of the exercise of the rights,
recourses and remedies available to the Lender and which are performed
by such Agent;
7.2 the Agent, in carrying out the duties delegated to it by the Lender,
shall be entitled to exercise all of the same rights, powers and
discretions available to the Lender hereunder or at law in respect of
such matters;
7.3 each Agent shall be entitled to deduct reasonable remuneration out of
the receipts from any part of the Collateral;
7.4 each Agent appointed for such purpose shall, as concerns the
responsibility for his acts or omissions, be deemed the agent and
mandatary of, or employed or engaged by the Grantor and in no event an
agent, mandatary or employee of the Lender; and
7.5 the engagement or appointment of every such Agent by the Lender shall
not create any liability on the part of the Lender to such Agent in
any respect and such engagement, appointment or delegation or anything
which may be done by any such Agent or the removal of any Agent or the
termination of any such appointment or engagement shall not have the
effect of creating any liability of any nature whatsoever of any such
Agent towards the Grantor.
8. OTHER SECURITY
In the event that the Lender holds any further or additional security in
respect of the Obligations, or any thereof, other than the security hereby
constituted, no single or partial exercise by the Lender, of any of its
rights, recourses or remedies under this Agreement or under any such
additional security shall preclude any other and further exercise of any
other right, power or remedy pursuant to this Agreement or pursuant to any
of such additional security. The Lender shall at all times have the right
to proceed against all or any portion of the Collateral or such additional
security in such order and in such manner as it shall in its discretion
deem fit without waiving any right which the Lender may have
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with respect to any and all of such security, and the exercise of any such
powers or remedies from time to time shall in no way affect any other
powers or remedies which the Lender may have pursuant to this Agreement,
any such additional security, or in law or in equity (in jurisdictions,
where applicable) or otherwise. Without limiting the generality of the
foregoing, the Grantor hereby acknowledges and agrees that this Agreement
is given in addition to and not in substitution for any other security in
connection with the Obligations.
9. PAYMENT TO THIRD PARTIES
If the Lender is at any time or from time to time required to make a
payment in connection with the security constituted by this Agreement, such
payment and all reasonable costs of the Lender (including legal fees and
other expenses) shall be immediately payable by the Grantor to the Lender
and shall bear interest in accordance with the provisions of the Credit
Agreement.
10. APPLICATION OF MONIES
All amounts collected by the Lender or an Agent enforcing the rights of the
Lender hereunder, under the Credit Agreement or at law and all sums
received by the Lender or the Agent in connection with the possession and
administration of or from the sale or other realization of the whole or any
part of the Collateral shall be applied by the Lender, to the extent
allowed by applicable law, against any portion of the Obligations which it,
in its sole discretion, may determine and may from time to time, vary such
determination. Notwithstanding any law, agreement, usage or custom to the
contrary, the receipt by the Lender or the Agent of any sums shall not
operate as payment of any Obligations unless the Lender expressly applies
the amounts so received in reduction of the Obligations in accordance with
this Agreement and to the extent only of such express application.
11. ACQUITTANCES
11.1 After the Obligations have been paid in full, the Lender shall, at the
written request and expense of the Grantor and within a reasonable
delay, cancel and discharge the hypothec created pursuant to this
Agreement and execute and deliver to the Grantor such deeds or other
instruments as shall be required in order to effect the cancellation
of its publication at the appropriate registry offices.
11.2 All such deeds and other instruments to which the Lender may become a
party must be approved by the legal counsel of the Lender and shall be
signed before counsel approved by the Lender, the whole at the
Grantor's expense and the Grantor shall furnish at its expense
originals or certified copies of such documents to the Lender.
12. NO WAIVER
Any waiver or omission by the Lender to invoke a breach of any provision,
obligation or condition hereunder shall not be construed as a waiver of
such provision, obligation or condition, nor a waiver of any subsequent
breach of any other provision, obligation or condition provided for herein.
The acceptance by the Lender or an Agent, following the
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occurrence of an Event of Default, of any amounts owing hereunder to the
Lender or the payment of such sums by the Grantor shall not be construed as
a waiver to invoke any prior breach by the Grantor of any provision,
obligation or condition hereunder, even if the Lender was aware of a prior
breach at the time of acceptance or payment of said sums. The Lender shall
not be deemed to have waived any provision, obligation or condition
hereunder unless such waiver has been made in writing.
13. SOLIDARY LIABILITY
In the event that several persons are liable for the fulfilment of the
obligations of the Grantor or assume in the future the obligations of the
Grantor, each of such persons shall be solidarity liable for the Grantor's
obligations set out herein.
14. INDIVISIBILITY
Every divisible obligation in favour of the Lender arising out of this
Agreement must be performed in its entirety by each heir or legal
representative of any person who is liable to the same extent as if it were
indivisible.
15. COMMUNICATIONS AND ELECTION OF DOMICILE
15.1 Any notice, consent or approval required or permitted to be given in
connection with this Agreement (in this Section referred to as a
"Notice") shall be in writing and shall be sufficiently given if
delivered (whether in person, by courier service or other personal
method of delivery), or if transmitted by facsimile or e-mail:
15.1.1 in the case of a Notice to the Grantor at:
0000 Xxxx Xxxxxxxxxx Xxxx. XX
Xxxxx 000
Xxxxxxxx, XX 00000
XXX
Attention: Xxxxxxxx Xxxxx
Fax: (000) 000-0000
With a copy to:
Attention: Law Department
Fax: (000) 000-0000
And with a copy to:
Xxxxx Xxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
XXX
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Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
15.1.2 in the case of a Notice to the Lender at:
Xxxx Canada
1000 de La Gauthetiere Street West
Montreal, Quebec
H3B 4Y7
Attention: Chief Legal Officer
Fax: (000) 000-0000
Any Notice, if mailed and properly addressed with postage prepaid or
if properly addressed and sent by pre-paid courier service, shall be
deemed given when received; any Notice, if transmitted by facsimile,
shall be deemed given when the confirmation of transmission thereof is
received by the transmitter.
15.2 Should the Lender be unable to locate the Grantor then any such notice
or demand may, at its option, be served at the Office of the Clerk of
the Superior Court for the District of Montreal, at which Office the
Grantor elects domicile for the purposes of this Agreement.
16. GENERAL
16.1 The recitals contained in the preamble hereto form an integral part
hereof.
16.2 In the event that a provision of this Agreement or a part thereof or
the application thereof to a particular Person or circumstance is
declared or rendered invalid, inapplicable or illegal, or if it is
declared incompatible with the creation of a valid hypothec then, such
provision or such part thereof or particular application thereof, as
the case may be, shall be considered distinct and severable from the
remainder of this Agreement and this Agreement shall continue to
remain in force and executory and bind the parties hereto as if such
provision or part thereof or the particular application thereof was
never included.
16.3 The Grantor shall perform all acts and sign all documents reasonably
required so that the hypothec created hereunder has full force and
effect and is opposable at all times towards third parties.
16.4 In any place where the context requires it in this Agreement, the
singular number herein set forth shall be interpreted as plural and
the masculine gender as either feminine or neuter and vice versa.
16.5 The headings included in this Agreement have been included for
reference purposes only and shall not have the effect of restricting
or broadening the scope or meaning of this Agreement and its
provisions.
16.6 The present Agreement will be governed by and interpreted in
accordance with the laws in force in the Province of Quebec and the
Grantor and the Lender
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hereby irrevocably submit to the non-exclusive jurisdiction of the
Courts of Quebec.
16.7 Time is and shall be of the essence of this Agreement. The occurrence
of an Event of Default shall be sufficient to constitute the Grantor
in default without any further notification, demand or delay being
required.
16.8 This Agreement shall enure to the benefit of and be binding upon the
Grantor and its successors and permitted assigns as well as on the
Lender and its successors and assigns.
16.9 In the event of a conflict, inconsistency, ambiguity or difference
between any provision of this Agreement and any provision of the
Credit Agreement, the provision of the Credit Agreement shall prevail
and this Agreement shall be deemed to be amended to the extent
necessary to eliminate such conflict, inconsistency, ambiguity or
difference, save and except in respect of the provisions of this
Agreement which relate to the creation and enforcement of the hypothec
hereby constituted, which provisions shall govern and prevail over the
provisions of the Credit Agreement.
17. COUNTERPARTS
This Agreement and all documents contemplated by or delivered under or in
connection with this Agreement may be executed and delivered in any number
of counterparts or facsimile counterparts with the same effect as if all
parties had signed and delivered the same document and all counterparts
when executed and delivered (by facsimile or otherwise) will be construed
together to be an original and will constitute one and the same agreement.
18. SPECIAL DECLARATION RESPECTING LANGUAGE
The parties hereto have requested that this Agreement be drawn up in the
English language. Les parties aux presentes ont exige que ce document soit
redige en langue anglaise.
[INTENTIONALLY LEFT BLANK]
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SIGNED by the Lender in the City of Montreal, Province of Quebec, and by the
Grantor in the City of Xxxxxxxx, State of Washington, this 19th day of July,
2005.
XXXX CANADA
Per /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name:
-------------------------------
Title: Chief Legal Officer
CLEARWIRE CORPORATION
Per /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: CFO
