Exhibit 10.44
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PURCHASE AGREEMENT
between
COMSPEC CORPORATION
and
CLEARWIRE SPECTRUM HOLDINGS LLC
Dated as of November 8, 2005
[*** Confidential Treatment Requested]
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS .................................................1
ARTICLE 2 PURCHASE AND SALE OF ASSETS..................................4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER.....................6
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER..................10
ARTICLE 5 COVENANTS AND OTHER AGREEMENTS...............................10
ARTICLE 6 CONDITIONS TO CLOSING........................................13
ARTICLE 7 TERMINATION..................................................15
ARTICLE 8 SURVIVAL AND REMEDIES........................................16
ARTICLE 9 MISCELLANEOUS................................................19
SCHEDULES AND EXHIBITS
Exhibit A Leases
Exhibit B Retainer Agreement
Exhibit C Form of Assignment and Assumption for Leases
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PURCHASE AGREEMENT
This PURCHASE AGREEMENT, dated as of November 8, 2005 (the "Effective
Date"), is among COMSPEC Corporation, a North Carolina corporation ("Seller"),
and Clearwire Spectrum Holdings LLC, a Nevada limited liability company
("Purchaser"). Seller and Purchaser may be referred to herein as "Parties" or
each a "Party."
A. Seller holds certain lease agreements pursuant to which Seller leases
the excess capacity on certain channels under certain licenses granted by the
FCC authorizing the construction and operation of Educational Broadband Service
("EBS"), formerly known as Instructional Television Fixed Service.
B. Seller desires to sell certain of its leases and assign certain
liabilities relating thereto for EBS spectrum to Purchaser, and Purchaser
desires to purchase such assets and assume such liabilities on the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set
forth or referenced below:
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, alone or through one or more intermediaries, controls,
is controlled by or is under common control with that Person. For purposes of
this definition, "control" (including the terms "controlling" and "controlled")
means the power to direct or cause the direction of the management and policies
of a Person, directly or indirectly, whether through the ownership of securities
or partnership or other ownership interests, by contract or otherwise.
"Agreement" means this Purchase Agreement and all Exhibits and Schedules
hereto, as amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
"Applicable Closing" means the Closing, the Partial Closing or a
Subsequent Partial Closing, as the context requires.
"Applicable Closing Date" means the Closing Date, the Partial Closing Date
or a Subsequent Partial Closing Date, as the context requires.
"Assets" is defined in Section 2.1.
"Assumed Liabilities" is defined in Section 2.3.
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"Business Day" means any day, other than a Saturday or Sunday, on which
commercial banks and foreign exchange markets are open for business in Seattle,
Washington.
"Channels" means the EBS channels identified on Exhibit A.
"Claim" is defined in Section 8.4(a).
"Closing" is defined in Section 2.7(a).
"Closing Date" is defined in Section 2.7(a).
"Confidential Information" means any and all information regarding the
business, finances, operations, products, services and customers of the
disclosing party and its Affiliates, in written or oral form or in any other
medium.
"Consents" means all consents and approvals of Governmental Authorities or
other third parties necessary to authorize, approve or permit the Parties hereto
to consummate the Transactions, including any consents from the Lessors required
under the Leases.
"Damages" means any and all losses, claims, demands, liabilities,
obligations, actions, suits, orders, statutory or regulatory compliance
requirements, or proceedings asserted by any Person, and all damages, costs,
expenses, assessments, judgments, recoveries and deficiencies, including
interest, penalties, investigatory expenses, consultants' fees, and reasonable
attorneys' fees and costs, of every kind and description, contingent or
otherwise.
"EBS" is defined in Recital A.
"Effective Date" is defined in the preamble.
"Excluded Assets" is defined in Section 2.2.
"Excluded Liabilities" is defined in Section 2.2.
"FCC" means the Federal Communications Commission or any successor agency
thereof.
"FCC Rules" means Title 47 of the Code of Federal Regulations, as amended
at any time and from time to time, and FCC decisions, policies, reports and
orders issued pursuant to the adoption of such regulations.
"Final Order" means an action or decision of the FCC as to which (i) no
request for a stay or similar request is pending, no stay is in effect, the
action or decision has not been vacated, reversed, set aside, annulled or
suspended and any deadline for filing such request that may be designated by
statute or regulation has passed, (ii) no petition for rehearing or
reconsideration or application for review is pending and the time for the filing
of any such petition or application has passed, (iii) the FCC does not have the
action or decision under reconsideration on its own motion and the time within
which it may effect such
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reconsideration has passed, and (iv) no appeal is pending including other
administrative or judicial review, or in effect and any deadline for filing any
such appeal that may be designated by statute or rule has passed.
"Governmental Authority" means a Federal, state or local court,
legislature, governmental agency (including the United States Department of
Justice), commission or regulatory or administrative authority or
instrumentality.
"Law" means applicable common law and any statute, ordinance, code or
other law, rule, permit, permit condition, regulation, order, decree, technical
or other standard, requirement or procedure enacted, adopted, promulgated,
applied or followed by any Governmental Authority.
"Lease" and "Leases" are defined in Section 2.1.
"Lessor" means the applicable lessor under a Lease.
"Licenses" is defined in Section 2.1.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, right of first refusal or right of others therein, or
encumbrance of any nature whatsoever in respect of such asset.
"Partial Closing" is defined in Section 2.7(b).
"Partial Closing Date" is defined in Section 2.7(b).
"Party" or "Parties" is defined in the preamble.
"Person" means any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business trust,
Governmental Authority, cooperative, association, other entity, or individual,
and the heirs, executors, administrators, legal representatives, successors, and
assigns of such person as the context may require.
"Purchase Price" is defined in Section 2.4.
"Purchaser" is defined in the preamble.
"Purchaser Indemnified Parties" is defined in Section 8.2.
"Retainer Agreement" is defined in Section 2.7(c).
"Seller" is defined in the preamble.
"Seller Indemnified Parties" is defined in Section 8.3.
"Subsequent Partial Closing" is defined in Section 2.7(b).
"Subsequent Partial Closing Date" is defined in Section 2.7(b).
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"Towers" means any towers or other "antenna structures" as defined by the
FCC in Part 17 of the FCC Rules.
"Transactions" means the transactions contemplated by this Agreement.
ARTICLE 2
PURCHASE AND SALE OF ASSETS
Section 2.1 Purchase and Sale. On the terms and subject to the conditions
of this Agreement, at the Closing (or a Partial Closing, if applicable), Seller
shall sell, assign, transfer, convey and deliver to Purchaser or Purchaser's
designees, and Purchaser shall purchase from Seller, all of Seller's right and
interest as of the Closing Date (or partial Closing Date, if applicable) in and
to the following assets (collectively the "Assets") free and clear of all Liens:
the leases (individually, a "Lease" and collectively, the "Leases")
pursuant to which Seller leases the whole or a portion of the spectrum on
certain Channels pursuant to FCC licenses granted to the applicable Lessor
(the "Licenses") for commercial use in the markets listed on Exhibit A.
Section 2.2 Excluded Assets. As used herein, the term "Excluded Assets"
means all the properties, assets, goodwill and rights of Seller of whatever kind
and nature, real or personal, tangible or intangible, that are owned, leased or
licensed by Seller on the Closing Date (or Partial Closing Date, if applicable)
that are not specifically listed in Section 2.1 or the Exhibits referred to
therein. Seller shall not sell, assign, transfer, convey or deliver to
Purchaser, and Purchaser shall not purchase, assume or otherwise acquire from
Seller, any right, title or interest in or to the Excluded Assets.
Section 2.3 Liabilities. On the terms and subject to the conditions of this
Agreement, Purchaser shall assume, effective as of the Applicable Closing, only
those liabilities of Seller the performance of which becomes due after the
Applicable Closing under the Leases to be assigned to Purchaser on the
Applicable Closing Date (the "Assumed Liabilities"), and from and after the
Applicable Closing, Purchaser shall pay, perform and discharge when due the
Assumed Liabilities. Except for the Assumed Liabilities, Purchaser shall not
assume, or be obligated or liable for, any liabilities of Seller, or any of its
Affiliates, predecessors, assignors, or transferors, including any liabilities
under the Leases incurred and/or to be performed under the terms thereof on or
before the Closing Date (the "Excluded Liabilities"), whether in connection with
the transactions contemplated hereby, or otherwise, all of which shall be
retained and paid, performed and discharged when due by Seller or one of
Seller's Affiliates. Notwithstanding the foregoing, the Assumed Liabilities
shall include as of the Applicable Closing with respect to such Lease (i) the
deferred lease payment amounts under the lease, as amended, with ***, accrued
but unpaid from February 29, 2004 (which is in the aggregate amount of *** as of
the end of October, 2005 and is increasing in the amount of *** for each
succeeding month subject to CPI adjustments) and (ii) upon receipt of one of
more invoices in general detail with respect to the amount so claimed, the
payment in an amount
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not to exceed $20,000 for attorneys fees and charged disbursements
incurred by Seller in connection with (I) the negotiation and execution of the
term sheet dated September 6, 2005 relating to the Transactions, (II) the
negotiation and execution of this Agreement, and (III) preparing for and
participating in the Closing (or all Partial Closings, if applicable); provided,
however, Purchaser shall not assert that the delivery of such invoices shall
constitute the waiver of Seller's attorney-client privilege.
Section 2.4 Purchase Price. The purchase price (the "Purchase Price") for
the Assets shall be ***.
Section 2.5 Payment of Purchase Price. The portion of the Purchase Price
allocable to each Lease shall be payable at the Applicable Closing with respect
to such Lease in immediately available funds via wire transfer to an account
designated by Seller.
Section 2.6 [Intentionally Omitted.]
Section 2.7 Closing and Partial Closings.
(a) Subject to Section 2.7(b), upon the terms and subject to the
conditions hereof, the closing of the sale of all of the Assets (the
"Closing") shall take place at the Washington, D.C. offices of Xxxxx
Xxxxxx Xxxxxxxx on a Business Day (the "Closing Date") within ten (10)
Business Days following the date on which the last condition to Closing
under Article 6, including without limitation, the condition set forth in
Section 6.4, has been satisfied or waived, or at such other time and place
as the Parties may mutually agree.
(b) Notwithstanding Section 2.7(a), at the option of Seller, the
Parties shall effect one or more closings with respect to Leases for which
the conditions under Article 6 for Partial Closing have been met,
including without limitation the condition set forth in Section 6.5, even
though such conditions have not been met with respect to other Leases or
closing has occurred with respect to some but not all of the Leases. Each
such closing with respect to less than all of the Leases shall be referred
to as a "Partial Closing." If Seller exercises such option one or more
times, Seller shall give Purchaser notice of the Leases that will be
assigned to Purchaser at a Partial Closing and Seller shall set the date
of such closing (each, a "Partial Closing Date"), that shall be on a
Business Day not less than five (5) or more than ten (10) days after the
delivery of such notice to Purchaser. In the event that Seller elects to
proceed to a Partial Closing, Seller shall be entitled to assign such of
the Leases as have not been assigned to Purchaser at the first Partial
Closing at one or more subsequent Partial Closings (each, a "Subsequent
Partial Closing") following the satisfaction of the conditions precedent
to Purchaser's and Seller's obligation to close with respect to such
Leases as have not been previously assigned to Purchaser. In each such
event, Seller shall give Purchaser notice of the Leases that will be
assigned to Purchaser at such subsequent Partial Closing and Seller shall
set the date of such closing (each, a "Subsequent Partial Closing Date"),
that shall be on a Business Day not less than five (5) or more than ten
(10) days after the delivery of such notice to Purchaser.
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(c) At the Closing (or the first Partial Closing, if applicable),
Purchaser (or one of its Affiliates) shall enter into a retainer agreement
with Seller substantially in the form attached hereto as Exhibit B (the
"Retainer Agreement").
(d) At each Applicable Closing, Seller shall provide Purchaser with
an invoice for attorneys' fees and chargeable disbursements as have been
incurred but not reimbursed hereunder as provided in Section 2.3 and
Seller shall pay Purchaser the amount of such invoice at such closing,
subject to the limitation stated in Section 2.3.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
Section 3.1 Authorization. Seller is lawfully existing and in good
standing under the laws of the State of North Carolina, and has all requisite
power and authority to enter into this Agreement and to perform the obligations
to be performed by it under this Agreement. The execution and delivery of this
Agreement, and the performance by Seller of its obligations hereunder, have been
duly authorized by all necessary action on the part of Seller.
Section 3.2 Enforceability. This Agreement and each other agreement,
document or instrument or certificate contemplated by this Agreement has been
duly executed and delivered by Seller and is a legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
Section 3.3 No Conflicts or Consents. Neither the execution, delivery and
(assuming the receipt of Lessor consents) performance by Seller of this
Agreement, nor (assuming the receipt of Lessor consents) the consummation of the
Transactions by Seller, will (i) constitute, with or without the giving of
notice or passage of time or both, a breach, violation or default by Seller or
any of its Affiliates, create a Lien, or give rise to any right of termination,
modification, cancellation, prepayment or acceleration, under (x) any Law or
license (subject to receipt of Consent of the FCC) or (y) any note, bond,
mortgage, indenture, lease, agreement or other instrument, in each case which is
applicable to or binding upon Seller or any of the Assets; (ii) require any
Consent, other than the consent of the Lessors to the Leases listed on Exhibit
A; or (iii) violate any law by which Seller is bound.
Section 3.4 FCC Matters.
(a) True and complete copies of the Licenses underlying each Lease
have been delivered to Purchaser. There is no condition outside of the
ordinary course imposed on any of the Licenses by the FCC except those
that are either set forth on the face of the Licenses, as issued by the
FCC, or are contained in the FCC Rules applicable generally to EBS
stations. To Seller's knowledge, the Licenses constitute all
authorizations from the FCC necessary or required for and/or used in the
operation of the Channels in the market areas identified on Exhibit A as
of the Effective Date.
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To Seller's knowledge, the applications - related to the Licenses that are
listed on Section 3.4 of the Disclosure Schedule are all the applications
that are pending at the FCC as of the Effective Date to modify the
Licenses. To the Seller's knowledge, the applicable Lessor is the licensee
under its Licenses. The Licenses have been granted to the applicable
Lessor by Final Order and are in full force and effect.
(b) To the knowledge of Seller after due inquiry and except for rule
makings of general applicability , there is not pending or threatened
against Seller or the Licenses any application, action, petition,
objection or other pleading, or any proceeding with the FCC or any other
Governmental Authority, which (i) questions or contests the validity of,
or seeks the revocation, forfeiture, non-renewal or suspension of, any of
the Licenses, (ii) seeks the involuntary modification of any of the
Licenses, (iii) which would adversely affect the ability of Seller to
consummate the Transactions with respect to that License or (iv) seeks the
payment of a fine, sanction, penalty, damages or contribution in
connection with the use of the Licenses. To the knowledge of Seller and
except for rule makings of general applicability, there are no facts or
circumstances existing that would give rise to any such application,
action, petition, objection or other pleading, or proceeding with the FCC
or any other Governmental Authority. There is no unsatisfied adverse FCC
order or ruling outstanding against Seller, any Lessor or any of the
Licenses. Neither Seller nor, to the knowledge of Seller, any Lessor is a
party to any complaint or proceeding at the FCC regarding any of the
Licenses.
(c) Neither Seller nor, to the knowledge of Seller, any Lessor has
agreed to accept or allow any electromagnetic interference from any other
FCC licensees, permittees or applicants with respect to the Licenses
and/or Channels, and, to the knowledge of Seller, no such licensees,
permittees or applicants have agreed to accept electromagnetic
interference from Seller or any Lessor with respect to their respective
facilities.
(d) Seller is in compliance with all applicable non-communications
Laws except for any non-compliance that, individually or in the aggregate,
will not have a material adverse effect on the Licenses or on Seller's
ability to consummate the Transactions. Since January 28, 2004 , and
assuming the Leases comply with FCC Rules and the Communications Act with
respect to matters of control, Seller has and, to the knowledge of Seller
after due inquiry, all Lessors have complied in all material respects with
FCC Rules applicable to the Licenses, including without limitation the
Communication Act of 1934, as amended, and Seller has and, to the
knowledge of Seller after due inquiry, all Lessors have complied in all
material respects with all of the terms and conditions of the Licenses. To
the knowledge of Seller, the Licenses are free and clear of all Liens and
are unimpaired by any acts or omissions of Seller or any Lessor, or their
respective agents, assignees and licensees. All material documents
required to be filed at any time by Seller since January 28, 2004 or, to
the knowledge of Seller, any Lessor with the FCC with respect to the
Licenses have been timely filed or the time period for such filing has not
lapsed. All such documents filed by Seller with the FCC with respect to
the Licenses since January 28, 2004 are
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correct in all material respects. All amounts owed to the FCC since
January 28, 2004 in connection with the Licenses have been timely paid.
(e) To the knowledge of Seller, the facilities operating pursuant to
the Licenses (if any) are operating in material compliance with the
Licenses therefore and the relevant FCC Rules. To the knowledge of Seller,
none of the facilities subject to the Licenses is (a) authorized pursuant
to an authorization which is subject to challenge before the FCC or any
court of competent jurisdiction or (b) subject to any lease, sublease or
any agreement to make it available to a third party conflicting with the
associated Lease.
(f) Seller does not lease any Towers for the market area covered by
the Licenses.
Section 3.5 Leases.
(a) Seller validly holds the Leases set forth on Exhibit A. The
information set forth on Exhibit A is true and correct. True and complete
copies of the Leases, together with all amendments, waivers and notices
thereto (whether written or oral), have been provided to Purchaser.
Assuming compliance of the Leases and the actions and inactions of Lessors
with the Communications Act of 1934, as amended, and FCC Rules, and
assuming compliance by Seller with FCC control requirements, including
Section 310 of the Communications Act of 1934 and the implementing FCC
Rules, the Leases are in full force and effect, are free from any claims,
liabilities or Liens and are unimpaired by any acts or omissions of
Seller, its agents, assignees and licensees. Subject to FCC control
requirements, Seller has valid leasehold interests in the Leases and,
assuming the grant of required Consents, will effectively convey to
Purchaser valid leasehold interests in all of the Leases. Assuming
compliance by Seller and Lessors with FCC control requirements, Seller's
operations and activities pursuant to the Leases since January 28, 2004
have been at all times conducted in material compliance with the
Communications Act of 1934, as amended, and the FCC Rules.
(b) Seller has paid all taxes and other charges due from Seller and
assessed against the Assets, including but not limited to, against any EBS
transmission facilities. Seller has also paid all other taxes, assessments
and fees due from Seller as a result of the use of capacity on the
Channels by Seller and the provision of services by Seller or any of
Seller's sublessees over the Channels, including but not limited to any
regulatory fees and required contributions to the Universal Service Fund
under the Telecommunications Act of 1996 and the FCC Rules, except for
taxes, assessments or fees, if any, with respect to services provided by
Lessors to Lessors themselves and to any educational institution or
not-for-profit organization or site with which Lessors are working in
furtherance of educational goals approved by Lessors.
(c) Exhibit A identifies all Leases which require the consent of a
party thereto in order to be assigned to Purchaser in the Transactions.
Seller has not
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assigned, pledged, transferred, or otherwise disposed of or
granted any Lien on its rights and interests under any of the Leases to
any other Person, nor, to the knowledge of Seller, has Lessor assigned,
transferred, or otherwise disposed of any of its rights, title and
interests thereunder. Neither Seller nor, to the knowledge of Seller, any
other party to any of the Leases has failed to materially comply with or
is in material breach or material default thereunder. Except as set forth
on Section 3.5 of the Disclosure Schedule, to the knowledge of Seller, 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 material default by any party under any Lease or give rise to
any Lien or right of termination, suspension, modification, cancellation,
prepayment or revocation against Seller under any such Lease. Seller has
not received any notice of termination, or intent to terminate, with
respect to any Lease, and to the knowledge of Seller after due inquiry, no
party to any Lease has made a threat to Seller to terminate any Lease.
Other than the Leases, Seller is not a party to any material contracts
relating to the Assets for which Purchaser could be liable for performance
thereunder. None of the Leases are with any Person that is an officer,
director, stockholder, member (or family member of such Person) or
Affiliate of Seller.
Section 3.6 Title to Assets; Condition of Assets. Pursuant to order of the
U.S Bankruptcy Court, Seller has all rights of the lessee under the Leases, free
and clear of any Liens except for Liens for taxes not yet due and payable.
Section 3.7 Litigation. To the knowledge of the Seller (and subject to
proceedings of general applicability before the FCC), there is no legal
proceeding now in progress, pending or directly threatened against Seller as to
its rights in any of the Assets, nor to the knowledge of Seller after due
inquiry does there exist any basis therefor. Seller is not subject to any order,
writ, injunction or decree of any court or any federal, state, municipal or
other domestic or foreign Governmental Authority which is material to the
Transactions.
Section 3.8 Brokers. Seller has not engaged a broker in connection with
the Transactions.
Section 3.9 Representations and Warranties with Respect to Partial
Closings. Except with respect to the representations and warranties set forth
above in Section 3.1 and Section 3.2, the breach of a representation or warranty
with respect to a particular Lease shall be actionable and constitute a breach
hereunder only with respect to that specific Lease and not with respect to other
Leases, regardless of whether Closing (or a Partial Closing) with respect to
such other Leases has occurred.
Section 3.10 Consents. Other than obtaining the consents of Lessors to the
assignment of Seller's rights in the Leases, as of the date of this Agreement
Seller is not required to obtain any Consents to enter into this Agreement or to
perform this Agreement.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 4.1 Existence; Authorization. Purchaser is lawfully existing and
in good standing under the laws of the State of Nevada, has all requisite power
and authority to enter into this Agreement and to perform the obligations to be
performed by it under this Agreement. The execution and delivery of this
Agreement, and the performance by Purchaser of its obligations hereunder, have
been duly authorized by all necessary action on the part of Purchaser.
Section 4.2 Enforceability. This Agreement has been duly executed and
delivered by Purchaser and is a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
Section 4.3 No Conflicts or Consents. Neither the execution, delivery and
performance by Purchaser of this Agreement, nor the consummation of the
Transactions by Purchaser, will require any Consent, other than the Consent of
the FCC.
Section 4.4 Brokers. Purchaser has not employed any broker or finder or
incurred any liability for any brokerage or finder's fees or commissions in
connection with the Transactions.
Section 4.5 Financial Ability to Perform. Purchaser has the funds
available, after allocating funds for other debts and obligations, to close the
Transactions and pay the Purchase Price.
Section 4.6 Consents. As of the date of this Agreement, Purchaser is not
required to obtain any Consents to enter into this Agreement or to perform this
Agreement.
ARTICLE 5
COVENANTS AND OTHER AGREEMENTS
From the date of this Agreement through the Closing, the Partial Closing
(if any) and the Subsequent Partial Closings (if any):
Section 5.1 Consummation of Transactions. Each Party shall use its
commercially reasonable, good faith efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
advisable and consistent with applicable Law to perform its obligations under
this Agreement and to consummate the Transactions as soon as reasonably
practicable.
Section 5.2 Certain Notices. Each Party shall promptly notify the other
Party in reasonable detail:
(a) after obtaining knowledge of the basis, or the impending or
threatened commencement of, any claim, action or proceeding brought to
enjoin the
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consummation of the Transactions, or against or relating to (i)
the notifying Party or its properties or assets, which could materially
adversely affect the Transactions or its ability to perform its
obligations hereunder, or (ii) the Assets or their use;
(b) upon obtaining knowledge of any facts that would give rise to,
any event which could cause or constitute a material breach of any of its
representations, warranties, covenants or agreements contained in this
Agreement, and shall use commercially reasonable efforts to promptly
remedy any such breach by such Party; and
(c) upon the occurrence or existence of any event, condition,
circumstance or state of facts known to the notifying Party, which has had
or could have a material adverse effect on the Transactions or its ability
to perform its obligations hereunder, or could materially adversely affect
the Assets or their use.
Section 5.3 Confidentiality. Pursuant to this Agreement and the
performance thereof, a Party (the "Receiving Party") may receive certain
Confidential Information of the other Party (the "Disclosing Party"). Receiving
Party shall not use for itself, except in performance of the Agreement, or
disclose to any Person this Agreement or any Confidential Information, except
(a) information that was gained independent of Receiving Party's relationship
with Disclosing Party and became publicly available through no breach of any
obligation of confidentiality by Receiving Party; (b) information that is
communicated to a third party with the prior written consent of Disclosing
Party; or (c) information that is required to be disclosed pursuant to the
lawful order of a government agency or disclosure that is required by operation
of law, but in such event, only to the extent such disclosure is required and,
to the extent reasonably practicable, prior written notice must be given to
allow Disclosing Party to seek a protective order or other appropriate remedy.
In the event of a breach or threatened breach of the terms of this section,
Disclosing Party shall be entitled to seek an injunction prohibiting any such
breach. Any such injunctive relief shall be in addition to, and not in lieu of,
any appropriate relief in the way of money damages or any other remedies
available at law or in equity. Receiving Party may disclose this Agreement to
its affiliates, strategic partners, actual or potential investors, lenders,
acquirers, merger partners; and others whom Receiving Party deems in good faith
to have a need to know such information for purposes of pursuing a transaction
or business relationship with Disclosing Party, provided that such parties are
subject to a confidentiality agreement that requires them to preserve the
confidentiality of the Confidential Information.
Section 5.4 Further Assurances. Each Party shall forthwith upon request
execute and deliver such documents and take such actions as may reasonably be
requested by the other Party in order to effectuate the purposes of this
Agreement; provided, however, that Seller shall not be required to incur
expenses exceeding $5,000 in the aggregate in complying with this Section 5.4.
Section 5.5 FCC Qualifications. Seller hereby covenants and agrees that
prior to the Closing it shall not knowingly or negligently take any action, or
fail to take any action, which action or failure to act eliminates the legal
qualifications under FCC Rules as in effect
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on the date of this Agreement of the applicable Lessor to be qualified to hold
the Licenses or which would cause the FCC would revoke the Licenses.
Section 5.6 Consents. The Parties shall use commercially reasonable
efforts and shall cooperate to prepare and file with Governmental Authorities
and other Persons, no later than ten (10) days following the Effective Date, all
applications, notices, petitions and other documentation necessary to obtain the
Consents (it being understood that the failure to file within such period shall
not constitute a breach of this Agreement). Each Party shall furnish to the
other Party all information concerning such Party and its Affiliates reasonably
required for inclusion in any application to be made in connection with the
Transactions or to determine compliance with FCC Rules.
Section 5.7 Seller Affirmative Covenants. With respect only to those
Leases that have not been assigned to Purchaser, Seller shall (a) carry on its
business with respect to the Licenses and Leases only in the ordinary course of
business; (b) make such lease payments as required under the Leases to comply
with the Leases; (c) comply with all Laws applicable to the Leases, assuming the
Leases and the parties' behavior thereunder comply with FCC control
requirements; (d) subject to the Lessors' compliance therewith and assistance,
and such legal defenses of the Lessors to the leases as may exist and changes in
FCC Rules, maintain in full force and effect the Licenses (to the extent
required of Seller by the Leases) and the Leases; and (e) subject to the
reasonable assistance and cooperation of Purchaser and Clearwire Corporation,
use commercially reasonable, good faith efforts to pursue those consents for
assignment of the Leases from Seller to Purchaser as are required by the Leases
for such assignment.
Section 5.8 Negative Covenants. Seller shall not, and shall not enter
into, any agreement, arrangement or understanding to, or otherwise offer or
commit to (a) sell, transfer, assign, lease, modify or dispose of any Assets or
of the spectrum to be covered by the Leases or any interests therein or portion
thereof, or negotiate therefore; or (b) create, incur or suffer to exist any
Lien or other liability on any Assets or the spectrum to be covered by the
Leases or any interest therein; or (c) amend any Lease. Purchaser agrees not to
attempt to re-negotiate any Lease prior to the respective Closing of such Lease.
Section 5.9 Access. Between the date of this Agreement and the Closing
Date, Seller shall, during normal business hours (a) give Purchaser and its
representatives and advisors access to all books, records, offices and other
facilities and properties of Seller directly related to the Leases; and (b)
permit Purchaser and its representatives and advisors to make such inspections
thereof as Purchaser may reasonably request.
Section 5.10 Publicity. Neither Seller nor Purchaser shall issue any press
release or public announcement concerning this Agreement or the transactions
contemplated hereby without obtaining the prior written approval of the other
Party hereto, which approval will not be unreasonably withheld or delayed,
unless disclosure is otherwise required by applicable Law; provided that, to the
extent required by applicable Law, the Party intending to make such release
shall use its commercially reasonable efforts consistent with such applicable
Law to consult with the other Party with respect to the text thereof; provided,
however, that statements to Lessors and their controlling bodies are permitted
by this Section
12
5.9 as long as such statements do not disclose the purchase price or other
financial terms of this Agreement.
Section 5.11 Assistance of Purchaser in Seeking Lessor Consent. Subject to
the reasonable assistance and cooperation of Seller, Purchaser shall use its
commercially reasonable, good faith efforts to pursue those consents for
assignment of the Leases from Seller to Purchaser as are required by the Leases
for such assignment, such cooperation including making written and oral
presentations to Lessors as reasonably requested by Seller.
Section 5.12 Clearwire Services. For a period of ten years from the later
of (i) Closing (or the first Partial Closing) and (ii) the time when Purchaser
commences commercial operation in the ***, Purchaser shall provide Seller with
Purchaser's or its operating affiliate's premium broadband service (i.e.,
similar to Purchaser's "Clear Business" service) plus five IP addresses at
Seller's principal place of business in the *** (plus one associated Clearwire
modem) and at one residential address in the *** (plus one associated Clearwire
modem). Seller shall be entitled to all functions and features that a paying
customer of Purchaser or its operating affiliate's subscribing at the premium
(i.e., similar to "Clear Business" service) level of broadband service would
receive as part of its package and without additional charge, including the
right to those service and equipment upgrades provided in the *** during this
ten-year period, the right to add features and functions at the standard rate
offered by Purchaser to its retail customers (not including promotional
discounts) in the *** at the time of upgrade, and the right to future expanded
services in exchange for payment of the difference between Purchaser's or its
operating affiliate's retail rate for the existing services and the retail rate
for the expanded services. The services provided by Purchaser or its operating
affiliate's to Seller under this Section 5.12 will be governed by Purchaser's
standard terms and conditions, as set forth from time to time at
xxx.xxxxxxxxx.xxx or another site or means of general dissemination. This
Section 5.12 will survive the termination of this Agreement.
ARTICLE 6
CONDITIONS TO CLOSING AND PARTIAL CLOSINGS
Section 6.1 Conditions of Both Parties to Both Closing and Partial
Closings. Each Party's obligation to consummate the Transactions contemplated by
this Agreement at the Closing, a Partial Closing or a Subsequent Partial Closing
is subject to the satisfaction or waiver, on or prior to the Applicable Closing
Date, of the condition that no preliminary or permanent injunction or other
order, decree or ruling issued by a Governmental Authority, nor any Law
promulgated or enacted by any Governmental Authority, shall be in effect that
would impose material limitations on the ability of either Party to consummate
the Transactions subject to closing on such Applicable Closing Date.
Section 6.2 Conditions to the Obligations of Seller for Both Closing and
Partial Closings. Seller's obligation to consummate the Transactions
contemplated by this Agreement is subject to the satisfaction or waiver on or
prior to the Applicable Closing Date, of each of the following conditions:
13
(a) The representations and warranties of Purchaser contained herein
shall be true and correct in all material respects (except for
representations and warranties that are qualified as to materiality, which
shall be true and correct) as of the Applicable Closing as if made on and
as of the Applicable Closing (except that representations and warranties
that are made as of a specific date need be so true and correct only as of
such date, and representations as to Leases need to be true and correct
only as to such Leases subject to assignment on such date), and Seller
shall have received a certificate to such effect dated such date and
executed by a duly authorized officer of Purchaser;
(b) The covenants and agreements of Purchaser to be performed under
this Agreement on or prior to the Applicable Closing, shall have been duly
performed in all material respects, and Seller shall have received a
certificate to such effect dated the Applicable Closing Date and executed
by a duly authorized officer of Purchaser;
(c) Purchaser shall have executed and delivered the Retainer
Agreement;
(d) Purchaser shall have executed and delivered to Seller an
Assignment and Assumption with respect to the Leases subject to assignment
at such Applicable Closing in the form of Exhibit C with the Leases
subject to the Applicable Closing listed on Schedule 1 to such Exhibit C;
(e) The Parties shall have obtained consents to assignment of the
Leases subject to assignment at such Applicable Closing from the Lessors
of those Leases, in form reasonably acceptable to Purchaser, but not
containing any representation, warranty or estoppel of the Lessor or any
agreement of the Lessor other than the grant of consent, and without the
imposition of new conditions or requirements that are not acceptable to
Purchaser; and
(f) Purchaser shall have delivered to Seller the Purchase Price for
such of the Leases subject to assignment at such Applicable Closing,
pursuant to Section 2.5.
Section 6.3 Conditions to the Obligations of Purchaser for Both Closing
and Partial Closings. Purchaser's obligation to consummate the Transactions
contemplated by this Agreement is subject to the satisfaction or waiver on or
prior to the Applicable Closing Date, of each of the following conditions:
(a) The representations and warranties of Seller contained herein
shall be true and correct in all material respects (except for
representations and warranties that are qualified as to materiality, which
shall be true and correct) as of the Applicable Closing, as if made on and
as of the such Applicable Closing Date (except that representations and
warranties that are made as of a specific date need be so true and correct
only as of such date, and representations as to Leases need to be true and
correct only as to such Leases subject to assignment on such date), and
Purchaser shall have received a certificate to such effect dated such date
and executed by a duly authorized officer of Seller;
14
(b) The covenants and agreements of Seller to be performed under
this Agreement on or prior to the Applicable Closing shall have been duly
performed in all material respects, and Purchaser shall have received a
certificate to such effect dated the Applicable Closing Date and executed
by a duly authorized officer of Seller;
(c) Seller shall have executed and delivered to Purchaser the
Retainer Agreement;
(d) Seller shall have executed and delivered to Purchaser an
Assignment and Assumption with respect to the Leases subject to assignment
at such Applicable Closing in the form of Exhibit C with the Leases
subject to the Applicable Closing listed on Schedule 1 to such Exhibit C;
(e) The Parties shall have obtained consents to assignment of the
Leases subject to assignment at such Applicable Closing from the Lessors
of those Leases, in form reasonably acceptable to Seller, but not
containing any representation, warranty or estoppel of the Lessor or any
agreement of the Lessor other than the grant of consent, and without the
imposition of new conditions or requirements that are not acceptable to
Seller.
Section 6.4 Additional Conditions to the Obligations of Purchaser and
Seller for Closing. In addition to those conditions to Purchaser's obligation to
Close set forth in Sections 6.1 and 6.3 and Seller's obligation to Close set
forth in Sections 6.1 and 6.2, Purchaser's and Seller's obligation to consummate
the Closing is subject to the condition that the Closing include the assignment
and assumption of all of the Leases, but this condition does not apply to the
Partial Closings and the Subsequent Partial Closings.
Section 6.5 Additional Conditions to the Obligations of Purchaser and
Seller for Partial Closing. In addition to those conditions to Purchaser's
obligation to Partial Closing set forth in Sections 6.1 and 6.3, Purchaser's
obligation to consummate a Partial Closing or a Subsequent Partial Closing with
respect to a Lease subject to assignment to Purchaser at such closing shall be
that its associated License shall authorize channel capacity which, when
combined with the channel capacity authorized under Licenses of other Leases for
the same Market previously assigned to Purchaser or its Affiliate or subject to
assignment to Purchaser or its Affiliate at such Partial Closing or Subsequent
Partial Closing, of not less than thirty-three (33) MHz of contiguous spectrum
(assuming for this purpose that each channel is on the frequencies assigned to
it post-transition under FCC Rule 27.5(2) as in effect on the date of this
Agreement).
ARTICLE 7
TERMINATION
Section 7.1 Termination. This Agreement may be terminated at any time to
the extent not previously subject to Closing, Partial Closing or Subsequent
Partial Closing:
(a) by mutual written consent of Purchaser and Seller;
15
(b) by either Purchaser or Seller if (A) there shall be any law or
regulation that makes consummation of the Transactions illegal or
otherwise prohibited, or (B) any judgment, injunction, order or decree of
any court or other Governmental Entity having competent jurisdiction
enjoining Purchaser and Seller from consummating the Transaction is
entered and such judgment, injunction or order shall have become final and
non-appealable;
(c) by either Party upon the occurrence of a material breach of any
representation, warranty or covenant in this Agreement by the other Party
if such breach is not cured within thirty (30) days following written
notice by the non-breaching Party which notice shall describe the breach;
(d) by Purchaser if neither the Closing nor a Partial Closing has
occurred on or before the first anniversary of the Effective Date,
provided that the failure to close on or before such date is not the fault
of Purchaser;
(e) by Seller if neither the Closing nor a Partial Closing has
occurred on or before the first anniversary of the Effective Date,
provided that the failure to close on or before such date is not the fault
of Seller; or
(f) as to any Leases as have not been assigned and assumed
hereunder, upon the first anniversary of the Effective Date.
Section 7.2 Effect of Termination. In the event of a termination of this
Agreement, neither Party shall have any liability or further obligation to the
other, except that
(a) nothing herein will relieve a Party from liability for any
breach by such Party of this Agreement; and
(b) the provisions of this Article 7, Article 8 and Article 9 shall
survive the termination of this Agreement. Whether or not Closing occurs,
all costs and expenses incurred in connection with this Agreement and the
Transactions shall be paid by the Party incurring such expenses.
ARTICLE 8
SURVIVAL AND REMEDIES
Section 8.1 Survival. The representations and warranties contained in this
Agreement shall survive the Closing until one (1) year after the Closing Date
(or in the case of a Partial Closing or Subsequent Partial Closing, until one
(1) year after the Partial Closing Date with respect to the Leases transferred
at such Partial Closing or Subsequent Partial Closing) and shall expire at such
time. The covenants of Seller contained in Section 8.2 of this Agreement shall
survive the Closing until one (1) year after the Closing Date (or in the case of
a Partial Closing or Subsequent Partial Closing, until one (1) year after the
Partial Closing Date with respect to the Leases transferred at such Partial
Closing or Subsequent Partial Closing) and shall expire at such time. The
covenants of Purchaser contained in Section 8.3 of this Agreement shall survive
the Closing until one (1) year after the Closing Date (or in the case of a
Partial Closing or Subsequent Partial Closing, until one (1) year after
16
the Partial Closing Date with respect to the Leases transferred at such Partial
Closing or Subsequent Partial Closing) and shall expire at such time, except
that Purchaser's indemnification obligation with respect to any Assumed
Liabilities under any particular Lease shall survive for the duration of the
assigned Leases in question plus one year after the expiration of such Lease.
Section 8.2 Seller Indemnification. Seller shall indemnify Purchaser, its
representative members, managers, officers, employees, agents, successors and
assigns (the "Purchaser Indemnified Parties") and hold the Purchaser Indemnified
Parties harmless from and against any and all Damages based upon, attributable
to or resulting from:
(a) the failure of any representation or warranty of Seller set
forth in this Agreement, or any representation or warranty contained in
any certificate delivered by pursuant to this Agreement, to be true and
correct as of the dates made;
(b) the breach of any covenant or other agreement on the part of
Seller under this Agreement;
(c) the Excluded Liabilities; and
(d) the ownership and operation of each Lease from January 29, 2004
to the Applicable Closing for that Lease.
In the event of any claim for Indemnification under this Section 8.2,
Purchaser's recovery shall be limited to the greater of (i) the amount of the
Purchase Price allocated to the Lease or Leases with respect to which the claim
for indemnification arises or relates or (ii) $250,000 for each such Lease,
provided, however, that Purchaser's aggregate recovery shall not exceed the
Purchase Price paid by Purchaser.
Section 8.3 Purchaser Indemnification. Purchaser shall indemnify Seller
and its agents, successors and assigns (the "Seller Indemnified Parties") and
hold the Seller Indemnified Parties harmless from and against any and all
Damages based upon, attributable to or resulting from:
(a) the failure of any representation or warranty of Purchaser set
forth in this Agreement, or any representation or warranty contained in
any certificate delivered by pursuant to this Agreement, to be true and
correct as of the dates made;
(b) the breach of any covenant or other agreement on the part of
Purchaser under this Agreement;
(c) the Assumed Liabilities; and
(d) the ownership and operation of the Assets following the
Applicable Closing.
17
Section 8.4 Indemnification Procedures.
(a) In the event that any claim shall be asserted by any Person in
respect of which payment may be sought under Section 8.2 or Section 8.3
hereof (each, a "Claim"), the indemnified party shall reasonably and
promptly cause written notice of the assertion of any Claim of which it
has knowledge which is covered by this indemnity to be forwarded to the
indemnifying party. The indemnifying party shall have the right, at its
sole option and expense, to be represented by counsel of its choice, which
must be reasonably satisfactory to the indemnified party, and to defend
against, negotiate, settle or otherwise deal with any Claim which relates
to any Damages indemnified against hereunder. If the indemnifying party
elects to defend against, negotiate, settle or otherwise deal with any
Claim which relates to any Damages indemnified against hereunder, it shall
within five (5) days (or sooner, if the nature of the Claim so requires)
notify the indemnified party of its intent to do so. If the indemnifying
party elects not to defend against, negotiate, settle or otherwise deal
with any Claim which relates to any Damages indemnified against hereunder,
fails to notify the indemnified party of its election as herein provided
or contests its obligation to indemnify the indemnified party for such
Damages under this Agreement, the indemnified party may defend against,
negotiate, settle or otherwise deal with such Claim. If the indemnified
party defends any Claim, then the indemnifying party shall reimburse the
indemnified party for the expenses of defending such Claim upon submission
of periodic bills. If the indemnifying party shall assume the defense of
any Claim, the indemnified party may participate, at his or its own
expense, in the defense of such Claim; provided, however, that such
indemnified party shall be entitled to participate in any such defense
with separate counsel at the expense of the indemnifying party if (i) so
requested by the indemnifying party to participate or (ii) in the
reasonable opinion of counsel to the indemnified party, a conflict or
potential conflict exists between the indemnified party and the
indemnifying party that would make such separate representation advisable;
and provided, further, that the indemnifying party shall not be required
to pay for more than one such counsel for all indemnified parties in
connection with any Claim. The Parties hereto agree to cooperate fully
with each other in connection with the defense, negotiation, or settlement
of any such Claim.
(b) After any final judgment or award shall have been rendered by a
court, arbitration board or administrative agency of competent
jurisdiction and the expiration of the time in which to appeal therefrom,
or a settlement shall have been consummated, or the indemnified party and
the indemnifying party shall have arrived at a mutually binding agreement
with respect to a Claim hereunder, the indemnified party shall forward to
the indemnifying party notice of any sums due and owing by the
indemnifying party pursuant to this Agreement with respect to such matter.
(c) The failure of the indemnified party to give reasonably prompt
notice of any Claim shall not release, waive or otherwise affect the
indemnifying party's obligations with respect thereto except to the extent
that the indemnifying party can demonstrate actual loss and prejudice as a
result of such failure.
18
Section 8.5 Remedies. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR INDIRECT,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF A BREACH OF THIS
AGREEMENT, INCLUDING LOST PROFITS, EVEN IF ADVISED AT THE TIME OF BREACH OF THE
POSSIBILITY OF SUCH DAMAGES.
ARTICLE 9
MISCELLANEOUS
Section 9.1 Entire Agreement. This Agreement constitutes the entire
agreement between the Parties pertaining to the subject matter hereof and
thereof and supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the Parties with
respect to the subject matter hereof and thereof.
Section 9.2 Amendments and Waivers. Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed (in the case of an amendment) by Seller and Purchaser or (in the case of
a waiver) by the Party against whom the waiver is to be effective. No failure or
delay by any Party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
Section 9.3 Remedies Cumulative. Except as otherwise provided herein, all
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise or beginning of the exercise of any thereof by a Party shall
not preclude the simultaneous or later exercise of any other such right, power
or remedy by such Party.
Section 9.4 Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the Parties and their respective successors and
permitted assigns. This Agreement may not be assigned by either Party without
the prior written consent of the other Party, except that after Closing
Purchaser may assign its interests under this Agreement to an Affiliate of
Purchaser, if such Affiliate executes an assumption agreement reasonably
acceptable to Seller in which such Affiliate agrees to perform Purchaser's
obligations under this Agreement. A merger, sale of stock, sale of assets, or
other similar transaction involving an entity that directly or indirectly
controls a Party to this Agreement, in which the name and existence of the
Purchaser is not changed, does not constitute an assignment for purposes of this
Agreement.
Section 9.5 Notices. All notices or other communications hereunder shall
be in writing and shall be deemed to have been duly given or made (i) upon
delivery if delivered personally (by courier service or otherwise), as evidenced
by written receipt or other written proof of delivery (which may be a printout
of the tracking information of a courier service that made such delivery), or
(ii) upon confirmation of dispatch if sent by facsimile transmission (which
confirmation shall be sufficient if shown by evidence produced by the facsimile
machine used for such transmission), in each case to the applicable addresses
set forth below (or such other address which either Party may from time to time
specify):
19
If to Seller:
COMSPEC Corporation
000 Xxxxx Xxx Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx. X. Xxxxxxxxx
Facsimile: 336.370.4116
With a copy to (which shall not constitute notice):
Xxxxxxxxxx Xxxxxxxx LLP
000 00xx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxxx, Xx.
Facsimile: 202.585.0071
If to Purchaser:
Clearwire Spectrum Holdings LLC
0000 Xxxx Xxxxxxxxxx Xxxx. XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, Executive Vice
President
Facsimile: 425.216.7776
With a copy to (which shall not constitute notice):
Xxxxx Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Facsimile: 206.628.7699
Section 9.6 Governing Law; Waiver of Jury Trial.
(a) This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of Washington, without reference to
the choice of law principles thereof. Both Parties consent to the
jurisdiction and venue of the federal court in Washington, D.C. for claims
that can be brought in such court and for other claims to the jurisdiction
and venue of the Washington, D.C. Superior Court and the D.C. Court of
Appeals.
(b) THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS.
20
Section 9.7 Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the Transactions are consummated, the Parties shall
bear their respective expenses (including, but not limited to, all compensation
and expenses of counsel, financial advisors, consultants, actuaries and
independent accountants) incurred in connection with this Agreement and the
Transactions. All filing fees required to be paid to any Governmental Authority
in connection with satisfying the conditions set forth in Article 5 will be
borne by Purchaser.
Section 9.8 Invalidity. In the event that any of the provisions contained
in this Agreement or in any other instrument referred to herein, shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or such other instrument and such provision will be
ineffective only to the extent of such invalidity, illegality or
unenforceability, unless the consummation of the Transactions is impaired
thereby.
Section 9.9 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Section 9.10 Headings. The headings of the Articles and Sections herein
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
21
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of
the date first above written.
COMSPEC Corporation
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
-------------------------------
Title: President
------------------------------
CLEARWIRE SPECTRUM HOLDINGS LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
22
EXHIBIT A
LEASES
PURCHASE
MARKET CHANNELS CALL SIGN LESSOR PRICE
------ -------- --------- ------ --------
**** **** **** **** *****
**** **** **** **** *****
**** **** **** **** *****
**** **** **** **** *****
**** **** **** **** *****
**** **** **** **** *****
**** **** **** **** *****
**** **** **** **** *****
**** **** **** **** *****
**** **** **** **** *****
**** **** **** **** *****
The consent of the Lessor is required to assign Seller's rights under all of the
above Leases to Purchaser.
Exhibit A
EXHIBIT B
RETAINER AGREEMENT
2
EXHIBIT C
ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment and Assumption") is
entered into effective as of the day of , 2005 by and between COMSPEC
Corporation, a North Carolina corporation ("Assignor"), and Clearwire Spectrum
Holdings LLC, A Nevada limited liability company ("Assignee"), pursuant to that
certain Purchase Agreement (the "Purchase Agreement") dated as of , 2005 by
and among Assignor and Assignee, pursuant to which Assignor agreed to assign
certain of its liabilities and obligations to Assignee. Capitalized terms not
otherwise defined herein shall have the respective meanings set forth in the
Purchase Agreement.
Assignor and Assignee hereby agree as follows:
1. Assignment. Subject to the terms and conditions of the Purchase
Agreement, Assignor does hereby assign, grant, transfer, convey, and
set over unto Assignee all of Assignor's rights, title and interest
in and to the Leases as defined in the Purchase Agreement and listed
on Schedule 1 attached hereto, free and clear of all Liens, together
with such other rights, causes of action and remedies as may arise
by operation of law, in law or equity, in connection with any of the
Leases.
2. Assumption. Subject to the terms of the Purchase Agreement, Assignee
hereby undertakes, assumes and agrees to perform, pay or discharge
when and as due all of the obligations of Assignor under the Leases
insofar as such liabilities and obligations arise on or after the
Closing Date, in accordance with the terms of the Purchase
Agreement [but, with respect to the Lease with **** including
those unpaid lease payments for the period on or after **** that
have been deferred pursuant to a letter dated ****(1).
3. Binding Effect. This Assignment and Assumption shall be binding upon
and shall inure to the benefit of the parties thereto and their
respective successors and assigns.
4. Governing Law. This Assignment and Assumption shall be governed by
and interpreted in accordance with the laws of the State of
Washington. Both Parties consent to the jurisdiction and venue of
the federal court in Washington, D.C. for claims that can be brought
in such court and for other claims to the jurisdiction and venue of
the Washington, D.C. Superior Court and the D.C. Court of Appeals.
5. Conflicts. To the extent there is a conflict between the terms and
provisions of this Assignment and Assumption and the Purchase
Agreement, the terms and provisions of the Purchase Agreement will
govern.
----------------
(1) Include bracketed clause only if the ****** is listed on Exhibit A.
Exhibit C-1
6. Headings. The headings herein are included for ease of reference
only and shall not control or affect the meaning or construction of
the provisions of this Assignment and Assumption.
7. Amendments. This Assignment and Assumption cannot be amended,
supplemented or modified except by an Agreement in writing which
makes specific reference to this Assignment and Assumption, and
which is signed by the party against which enforcement of any such
amendment, supplement or modification is sought.
The parties hereto have executed this Assignment and Assumption as of the
date first written above.
ASSIGNOR: COMSPEC Corporation
By:
Name:
Title:
ASSIGNEE: CLEARWIRE SPECTRUM HOLDINGS LLC
By:
Name:
Title:
Schedule 1.....List of Assigned and Assumed Leases
C-2
