Exhibit 10.22
SECOND AMENDMENT AND CONSENT
THIS SECOND AMENDMENT AND CONSENT (this "Amendment") is made and entered
into as of the 26 day of April 2006 by and among Clearwire Corporation, a
Delaware corporation, f.k.a. Flux U.S. Corporation ("Clearwire"), and ITFS
Spectrum Consultants LLC, a Delaware limited liability company ("ISC").
RECITAL
Clearwire and ISC are parties to that certain Spectrum Acquisition
Consulting Agreement dated February 1, 2005 ("SACA") pursuant to which ISC
agreed to introduce Clearwire to third parties and to facilitate the acquisition
of ITFS, MDS and MMDS spectrum through lease or purchase from such parties, and
Clearwire agreed in connection with such acquisitions or leases to grant to ISC
Consulting Consideration (defined in the SACA) upon the satisfaction of certain
conditions, including that ISC facilitate the execution of definitive agreements
and, with respect to a license purchase, lease or sublease, the closing of the
transaction with such third party as requested by Clearwire.
AGREEMENT
In consideration of the premises, the mutual covenants and promises made
below, and other good and valuable consideration, the parties agree as follows:
1. Amendments to SACA. The SACA shall be amended as follows:
A. SECTION 1(B) shall be amended by deleting the term "Consulting
Compensation" in the first sentence and replacing such term with "Consulting
Consideration."
B. SECTION 3(B) shall be deleted in its entirety and shall be replaced with
the following new Section 3(b):
"(b) CALCULATION OF CONSULTING CONSIDERATION. The consulting
consideration ("Consulting Consideration") payable shall be calculated by
multiplying the number of CPOPs in the applicable geographic service area
("GSA") times the applicable "Per CPOP ISC Consideration" determined as
follows:
(i) For the markets listed on Schedule 3(b)(i):
Per CPOP ISC
Consideration
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$0.025
(ii) For the Acquisition reflected in that certain EBS Excess Capacity
Use and Royalty Agreement by and between Clearwire Spectrum Holdings LLC
and District Board of Trustees of Valencia Community College, Florida:
Per CPOP ISC
Consideration
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$0.005
(iii) For all other markets:
If Clearwire's
If Clearwire's Acquisition Acquisition Price is
Price is Up to $1.50 per Equal to or More Than
CPOP, Per CPOP ISC $1.50 per CPOP, Per CPOP
Consideration Equals ISC Consideration Equals
-------------------------- ------------------------
$0.02 $0.01
With respect to any Acquisition, the Per CPOP ISC Consideration shall be
defined and calculated on the following basis:
(iv) The parties shall use the average number of households located
within the GSA as defined under FCC rules for each channel group (or
individual channel in the case of an Acquisition of a single channel,
either hereafter a "Channel Group") subject to the Acquisition in
determining the appropriate number of CPOPs for purposes of payment of the
Consulting Consideration for each Channel Group (as represented by an
individual FCC call sign), notwithstanding the potential of interference
thereto from neighboring channels (the "Method"). GSA CPOP amounts for the
Pending Transactions as of the effective date of this Agreement are
reflected on Exhibit A hereof.
(v) In the event of a dispute over the correct number of households
located within a GSA for a Channel Group other than those provided on
Exhibit A, the parties agree to determine the correct number of households
using the most up-to-date commercial engineering software generally used by
Clearwire for calculating such household numbers for such GSAs as
determined under the then current FCC rules."
C. The second sentence of SECTION 3(F) shall be deleted in its entirety and
shall be replaced by the following sentence:
"Upon the Closing of such Post-Termination Acquisition, Clearwire will pay
to ISC consideration at a rate equal to the amount determined pursuant to
Section 3(b)(iii) for each Post-Termination Acquisition ("Post-Termination
Consideration")."
D. The first clause of the first sentence of SECTION 5 shall be amended as
follows:
"This Agreement shall commence and become effective as of the Effective
Date and shall continue until the earlier of (i) March 17, 2007,...."
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2. Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
3. Entire Agreement. This Amendment constitutes the entire agreement
between the parties, and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter of
this Amendment. Except as expressly provided in this Amendment, all other terms
and conditions of the SACA, including all exhibits, schedules and appendices
thereto, remain in full force and effect and are not amended or modified in any
respect.
[Signatures are on the following page]
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IN WITNESS WHEREOF, the parties hereto have executed or caused this
Amendment to be executed and delivered by their duly authorized officers, as of
the day and year first above written.
ITFS Spectrum Consultants LLC
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Managing Member
Clearwire Corporation
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Co-President
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