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Exhibit 10.36
EQUIPMENT
LEASE AGREEMENT
THIS EQUIPMENT LEASE AGREEMENT
("Lease Agreement") dated as of
June 30, 2005 is made by and between Clearwire Corporation, a Delaware
corporation, with a principal place of business at 5808 Lake Washington Blvd
NE,
Suite 300, Kirkland, WA 98033 ("Lessor"), and 6311458 Canada Ltd., a
Canadian
federal corporation, with a principal place of business at 6th Floor, 177
Lombard Avenue, Winnipeg, MB R3B 0W5 ("Lessee").
INTRODUCTION
WHEREAS, the Lessee has agreed to
issue shares to the Lessor representing
fifteen percent (15%) of its total outstanding shares of capital stock (the
"Shares") in partial consideration for the Lessor using commercially
reasonable
efforts to arrange for the execution of a roaming agreement as provided in the
Agreement Regarding Roaming between the Lessee and the Lessor, dated as of the
date of this Agreement;
AND WHEREAS, the Lessor has agreed,
in partial consideration for the issue
of the Shares, to enter into this Lease Agreement;
NOW, THEREFORE, in consideration of
the mutual covenants hereinafter set
forth, the Lessor and Lessee agree as follows:
TERMS AND
CONDITIONS OF LEASE
1. Lease Agreement.
(a) Lessor hereby leases to
Lessee, and Lessee hereby leases from
Lessor, the Equipment, subject to and upon the terms set forth herein. Each
Equipment Order shall constitute a separate and enforceable lease incorporating
all the terms of this Lease Agreement as if such terms were set forth in full
in
such Equipment Order. In the event that any term of any Equipment Order
conflicts with or is inconsistent with any term of this Lease Agreement, the
terms of this Lease Agreement shall govern.
(b) The Equipment subject to
this Lease Agreement shall have a maximum
aggregate value of up to US$5,000,000, subject to adjustment under this Section
1(b). The maximum aggregate value of the Equipment that may be leased by Lessee
under this Lease Agreement shall be reduced, dollar for dollar, by (a) the
amount of all interest that accrues and is unpaid, from time to time, on the
loan made by Fixed Wireless Holdings, LLC to Craig Wireless Nevada Inc.
("CWN")
pursuant to a Loan Agreement dated September 30, 2004, unless such interest is
otherwise paid in cash and/or (b) upon the election of any Purchaser
Indemnified
Party (as defined in the Stock Purchase Agreement), the amount payable by CWN
(or its successor) and/or any Related Parties (as defined in the Stock Purchase
Agreement) to such Purchaser Indemnified Party under Article 9 of the Stock
Purchase Agreement unless such amount is otherwise paid in cash. For example,
if
accrued interest on such loan equals $100,000, then the maximum aggregate value
of Equipment that may be leased under this Lease Agreement shall be reduced by
such amount, and if CWN is required to pay a Purchaser Indemnified Party
$100,000 under Article 9 of the Stock Purchase Agreement, the Purchaser
Indemnified Party may elect to reduce the maximum aggregate value of Equipment
that may be leased under this Lease Agreement by such amount. The value of the
Equipment shall be determined in good faith by
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Lessor, based on the list prices at which such Equipment is sold to similarly
situated purchasers of such Equipment by NextNet.
(c) The Equipment leased under
this Lease Agreement will be delivered
from time to time as it is needed by Lessee for deployment in Manitoba for the
MCS spectrum licenses held by Lessee. Lessee shall, upon request, provide
Lessor
with a rolling forecast, on a month by month basis, of Lessee's anticipated
Equipment requirements. In any event, Lessor shall not be required to deliver
any Equipment under this Lease Agreement without at least 180 days prior
written
notice to Lessor, listing specific equipment requirements and specific
quantities (each, an "Equipment Order").
(d) Lessee shall not use, or
permit the use, of the Equipment anywhere
other than in Manitoba, in markets in which Lessee holds MCS spectrum licenses,
provided, however, that if Lessee is sold, or if all or substantially all of
Lessee's assets are sold, the Equipment may be used outside of North America,
provided that such use complies with applicable law (such permitted locations
for use of the Equipment by Lessee, the "Permitted Territory").
2. Limited Warranty; Disclaimer of Warranties.
(a) Upon the delivery of the
Equipment to Lessee, Lessor shall assign
the limited warranty on the Equipment described on Exhibit A attached hereto
from Supplier to Lessee. Such assignment by Lessor shall be without recourse.
SUCH WARRANTY SHALL NOT RELEASE LESSEE FROM ITS OBLIGATION TO PERFORM ALL
OBLIGATIONS HEREUNDER AND TO KEEP, MAINTAIN AND SURRENDER THE EQUIPMENT IN THE
CONDITION REQUIRED BY SECTIONS 12 AND 13 HEREOF.
(b) LESSOR MAKES NO (AND SHALL
NOT BE DEEMED TO HAVE MADE ANY)
WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE
MATERIAL, EQUIPMENT OR WORKMANSHIP IN, THE EQUIPMENT, ITS MERCHANTABILITY OR
ITS
FITNESS FOR ANY PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR OF ANY
COMPONENT THEREOF, THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT
DISCOVERABLE), AND LESSOR HEREBY DISCLAIMS THE SAME; IT BEING UNDERSTOOD THAT
THE EQUIPMENT IS LEASED TO LESSEE "AS IS" AND ALL SUCH RISKS, IF ANY,
ARE TO BE
BORNE BY LESSEE. NO DEFECT IN, OR UNFITNESS OF, THE EQUIPMENT, OR ANY OF THE
OTHER FOREGOING MATTERS, SHALL RELIEVE LESSEE OF ANY OBLIGATION HEREUNDER.
LESSEE HAS MADE THE SELECTION OF THE EQUIPMENT FROM THE SUPPLIER BASED ON ITS
OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS OR
REPRESENTATIONS MADE BY LESSOR. LESSOR IS NOT RESPONSIBLE FOR ANY REPAIRS,
SERVICE, MAINTENANCE OR DEFECT IN THE EQUIPMENT OR THE OPERATION THEREOF.
EXCEPT
FOR THE REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE LESSOR EXPRESSLY SET
FORTH HEREIN, IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES (WHETHER UNDER THE UCC OR OTHERWISE), INCLUDING, WITHOUT
LIMITATION, ANY LOSS, COST OR DAMAGE TO LESSEE OR OTHERS ARISING FROM ANY OF
THE
FOREGOING MATTERS, INCLUDING, WITHOUT LIMITATION,
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DEFECTS, NEGLIGENCE, DELAYS, FAILURE OF DELIVERY OR NON-PERFORMANCE OF THE
EQUIPMENT. Lessee's execution and delivery of a Certificate of Acceptance shall
be conclusive evidence as between Lessor and Lessee that the Items of Equipment
described therein are in all of the foregoing respects satisfactory to Lessee,
and Lessee shall not assert any claim of any nature whatsoever against Lessor
based on any of the foregoing matters; provided, however, that nothing
contained
herein or in any Certificate of Acceptance delivered hereunder shall in any way
bar, reduce or defeat any claim that Lessee may have against the Supplier or
any
other person (other than Lessor).
3. Lease Agreement Not Cancelable by
Lessee. LESSEE'S OBLIGATIONS HEREUNDER
ARE ABSOLUTE, IRREVOCABLE AND UNCONDITIONAL UNDER ANY AND ALL CIRCUMSTANCES
WHATSOEVER (INCLUDING WITHOUT LIMITATION THE BANKRUPTCY OF LESSOR) AND SHALL
NOT
BE SUBJECT TO ANY RIGHT OF SET OFF, COUNTERCLAIM, DEDUCTION, DEFENSE OR OTHER
RIGHT WHICH LESSEE MAY HAVE AGAINST THE SUPPLIER, LESSOR OR ANY OTHER PARTY.
LESSEE SHALL HAVE NO RIGHT TO TERMINATE (EXCEPT AS EXPRESSLY PROVIDED HEREIN)
OR
CANCEL THIS LEASE OR TO BE RELEASED OR DISCHARGED FROM ITS OBLIGATION HEREUNDER
FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DEFECTS IN,
DESTRUCTION OF, DAMAGE TO OR INTERFERENCE WITH ANY USE OF THE EQUIPMENT (FOR
ANY
REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WAR, ACT OF GOD, STRIKE OR
GOVERNMENTAL REGULATION), THE INVALIDITY, ILLEGALITY OR UNENFORCEABILITY (OR
ANY
ALLEGATION THEREOF) OF THIS LEASE OR ANY PROVISION HEREOF, OR ANY OTHER
OCCURRENCE WHATSOEVER, WHETHER SIMILAR OR DISSIMILAR TO THE FOREGOING, WHETHER
FORESEEN OR UNFORESEEN.
4. Definitions. Unless the context
otherwise requires, as used in this
Lease Agreement, the following terms shall have the respective meanings
indicated below and shall be equally applicable to both the singular and the
plural forms thereof:
"Applicable Law" shall
mean all applicable Federal, state, local and
foreign laws, ordinances, judgments, decrees, injunctions, writs, rules,
regulations, orders, licenses and permits of any Governmental Authority.
"Authorized Signer" shall
mean any officer of Lessee, set forth on an
incumbency certificate (in form and substance satisfactory to Lessor) delivered
by Lessee to Lessor, who is authorized and empowered to execute the Lease
Documents.
"Certificate of
Acceptance" shall mean a certificate of acceptance, in form
and substance satisfactory to Lessor, executed and delivered by Lessee in
accordance with Section 7 hereof.
"Default" shall mean any
event or condition which, with the passage of time
or the giving of notice, or both, would constitute an Event of Default.
"Default Rate" shall mean
an annual interest rate equal to the lesser of
12% or the maximum interest rate permitted by Applicable Law.
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"Equipment" shall mean,
subject to Section 1(b), up to US$5,000,000 of
NextNet Expedience Base Stations, with the specific number of base stations to
be leased under this Equipment Lease determined based on NextNet's list prices
for the base stations in effect at the time of the Equipment Order, together
with all replacement parts, additions and accessories incorporated therein or
affixed thereto including, without limitation, any software that is a component
or integral part of, or is included or used in connection with, any Item of
Equipment, but with respect to such software, only to the extent of Lessor's
interest therein, if any.
"Equipment Location" shall
mean, with respect to the Equipment, the initial
location specified in the Equipment Order or, subject to the restrictions in
Section 1(d), such other location in the Permitted Territory as Lessee shall
from time to time specify in writing to Lessor as required under Section 10
hereof.
"Event of Default" shall
have the meaning specified in Section 20 hereof.
"Governmental Action"
shall mean all authorizations, consents, approvals,
waivers, filings and declarations of any Governmental Authority, including,
without limitation, those environmental and operating permits required for the
ownership, lease, use and operation of the Equipment.
"Governmental Authority"
shall mean any foreign, federal, state, county,
municipal or other governmental authority, agency, board or court.
"Item of Equipment" shall
mean each item of the Equipment.
"Lease Agreement,"
"hereof," "herein" and "hereunder" shall mean,
with
respect to any Equipment this Lease Agreement and the Equipment Order on which
such Equipment is described, including all addenda attached thereto and made a
part thereof.
"Lease Documents" shall
mean this Lease Agreement, each Equipment Order and
all other documents prepared by Lessor and now or hereafter executed in
connection therewith.
"Lessor Assignee" shall
have the meaning specified in Section 15 hereof.
"Lessor Liens" means any
Lien or disposition of title or interest arising
as a result of (i) claims against Lessor not related to the transactions
contemplated by this Lease Agreement, (ii) any act or omission of the Lessor
which is not related to the transactions contemplated by this Lease Agreement
or
is in violation of any of the terms of this Lease Agreement, (iii) claims
against the Lessor with respect to taxes or expenses against which Lessee is
not
required to indemnify the Lessor or (iv) claims against Lessor arising out of
any transfer by Lessor of all or any portion of the its interest in the
Equipment or this Lease Agreement other than pursuant to the exercise of the
remedies set forth in Section 22 of this Lease Agreement.
"Lessor Transfer" shall
have the meaning specified in Section 15 hereof.
"Liability" shall have the
meaning specified in Section 22 hereof.
"Lien" shall mean all
mortgages, pledges, security interests, liens,
encumbrances, claims or other charges of any kind whatsoever.
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"Loss" shall have the
meaning specified in Section 16 hereof.
"NextNet" means NextNet
Wireless, Inc.
"Permitted Lien" means (i)
the rights of Lessor as owner of the Equipment
and Lessee as herein provided, (ii) Lessor Liens, (iii) Liens for taxes of
Lessee (either not yet due or being contested in good faith by appropriate
proceedings so long as such proceedings do not involve any material risk of the
sale, forfeiture or loss of the Equipment or any interest therein), (iv)
materialmen's, mechanics', workmen's, repairmen's, employees' or other like
Liens arising in the ordinary course of Lessee's business (including those
arising under maintenance agreements entered into in the ordinary course of
business) securing obligations that are not overdue for a period of more than
thirty (30) days or are being contested in good faith by appropriate
proceedings
so long as such proceedings do not involve any material risk of the sale,
forfeiture or loss of the Equipment or any interest therein, (v) Liens arising
out of any judgment or award against Lessee unless the judgment secured shall
not, within thirty (30) days after the entry thereof, have been discharged,
vacated, reversed or execution thereof stayed pending appeal or shall not have
been discharged, vacated or reversed within thirty (30) days after the
expiration of such stay, so long as during either such 30-day period there is
not any material risk of the sale, forfeiture or loss of the Equipment or any
interest therein, (vi) any other Lien with respect to which Lessee shall have
provided a bond, cash collateral or other security adequate in the reasonable
opinion of Lessor, and (vii) Liens approved in writing by Lessor.
"Permitted Territory"
shall have the meaning specified in Section 1(d)
hereof.
"Purchase Price" shall
have the meaning specified in Section 8 hereof.
"Required Alteration"
shall have the meaning specified in Section 11
hereof.
"Stock Purchase Agreement"
shall mean that certain Stock Purchase
Agreement, dated September 30, 2004, by and among Craig Wireless Honolulu Inc.,
a Hawaii corporation, Craig Wireless Nevada Inc., a Nevada corporation, Craig
Wireless Systems Inc., a Canadian federal corporation, and Fixed Wireless
Holdings, LLC, a Delaware limited liability company.
"Supplier" shall mean
NextNet or its successor.
"Term" shall have the
meaning specified in Section 8 and shall include any
extensions or renewals of the initial term.
"Upgrade" shall have the
meaning specified in Section 14 hereof.
5. Supplier Not an Agent. LESSEE
UNDERSTANDS AND AGREES THAT (i) NEITHER
THE SUPPLIER, NOR ANY SALES REPRESENTATIVE OR OTHER AGENT OF THE SUPPLIER, IS
(1) AN AGENT OF LESSOR OR (2) AUTHORIZED TO MAKE OR WAIVE OR ALTER ANY TERM OR
CONDITION OF THIS LEASE, AND (ii) NO SUCH WAIVER OR ALTERATION SHALL VARY THE
TERMS OF THIS LEASE UNLESS EXPRESSLY SET FORTH HEREIN.
6. Ordering Equipment; Export
Restrictions.
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(a) Lessee may, from time to
time during the Term of this Lease
Agreement, order the Equipment, in whole and in part, from Lessor by executing
and delivering an Equipment Order. Lessee may send Equipment Orders by
facsimile
or electronically in accordance with procedures to be established by Lessor
from
time to time. Upon receipt of a Equipment Order, Lessor shall promptly place an
order with the Supplier for the appropriate Equipment. In the event of a
conflict or inconsistency between the terms and conditions of an Equipment
Order
and this Lease Agreement, the terms and conditions of this Agreement shall
control to the extent of the conflict or inconsistency. Lessee shall normally
issue Equipment Orders 180 days in advance of expected delivery of Equipment.
(b) Lessor shall keep Lessee
reasonably informed about the likely
shipping dates, and the actual shipping dates, for the Equipment ordered
pursuant to this Agreement, based on information obtained by Lessor from its
suppliers. Lessor shall use commercially reasonable efforts to comply with
Lessee's requested delivery dates. Lessor and Lessee shall agree on shipping
terms with respect to each particular Equipment Order, but Lessee shall be
responsible for all shipping costs. In the absence of specific shipping
instructions from Lessee that are approved by Lessor, Lessor may ship by the
method it deems most advantageous.
(c) Lessee shall inspect the
Equipment upon delivery and shall advise
Lessor in writing of any obvious physical defects, discrepancies, and/or
shortages observed between the Equipment physically inspected and the
corresponding Equipment shipment packing list provided by Lessor.
(d) Lessor shall ship all
Equipment provided pursuant to this
Agreement, freight prepaid, FOB Minneapolis, Minnesota, or such other location
in the continental United States as the Lessor and the Lessee may agree, at
Lessee's expense. Lessee shall be responsible for all actions, costs and
expenses required in connection with the delivery of Equipment to a Canadian
site, including customs clearance processes, and including all customs, duty,
excise and value-added taxes (including goods and services taxes). The method
of
shipment shall be consistent with the nature of the Equipment and hazards of
transportation. Except as set forth below, Lessor shall bear all risks of loss,
damage, or destruction of each Equipment, in whole or in part, ordered
hereunder
which occurs prior to delivery to the location identified by Lessor as provided
above, and such loss, damage, or destruction shall not release Lessor from any
obligation hereunder. After Equipment delivery, the risk of loss or damage
occurring thereafter shall be borne by Lessee.
(e) Lessee may change or cancel
Equipment Orders, subject to the terms
of this Section 6(e). If Lessee issues an Equipment Order causing a delivery
delay or cancels a Equipment Order less than 30 days prior to the scheduled
delivery date, Lessor may impose, and Lessee shall pay, a restocking charge.
Such charges would be equal to Lessor's reasonable, actual costs of restocking.
(f) In order to facilitate
production planning by Lessor under this
Lease Agreement, Lessee agrees to provide, upon request, a nonbinding, rolling
12-month forecast of Equipment requirements within 15 days of the date of this
Lease Agreement. Lessee will use commercially reasonable efforts to update this
nonbinding forecast on or about the 15th day of each subsequent month.
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(g) Lessor's export of the
equipment may be subject to compliance with
the Export Administration Act Regulations of the Department of Commerce of the
United States, as amended, and other export control law, regulations and
executive orders of the United States (the "Export Controls"). Lessee
shall
comply with the Export Controls. Lessee shall not, directly or indirectly,
export or reexport any of the Equipment, or any materials or technology
relating
to the Equipment, to any country, destination or person to which export or
reexport of any of the Equipment is prohibited by the Export Controls without
first obtaining the permission of the United States Office of Export
Administration or its successor. Lessee shall be solely responsible for
complying with the Export Controls and will indemnify and hold Lessor harmless
from any liability or expense that may result as a failure of Lessee to comply
with the Export Controls. Lessee shall execute and deliver any certification
document that Lessor may request in association with Lessee's compliance with
the Export Controls.
7. Delivery and Acceptance. Upon
Lessee's acceptance for lease of any
Equipment delivered to Lessee and described in any Equipment Order, Lessee
shall
execute and deliver to Lessor a Certificate of Acceptance. Such Certificate of
Acceptance shall constitute Lessee's acknowledgment that such Equipment (a) was
received by Lessee, (b) is satisfactory to Lessee in all






