|
<PAGE>
Exhibit 10.67
EXECUTION COPY
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of the
7th day
of December, 2005.
BY AND BETWEEN
BASA Holding Iberia, S.L.U., a company incorporated under the laws
of Spain
("BHI");
Clearwire Corporation, a corporation organized under the laws of
the State
of Delaware ("Parent"); and
Clearwire Europe S.a.r.l., a limited liability company organized
under the
laws of Luxembourg and an indirect subsidiary of Parent
("Clearwire").
BHI, Parent and Clearwire shall be jointly referred to as the
"Parties" and
each of them, individually, as a "Party".
RECITALS
WHEREAS, concurrently with the execution of this Agreement, BHI,
Clearwire
and Banda Ancha S.A., a company incorporated under the laws of
Spain (the
"Company"), have entered into that certain Investment Agreement
(the "Investment
Agreement"), pursuant to which Clearwire has subscribed for 51% of
the Company's
share capital, and BHI is providing certain representations and
warranties as a
condition to such purchase.
WHEREAS, concurrently with the execution of this Agreement, the
Parties
have entered into securities purchase agreement (the "Purchase
Agreement"),
pursuant to which Clearwire is purchasing 100% of the share capital
of the
Company held by BHI as of the closing ("Company Shares") from BHI,
who is
providing certain representations and warranties as a condition to
such
purchase. Capitalized terms not otherwise defined herein or in the
Exhibits
hereto shall have the meanings set forth in the Purchase
Agreement.
WHEREAS, to induce Clearwire to make the investment in the Company
and to
purchase the share capital of the Company from BHI, and as a
condition thereto,
BHI is willing to provide the indemnities to Parent and Clearwire
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 to enter into this Agreement pursuant
to the
following:
ARTICLE 1. INDEMNIFICATION OBLIGATIONS
SECTION 1.1 BHI'S INDEMNIFICATION. BHI shall be liable towards
Clearwire,
Parent, Clearwire International, LLC and the Company and their
respective
successors and assigns
INDEMNIFICATION AGREEMENT (FINAL)
<PAGE>
(together, the "Indemnified Parties") and shall be bound to
indemnify the
Indemnified Parties in full against and hold it harmless from
(subject to the
provisions below) any Damages of or to any Indemnified Party
arising out of or
resulting from:
(a) any misrepresentation, inaccuracy or omission contained in
the
Representations and Warranties in the Purchase Agreement (including
Schedule A
thereto), the Investment Agreement or the Shareholders Agreement or
a breach of
any covenant contained in any of the foregoing;
(b) all liabilities of the Company set forth on Exhibit A
regardless
whether such liabilities exceed the amounts estimated on Exhibit A
and
regardless whether such liability is disclosed on the disclosure
schedule
attached to the Purchase Agreement ("Identified Liabilities");
(c) any adverse effect on the assets or activities of the
Company
and/or the Transactions (other than any adverse effects solely on
the reputation
and goodwill of the Company) resulting from claims against the
Company, BHI or
any of the other Indemnified Parties arising out of or related to
(i) the
suspension of payments of RSL, (ii) the possible rescission or
breach of
agreement reached with RSL's creditors, (iii) in general, the
insolvency of RSL,
or (iv) the possible challenge of the share capital reduction and
subsequent
share capital increase resolved by the Company on August 5, 2005,
pursuant to
which Telvent ceased to be a shareholder of the Company;
(d) all labor, Social Security and other obligations to be
undertaken
or amounts to be paid by the Company to or in relation to employees
other than
those mentioned in Section 21 of the Disclosure Schedule, who, due
to acts or
circumstances prior to Closing (as defined under the Investment
Agreement), are
entitled to be regarded as employees of the Company, provided,
however, that any
obligation to indemnify shall terminate if in the term of two month
as from the
date on which the relevant employee is declared to be an employee
of the
Company, the same is not terminated;
(e) any liabilities of the Company as a consequence of the
Company
being considered as jointly and severally liable with RSL, BHI or
their
Affiliates (other than the Company) for the unfulfilled labor and
Social
Security obligations arising from acts prior to Closing.
(f) all liabilities of the Company set forth on Exhibit B
regardless
whether such liabilities exceed the amounts estimated on Exhibit B
and
regardless whether such liability is disclosed on the disclosure
schedule
attached to the Purchase Agreement ("Scheduled Liabilities").
SECTION 1.2 TERM. BHI's liability shall be extinguished:
(a) with respect to claims pursuant to Section 1.1(a) and
Section
1.1(f)(items 1, 3 and 5 of Exhibit B only) on the second
anniversary of the
Closing; provided, however, claims with respect to Representations
and
Warranties in Schedule A of the Purchase Agreement regarding tax,
labour, social
security, or environmental nature shall continue until the earlier
of the fourth
anniversary of the Closing or the lapse of the applicable statute
of
limitations;
2
<PAGE>
(b) with respect to claims pursuant to Section 1.1(b), on the date
of
payment thereof by BHI following final determination of such
Identified
Liabilities (after taking into account BHI's obligations hereunder)
or upon the
date any such Identified Liability is extinguished;
(c) with respect to claims pursuant to Section1.1(c), on the
fourth
anniversary from the date on which the agreement between RSL and
all of its
creditors becomes firm and non challengeable;
(d) with respect to claims pursuant to Section 1.1(d), Section
1.1(e)
and Section l.l(f)(items 2, 6 and 7 of Exhibit B), until the
earlier of the
fourth anniversary of the Closing or the lapse of the applicable
statute of
limitations; and
(e) with respect to claims pursuant to Section 1.1(f)(item 4 of
Exhibit B), on the twenty-one month anniversary of the Closing.
(f) Notwithstanding the foregoing, claims pursuant to Section
1.1
shall not be extinguished so long as the Indemnified Party sends
notice to BHI
informing BHI of the existence, nature and full details of a claim,
including
estimated amount, prior to the expiration of the applicable time
period
described above.
SECTION 1.3 LIMITATION ON LIABILITY. Notwithstanding anything
herein to the
contrary, with respect to any Damages arising out of Section
1.1(a), Section
1.1(d), Section 1.1(e) and Section 1.1(f) only:
(a) BHI shall not be liable for any Damages unless and until
all
Damages, in the aggregate, collectively exceed E250,000 (the
"Deductible"),
following which BHI shall be liable for all Damages. No single item
of Damages
may be used in the calculation of the Deductible unless and until
such item of
Damages exceeds the sum of E25,000; provided, however, if the
Deductible is met,
BHI shall be liable for all Damages regardless if they exceed
E25,000.
(b) In no event shall BHI be liable for Damages in excess of
$23,750,000, as adjusted by the Negative Adjustment, if applicable,
in the
aggregate.
(c) The limitations of liability set forth in this Section 1.3
shall
not apply to any Damages arising under Section 1.1(b) or Section
1.1(c).
SECTION 1.4 NO LIABILITY IF LOSS IS OTHERWISE COMPENSATED FOR.
(a) No liability shall attach to BHI pursuant to Section 1.1 to
the
extent that the same loss has been recovered by the Indemnified
Parties under
any other Warranty or term of this Agreement or any other document
entered into
pursuant hereto and accordingly the Indemnified Parties may only
recover once in
respect of the same loss. An Indemnified Party may not recover
Damages to the
extent another Indemnified Party has already recovered for the same
item of
Damages. Notwithstanding anything to the contrary herein, a claim
for
indemnification pursuant to this Indemnification Agreement shall
not be
adversely affected, impaired, diminished or barred by the fact that
the
Indemnified Parties had knowledge of the
3
<PAGE>
facts giving rise to such claim as of the date of the Closing of
the Investment
Agreement (the "Closing Date").
(b) In calculating the liability of BHI for any reason provided for
in
Section 1.1 there shall be taken into account to reduce such
liability the
amount by which:
(i) any taxation for which any Indemnified Party is now or in
the future accountable or liable to be assessed is reduced
or extinguished as a result of the matter giving rise to
such liability;
(ii) taxes which have been overpaid are then returned to the
Company as a result of the matter giving rise to such
liability; and
(iii) the Indemnified Party has already received compensation
for
such liability, or such liability has been reduced or
terminated by a third party, applicable law or for any other
reason.
(c) After the Closing, the Company will prepare a balance sheet
dated
as of the Closing Date, in accordance with Spanish GAAP and will
cause the
balance sheet to be audited and certified by independent public
accountants
selected by the Company (the "Closing Balance Sheet"). In the event
that the
amount of any liability (other than Identified Liabilities, the
Actual 38 Tax
Liability, the 3.5 Tax Liability and liabilities not included in
the Financial
Statements) identified on the Closing Balance Sheet as fully and
finally paid by
the Company ("Satisfied Liability") is less than the amount accrued
for such
liability in the Closing Balance Sheet (the "Accrued Liability"),
then the
amount of such difference shall be added to an offset allowance to
be maintained
by the Company (the "Offset Allowance"). At the time that any
Damages become due
and payable by BHI to any Indemnified Party under this Agreement,
BHI may elect
to offset the amount of the Offset Allowance then outstanding
against the amount
of such Damages. If BHI breaches its obligations under this
Agreement and once
the amount of the Damages has been finally determined, the Company
may elect to
offset the amount of the Offset Allowance then outstanding against
the amount of
such Damages. After any such election by BHI or the Company, the
amount of the
Offset Allowance shall be reduced by the amount of the offset
against Damages.
To the extent that the Offset Allowance increases after the date in
which
Damages under this Agreement become due and payable by BHI, whether
or not
actually paid, the Offset Allowance shall not be available with
respect to such
claim, but the increased amount shall be available for future
claims arising
under this Agreement thereafter.
(d) With respect to any tax liability of the Company (other than
the
Actual 38 Tax Liability and the Actual 3.5 Tax Liability) (the
"Qualified Tax
Liability"), such Qualified Tax Liability shall not ripen into
an
indemnification obligation if the Company is permitted under
applicable law to
use tax credits of the Company from the tax loss carry-forwards
existing on the
Closing Date ("Existing Tax Credits") to offset such Qualified Tax
Liability and
a sufficient amount of such Existing Tax Credits remain available
for the
Company to use to offset such Qualified Tax Liability.
(e) The following items shall not give rise to any
indemnification
obligations pursuant to this Agreement: (i) any VAT taxes that
become due and
payable by the Company
4
<PAGE>
resulting from transactions occurring prior to Closing for which
the Company is
reimbursed, compensated or allowed to compensate; (ii) any failure
of the
franchisees of ALO (as defined in the Purchase Agreement) to fully
pay the notes
payable to ALO transferred to the Company pursuant to the Purchase
Agreement;
and (iii) any claims regarding the Tax Appeals (as defined in the
Purchase
Agreement) which are governed by Section 1.4 of the Purchase
Agreement.
SECTION 1.5 RECOVERY FROM INSURERS AND OTHER THIRD PARTIES
(a) If, in respect of any matter which would give rise to a
claim
under the provisions in Section 1.1, the Indemnified Parties are
entitled to
claim under any policy of insurance, then no such matter shall be
the subject of
a claim under this Article 1 unless and until the appropriate
entity shall have
made a claim against its insurers and used all reasonable efforts
to pursue such
claim, and any such insurance claim shall then extinguish or reduce
by the
amount so recovered any such claims under this Agreement. Nothing
in this
Section 1.5 shall require any Indemnified Party to carry any
insurance policy.
(b) If BHI pays at any time to any Indemnified Parties an amount
under
any provision of this Agreement and the Indemnified Party recovers
from some
other person any sum in respect of any matter giving rise to such
claim, the
Indemnified Party shall repay to BHI the lesser of (i) the amount
paid by BHI to
the Indemnified Party, and (ii) the sum (including interest (if
any)) actually
recovered from such other person less the reasonable costs and
expenses incurred
by such Indemnified Party in pursuit of such sum. BHI shall have
the right to
request that such Indemnified Party validly assign all of its
rights in relation
to the relevant claim to BHI in a manner which entitles BHI to the
same benefits
in respect of such rights as such Indemnified Party had, which
request the
Indemnified Party may not unreasonably deny. In the event BHI
requests the
assignment of rights, the Indemnified Party will not be liable for
any of the
following: (V) the existence and legality (legitimidad) of the
assigned credit;
(W) the credit-standing of the debtors; (X) the amount of the
price
consideration received by BHI, if any; (Y) the costs referred to in
section 1 of
article 1518 of the Spanish Civil Code incurred by BHI; or (Z)
other Damages
which BHI may suffer.
(c) If any amount is repaid to BHI by an Indemnified Party or
recovered by BHI from any other person pursuant to Section 1.5(b),
an amount
equal to the amount so repaid or recovered shall be deemed never to
have been
paid by BHI for the purposes of calculating BHI's total aggregate
liability
under Section 1.3 above.
SECTION 1.6 ACTS OF PURCHASER. No claim pursuant to Section 1.1(b)
shall
lie against BHI under or in relation with this Agreement to the
extent that such
claim is solely attributable to the affirmative actions of
Clearwire or any of
its Affiliates arising solely on or after Closing, provided that
neither
Clearwire or any of its Affiliates shall have an affirmative
obligation to take
any actions with respect to the Identified Liabilities.
ARTICLE 2. PROCEDURE
SECTION 2.1 NOTICE OF CLAIM. Promptly after the applicable
Indemnified
Party becoming aware of a claim pursuant to Section 1.1 which could
give rise to
an indemnification obligation for BHI in accordance with
the
|
