of any and all capital paid to the Company from the first day following the Effective Date as a capital subscription, contribution or payment of any kind, whether in the form of cash, conversion of debt, in-kind payment or otherwise.

 

“ Affiliates ” shall mean a Person directly or indirectly controlled by, controlling or under common control with the other Person.  For the purposes of this definition, “control” means, when used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

 

“ Applicable Law ” shall mean any statute, law, rule or regulation or any judgment, order, consent order, stipulated agreement, ordinance, writ, injunction or decree of any Governmental Entity.

 

“ Arbitrator ” shall have the meaning set forth in Section 2.2(d).

 

“ Award ” shall have the meaning set forth in Section 2.2(d).

 

“ Base Value ” shall be equal to $23,490,222 as of the Effective Date.

 

“ Board of Directors ” shall mean the board of directors of the Company.

 

“ Bridge Loan ” shall mean that certain loan agreement by and among NewComm, ClearComm, TEM Puerto Rico, ABN Amro Bank, N.V., as Administrative Agent, and LaSalle Bank National Association, as Collateral Agent, dated as of November 22, 2000, as amended from time to time.

 

“ Business ” shall have the meaning set forth in the Recitals.

 

“ Business Plan ” shall mean the business plan of the Company approved by the Board of Directors on November 30, 2004, a copy of which is attached as Exhibit C hereto and made a part hereof, as the same shall be amended from time to time pursuant to the Shareholders Agreement.

 

“ Business Day ” shall mean any day other than a Saturday, Sunday or a day on which banks are authorized or obligated by law to be closed in any of Madrid, Spain, the City of New York, New York, or San Juan, the Commonwealth of Puerto Rico.

 

“ Capital Lease Obligations ” shall mean the obligation of any person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under U.S. GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with U.S. GAAP.

 

“ ClearComm ” shall have the meaning set forth in the Preamble.

 

“ Company ” shall have the meaning set forth in the Preamble.

 

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“ Contracts ” shall have the meaning set forth in the Recitals.

 

“ Convertible Notes ” shall mean (i) the Secured Convertible Promissory Note, (ii) the Other Convertible Notes, (iii) the promissory notes referred to in Section 3.1(a) and (b) hereof, and (iv) the Interest Note.

 

“ CPR ” shall have the meaning set forth in Section 2.2(d).

 

“ CPR Rules ” shall have the meaning set forth in Section 2.2(d).

 

“ Dispute ” shall have the meaning set forth in Section 12.16(a).

 

“ dollar ” or “ $ ” shall mean dollars in lawful currency of the United States.

 

“ EBITDA ” shall mean with respect to the Company for any period, the net income of the Company, as determined in accordance with U.S. generally accepted accounting principles applied on a consistent basis, for such period plus , without duplication, (a) provision for taxes based on income or profits for such period to the extent the same was deducted in computing the net income, plus (b) interest expense for such period to the extent the same was deducted in computing the net income, plus (c) depreciation and amortization expense for such period to the extent the same was deducted in computing the net income, plus (d) extraordinary loss and minus (e) extraordinary gains.

 

“ Effective Date ” shall have the meaning set forth in Section 11.1.

 

“ Exit Notice ” shall have the meaning set forth in Section 7.1.

 

“ FCC ” shall mean the Federal Communications Commission.

 

“ FCC Authorization ” shall mean the authorization granted on August 12, 2004 by the FCC to TEM Puerto Rico relating to the transfer of control of NewComm to TEM Puerto Rico, the extension thereof granted on February 8, 2005, and any other authorization or extension thereof, as may be granted in the future.

 

“ FCC Licenses ” shall mean each license, permit, authorization and concession granted by the FCC and held by the Company relating to the Business.

 

“ FCC Loans ” shall have the meaning set forth in Section 4.1.

 

“ FCC Related Debt ” shall mean any outstanding installment payment owed to the FCC as of the Effective Date with respect to the Personal Communications Services (“ PCS ”) license held by NewComm, as set forth on Exhibit D hereto.

 

“ File ” shall have the meaning set forth in Section 2.2(b).

 

“ Fraud ” shall mean any material act in bad faith of omission, concealment, misrepresentation or deceit related solely to (i) payments of any kind to any Person, including but not limited to payments to vendors, suppliers, and providers of services, whether through oral

 

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or written arrangements, made by NewComm and acknowledged or approved in writing by any TEM Senior Executive (ii) accounting practices, and (iii) reimbursement of expenses, in each case committed by TEM, at any time prior to October 1, 2004, and actually and reasonably relied upon by NewComm with the deliberate intention of obtaining an undue and unlawful financial gain for TEM or any TEM Senior Executive or any other Affiliate of TEM and causing a financial loss to NewComm.  It is expressly agreed that management, strategic, technical or business decisions or such other acts or omissions of any nature or kind whatsoever and communication of, or failure to communicate, such decisions shall be excluded from Fraud, provided that the foregoing shall not preclude NewComm from pursuing any right or claim it may have against TEM under Section 2.2(a)(y) to the extent such decisions were intended to result, and have resulted, in any acts referred to in the preceding sentence.  Nothing contained in this definition shall relieve, or be deemed to relieve, NewComm of its burden of proving, by clear and convincing evidence, each of the elements of common law fraud under Florida law.

 

“ Fraud Amount ” shall have the meaning set forth in Section 2.2(f).

 

“ Guarantee ” shall mean any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtednesses or other obligation of any Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) any security for the payment thereof, (b) to purchase or lease properties, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guarantee issued to support such Indebtedness or obligation, provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.

 

“ Governing Documents ” shall have the meaning set forth in Section 9.1(a).

 

“ Governmental Entity ” shall mean any domestic or foreign court or tribunal in any domestic or foreign jurisdiction or any federal, state, municipal or local government or other governmental body, agency, authority, district, department, commission, board, bureau, or other instrumentality, arbitrator or arbitral body (domestic or foreign), including any joint action agency, public power authority, public utility district, or other similar political subdivision.

 

“ Hedging Agreement ” shall mean any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency rate or commodity price hedging agreement.

 

“ Indebtedness ” shall mean, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the

 

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deferred purchase price of property or services, (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, continent of otherwise, of such Person in respect of bankers’ acceptances, (k) all obligations of such Person in respect of Hedging Agreements and (l) any other payment obligations similar to, or having the same results as, those referred to in clauses (a) through (k) above.  For the avoidance of doubt, Indebtedness shall include accrued and unpaid interest (as well as withholding taxes, if applicable), including, but not limited to, on the amounts due under the Bridge Loan and the FCC Related Debt.

 

“ Interest Note ” shall mean that certain promissory note in a principal amount equal to $8,597,045.07, representing the accrued interest on the Secured Convertible Promissory Note and the Other Convertible Notes, substantially in the form attached as Exhibit E hereto.

 

“ Joint Venture Agreement ” shall mean that certain joint venture agreement into by and between TEM, as a successor in interest to Telefónica Larga Distancia de Puerto Rico, Inc., and ClearComm dated as of February 4, 1999, as amended from time to time.

 

“ Lien ” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

 

“ Liquidation ” shall mean any voluntary or involuntary liquidation, dissolution or winding up of the Company.

 

“ Liquidation/Sale Effective Date ” shall mean the date upon which the consideration payable to TEM in its capacity as shareholder of the Company is fully paid to TEM in respect of the Liquidation/Sale Event.

 

“ Liquidation/Sale Event ” shall mean any of the following events: (a) a Sale of the Company or (b) a Liquidation of the Company.

 

“ Liquidation/Sale Proceeds ” shall mean the aggregate cash and non-cash consideration, including any proceeds received by way of deferred payment pursuant to promissory notes, earn-outs, receivables or otherwise (net of any and all out-of-pocket costs, brokers’ fees, filing fees, auditing fees and other related transaction costs, fees and expenses) from the Liquidation/Sale Event minus the Company’s Indebtedness as of the time of such Liquidation/Sale Event.

 

“ Long-Term Financing ” shall have the meaning set forth in Section 10.5(a).

 

“ Lucent ” shall mean Lucent Technologies Inc., a Delaware corporation.

 

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“ Lucent Debt ” shall mean any outstanding amount owed by NewComm to Lucent under the Senior Credit Agreement.

 

“ Management Agreement ” shall mean that certain management agreement by and between NewComm and TEM, as a successor in interest to Telefónica Larga Distancia de Puerto Rico, Inc., dated as of March 3, 1999, as amended from time to time.

 

“ Management Fee ” shall mean the annual fee (payable quarterly in arrears) payable under the Management Agreement equal to the higher of (i) nine percent (9%) of the Company’s EBITDA as of the end of the previous calendar year and (ii) seven hundred and fifty thousand dollars ($750,000.00).

 

“ Management Services ” shall have the meaning set forth in the Management Agreement.

 

“ NewComm ” shall have the meaning set forth in the Preamble.

 

“ NewComm Senior Executive ” shall mean any of the following individuals: Lawrence Odell Peck and Javier O. Lamoso, solely in their respective capacities as director and general manager of NewComm.

 

“ Notice of Claim ” shall have the meaning set forth in Section 2.2(b).

 

“ Other Convertible Notes ” shall mean (i) that certain convertible promissory notes issued by NewComm to TEM Puerto Rico, as a successor in interest to Telefónica Larga Distancia de Puerto Rico, Inc., on November 2, 2000, (ii) that certain second convertible promissory notes issued by NewComm to TEM Puerto Rico, as a successor in interest to Telefónica Larga Distancia de Puerto Rico, Inc., on December 15, 2000, (iii) that certain third convertible promissory notes issued by NewComm to TEM Puerto Rico, as a successor in interest to Telefónica Larga Distancia de Puerto Rico, Inc., on May 1, 2001, (iv) that certain fourth convertible promissory notes issued by NewComm to TEM Puerto Rico, as a successor in interest to Telefónica Larga Distancia de Puerto Rico, Inc., on May 20, 2002 and (v) that certain fifth convertible promissory notes issued by NewComm to TEM Puerto Rico, as a successor in interest to Telefónica Larga Distancia de Puerto Rico, Inc., on December 27, 2002.

 

“ Other Stockholders ” shall have the meaning set forth in the Preamble.

 

“ Party ” or “ Parties ” shall have the meaning set forth in the Preamble.

 

“ Premium ” shall have the meaning set forth in Section 6.2(c).

 

“ Person ” shall mean any individual, corporation, partnership, joint venture, trust, limited liability company, unincorporated organization, Governmental Entity or other entity.

 

“ Premium Stock ” shall have the meaning set forth in Section 6.2(a).

 

“ Sale Agreement ” shall mean that certain sale agreement by and among TEM Puerto Rico, as a successor in interest to Telefónica Larga Distancia de Puerto Rico, Inc., ClearComm, Syndicated Communications Venture Partners IV, L.P., a Delaware limited partnership, Fleet

 

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Development Ventures, LLC, a Massachusetts limited liability company, Opportunity Capital Partners IV, L.P., a Delaware limited partnership, Power Equities, Inc., a Delaware corporation, and NewComm dated as of March 12, 2002, as amended from time to time.

 

“ Sale of the Company ” shall mean (i) a transfer of all of the outstanding equity interests of the Company; (ii) a transfer of substantially all of the assets of the Company or (iii) the merger, consolidation or other business combination of the Company with or into another Person, in each case under circumstances in which the holders of outstanding capital stock of the Company, immediately prior to such transaction, own less than 50% in voting power of the outstanding capital stock of the surviving or resulting corporation or acquirer, as the case may be, immediately following such transaction.

 

“ SCL Agreements ” shall mean (i) the SCL Licensing Agreement (Licenciamiento SCL) dated August 1, 2002 between TmAS and NewComm, (ii) the Agreement for the provision of Consulting and Evolutionary Maintenance of Sw Applications Services (SCL Maintenance) (Prestación de Servicios de Asesoría y Mantenimiento Evolutivo de Aplicaciones Sw (Mantenimiento SCL)) dated August 1, 2002 between TmAS and NewComm and (iii) the Agreement for the provision of Sw Applications Designing, Development and Programming Services (Prestación de Servicios de Diseño, Desarrollo y programación de Aplicaciones Sw) dated August 1, 2002 between TmAS and NewComm.

 

“ Secured Convertible Promissory Note ” shall mean that certain secured convertible promissory note issued by NewComm to TEM Puerto Rico, as a successor in interest to Telefónica Larga Distancia de Puerto Rico, Inc., on March 3, 1999, as amended from time to time.

 

“ Seller Shares ” shall have the meaning set forth in the Stock Purchase Agreement.

 

“ Senior Credit Agreement ” shall mean that certain senior secured credit agreement by and between NewComm and Lucent dated as of June 4, 2003, as amended from time to time.

 

“ Settlement Agreement ” shall have the meaning set forth in the Preamble.

 

“ Shareholders Agreement ” shall mean that certain shareholders agreement by and among NewComm, ClearComm, TEM Puerto Rico, as a successor in interest to Telefónica Larga Distancia de Puerto Rico, Inc., and the other parties named therein dated as of March 12, 2002, as amended from time to time.

 

“ SPA Change of Control ” shall mean any change of control of the Company pursuant to and under the terms and conditions of the Stock Purchase Agreement, in which TEM shall, directly or indirectly, hold fifty point one (50.1%) percent of the fully diluted capital stock of the Company.

 

“ Stock Purchase Agreement ” shall mean that certain stock purchase agreement entered into by and between TEM Puerto Rico, as a successor in interest to Telefónica Larga Distancia de Puerto Rico, Inc., and ClearComm dated as of March 12, 2002, as amended from time to time.

 

“ Subordinated Loan Facility ” shall have the meaning set forth in Section 10.6(a).

 

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“ Technology Transfer Agreement ” shall mean that certain technology transfer agreement entered into by and between NewComm and TEM, as a successor in interest to Telefónica Internacional, S.A., a corporation organized under the laws of Spain, dated as of March 3, 1999, as amended from time to time.

 

“ Technology Transfer Fee ” shall mean the annual fee (payable quarterly in arrears) payable under the Technology Transfer Agreement equal to one percent (1%) of the Company’s gross revenues as of the end of the previous calendar year.

 

“ TEF ” shall mean Telefónica S.A., a corporation organized under the laws of Spain.

 

“ TEM ” shall have the meaning set forth in the Preamble.

 

“ TEF Guarantee ” shall have the meaning set forth in Section 10.5(a).

 

“ TEM Senior Executive ” shall mean any of the following individuals: Federico Grosso, Claudio Hidalgo, Francisco Martinez-Davis, Luis Miguel Gilperez, Francisco Ruiz Vinuesa, Pablo Alvarado and Maria D. Pizarro Figueroa, solely in their capacity as employees of TEM or its Affiliates.

 

“ TEM Puerto Rico ” shall have the meaning set forth in the Preamble.

 

“ Third-Party Financing ” shall have the meaning set forth in Section 10.5(c).

 

“ Threshold Amount ” shall have the meaning set forth in Section 2.2(a).

 

“ TmAS ” shall mean Telefónica Móviles Aplicaciones y Soluciones, S.A., a company formed under the laws of Chile and a wholly owned subsidiary of TEM.

 

“ U.S. GAAP ” shall mean generally accepted accounting principles in the United States.

 

ARTICLE II

MUTUAL WAIVER AND RELEASE

 

Section 2.1               Mutual Release.

 

(a)  Subject to Section 2.2, each of NewComm and the Other Stockholders, for itself and, to the extent it has the legal ability to do so, on behalf of its former, present and future officers, directors, agents, employees, Affiliates, assigns and predecessors and successors in interest do hereby and forever waive, release and discharge TEM and its Affiliates (including, without limitation, TEM Puerto Rico), and their respective officers, directors, agents, employees, assigns and predecessors and successors in interest from any and all losses, claims, liabilities, controversies, demands, actions, complaints, suits, causes of action of any kind and nature whatsoever (including, without limitation, those sounding in contract or tort, loss of profits, interference with business contracts, interference with contractual relations, damage to business reputation, increased cost of doing business, interference with expectancy of business advantage, in each case, current or prospective), judgments, damages, executions, obligations, contracts, agreements, covenants, controversies, promises, accounts, bonds, bills, debts, dues, sums of

 

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money, expenses, specialties, fees and costs of any kind and nature whatsoever (whether direct, indirect, consequential, incidental or otherwise), known or unknown, suspected or unsuspected, in their own right or derivatively, in law or in equity, which any of them ever had, now has, or hereafter shall or may have, against any other of them, on account of, arising from, relating to, or in connection with the Contracts (including, without limitation, any act or omission or other matter or thing whatsoever arising from, relating to, or in connection with the negotiation, execution and performance of the Contracts) and occurring prior to and including the Effective Date, provided , however , that the foregoing shall not release TEM from any of its obligations under this Settlement Agreement.

 

(b)  Subject to Section 2.2, each of TEM, for itself and, to the extent it has the legal ability to do so, on behalf of its former, present and future officers, directors, agents, employees, Affiliates, assigns and predecessors and successors in interest do hereby and forever waive, release and discharge each of NewComm and the Other Stockholders and their respective Affiliates, officers, directors, agents, employees, assigns and predecessors and successors in interest from any and all losses, claims, liabilities, controversies, demands, actions, complaints, suits, causes of action of any kind and nature whatsoever (including, without limitation, those sounding in contract or tort, loss of profits, interference with business contracts, interference with contractual relations, damage to business reputation, increased cost of doing business, interference with expectancy of business advantage, in each case, current or prospective), judgments, damages, executions, obligations, contracts, agreements, covenants, controversies, promises, accounts, bonds, bills, debts, dues, sums of money, expenses, specialties, fees and costs of any kind and nature whatsoever (whether direct, indirect, consequential, incidental or otherwise), known or unknown, suspected or unsuspected, in their own right or derivatively, in law or in equity, which any of them ever had, now has, or hereafter shall or may have, against any other of them, on account of, arising from, relating to, or in connection with the Contracts (including, without limitation, any act or omission or other matter or thing whatsoever arising from, relating to, or in connection with the negotiation, execution and performance of the Contracts) and occurring prior to and including September 30, 2004, provided , however , that the foregoing shall not release NewComm and the Other Stockholders from any of their respective obligations under this Settlement Agreement.

 

(c)  The consequences of the foregoing waiver, release and discharge provisions have been explained by each of the Parties’ respective counsel.  Each of the Parties acknowledges that it may hereafter discover facts different from, or in addition to, those which they now know or believe to be true, and agree that this Settlement Agreement and the releases contained herein shall be and remain effective in all respects notwithstanding such different or additional facts or the discovery thereof.

 

(d)  The Parties acknowledge that the release is given for adequate, valid and sufficient consideration, including the acceptance of the obligations set forth in this Settlement Agreement.  In the event after the Effective Date, any Party shall breach any provision set forth in this Settlement Agreement (other than the release), the other Parties will be entitled to remedies in contract for the breach of the obligations set forth in this Settlement Agreement, however, the validity of the releases contained herein shall not be affected.  Notwithstanding anything to the contrary herein or any acts or events following the Effective Date, the releases

 

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contained herein are irrevocable and, from the Effective Date shall be and remain effective in all respects.

 

(e)  To the extent Applicable Law would not otherwise recognize the provisions of subsections (a) and (b) of this Section 2.2 as constituting a full and final release applying to all unknown and unanticipated claims, as well as those now known or disclosed, the Parties hereby expressly waive all rights or benefits which either one or any of them may have against any other counterparty now or in the future under any such Applicable Law.

 

(f)  In consideration of the foregoing, TEM agrees to withdraw, and hereby withdraws, the Notice of Dispute (as such term is defined in the Management Agreement) dated October 28, 2004 sent to NewComm pursuant to Section 12.13.1 of the Management Agreement.  As a result thereof, NewComm’s response letter to TEM dated November 10, 2004 shall be of no further force and effect.

 

Section 2.2               Limitation of Mutual Release.

 

(a)  It is the intent of the Parties that the scope of the release provided for in this Settlement Agreement shall be as broad and complete as possible and shall have the benefits of the doctrines of res judicata and collateral estoppel to the fullest extent allowed by law and limited only by the provisions of this Section 2.2.  Nothing whatsoever provided or contained in this Article II or in any other provision of this Settlement Agreement (w) shall be construed as, or deemed to be a release of, or to release, any Party from its obligations, duties, agreements and other warranties expressly incurred or otherwise arising under this Settlement Agreement, (x) shall be construed as, or deemed to be a release of, or to release, NewComm from its delivery and conversion obligations of the promissory notes delivered pursuant to Section 3.1(a) and (b) hereof or (y) shall restrict, impinge upon, or nullify any right or other claim that NewComm may have against TEM because of any Fraud committed by TEM or any TEM Senior Executives in their performance of Management Services under the Management Agreement, which caused damages to NewComm of $250,000 (two hundred and fifty thousand dollars) or more in the aggregate (the “ Threshold Amount ”) or (z) shall be construed as, or deemed to be a release of, or to release, TmAS from its obligations under Article V hereof.

 

(b)  In connection with a claim of alleged Fraud by NewComm, NewComm shall have up to one-hundred eighty (180) days from the Effective Date to deliver a notice of claim (the “ Notice of Claim ”) to TEM (i) alleging with reasonable particularity that Fraud occurred, which caused damages in excess of the Threshold Amount and (ii) providing TEM with a full, complete and accurate file (the “ File ”) containing any evidence of the alleged Fraud and other relevant documentation (including potentially exculpatory documents) relating to the services rendered under the Management Agreement, provided that NewComm shall not be allowed to submit more than one Notice of Claim within the one hundred eighty (180) day period starting from the Effective Date.  TEM shall then have forty five (45) days from receipt of such Notice of Claim from NewComm either to accept the occurrence of Fraud alleged by NewComm or deny it.  As soon as reasonably practicable after the delivery of the Notice of Claim by NewComm to TEM, NewComm shall grant TEM full and complete access to all information, documents (including emails), records and personnel that TEM may reasonably request to prepare TEM’s

 

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response and TEM shall be entitled to obtain copy of any such documents (including emails) and records.

 

(c)  In the event TEM accepts the occurrence of Fraud alleged by NewComm or wishes to engage in settlement discussions, TEM and NewComm shall engage in efforts to monetarily quantify as soon as reasonably practicable the amount of any overpayment or improper payment, as the case may be, represented by the Fraud committed.  Upon reaching an agreement in writing of such amount, which shall be binding, final and conclusive on the Parties, TEM shall, within five (5) Business Days after its receipt of an executed release from NewComm (to be effective upon NewComm’s receipt of the agreed amount), restore such amount to NewComm.  Such amount shall be transferred in immediately available funds to such bank accounts as shall be designated by NewComm to TEM.

 

(d)  Notwithstanding Section 12.16, in the event (i) TEM denies the occurrence of Fraud or (ii) upon acceptance of the occurrence of Fraud, TEM and NewComm are unable to agree on the amount of damages within thirty (30) days from such acceptance, such dispute shall be finally and exclusively resolved by arbitration in accordance with the CPR Institute for Dispute Resolution Rules for Non-Administered Arbitration of International Disputes (“ CPR Rules ”), except to the extent modified herein, by a sole arbitrator (“ Arbitrator ”).  The Neutral Organization (as defined in the CPR Rules) designated to perform the functions specified in Rules 5, 6 and 7 of the CPR Rules shall be the CPR Institute for Dispute Resolution (“ CPR ”).  TEM shall select the Arbitrator (such Arbitrator to be reasonably acceptable by NewComm, which acceptance may not be unreasonably withheld or delayed) within (30) thirty days after TEM’s receipt from NewComm of a Notice of Arbitration under Rule 2 of the CPR Rules, provided that if the Parties fail to designate an Arbitrator, TEM may apply to the CPR to appoint one.  Judgment upon the award rendered by the Arbitrator (the “ Award ”) may be entered by any court having jurisdiction thereof.  The seat of arbitration shall be Miami, Florida.  The arbitration shall be conducted in the English language, and any Spanish language documents shall be accompanied by English language translations in any submissions to the Arbitrator.

 

(e)  In order to expedite the arbitration proceedings, the Parties agree that (a) NewComm shall serve a Notice of Arbitration (as defined in the CPR Rules) that satisfies the requirements of Rule 3.3 of the CPR Rules and includes each of the elements of a pre-hearing memorandum as set forth in Rule 12.1 of the CPR Rules (including the documents relied upon by NewComm); and (b) NewComm shall continue to make available the File to TEM and, concurrently with its service of a Notice of Arbitration, make available to TEM any other documents (in hard-copy and electronic form) relevant to NewComm’s claim and not otherwise relied upon by NewComm and included with the Notice of Arbitration; (c) within ninety (90) days after receipt of NewComm’s Notice of Arbitration, TEM shall serve a Notice of Defense (as defined in the CPR Rule) (including any counterclaims) that satisfies the requirements of Rule 3.5 of the CPR Rules and includes each of the elements of a pre-hearing memorandum as set forth in Rule 12.1 of the CPR Rules (including the documents relied upon by TEM).  Each Party further agrees to cooperate with the Arbitrator and to (i) provide the Arbitrator with access to books, records, personnel and representatives and (ii) deliver to the Arbitrator all evidence and documents required by such Arbitrator and relevant an