AND (C) DO NOT VIOLATE ANY OF THE TERMS AND
CONDITIONS OF (I) EACH PARTY'S GOVERNING DOCUMENTS, (II) ANY APPLICABLE LAW, OR
(III) ANY CONTRACTS TO WHICH A PARTY IS A PARTY (EXCEPT WITH RESPECT TO
(C)(I) AND (II) FOR SUCH VIOLATIONS THAT WOULD NOT BE REASONABLY EXPECTED TO
HAVE A MATERIAL ADVERSE AFFECT ON THE PARTY'S ABILITY TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED BY THIS SETTLEMENT AGREEMENT).
(C)
ENFORCEABILITY.
THIS SETTLEMENT AGREEMENT HAS BEEN DULY EXECUTED AND
DELIVERED ON BEHALF OF EACH PARTY AND CONSTITUTES A LEGAL, VALID AND BINDING
OBLIGATION OF EACH PARTY, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS,
EXCEPT THAT SUCH ENFORCEABILITY MAY BE LIMITED BY (A) APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM AND SIMILAR LAWS AFFECTING CREDITORS'
RIGHTS GENERALLY, AND (B) EQUITABLE PRINCIPLES WHICH MAY LIMIT THE AVAILABILITY
OF CERTAIN EQUITABLE REMEDIES (SUCH AS SPECIFIC PERFORMANCE).
ARTICLE X
COVENANTS
Section 10.1
NewComm's Duty to Inform TEM.
NewComm shall
notify TEM as promptly as practicable if any knowledge of any alleged Fraud
comes to its or its officers', directors', agents', employees' or Affiliates'
attention prior to the Effective Date.
If NewComm obtains actual knowledge of
any Fraud information prior to the Effective Date and fails to notify TEM as
promptly as practicable before the Effective Date, then for purposes of TEM's
liability under Section 2.2 hereof, no claim for indemnification shall be made.
Section 10.2
FCC License.
(A)
THE PARTIES AGREE TO COOPERATE IN GOOD FAITH AND AS SOON AS REASONABLY
PRACTICABLE, BUT IN ANY EVENT
(I) PRIOR TO THE EXPIRATION OF THE FCC
AUTHORIZATION, CLEARCOMM, NEWCOMM AND TEM PUERTO RICO SHALL MAKE ANY NECESSARY
AND APPROPRIATE FILINGS WITH THE FCC REFLECTING THAT CLEARCOMM AND TEM WILL NOT
BE CONSUMMATING THE TRANSFER OF CONTROL PURSUANT TO THE TERMS OF THE FCC
AUTHORIZATION; AND (II) WITHIN THIRTY (30) DAYS AFTER TEM PUERTO RICO SHALL HAVE
EXERCISED THE CONVERSION FEATURE OF THE CONVERTIBLE NOTES AND TEM PUERTO RICO
SHALL HAVE RECEIVED 49.9% OF NEWCOMM'S CAPITAL STOCK, CLEARCOMM, NEWCOMM AND TEM
PUERTO
21
RICO SHALL MAKE ANY NECESSARY AND APPROPRIATE FILINGS WITH THE FCC REFLECTING
THE ACQUISITION OF 49.9% OF NEWCOMM'S CAPITAL STOCK BY TEM PUERTO RICO.
(B)
UPON TEM'S DECISION TO ASSUME THE CONTROL OF NEWCOMM PURSUANT TO AND UNDER
THE TERMS AND CONDITIONS OF THE STOCK PURCHASE AGREEMENT, THE PARTIES AGREE TO
COOPERATE IN GOOD FAITH AND USE THEIR COMMERCIALLY REASONABLE BEST EFFORTS TO
TAKE OR CAUSE TO BE TAKEN ALL ACTIONS AND DO OR CAUSE TO BE DONE ALL THINGS
NECESSARY, PROPER, ADVISABLE OR REQUIRED TO OBTAIN THE FCC AUTHORIZATION
(INCLUDING, WITHOUT LIMITATION, COMPLETING SUCH STEPS AS WERE NECESSARY FOR THE
OBTAINING OF THE AUTHORIZATION GRANTED ON AUGUST 12, 2004 BY THE FCC TO THE
PURCHASER RELATING TO THE TRANSFER OF CONTROL OF NEWCOMM TO THE PURCHASER) AS
SOON AS REASONABLY PRACTICABLE.
EACH PARTY AGREES TO USE ITS BEST EFFORTS TO
FURNISH TO EACH OTHER SUCH INFORMATION AND ASSISTANCE AND TO CONSULT WITH
RESPECT TO THE TERMS OF ANY FILING, REGISTRATION, APPLICATION OR UNDERTAKING AS
MAY