the Company pursuant to Section 2.1(d) of the Sale Agreement, it is expressly
agreed among the Parties that Section 2.1(c) of the Sale Agreement shall apply.
ARTICLE VIII
DEBT REPAYMENT
Section 8.1
Debt Repayment Clause.
The Parties agree that from and
after the Effective Date and for so long as the Company has any obligations
under the Bridge Loan, the Lucent Debt or the FCC Related Debt, as applicable,
15% of the aggregate gross proceeds (other than from TEM and the Other
Stockholders) of any capital increase of the Company shall be used as follows
and allocated to repay:
(A)
FIRST, ANY AMOUNT OUTSTANDING UNDER THE LUCENT DEBT;
(B)
SECOND, UPON FULL PAYMENT OF THE LUCENT DEBT, ANY AMOUNT OUTSTANDING UNDER
THE BRIDGE LOAN; AND
(C)
THIRD, UPON FULL PAYMENT OF THE BRIDGE LOAN, ANY AMOUNT OUTSTANDING UNDER
THE FCC RELATED DEBT.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
Section 9.1
Representations and Warranties of NewComm.
NewComm
represents and warrants to the other Parties as follows, in each case, as of the
date hereof and as of the Effective Date.
(A)
DUE ORGANIZATION, STANDING AND AUTHORITY.
NEWCOMM IS DULY ORGANIZED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
FORMATION.
NEWCOMM HAS ALL NECESSARY POWER AND AUTHORITY TO EXECUTE, DELIVER
AND PERFORM ITS OBLIGATIONS UNDER THIS SETTLEMENT AGREEMENT AS CONTEMPLATED BY
ITS FORMATION AGREEMENTS, BY-LAWS, OR OTHER CHARTER, ORGANIZATIONAL OR GOVERNING
DOCUMENTS (COLLECTIVELY, THE "GOVERNING DOCUMENTS").
(B)
AUTHORIZATION AND VALIDITY OF SETTLEMENT AGREEMENT.
THE EXECUTION,
DELIVERY AND PERFORMANCE OF THIS SETTLEMENT AGREEMENT (A) ARE WITHIN NEWCOMM'S
POWERS, (B) HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION ON NEWCOMM'S
BEHALF AND ALL NECESSARY CONSENTS OR APPROVALS HAVE BEEN OBTAINED AND ARE IN
FULL FORCE AND EFFECT AND (C) DO NOT VIOLATE ANY OF THE TERMS AND CONDITIONS OF
(I) NEWCOMM'S GOVERNING DOCUMENTS, (II) ANY APPLICABLE LAW, OR (III) ANY
CONTRACTS TO WHICH NEWCOMM 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
18
NEWCOMM'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 NEWCOMM AND CONSTITUTES A LEGAL, VALID AND BINDING
OBLIGATION OF NEWCOMM, 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).
(D)
LIST OF STOCKHOLDERS.
THE LIST OF EXISTING STOCKHOLDERS SET FORTH ON
EXHIBIT A HERETO IS THE FULL, COMPLETE AND ACCURATE LIST OF NEWCOMM'S
SHAREHOLDERS AND THERE ARE NO OTHER STOCKHOLDERS OF NEWCOMM OTHER THAN TEM
PUERTO RICO, UPON CONVERSION OF THE CONVERTIBLE NOTES AND OTHER OBLIGATIONS OF
THE COMPANY PURSUANT TO ARTICLES III AND IV HEREOF.
(E)
NO KNOWLEDGE OF FRAUD.
OTHER THAN AS SET FORTH ON SCHEDULE 9.1(E) HERETO,
NEITHER NEWCOMM NOR ANY