Exhibit 10.21
AMENDMENT AND CONSENT
THIS AMENDMENT AND CONSENT (this "Amendment") is made and entered into as
of the 1st day of February, 2005 by and among Clearwire Corporation, a Delaware
corporation, f.k.a. Flux U.S. Corporation ("Clearwire"), ITFS Spectrum Advisors
LLC, a Delaware limited liability company ("ISA"), and ITFS Spectrum Consultants
LLC, a Delaware limited liability company ("ISC").
RECITALS
A. Clearwire and ISA are parties to that certain Warrant Agreement dated
November 13, 2003 ("Warrant Agreement") pursuant to which ISA agreed to
introduce Clearwire to third parties and to facilitate an acquisition of ITFS,
MDS and MMDS spectrum through lease or purchase from such parties, and Clearwire
agreed in connection with such acquisitions or leases to grant to ISA warrants
to purchase shares of Class A common stock of Clearwire ("Warrants") as
consideration for ISA's services.
B. Clearwire and ISC intend to enter into a Spectrum Acquisition Consulting
Agreement ("Consulting Agreement") whereby at such time as ISA has earned all
available compensation under the Warrant Agreement, ISC will provide
introduction and facilitation services to Clearwire for the acquisition or lease
of ITFS, MDS and MMDS spectrum and Clearwire will pay ISC the Consulting
Compensation (defined in the Consulting Agreement) upon the satisfaction of
certain conditions, including that ISC facilitate the execution of definitive
agreements and, with respect to a license purchase, lease or sublease, and the
closing of the transaction with such third party as requested by Clearwire (an
"ISC Acquisition").
C. Notwithstanding the fact that the Consulting Agreement does not become
effective until such time as ISA has earned all available compensation under the
Warrant Agreement, ISC wishes to provide that, upon its request, acquisitions or
leases of ITFS, MDS or MMDS spectrum that Clearwire closes which originates from
introductions made by ▇▇▇▇▇ Coffee, as an authorized agent of ISC, be deemed ISC
Acquisitions, rather than ISA Acquisitions, and such transactions be treated as
such under the Consulting Agreement.
AGREEMENT
In consideration of the premises, the mutual covenants and promises made
below, and other good and valuable consideration, the parties agree as follows:
1. Amendment to Warrant Agreement. The Warrant Agreement shall be amended
to include a new Section 2.7 as follows:
SECTION 2.7. RELATIONSHIP TO ISA. Notwithstanding anything to the contrary
in this Agreement, ITFS Spectrum Consultants LLC ("ISC"), may, upon written
notice to ISA and Clearwire, elect to have Acquisitions for up to 25,000,000
CPOPS (as defined in the Consulting Agreement), that are closed between
Clearwire and licensees of ITFS, MDS, or MMDS channels which Acquisitions
originated from the introduction of Clearwire to the license holder by ▇▇▇▇▇
Coffee, in his capacity as an authorized agent of ISC (collectively, the
"Excluded Transactions")
treated as an Acquisition under the Consulting Agreement. ISA agrees that it
shall have no right to demand or receive Warrants or other consideration in
connection with the Excluded Transactions.
2. Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
3. Entire Agreement. This Amendment constitutes the entire agreement
between the parties, and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter of
this Amendment. Except as expressly provided in this Amendment, all other terms
and conditions of the Warrant Agreement, including all exhibits, schedules and
appendices thereto, remain in full force and effect and are not amended or
modified in any respect.
[Signatures are on the following page]
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IN WITNESS WHEREOF, the parties hereto have executed or caused this
Amendment to be executed and delivered by their duly authorized officers, as of
the day and year first above written.
ITFS Spectrum Advisors LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Member
ITFS Spectrum Consultants LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Member
Clearwire Corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
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