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HomeMy WebLinkAbout027662 RES - 04/15/2008RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A TERMINATION AND ASSET TRANSFER AGREEMENT EI T AMONG EARTHLING , INC., CITY OF CORPUS CHRISTI, TEXAS, AND THE CC DIGITAL COMMUNITY DEVELOPMENT CORPORATION TO (1) TERMINATE THE WI -FI NETWORK ASSET PURCHASE AGREEMENT, WI -FI NETWORK SERVICES AGREEMENT EEMENT AND WI -FI NETWORK FRANCHISE AGREEMENTS AMONG THE PARTIES; AND (2) TRANSFER THE WI -FI NETWORK ASSETS FROM EARTHLINK TO THE CITY OF CORPUS CHRISTI. BE IT RESOLVED BY THE CITY OF CORPUS CHRISTI: SECTION 1. The City Manager is hereby authorized to execute on behalf of the City of Corpus Christi the Termination and Asset Transfer Agreement among EarthLink, Inc., City of Corpus Christi, and the CC Digital Community Development Corporation to (1) terminate the Wi-Fi Network Asset Purchase Agreement, Wi-fi Network Services Agreement, and Wi-Fi Network Franchise Agreements b t e n the parties; and (2) transfer the Wi-Fi Network Assets from EarthLink to the City of Corpus Christi. A copy of the Agreement is attached. ATTEST: Armando Chapa City Secretary APPROVED this 1 day of LA../).--t- Lisa Aguilar Assistant City Attorney For City Attorney CITY CORPUS CHRISTI. TEXAS Henry Garr Mayor 2008. 027662 Corpus Christi, Texas 164/-- of 2008 The above resolution was passed by the following vote: Henry Garrett Melody Cooper Larry Elizondo, Sr. Mike Rummell Bill Kelly Priscilla G. Leal John E. Marez Nelda Martinez Michael McCutchon -7.4iA , , ----t-- ,k,,._ Ale s 027662 TERMINATION AND ASSET TRANSFER AGREEMENT by and between EARTHLINK, INC. as Seller, and CITY OF CORPUS CHRISTI, TEXAS as Purchaser, and CC DIGITAL COMMUNITY DEVELOPMENT CORPORATION as Corporation dated as of April 1, 2008 TABLE OF CONTENTS Page ARTICLE 1 PURCHASE AND SALE 1 1.1 Sale of Purchased Assets 1 1.2 Excluded Assets 2 1.3 Assumed Liabilities. 3 1.4 Excluded Liabilities 3 1.5 Consideration; Termination and Release 3 1.6 Permitted Liens 4 1.7 Prorations 4 ARTICLE 2 CLOSING 5 2.1 Closing 5 2.2 Deliveries and Performance at Closing 5 ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER 5 3.1 Organization and Good Standing 5 3.2 Power and Authority 5 3.3 Binding Effect 5 3.4 No Violation; Consents 5 3.5 Title to Purchased Assets.6 3.6 Intellectual Property.6 3.7 Contracts.6 3.8 Permits and Licenses 7 3.9 Violation of Laws 7 .10 Taxes 7 3.11 Insurance 7 3.12 Litigation 7 3.13 Brokers 8 3.14 No Other Representations ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER AND CORPORATION 8 4.1 Organization and Good Standing 4.2 Power and Authority 4.3 Binding Effect 4.4 No Violation; Consents 4.5 Litigation 9 4.6 Brokers 9 ARTICLE 5 COVENANTS PENDING CLOSING 9 5.1 Conduct of the Business Pending Closing 9 5.2 Updates 9 5.3 Approvals; Cooperation. 10 5.4 Additional Equipment 11 ARTICLE 6 CONDITIONS TO BE SATISFIED BY SELLER PRIOR TO CLOSING .,11 6.1 Representations and Warranties 11 6.2 Performance of Agreements 11 6.3 Closing Deliveries 11 6.4 No Injunctions 12 1 6.5 Third Party Consents 12 ARTICLE 7 CONDITIONS TO E SATISFIED BY PURCHASER AIT CORPORATION PRIOR TO CLOSING 12 7.1 Representations and Warranties 12 7.2 Performance of Agreements 12 7.3 Closing Deliveries 12 7.4 No Injunctions 12 7.5 Third Party Consents 12 ARTICLE TERMINATION 13 8.1 Termination 13 8.2 Cut-off Date 13 8.3 Effect of Termination 13 ARTICLE 9 OTHER AGREEMENTS OF THE PARTIES 13 9.1 Expenses 13 9.2 Publicity 14 9.3 Taxes 14 9.4 Seller's Access to Information 14 9.5 Confidentiality 14 9.6 Third Party Warranties 14 9.7 IP License 14 9.8 Assignment of Motorola Rights 15 9.9 Assignment of ragonwa e Rights 15 9.10 Assignment of Alcatel Rights 15 9.11 Assignment of Cisco Rights 15 ARTICLE 10 LIMITATIONS ON LIABILITY 15 10.1 Survival of Representations and Warranties 15 10.2 Limitations on Seller's Liability. 15 10.3 Limitations on Purchaser's and Corporation's Liability 16 10.4 Administration of Third Party Claims, 16 10.5 No Consequential Damages 16 ARTICLE 11 MISCELLANEOUS P VISI NS 17 11.1 Notices. 17 11.2 Entire Agreement 18 11.3 Disclosure Schedules 18 11.4 Waiver; Amendment 18 11.5 Severability 18 11.6 Governing Law 18 11.7 Assignment 18 11.8 Binding Effect 18 11.9 Headings 18 11.10 Reference with Agreement 19 11.11 Interpretation 19 11.12 Definition of Knowledge 19 11.13 Further Assurances 19 11.14 Counterparts; Fax Signatures 19 ARTICLE 12 DEFINITIONS 19 11 12.1 Definitions LIST OF EXHIBITS Exhibit 1.1(a) Exhibit 1.1(b) Exhibit 1.1 (d) Exhibit 1.1 (e) Exhibit 1.5(a) Exhibit 7.5 Exhibit 9.7(a) Exhibit .b Assumed Contracts Tangible Personal nal Property Certain SSIDs Licensed Spectrum Transaction Documents Required Consents Software on Purchased Assets Licensed SSIDs 111 19 TERMINATION AND ASSET TRANSFER AGREEMENT THIS TERMINATION AND ASSET TRANSFER AGREEMENT ("Agreement") is made and entered into this day ofApril, 2008, by and among ARTHLINK, INC., Delaware corporation "Sr" , the CITY OF CORPUS CHRISTI, TEXAS('Purchaser"), and CC DIGITAL COMMUNITY DEVELOPMENT COL ORATION, a Texas not-for- profi exclusively in connection with the operation ofthe Business as of the "Closing Date" defined in Section 2.1) and specifically identified and set forth below, other than the "Excluded Assets" (as defined in Section 1.2): (a) Subject to Section 1.4 all of Seller's rights under all leases, contracts, agreements, licenses and other similar arrangements specifically set forth on Exhibit 1.1(g); and (b) Alt equipment, modems, fixtures and other tangible personal property, including, without limitation any equipment owned by Seller that is required to provide RADIUS authentication, all as specifically set forth on Exhibit _1.1(b); (c) Alt maps of the Network; (d) Certain SSIDs currently in use in the Network and its configuration and set forth on Exhibit 1.1(d); and (e) Subject to Section 1., the radio spectrum authorizations from the Federal Communications Commissions set forth on Exhibit 1.1(e). Purchaser and Corporation acknowledge and agree that, the Purchased Assets are being purchased AS 1S, AS OF THE CLOSING DATE, WITH ALL FAULTS and WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. 1.2 Excluded Assets. Notwithstanding anything else herein to the contrary, all assets of Seller other than the Purchased Assets (the "Excluded As ") are being retained by Seller and are not being sold to Purchaser pursuant to this Agreement, including, without limitation, the following: (a) Alt assets of Seller not used exclusively in connection with the operation of the Business; (b) Accounts receivable, prepaid security deposits and rights to payment from subscribers, cash and cash equivalents, all bank accounts, all lock box receipts and lock boxes, letters of credit and guaranties, and all certificates of deposit and other bank deposits owned or held by Seller or any of its affiliates; (c) Subscriber accounts; (d) Seller's corporate accounting journals, corporate books of account, financial and other records of Seller related to the Business; (e) Alt rights, claims, causes of action, recoveries and rights of reimbursement arising out of or relating to the Excluded Liabilities (as defined in Section_ 1,43 or the Excluded Assets; 2 (0 The insurance policies of Seller, the prepaid premiums under such policies and all of Seller's rights thereunder; (g) Al! intellectual property not specifically included in the Purchased Assets, including all trademarks, service marks and trade names of Seller; and (h) All personnel files, employee medical files and other employee books and records. 1.3 Assumed Liabilities. (a) Upon the terms and subject to the conditions contained in this Agreement, at the Closing Purchaser shall assume and agree to perform and discharge when due the following debts, liabilities and obligations of Seller (collectively the "Assumed is iI ti "): (i) All debts, liabilities and obligations arising out of or relating to the Purchased Assets following the Closing Date; and (ii)All debts, liabilities and obligations arising out of or relating to all contracts included in the Purchased Assets following the Closing Date. (b) If any lease, contract, agreement, license or other similar arrangement to be assigned to Purchaser as part of the Purchased Assets is not assignable or transferable, either by virtue of the provisions thereof or under applicable lav, without the consent of some other person or entity and such consent has not been obtained prior to the Closing, then such lease, contract, agreement, license or other similar arrangement shall not be assigned to Purchaser at the Closing. Instead, the Parties shall use their commercially reasonable efforts to obtain such consent as soon as practical after the Closing (it being understood that the failure to obtain such consents shall not relieve any Party from its obligation to consummate at the Closing the transactions contemplated by this Agreement); and Seller shall use its commercially reasonable efforts to obtain for Purchaser the practical benefit of such lease, contract, agreement, license or other similar arrangement; and, assuming Purchaser receives the benefit thereof, Purchaser shall assume the related liability therefor consistent with this Section 1.3. Notwithstanding the foregoing, upon the receipt of any such required consent after the Closing, the corresponding lease, contract, agreement, license or other similar arrangements shall be deemed automatically assigned to Purchaser and Purchaser shall be deemed automatically to have assumed Seller's obligations thereunder, all in a manner consistent with the provisions of this Section 1.3. 1.4 Excluded Liabilities, Notwithstanding anything else contained herein to the contrary, all debts, liabilities and obligations of Seller other than the Assumed Liabilities (collectively the "Excluded Liabilities") shalt remain the responsibility of Seller and shall not be assumed by Purchaser pursuant to this Agreement. 1.5 Consideration;_ Termination and Release. As consideration for the sale of the Purchased Assets, effective as of the Closing the Parties agree to the following: (a) Bach Transaction Document, including, without limitation, those Transactions Documents set forth on Exhibit 1.a, is terminated in its entirety and all 3 obligations of the Parties thereunder are terminated, including without limitation, Seller's obligation to pay to Purchaser any portion of the "Holdback" (as defined in the Original Agreement), the Parties' obligation to indemnify the other Parties as to certain claims or liabilities under the Transaction Documents, Corporation's obligations under the Network Agreement and Purchaser's obligations under the Guaranty. This Agreement supersedes and replaces all agreements between the Parties prior to the Closing of this Agreement. (b) Each of Purchaser and Corporation, on behalf of its officers, attorneys, agents, employees, successors, and assigns, now and forever releases, acquits and discharges Seller and its shareholders, officers, directors, attorneys, agents, employees, successors, affiliates, subsidiaries, third -party entities in which Seller owns a controlling interest, and assigns from any and all claims, demands, losses, expenses, damages, liability, actions, and causes of action of any nature, including claims for interest, penalties, and attorneys' fees, whether in law or equity, arising on account of, out of, and/or in any way related to or connected with the Transaction Documents or the Business, other than claims pursuant to this Agreement. In addition, and without limiting the scope of the foregoing release language, Purchaser and Corporation release Seller from any continuing payment obligations and all other contractual obligations under the Transaction Documents. (c) Seller, on behalf of itself, its shareholders, officers, directors, attorneys, agents, employees, successors, affiliates, subsidiaries, third -party entities in which it owns a controlling interest, and assigns, now and forever releases, acquits and discharges each of Purchaser and Corporation, its officers, attorneys, agents, employees, and assigns from any and all claims, demands, losses, expenses, damages, liability, actions, and causes of action ofany nature, including claims for interest, penalties, and attorneys' fees, whether in law or equity, arising on account of, out of, and/or in any way related to or connected with the Transaction Documents or the Business, other than claims pursuant to this Agreement. In addition, and without limiting the scope of the foregoing release language, Seller hereby releases each of Purchaser and Corporation from any continuing payment obligations and all other contractual obligations under the Transaction Documents. 1.6 Permitted Liens. Seller agrees to promptly cause the release of any Permitted Lien that becomes a permanent lien on the Purchased Assets as a result of Seller's failure to pay Taxes when due and payable or thereafter without penalty. 1.7 Prorations. The Parties agree and acknowledge that all personal property taxes (including ad valorem taxes) shall be prorated as of the Closing. Seller, on the one hand, and Purchaser and Corporation, on the other hand, agree that if any of the aforesaid prorations cannot be calculated accurately at the Closing, then the same shall be calculated within thirty days or as soon as reasonably practicable after the Closing and either Party or Parties owing the other Party or Parties a sum of money based on such subsequent proration shall promptly pay said sum to the other Parties in immediately available funds. 4 ARTICLE CLOSING 2.1 Closing. The purchase and sale of the Purchased Assets shall be consummated at a closing (the "Closing") to take place by facsimile and electronic mail (with original signatures and agreements delivered to each Party's counsel by overnight delivery) on a date within three business days following the date on which all of the conditions set forth in Artieles 6 and 7 hereof have been fulfilled or waived or on such other date as the Parties shall mutually agree. The date on which the Closing occurs is sometimes hereinafter referred to as the "Closing Date," 2.2 Deliveries and Performance at Closing. At the Closing, each Party shall make all deliveries and take all other action required of it hereunder (or as otherwise reasonably requested by the other Party), all in form and substance reasonably satisfactory to the other Party. ARTICLE 3 REPRESENTATIONS Al TIES OF SELLER Contemporaneously with the execution of this Agreement, Seller is delivering to Purchaser and Corporation the disclosure schedule (the "Seller Disclosure Schedule") referenced in this Article 3. Seller hereby represents and warrants to Purchaser and Corporation as follows: 3.1 Organization and Good Standing. Seller is duly organized, validly existing and in good standing under the laws of the State of Delaware. 3.2 Power and Authority. Seller has the necessary corporate power and authority to carry on the Business as it is now being conducted, to own and lease the properties and assets it now owns and leases in connection with the Business, to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Seller, and no other proceedings on the part of Seller are necessary to authorize the execution, delivery and performance of this Agreement by Seller. 3.3 Binding Effect. This Agreement has been duly executed and delivered by Seller and constitutes its legal, valid and binding obligation, enforceable against Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally. 3.4 No Violation. Consents. Neither the execution and delivery of this Agreement by Seller, nor the performance by it of its obligations hereunder, will: (a) violate or conflict with any provision of its organizational documents; (b) except as set forth in the Seller Disclosure Schedule, breach or otherwise constitute or give rise to a default under any contract, commitment or other obligation to or by which Seller is a party or is bound; S (c) except as set forth in the Seller Disclosure Schedule, violate in any material respect any statute, ordinance, law, rule, regulation, judgment, order or decree of any court or other Governmental Entity to which Seller is subject; or (d) except as set forth in the Seller Disclosure Schedule, require any consent, approval or authorization of, notice to, or filing, recording, registration or qualification with any third party or Governmental Entity by Seller. 3.5 Title to Purchased Assets. (a) Assuming that the representations and warranties of Purchaser and Corporation in the Transaction Documents were accurate as of the date of such Transaction Documents, Seller owns all ofthe material tangible personal property included in the Purchased Assets, free and clear of all liens other than Permitted Liens. (b) The location of the tangible Purchased Assets is as reflected on Exhibit 1.1(b). 3.6 Intellectual Property. (a) Assuming that the representations and warranties of Purchaser and Corporation in the Transaction Documents were accurate as of the date of such Transaction Documents, Seller owns all rights to use and protect, or holds a valid license to use and protect, all Intellectual Property. (b) To the knowledge of Seller and assuming that the representations and warranties of Purchaser and Corporation in the Transaction Documents were accurate as of the date of such Transaction Documents, Seller in the operation of the Business has not violated or infringed any patent, copyright, trademark, service mark or other intellectual property right of any other person or entity, and, to the knowledge of Seller, there are no claims pending or threatened against Seller asserting that the use of any Intellectual Property by it in the operation of the Business infringes the rights ofany other person or entity. Seller has not made or asserted any claim of violation or infringement of any Intellectual Property against any other person or entity in the operation of the Business, and Seller has no knowledge of any such violation or infringement. (c) Assuming that the representations and warranties of Purchaser and Corporation in the Transaction Documents were accurate as of the date of such Transaction Documents and except as set forth in the Seller Disclosure Schedule, Seller has not granted any outstanding licenses or other rights to any such Intellectual Property to any other person or entity. 3.7 Contracts. (a) The Seller Disclosure Schedule contains a list which identifies the contracts, agreements, leases, guaranties or commitments to which Seller is a party or by which Seller is bound, which are included in the Purchased Assets and which are material to the operation of the Business (collectively the "Material Contracts"). 6 (b) Each of the Material Contracts was entered into in the ordinary course of the Business, is in full force and effect, is valid and enforceable against Seller in accordance with its terms and constitutes a legal and binding obligation of Seller. Except with respect to any Material Contract between Seller, on the one hand, and Purchaser or Corporation, on the other hand, as of the date of this Agreement i Seller has not given or received any written notice of default, termination or partial termination under any of the Material Contracts, and (ii) there is no existing or continuing material default by Seller under any of the Material Contracts. 3.8 Per mit and Licenses. Seller holds all required permits, licenses, approvals and authorizations from all Governmental Entities material to the Business and which are necessary to conduct the Business in a manner consistent with past practices. 3.9 Violation of Laws. Seller, in the operation of the Business, is not in violation in any material respect of any statutes, laws, rules, regulations, orders, decrees and ordinances applicable to it or the Purchased Assets. Except with respect to any dispute between Seller, on the one hand, and Purchaser or Corporation, on the other hand, to the knowledge of Seller, during the past twelve (12) months, Seller has not received any written notice from a Governmental Entity alleging that the operation of the Business by Seller is in violation in any material respect with any such statutes, laws, rules, regulations, orders, decrees or ordinances. This Section 3.9 does not apply to Tax matters (for which Section 3.10 is applicable). 3.10 Taxes. Seller has duly and timely filed all required reports and returns with respect to Taxes for the Purchased Assets the due date for which is prior to the date hereof, and all of such reports and returns are correct and complete in all material respects. Seller has paid all applicable Taxes with respect to the Purchased Assets required to be paid by it for any period of time prior to the date hereof, except for Taxes accrued but not yet due and payable and except for applicable Transfer Taxes, if any, with respect to the Original Agreement for which Corporation is responsible. Seller is not a party or subject to any levy, assessment, collection or pending action, proceeding or claim with respect to Taxes for the Purchased Assets, and, to the knowledge of Seller, no notice of the possible institution of any of the foregoing has been received by Seller. 3.11 Insurance, Seller has complied in all material respects with all terms, obligations and provisions of each policy of insurance and bonds presently maintained by, or providing coverage for, the Purchased Assets, and has paid all premiums due thereon, and no written notice of cancellation with respect thereto has been received by Seller. Such insurance policies are sufficient to comply with any minimum insurance requirements set forth in any material agreement applicable to the Business. 3.12 Litigation. Except with respect to any disputes between Seller, on the one hand, and Purchaser or Corporation, on the other hand: (a) there is no litigation, action, suit, arbitration, mediation, hearing or governmental investigation pending or, to the knowledge of Seller, threatened by or against Seller primarily related to the Business or the Purchased Assets and (b) no judgment, award, order or decree has been rendered against Seller that is primarily related to the Business or the Purchased Assets which is still outstanding. 7 3.13 Brokers. Seller has not incurred any liability for brokerage fees, finder's fees, agent's commissions other similar forms of compensation in connection with the transactions contemplated by this Agreement. 3.14 No Other Representations. SELLER DOES NOT MAKE ANY REPRESENTATION 1 R WARRANTY ABOUT SELLER, THE PURCHASED ASSETS OR THE BUSINESS, EXCEPT TO THE EXTENT EXPRESSLY MADE IN THIS ARTICLE 3. IN ADDITION, SELLER DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO ANY FORWARD-LOOKING PROJECTION, FORECAST, BUDGET, FINANCIAL DATA OR OTHER INFORMATION. PURCHASER AND CORPORATION ARE FULLY RESPONSIBLE FOR MAKING THEIR OWN EVALUATIONS OF SUCH MATTERS. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER AND CORPORATION Each of Purchaser and Corporation hereby represents and warrants to Seller as follows: 4.1 Oronization and Good Standing. Purchaser is a duly constituted and validly organized municipality under the laws of the State of Texas. Corporation is a duly constituted and validly organized local goverment corporation under the laws of the State of Texas. 4.2 Power and Authority. Each of Purchaser and Corporation has the power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Purchaser and Corporation, including obtaining all necessary approvals by their respective City Council and board ofdirectors, and no other proceedings on the part of Purchaser or Corporation are necessary to authorize the execution, delivery and performance ofthis Agreement by it. 4.3 Binding Effect. This Agreement has been duly executed and delivered by each of Purchaser and Corporation and constitutes the legal, valid and binding obligation ofPurchaser and Corporation, enforceable against Purchaser and Corporation in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other laws affecting the enforcement ofcreditors' rights generally. 4.4 No Violation; Consents. Neither the execution and delivery ofthis Agreement b Purchaser or Corporation, nor the performance by Purchaser or Corporation oftheir obligations hereunder will: (a) breach or otherwise constitute or give rise to a default under any contract, commitment or other obligation to or by which Purchaser or Corporation is a party or is bound, except to the extent any such breach or default, individually or in the aggregate, would not materially impair the ability of Purchaser or Corporation to perform their obligations hereunder; (b) violate any statute, ordinance, law, rule, regulation, judgment, order or decree of any court or other Governmental Entity to which Purchaser or Corporation is subject, S except to the extent any such violation, individually or in the aggregate, would not materially impair the ability of Purchaser or Corporation to perform its obligations hereunder; or (c) require any consent, approval or authorization of, notice to, or filing, recording, registration or qualification with any third party, court or Governmental Entity. 4.5 Ljtigation. There is no litigation, action, suit, arbitration, mediation, hearing or governmental investigation pending or, to the knowledge of Purchaser or Corporation, threatened by or against Purchaser or Corporation, and no judgment, award, order or decree has been rendered against Purchaser or Corporati 5.3 A pro als cooper ion. (a) Subject to the terms and conditions of this Agreement and all applicable laws and regulations, each Party shall use commercially reasonable efforts to fulfill or obtain the fulfillment of the conditions to the Closing and to do or cause to be done all things necessary to cause the Closing to occur and to consummate and make effective the transactions contemplated by this Agreement on or prior to the date set forth in Section 8.2, including, without limitation, (i) the execution and delivery of all agreements required hereunder and (ii) defending against any lawsuits, actions or proceedings, judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any preliminary injunction, temporary restraining order, stay or other legal restraint or prohibition entered or imposed by any court or other Governmental Entity that is not yet final and non - appealable vacated or reversed; provided, however, that neither Seller nor any of its affiliates shalt be required to make any material monetary expenditure, commence or be a plaintiff in any litigation or offer or grant any material accommodation (financial or otherwise) to any third party, including, without limitation, the offer for sale of any part of the Purchased Assets or other business or assets to any third party. (b) As promptly as reasonably practicable following the date of this Agreement, Seller will use its commercially reasonable efforts to prepare and file all applications required to be filed with the Federal Communications Commission to effectuate assignment to Purchaser of the radio spectrum authorizations listed on Exhibit 1.1(e). (c) In connection with the transition of the operation of the Network to Purchaser, Seller shall use its commercially reasonable efforts during the period commencing on the date of this Agreement and ending on or prior to Closing, but in any event not later than 45 days following the date of this Agreement (the "Transition Period"), to do the following: (i) continue to operate the Network; {iii provide Network Operations Center "NC services for the Network, including (A) monitoring and troubleshooting of Network issues, trouble ticket establishment and resolution for Severity 1 issues (meaning the Network is inoperable) and Severity 2 issues (meaning major components of the Network are inoperable), and (C) NOC to NOC service/support consistent with such service/support provided as of the date of this Agreement; (iii) inform its subscribers with respect to the Business of the date that Seller services will no longer be available on such Network and, for a period of not more than 30 days following such notice, provide continued service and customer service to its subscribers of the Business; (iv) provide to Purchaser reasonable phone support/transition meetings to answer operational questions; (v) provide to Purchaser copies of updated as -built materials and documentation, including Internet Protocol Schema, device profiles, and Radio Frequency/ engineering studies; 10 (vi)provide to Purchaser passwords to access the Network and Network hardware/software and provide to Purchaser physical access to the Purchased Assets secured in cabinets; and (vii) subject to Section 14 14) and Section 9.7, provide to Purchaser a listing of SSIDs currently in use in the Network and its configuration. (d) Prior to the Closing, Purchaser and Corporation shall have the right to inspect the Purchased Assets to ensure that the Network is operational. 5.4 Additional Equipment. The Parties acknowledge and agree that 204 Tropos Radios, model 5210, are included in the Purchased Assets at no additional cost to Purchaser or Corporation. The Parties acknowledge and agree that one (1) Tropos Drive Test Tool is included in the Purchased Assets at no additional cost to Purchaser or Corporation and that this Drive Test tool is in Purchaser's or Corporation's possession as of the date of this Agreement. ARTICLE CONDITIONS TO BE SATISFIED BY SELLER PRIOR TO CLOSING All of the obligations of Purchaser and Corporation under this Agreement are subject to the fulfillment prior to or at the Closing of each of the following conditions, any of which may be waived by Purchaser and Corporation in their sole discretion: 6.1 Representations and Warranties. All representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date hereof, and such representations and warranties (as updated pursuant to any Supplements) shall be true and correct in all material respects as of the Closing as if made at and as of such time (except that representations and warranties made with respect to a specified date need only be true and correct as of such date). 6.2 Performance ofAgreements. Seller shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing. 6.3 Closing Deliveries. Seller shall have delivered or caused to be delivered to Purchaser and Corporation, as applicable, each of the following, in form and substance reasonably satisfactory to Purchaser and Corporation: (a) A duly executed bill of sale conveying in the aggregate all of Seller's interest in the Purchased Assets, subject to the Permitted Liens; (b) A duly executed assignment and assumption agreement (the "Assignment and AssumptionAgreement') evidencing Seller's transfer and assignment of the Assumed Liabilities and Purchaser's assumption of the Assumed Liabilities; and (c) Such other bilis of sale, assignments and other instruments reasonably necessary or appropriate to transfer and assign the Purchased Assets to Purchaser and terminate the obligations of the Parties pursuant to the Transaction Documents, duly executed by Seller. 11 6.4 No Injunctions. No preliminary or permanent injunction or other order by any federal, state or local court which prevents the consummation of the transactions contemplated by this Agreement shall have been issued and remain in effect. 6.5 Third Party Consents. Seller shall have received the consent of each vendor set forth on Exhibit 7.5 with respect to the agreement listed therein to resell the Purchased Assets. ARTICLE CONDITIONS TO BE SATISFIED BY PURCHASER AND CORPORATIONPRIOR TO CLOSING All of the obligati ARTICLE TERMINATION 8.1 Termination. This Agreement and the transactions contemplated hereby may be terminated at any time prior to the Closing, as follows: (a) the written consent of the Parties; (b) Purchaser and Corporation, if each of Purchaser and Corporation is prepared to close and all conditions ofSeller's obligations to close pursuant to Article 7 have been satisfied or waived by Purchaser and Corporation, and Seller fails to close in accordance with Article 2; (c) By Purchaser and Corporation, if Seller fails to cure any material breach by it of this Agreement within thirty (3 0) days after receiving written notice thereof from Purchaser and Corporation; (d) Seller, if Seller is prepared to close and all conditions to Purchaser's and Corporation's obligations to close pursuant to Article 6 have been satisfied or waived by Seller, and Purchaser and Corporation fail to close in accordance with Article 2; (e) Purchaser and Corporation, if the Parties' determine no later than May 15, 2008 and following the Parties' inspection of the Network, , that Seller is not delivering wireless broadband Internet access services to Corporation at average transmission speeds of 1.0 Mbps downstream/ 1.0 Mbps upstream, calculated consistent with the methodology used by Seller during the term of the Network Agreement, and such delivery standard is not cured by Seller within two (2) weeks after such determination; or By Seller, if Purchaser or Corporation fails to cure any material breach of it of this Agreement within thirty (30) days after receiving written notice thereof from Seller. 8.2 Cut -Off Date. If the Closing shall not have occurred on or before May 30, 2008, any Party may terminate this Agreement by delivering written notice thereof to the other Parties. 8.3 Effect of Termination. In the event this Agreement is terminated, this Agreement shall become null and void and of no further force and effect and no Party shall have any further liability or obligation hereunder to the other Parties (except to the extent a Party is in breach of this Agreement as of the date of termination), except for i the provisions of this Agreement relating to expenses, (ii) the provisions of this Section 8.3, and (iii) the provisions of Article 10. In the event this Agreement is terminated pursuant to Section .1b,_.1 c. 8.1(d) or 8.1(0, then the terminating Party shall be entitled to pursue any and all rights and remedies available to it hereunder against the other Parties. ARTICLE 9 OTHER AGREEMENTS of THE PARTIES 9.1 Expenses. Subject to Section 9.3, each Party hereto shall pay its own fees and expenses (including the fees and expenses of its attorneys, accountants, investment bankers, 13 brokers, financial advisors and other professionals) incurred in connection with this Agreement and all transactions contemplated hereby. 9.2 Publicity. No Party shall issue any press release, written public statement or announcement relating to this Agreement or the transactions contemplated hereby without the prior written approval of the other Parties in each instance, except to the extent such disclosure is required by law (in which case such Party shall use all reasonable efforts to give the other Parties prior notice thereof with the opportunity to comment). 9.3 Taxes. Purchaser shall be solely responsible for paying any and all sales, use, transfer, stamp or other similar Taxes (collectively "Transfer Taxes") arising as a result of the transactions contemplated by this Agreement. 9.4 Seller's Access to Information. For a period of seven years following the Closing, Purchaser shall, upon reasonable advance notice from Seller: (a) afford to Seller and its representatives, agents, counsel and accountants access during normal business hours to the books, records, employees, facilities and agents of the Business conducted by Seller prior to the Closing Date, and furnish such financial and operating data and other information relating to the Business or the Purchased Assets, in each case to the extent necessary to permit Seller to determine any matter relating to its rights and obligations under this Agreement or with respect to any period prior to or including the Closing. 9.5 Confidentiality. To the extent permitted by applicable law, neither Purchaser nor Corporation shall disclose any Confidential Information of Seller for a period of three year following Closing; provided, however, that Confidential Information constituting a "trade secret" pursuant to applicable law shall not be disclosed for so long as such Confidential Information remains a trade secret, Should Purchaser or Corporation receive a request under the Texas Public Information Act for information that may be Confidential Information of Seller, Purchaser or Corporation will refer the request to the Texas Attorney General and will provide a copy of the request and referral to Seller so that Seller may raise its appropriate legal defenses to disclosure. 9.6 Third Party warranties. Each Party agrees that it shall take all such action as is reasonably requested by the other Parties to ensure that Purchaser and Corporation receive the full benefit of any third party warranties associated with ownership of the Purchased Assets; provided, however, that Seller shall not be obligated to incur any third party fees in connection with such obligation. 9.7 IP License. For consideration paid and subject to the provisions of this Agreement, effective as of the Closing, Seller hereby grants, and Purchaser and Corporation hereby accept, a perpetual, fully paid-up, royalty -free, worldwide, non -revocable, transferable license to use, sell, offer for sale, distribute, and sublicense (1) the Wi-Fi network architecture installed in Corpus Christi, Texas by or on behalf of EarthLink, Inc., (2) the Purchased Assets set forth on Exhibit 9.7(a), and (3) certain SSIDs currently in use in the Network and its configuration and set forth on Exhibit 9.7(b). The Parties hereto acknowledge and agree, however, that no license is granted to Purchaser or Corporation in or to the proprietary EarthLink, Inc. infrastructure software. 14 9.8 Assignment of Motorola gi_gh. Solely with respect to the Purchased Assets and effective as of the Closing, Seller hereby assigns to Purchaser and Corporation Seller's right to license the software referenced in that certain Product Sales, Services and Support Agreement, dated as December 22, 200 5, by and between EarthLink, Inc. and Motorola, Inc., and Purchaser and Corporation hereby agree to assume the obligations and be subject to the terms of the license and other provisions (solely with respect to the Purchased Assets) contained in such agreement, a complete and correct copy of which has been delivered by Seller to Purchaser and Corporation 9.9 Assignment of ragnwav Rights. Solely with respect to the Purchased Assets and effective as of the Closing, Seller hereby assigns to Purchaser and Corporation Seller's right to license the software referenced in that certain Product Sales and Support Agreement between the parties dated June 12, 2006 by and between EarthLink, Inc. and Dragonwave, Inc., and Purchaser and Corporation hereby agree to assume Seller's intellectual property and confidentiality obligations solely with respect to the Purchased Assets contained in such agreement, a complete and correct copy of which has been delivered by Seller to Purchaser and Corporation 9.10 Assignment of Alcatel Rights. Solely with respect to the Purchased Assets and effective as of the Closing, Seller hereby assigns to Purchaser and Corporation Seller's right to license the software referenced in that certain USA Supply Agreement between the parties dated May 16, 2007 by and between EarthLink, Inc. and Alcatel USA Marketing, Inc., and Purchaser and Corporation hereby agree to keep such software and any associated documentation in confidence and to comply with the licensing provisions set forth in Section 9 of such agreement solely with respect to the Purchased Assets. A complete and correct copy of such agreement has been delivered by Seiler to Purchaser and Corporation 9.11 Assignment of Cisco Rights. Solely with respect to the Purchased Assets and effective as of the Closing, Seller hereby assigns to Purchaser and Corporation Seller's right to license the software referenced in that certain Cisco Internet Commerce Agreement between the parties dated July 2, 2003 by and between EarthLink, Inc. and Cisco System, Inc., and Purchaser and Corporation hereby agree to abide by the Software License terms set forth in such agreement solely with respect to the Purchased Assets. A complete and correct copy of such agreement has been delivered by Seller to Purchaser and Corporation ARTICLE 10 LIMITATIONS ON LIABILITY 10.1 Survival of Representations and Warranties. Notwithstanding anything else contained herein to the contrary, the representations and warranties made in this Agreement shall survive the Closing for a period of six months, and any claim pursuant to this Agreement must be made prior to the expiration of such period; provided, however, that the limitations set forth in this Section 10.1 shall not apply to any claim pursuant to Section 1.6 hereof 10.2 Limitations on seller's Liability. (a) Notwithstanding anything else contained herein to the contrary, the aggregate liability of Seller pursuant to this Agreement, whether pursuant to breach of contract, 15 any tort theory or any other action in law or in equity, shall not exceed an amount equal to $50,000; provided, however, that the limitations set forth in this Section 10.2(a) shall not apply to any claim pursuant to Section 1.6 hereof. (b) Notwithstanding ithstanding anything else contained herein to the contrary, Seller shall not have any liability to Purchaser or Corporation pursuant to this Agreement, whether pursuant to breach of contract, any tort theory or any other action in law or in equity, unless and until the aggregate amount of all losses for which Purchaser and Corporation are entitled to pursuant to this Agreement exceeds $5,000, in which event Purchaser and Corporation shall only be entitled to recover its losses in excess of such amount. (c) Notwithstanding anything else contained herein to the contrary, Seller shall not have any liability to Purchaser or Corporation pursuant to this Agreement, whether pursuant to breach of contract, any tort theory or any other action in law or in equity, for any claim based on a breach or liability of which Purchaser or Corporation had knowledge and nonetheless elected to consummate the transactions contemplated by this Agreement. 10.3 Limitation on Purchaser's and Corporation's Liability. Notwithstanding anything else contained herein to the contrary,aggregatey the liability of Purchaser and Corporation pursuant to this Agreement shall not exceed an amount equal to $50,000. 10.4 Administration of Thir _Party_ Claims. (a) In the event of any claim by one Party against another Party pursuant to this Agreement that results from or in connection with any claim or legal proceeding by a person who is not a party to this Agreement (a "Third Parte Claim"), the Party against whom such claim or legal proceeding is made (the "Notifying sir Par0") shall promptly give the other Party or Parties (the "Receiving Party"notice of the claim or legal proceeding and shall also specify, if known, the amount or a good faith estimate of the amount of the losses arising therefrom. (b) The Notifying Party shall not settle or compromise or voluntarily enter into any binding agreement to settle or compromise, or consent to entry of any judgment arising from, any Third Party Claim except in accordance with this Section 10.4. With respect to any Third Party Claim, the Receiving Party shall undertake the defense thereof by representatives of p its own choosing and shall have the right to compromise or settle such Third Party Claim at its expense. The Notifying Party shall have the right to participate in any such defense of a Third Party Claim with advisory counsel of its own choosing at its own expense. Assuming it has received reasonably adequate advance notice of a covered claim, in the event the Receiving Party, after two-thirds of the period for the presentation of a defense against any such Third Party Claim, fails to begin to diligently defend it (or at any time thereafter ceases to diligently defend it), the Notifying Party will have the right to undertake the defense, compromise or settlement of such Third Party Claim on behalf of, and for the account of, the Receiving Party, at the expense and risk ofthe Receiving Party. 10.5 No Consequential D4mages. Notwithstanding ithstanding anything else contained herein to the contrary, no Party shall have any liability hereunder to the other Parties or to any other person or entity for any consequential damages, including, without limitation, loss of profit, loss 16 of use, diminution in value, or business stoppage or any indirect, special, exemplary or punitive damages. ARTICLE 11 MISCELLANEOUS PROVISIONS 11.1 Notices. (a) All notices, consents, requests and other communications hereunder shall be in writing and shall be sent by hand delivery, by certified or registered mail (return -receipt requested), or by a recognized national overnight courier service as set forth below: If to Seller, to: EarthLink, Inc. 1375 Peachtree Street NW Atlanta, Georgia 30309 Attention: General Counsel with a copy to: Troutman Sanders LLP 600 Peachtree Street Suite 5200 Atlanta, Georgia 30308 Attention: Andrea M. Farley, Esq. If to Purchaser or Corporation, to: City of Corpus Christi 1201 Leopard Street Corpus Christi, Texas 78401 Attention: City Attorney with a copy to: City ofCorpus Christi 1201 Leopard Street Corpus Christi, Texas 78401 Attention: City Manager (b) Notices delivered pursuant to Section 11.1 shall be deemed given: (0 at the time delivered, if personally delivered; (ii) at the time received, if mailed; and (iii) two (2) business days after timely delivery to the courier, if by overnight courier service. (c) Any Party hereto may change the address to which notice is to be sent by written notice to the other Party in accordance with this Section 11,1, 17 11.2 Entire Agreement. This Agreement, including all schedules and exhibits hereto, each of which is incorporated herein by reference, contains the entire agreement and understanding concerning the subject matter hereof between the Parties and specifically supersedes any other agreement or understanding between the Parties related to the subject matter hereof. 11.3 Disclosure Schedules. Any fact or item disclosed on any part ofthe Seller Disclosure Schedule shall be deemed disclosed on all other parts of the Seller Disclosure Schedule to which such fact or item may reasonably apply so long as such disclosure is in sufficient detail to enable a Party to identify the facts or items to which it applies. Any fact or item disclosed on the Seller Disclosure Schedule shall not solely by reason of such inclusion be deemed to be material and shall not be employed as a point of reference in determining any standard of materiality under this Agreement. 11.4 waiver; Amendment. No waiver, termination or discharge of this Agreement, or any of the terms or provisions hereof, shall be binding upon a Party unless confirmed in writing. No waiver by a Party of any term or provision of this Agreement or of any default hereunder shall affect such Party's rights thereafter to enforce such term or provision or to exercise any right or remedy in the event of any other default, whether or not similar. This Agreement may not be modified or amended except by a writing executed by all Parties. 11.5 Severability, If any provision of this Agreement shall be held void, voidable, invalid or inoperative, no other provision of this Agreement shall be affected as a result thereof, and, accordingly, the remaining provisions of this Agreement shall remain in full force and effect as though such void, voidable, invalid or inoperative provision had not been contained herein. 11.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, excluding its conflicts of law principles and venue for any dispute hereunder shall be exclusively in the United States District Court for the Southern District of Texas, Corpus Christi Division, or in a Texas state court sitting in Nueces County. 11.7 Assignment. No Party may assign this Agreement, in whole or in part, without the prior written consent of the other Parties, and any attempted assignment not in accordance herewith shall be null and void and of no force or effect; provided, however, that upon fifteen (15) days written notice to Seller, Purchaser or Corporation may assign this Agreement, or any portion of it specified in such notice, to each other or to another entity created by Purchaser, provided that such new entity is authorized to and capable offulfilling all obligations to which it succeeds. 11.8 Bindimg Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. 11.9 fleading. The titles, captions and headings contained in this Agreement are inserted for convenience of reference only and are not intended to be a part of or to affect in any way the meaning or interpretation of this Agreement. 18 11.10 Reference with Agreement. Numbered or lettered articles, sections, paragraphs, subsections, schedules and exhibits herein contained refer to articles, sections, paragraphs, subsections, schedules and exhibits of this Agreement unless otherwise expressly stated. The words "herein," "hereof," "hereunder," "hereby," "this Agreement" and other similar references shall be construed to mean and include this Agreement and all amendments to it unless the context shall clearly indicate or require otherwise. 11.11 Interpretation. This Agreement shall not be construed more strictly against any Party hereto regardless of which Party is responsible for its preparation, it being agreed that this Agreement was fully negotiated by all Parties. 11.12 Definition of Knowledge. Any reference in this Agreement or in any certificate delivered pursuant hereto to the "knowledge" of Seller (whether to "the best of' such knowledge or other similar expressions relating to the knowledge or awareness of Seller) means the conscious awareness of the following officers of Seller as of the date of this Agreement: the Chief Executive Officer, the Chief Financial Officer, the General Counsel, the Controller or the Vice President Operations — Municipal Wireless Networks. 11.13 Further Assurances. Upon the reasonable request of a Party, each Party agrees to take any and all actions, including, without limitation, the execution of certificates, documents or instruments, necessary or appropriate to give effect to the terms and conditions set forth in this Agreement. 11.14 Counterparts; _Fax Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute the same Agreement. Any signature page of any such counterpart, or any electronic facsimile thereof, may be attached or appended to any other counterpart to complete a fully executed counterpart of this Agreement, and any telecopy or other facsimile transmission of any signature shall be deemed an original and shall bind such Party. ARTICLE 12 DEFINITIONS 12.1 Definitions. ns. The following terms shall have the respective meanings set forth below throughout this Agreement: hereof. "Agreement' has the meaning set forth in the Preamble hereof. "Assignment and Assumption Agreement' has the meaning set forth in Section 6.3(b1 "Assumed Liabilities" has the meaning set forth in Section 1.3(a) hereof. "Business" has the meaning set forth in the Background section hereof. "Closing" has the meaning set forth in Section 2.1 hereof. "Closing Date" has the meaning set forth in Section 2.1 hereof. 19 "Confidential Information" means h business, financial, subscriber, vendor and technical information of Seller that is confidential or otherwise a trade secret under applicable law. "Corporation" has the meaning set forth in the Preamble hereof. "Excluded Assets" has the meaning set forth in Section 1.2 hereof. "Excluded Liabilities" has the meaning set forth in Section 1.4 hereof. "GAAP" means generally accepted accounting principles in the United States of America, consistently applied. "Governmental Entity" means any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign. "Guaranty" has the meaning set forth in the Background section hereof. "Intellectual ro rty" or "HP' means all copyrights, trademarks, service marks, logos, trade names, patents, inventions and computer software (including, to the extent applicable, registrations, applications, and renewals for registrations of each of the foregoing) which are owned or held for use by Seller exclusively in connection with the operation of the Business. "Material Contracts" has the meaning set forth in Section_.17Q hereof. "Network" has the meaning set forth in the Background section hereof. "Network Agreement" has the meaning set forth in the Background section hereof. "NOC" has the meaning set forth in Section 5.3(c) hereof. "Notifying Part " has the meaning set forth in Section 10.4(a) hereof. "Original Agre n nt" has the meaning set forth in the Background section hereof. "Party" or "Parties" has the meaning set forth in the Preamble hereof. "Permitted Liens" means 1 the restrictions set forth in any contract or agreement included in the Purchased Assets; (ii) liens for Taxes, assessments and other governmental mental charges that are not yet due and payable or that may thereafter be paid without penalty or that are being contested in good faith by appropriate proceedings; and (iii) similar matters that will not adversely affect Purchaser's ability to operate the Network in a manner substantially consistent with past practices. "Purchased Assets" has the meaning set forth in Section 1.1 hereof. "Purchaser" has the meaning set forth in the Preamble hereof. "Receiving Party" has the meaning set forth in Section 10.4(a) hereof. 20 "Seer" has the meaning set forth in the Preamble hereof. "Seer Disclosure Schedule" has the meaning set forth in the preliminary statement of Article 3 hereof. "Supplement" has the meaning set forth in Section 5.2 hereof. "Tax" means all Federal, state, city, county, foreign or other governmental taxes, assessments, duties, fees, levies or similar charges of any kind, including all income, profit, franchise, excise, property, use, intangibles, sales, payroll, employment, withholding and other taxes, and including all interest and penalties imposed with respect to such amounts. "Third Party Claim" has the meaning set forth in Section 1 o.a hereof. "Transaction tion Documents" has the meaning set forth in the Background section hereof, "Transfer Taxes" has the meaning set forth in Section 9.3 hereof. "Transition Period" has the meaning set forth in Section , hereof. (Signature page follows) 21 IN WITNESS WHEREOF, the Parties have executed or have caused their duly authorized officers to execute this Agreement ent a of the date first written above. "Purchaser" CITY OF CORPUS CHRISTI, TEXAS By: Name: Title: "Corporation" CC DIGITAL COMM LAITY DEVELOPMENT CORPORATION By: Name: Title: "Seller" EARTHLINK, INC, By: Name: Title: Exhibit1.1(aj Assumed Contracts 1. Electricity Sales Agreement by and between EarthLink, Inc. and Reliant Energy effective as of April 1, 2007. Exhibit 1.1(d) Certain SSIDs for Network FUSS (Corpus Christi) Exhibit 1.1(e) FCC Licensed Spectrum FCC Call Sign Transmit Location Receive Loc.. A : Receive Loc. It Receive Loc. C WQHT700 Savage Lane Fleet ON Stevens _ WQH170 1 EOC Fleet WQHT7 3 ON Stevens Fleet Sava Lane WQHT71 0 Fleet Savage Lane EOC ON Stevens _ , Exhibit 1.5(a) Transaction Documents 1. Asset Purchase Agreement, dated as of March 6, 2007, among EarthLink, Inc., the City of Corpus Christi, Texas and CC Digital Community Development Corporation, 2. Network Services Agreement, dated as of March 6, 2007, by and between EarthLink, Inc. and CC Digital Community Development Corporation. 3. Guaranty, dated as of March 6, 2007, by City of Corpus Christi, Texas in favor of EarthLink, Inc. 4. Antennae Site License Agreement (Fleet Maintenance Building), dated as of March 6, 2007, by and between EarthLink, Inc. and CC Digital Community Development Corporation. 5. Antennae Site License Agreement (Flour Bluff), dated as of March 6, 2007, by and between EarthLink, Inc. and CC Digital Community unity Development Corporation. 6. Antennae Site License Agreement (Holly Road), dated as of March 6, 2007, by and between EarthLink, Inc. and CC Digital Community Development Corporation. 7. Antennae Site License Agreement (0.N. Stevens), dated as of March 6, 2007, by and between EarthLink, Inc. and CC Digital Community Development Corporation. 8. Antennae Site License Agreement (Savage Lane), dated as of March 6, 2007, by and between EarthLink, Inc. and CC Digital Community Development Corporation. 9. One Year Franchise Agreement, dated as of March 6, 2007, between the City of Corpus Christi, Texas and EarthLink, Inc. 10. Ten Year Franchise Agreement, dated as of March 6, 2007, between the City of Corpus Christi, Texas and EarthLink, Inc. Exhibit ' .5 Required Consents 1. Supply Agreement, dated as of March 29, 2007, between EarthLink, Inc. and Alvarion Inc. 2. USA Supply Agreement, dated as of March 16, 2007, between EarthLink, Inc. and Alcatel USA Marketing. 3. Supply Agreement between EarthLink, Inc, and Cisco Systems, Inc. Exhibit 9.7(a) Software on Purchased Assets • Tropos Software (EMS) - software version: 6,5.1.4 • Cisco 15 versions (these versions are also listed in the asset list): • Cisco Router (model 2811 ):located at City Hall -software version: c2 nm - adv s ecurityl9 -m .12 - g. b in • Cisco Router (model 7 :l sated at City Hall -software version: c 7 - advipsery icesl9-m.122-2 , SED 1.bin • Cisco Router (model 295 :located at Fleet -software version: c29 -i q l -m . l 1- 22.Aa.bin • Cisco Router (model 7 :l sated at Fleet -software version: c 7-ipservices-m .122- 2 .SEE2.bin ▪ Cisco Router (model 2 11):located at Holly Pump -software version: c2 nm-ipbase- ,12- .in ▪ Cisco Router (model 2811):located at ON Stevens -software version: c2 nrn-i base- m.12-g.bin • Cisco Router (model 2811):located at Portofino -software version: c nm-ipbase- Y ,12 - g,bin ▪ Cisco Router (model 2811 :located at Savage -software version: e2 on-ipbase- ,12- g,bin • Alcatel (these versions are also listed in the asset list): • Alcatel 7450 ESS -1 (located at Portafino) software version: 7450-TiMOS-4.0.R14 • Alcatel 7450 ESS -1: (located at Holly Pump) software version: 7450-TiMOS-4.0.R14 • Alcatel 7450 ESS -1: (located at Savage) software version: 7450 -Til S- . .R1{4 o Alcatel 7450 ESS -1: (located at ON Stevens) software version: 7450-TiMOS-4.0,R14 o Alcatel 7770 SR- l : (located at City Hall) software ware version: 7750-TiMOS-4.0.R9 o Alcatel 7770 SR -I : (located at City Hall) software version: 7750-TiM S- . .R9 • Dragonwave (loaded with firmware) • Alvarion (loaded with firmware) Exhibit 9.7(b) Licensed SSIDs FeatherSecure WPA1&2-1X (Non -Broadcast) Seller Disclosure Schedule to Termination and Asset Transfer AgLeement by and between EarthLink, Inc. and City of Corpus Christi, Texas and CC Digital Community Development Corporation April _, 2008 This Disclosure Schedule is qualified in its entirety by reference to specific provisions of the Termination and Asset Transfer Agreement (the "Agreement"), and is not intended to constitute, and shall not be construed as constituting, representations or warranties of Seller except to the extent expressly provided in the Agreement. Matters reflected in this Seller Disclosure Schedule are not necessarily limited to matters required by the Agreement to be reflected in this Seller Disclosure Schedule. To the extent any such additional matters are included, they are included for informational purposes only and do not necessarily include other matters of a similar nature. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Agreement. Headings and subheadings have been inserted herein for convenience of reference only and shall to no extent have the effect of amending or changing the express description hereof as set forth in the Agreement. Any item or matter disclosed in one section of this Seller Disclosure Schedule shall be deemed to be a disclosure in another section or sections of this Seller Disclosure Schedule so long as such disclosure is in sufficient detail to enable a Party to identify the facts or items to which it applied. Seller Disclosure Schedule 3.4 No Violation; Consent Section 3.4(b) 1. Electricity Sales Agreement by and between EarthLink, Inc. and Reliant Energy effective as of April 1, 2007. 2. Federal Communications Commission radio spectrim authorizations listed on Exhibit 1.1(e). 3. Supply Agreement, dated as ofMarch 29, 2007, between EarthLirl, Inc. and Alvarion Inc. 4. USA Supply Agreement, dated as of March 16, 2007, between EarthLink, Inc. and Alcatel USA Marketing. 5. Master Services Agreement between EarthLink, Inc. and Cisco Systems, Inc. Section 3.4(d) See Schedule 3.4(b) Seller Disclosure Schedule 3.6 Intellectual Proverb/ Section 3.6(c) EarthLink has or will be granting a perpetual, fully paid-up, royalty free, worldwide, non - revocable, transferable license to each purchaser of a network created by EarthLink with respect to the provision of WiFi broadband Internet service using 802.11 protocol to subscribers in a particular city related to (1) the network architecture installed by EarthLink in that city, (2) the assets related exclusively to the network in that city that are purchased by such purchaser, and certain SSIDs currently in use in that network and its configuration. In addition, Seller has assigned or will be assigning to each purchaser of a network created by EarthLink its rights with respect to the assets transferred for a particular network pursuant to the following agreements: • that certain Product Sales, Services and Support Agreement, dated as December 22, 2005, by and between EarthLink, Inc. and Motorola, Inc. • that certain Supply Agreement, dated as of March 29, 2007, between EarthLink, Inc. and Alvarion Inc. • that certain Master Services Agreement between EarthLink, Inc, and Cisco Systems, Inc. • that certain Product Sales & Support Agreement, dated as of June 12, 2006, between EarthLink, Inc. and DragonWave, Inc. Seller Disclosure Schedule 3.7 Material Contracts Section 3.7(a) 1. Electricity Sales Agreement by and between EarthLink, Inc. and Reliant Energy effective as of April 1, 2007.