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EXHIBIT 10.2
SPRINT PCS
SERVICES AGREEMENT
BETWEEN
SPRINT SPECTRUM L.P.
AND
UBIQUITEL L.L.C.
SEPTEMBER ___, 1998
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TABLE OF CONTENTS
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1. ENGAGEMENT OF SPRINT SPECTRUM . . . . . . . . . . . . . . . . . . . . . . . .3
1.1 Engagement of Sprint Spectrum. . . . . . . . . . . . . . . . . . . . .3
1.2 Reliance on Manager. . . . . . . . . . . . . . . . . . . . . . . . . .3
1.3 Non-exclusive Service. . . . . . . . . . . . . . . . . . . . . . . . .4
1.4 Manager's Use of Services. . . . . . . . . . . . . . . . . . . . . . .4
2. SERVICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.1 Available Services; Selected Services. . . . . . . . . . . . . . . . .4
2.2 Third Party Vendors. . . . . . . . . . . . . . . . . . . . . . . . . .5
2.3 Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
3. FEES FOR SELECTED SERVICES. . . . . . . . . . . . . . . . . . . . . . . . . .5
3.1 Payment of Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
3.2 Adjustment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . .6
3.3 Late Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
3.4 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
4. TERM; TERMINATION; EFFECT OF TERMINATION. . . . . . . . . . . . . . . . . . .6
4.1 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
4.2 Effect of Termination. . . . . . . . . . . . . . . . . . . . . . . . .6
5. BOOKS AND RECORDS; CONFIDENTIAL INFORMATION . . . . . . . . . . . . . . . . .7
5.1 Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . .7
5.2 Confidential Information . . . . . . . . . . . . . . . . . . . . . . .8
6. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
6.1 Indemnification by Sprint Spectrum . . . . . . . . . . . . . . . . . .9
6.2 Indemnification by Manager . . . . . . . . . . . . . . . . . . . . . 10
6.3 Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7. DISPUTE RESOLUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.1 Negotiation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.2 Unable to Resolve. . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.3 Attorneys and Intent . . . . . . . . . . . . . . . . . . . . . . . . 12
8. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . . . . 12
8.1 Due Incorporation or Formation; Authorization of Agreements. . . . . 12
8.2 Valid and Binding Obligation . . . . . . . . . . . . . . . . . . . . 12
8.3 No Conflict; No Default. . . . . . . . . . . . . . . . . . . . . . . 12
8.4 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9.2 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9.3 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9.4 Further Action . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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9.5 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . 13
9.6 Entire Agreement; Amendments . . . . . . . . . . . . . . . . . . . . 13
9.7 Limitation on Rights of Others . . . . . . . . . . . . . . . . . . . 14
9.8 Waivers; Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.9 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . 14
9.10 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.11 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.12 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.13 Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . . 15
9.14 No Assignment; Exceptions. . . . . . . . . . . . . . . . . . . . . . 15
9.15 Disclaimer of Agency . . . . . . . . . . . . . . . . . . . . . . . . 15
9.16 Independent Contractors. . . . . . . . . . . . . . . . . . . . . . . 15
9.17 Expense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.18 General Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.19 Conflicts with Management Agreement. . . . . . . . . . . . . . . . . 16
9.20 Master Signature Page. . . . . . . . . . . . . . . . . . . . . . . . 16
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SPRINT PCS SERVICES AGREEMENT
This SERVICES AGREEMENT is made September ___ 1998, by and between
Sprint Spectrum L.P., a Delaware limited partnership ("SPRINT SPECTRUM"), and
UBIQUITEL L.L.C., a Washington limited liability company (but not any Related
Party) ("MANAGER"). THE DEFINITIONS FOR THIS AGREEMENT ARE SET FORTH ON THE
"SCHEDULE OF DEFINITIONS."
RECITALS
A. Manager and the holder of the License ("Sprint PCS") are
entering into a Management Agreement contemporaneously with the execution of
this agreement, under which Manager will design, construct, operate, manage
and maintain a wireless services network in the Service Area in accordance
with Sprint PCS standards and will offer and promote Sprint PCS Products and
Services that operate on the Sprint PCS Network.
B. Manager desires to enter into this agreement with Sprint
Spectrum, under which Sprint Spectrum may furnish certain services to Manager
to assist Manager to build out, operate, manage and maintain the Service Area
Network under the License.
AGREEMENT
In consideration of the recitals and mutual covenants and agreements
contained in this agreement, the sufficiency of which are hereby
acknowledged, the parties. intending to be bound, agree as follows:
1. ENGAGEMENT OF SPRINT SPECTRUM
1.1 ENGAGEMENT OF SPRINT SPECTRUM. Manager engages Sprint Spectrum
to assist Manager with certain specified services in connection with the
operations of Manager and in building out, operating, managing and
maintaining the Service Area Network, subject to the terms and conditions of
this agreement. Sprint Spectrum accepts the engagement and will use the same
effort and demonstrate the same care in performing its obligations under this
agreement as it uses in conducting its own business. Manager will use the
efforts and demonstrate the care necessary for Sprint Spectrum to meet its
obligations under this agreement. When providing the Selected Services,
Sprint Spectrum will provide those services to Manager in the same manner it
provides those services to its own business, including the use of third party
vendors to provide certain Selected Services.
1.2 RELIANCE ON MANAGER. Manager understands that Sprint
Spectrum's ability to provide the Selected Services will depend largely on
Manager's compliance with the Sprint PCS Program Requirements under the
Management Agreement and cooperation with Sprint Spectrum. Manager agrees to
comply with such requirements and to cooperate with Sprint Spectrum to enable
Sprint Spectrum to perform its obligations under this agreement.
1.3 NON-EXCLUSIVE SERVICE. Nothing contained in this agreement
confers upon Manager an exclusive right to any of the Available Services.
Sprint Spectrum may contract with
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others to provide expertise and services identical or similar to those to be
made available or provided to Manager under this agreement.
1.4 MANAGER'S USE OF SERVICES. Manager agrees it will only use the
Selected Services in connection with its Service Area Network. Manager will
not use the Selected Services outside the Service Area or in connection with
any other business.
2. SERVICES
2.1 AVAILABLE SERVICES; SELECTED SERVICES.
2.1.1 AVAILABLE SERVICES. Subject to the terms of this
agreement, Manager may obtain any of the Available Services from Sprint
Spectrum in accordance with the provisions of this Section 2.1. The
Available Services offered from time to time and the fees charged for such
Available Services will be set forth on the then-current EXHIBIT 2.1.1 (the
"Available Services and Fees Schedule"). If Sprint Spectrum offers any new
Available Service, it will deliver a new EXHIBIT 2.1.1 indicating the new
service and the fee for the new service.
Manager may select one or more of the categories of Available
Services. If Manager selects a particular category of services it must take
and pay for all of the services under the category selected; Manager may not
select only particular services within that category.
If Sprint Spectrum determines to no longer offer an Available Service
and the service is not a Selected Service, then Sprint Spectrum may give
Manager written notice at any time during the term of this agreement that
Sprint Spectrum no longer offers the Available Service.
Sprint Spectrum may modify EXHIBIT 2.1.1 from time to time. EXHIBIT
2.1.1 will be deemed amended upon delivery of the new EXHIBIT 2.1.1 to
Manager.
2.1.2 SELECTED SERVICES. During the term of this agreement.
and subject to the terms of this agreement, Manager has selected, and Sprint
Spectrum has agreed to furnish or cause to be furnished to Manager, the
Available Services listed on EXHIBIT 2.1.2 (which listed services will be the
Selected Services). Sprint Spectrum may require from time to time that
certain Available Services be Selected Services where necessary to comply
with legal or regulatory requirements (e.g., mandatory provision of emergency
911 service) or applicable operating constraints (e.g., delivery of
merchandise to the regional distribution centers of national retail
distributors).
2.1.3 CHANGES TO SELECTED SERVICES. If Manager determines it
no longer requires a Selected Service, then Manager must give Sprint Spectrum
written notice at least 3 months prior to the date on which Manager wishes to
discontinue its use of such Selected Service.
If Sprint Spectrum determines to no longer offer an Available Service
and such service is one of Manager's Selected Services, then Sprint Spectrum
must give Manager written notice at least 9 months prior to its
discontinuance of such Available Service that Sprint Spectrum will no longer
offer such Available Service. If the Available Service to be discontinued is
required by
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Sprint Spectrum to be a Selected Service, then Sprint Spectrum will use
commercially reasonable efforts to (a) help Manager provide the service
itself or find another vendor to provide the service, and (b) facilitate
Manager's transition to the new service provider.
2.1.4 PERFORMANCE OF SELECTED SERVICES. Sprint Spectrum may
select the method, location and means of providing the Selected Services. If
Sprint Spectrum wishes to use Manager's facilities to provide the Selected
Services, Sprint Spectrum must obtain Manager's prior written consent.
2.2 THIRD PARTY VENDORS. Some of the Available Services might be
provided by third party vendors under arrangements between Sprint Spectrum
and the third party vendors. In some instances, Manager may receive Available
Services from a third party vendor under the same terms and conditions that
Sprint Spectrum receives such services, in other instances, Manager may
receive Available Services under the terms and conditions set forth in an
agreement between Manager and the third party vendor. If Manager wishes to
engage a third party vendor to provide Available Services, Selected Services,
or Available Services that Sprint Spectrum will no longer offer, Manager must
first obtain Sprint Spectrum's prior written consent, which consent will not
be unreasonably withheld. Before Manager may obtain from the third party
vendor any Available Services, Selected Services, or Available Services that
Sprint Spectrum will no longer offer, such vendor must execute an agreement
prepared by Sprint Spectrum that obligates the vendor to maintain the
confidentiality of any proprietary information and that prohibits the vendor
from using any proprietary technology, information or methods for its benefit
or the benefit of any other person or entity. Manager's use of a third party
vendor that is not providing Available Services to Manager on behalf of
Sprint PCS under the Management Agreement will not qualify for assumed
compliance with the Program Requirements under Sections 7.1(a)(ii) or 8.1(b)
of the Management Agreement.
2.3 CONTRACTS. Manager will notify Sprint Spectrum of any contract
or other arrangement Manager has with any other party that will affect how
Sprint Spectrum is to provide the Selected Services.
3. FEES FOR SELECTED SERVICES
3.1 PAYMENT OF FEES. Sprint Spectrum and Manager agree that the
fees for the Available Services will initially be those set forth on EXHIBIT
2.1.1, which fees represent an adjustment to any fees paid by Sprint PCS to
Manager under Section 10 of the Management Agreement. The monthly charge for
any fees based on the number of subscribers of the Service Area Network will
be determined based on the number of subscribers as of the 15th day of the
month for which the charge is being calculated. Manager agrees to pay the
fees to Sprint Spectrum within 20 days after the date of the invoice. If
Manager enters into an agreement with a third party vendor under Section 2.2,
Manager agrees to pay the fees for the services rendered by the third party
vendor in accordance with the terms and conditions of such agreement.
3.2 ADJUSTMENT OF FEES. Sprint Spectrum may change the fee for any
service it provides once during any 12-month period by delivering a new
EXHIBIT 2.1.1 to Manager. EXHIBIT 2.1.1 will be deemed amended on the
effective date noted on the new EXHIBIT 2.1.1,
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which will be at least 30 days after delivering the new EXHIBIT 2.1.1.
Manager must notify Sprint Spectrum in writing before the effective date of
the new EXHIBIT 2.1.1 if Manager wishes to discontinue a Selected Service for
which the price is being increased (a "Cancelled Service"). If Manager
discontinues a Selected Service under this Section 3.2, Sprint Spectrum will,
at Manager's option, continue to provide the Cancelled Service and to charge
Manager the current fee (I.E., the fee under the EXHIBIT 2.1.1 in effect on
the date Manager gives its cancellation notice to Sprint Spectrum) for the
Cancelled Service for up to 9 months from the date Sprint Spectrum gives
Manager notice of the price change or until Manager no longer needs the
Cancelled Service, whichever occurs first. If Sprint Spectrum continues to
provide the Cancelled Service after the 9-month period, Sprint Spectrum will
apply the new fee. under the new EXHIBIT 2.1.1, and such fee will be applied
retroactively as of the effective date of the new schedule. Manager agrees to
pay such retroactive charge within 10 days after the date of the invoice for
such charge.
3.3 LATE PAYMENTS. Any payment due under this Section 3 that is
not paid by Manager to Sprint Spectrum in accordance with the terms of this
agreement will bear interest at the Default Rate beginning (and including)
the 6th day after the due date until (and including) the date on which such
payment is made.
3.4 TAXES. Manager will pay or reimburse Sprint Spectrum for any
sales, use, gross receipts or similar tax, administrative fee,
telecommunications fee or surcharge for taxes or fees levied by a
governmental authority on the fees and charges payable to Sprint Spectrum by
Manager.
4. TERM; TERMINATION; EFFECT OF TERMINATION
4.1 TERM. This agreement commences on the date of execution and
continues until the Management Agreement terminates. This agreement
automatically terminates upon termination of the Management Agreement.
Neither party may terminate this agreement for any reason other than the
termination of the Management Agreement.
4.2 EFFECT OF TERMINATION. Upon the termination of this agreement,
all rights and obligations of each party under this agreement will
immediately cease, except that:
(a) Any rights arising out of a breach of any terms of this
agreement will survive any termination of this agreement;
(b) The provisions of this Section 4.2 and Sections 5.2, 6,
7, and 9 will survive any termination of this agreement; and
(c) The payment obligations under Section 3 will survive any
termination of this agreement if, and to the extent, any fees have accrued or
are otherwise due and owing from Manager to Sprint Spectrum or any Sprint
Spectrum Related Party as of the date of termination of this agreement.
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5. BOOKS AND RECORDS; CONFIDENTIAL INFORMATION
5.1 BOOKS AND RECORDS.
5.1.1 GENERAL. Each party must keep and maintain books and
records to support and document any fees, costs, expenses or other charges
due in connection with the provisions set forth in this agreement. The
records must be retained for a period of at least 3 years after the fees,
costs, expenses or other charges to which the records relate have accrued and
have been paid, or such other period as may be required by law.
5.1.2 AUDIT. On reasonable advance written notice by the
Manager, but no more frequently than annually, Sprint PCS will provide a
report issued in conformity with Statement of Auditing Standard No. 70
"Reports on the Processing of Transactions by Service Organizations" ("TYPE
II REPORT" or "MANAGER MANAGEMENT REPORT"). Such report will be prepared by
independent auditors and will provide an opinion on the controls placed in
operation and tests of operating effectiveness of those controls in effect at
Sprint PCS over the Manager Management Processes. "Manager Management
Processes" include those services generally provided within the Management
Agreement, primarily billing and collection of Collected Revenues. The
Manager is responsible for costs incurred attributable to such requested
procedures with respect to the services provided under this agreement,
including without limitation discussion of the billing and collection of
Collected Revenues. This report will be made available to the other party
upon such other party's request.
5.1.3 CONTESTING AN AUDIT. If the party that did not select
the independent auditor does not agree with the findings of the audit, then
such party can contest the findings by providing notice of such disagreement
to the other party (the "DISPUTE NOTICE"). The date of delivery of such
notice is the "DISPUTE NOTICE DATE." If the parties are unable to resolve the
disagreement within 10 Business Days after the Dispute Notice Date, they will
resolve the disagreement in accordance with the following procedures.
The two parties and the auditor that conducted the audit will all
agree on an independent certified public accountant with a regional or
national accounting practice in the wireless telecommunications industry (the
"Arbiter") within 15 Business Days after the Dispute Notice Date. If, within
15 Business Days after the Dispute Notice Date, the three parties fail to
agree on the Arbiter, then at the request of either party to this agreement,
the Arbiter will be selected pursuant to the rules then in effect of the
American Arbitration Association. Each party will submit to the Arbiter
within 5 Business Days after its selection and engagement all information
reasonably requested by the Arbiter to enable the Arbiter to independently
resolve the issue that is the subject of the Dispute Notice. The Arbiter will
make its own determination of the amount of fees, costs, expenses or other
charges payable under this agreement with respect to the period audited. The
Arbiter will issue a written report of its determination in reasonable detail
and will deliver a copy of the report to the parties within 10 Business Days
after the Arbiter receives all of the information reasonably requested. The
determination made by the Arbiter will be final and binding and may be
enforced by any court having jurisdiction. The parties will cooperate fully
in
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assisting the Arbiter and will take such actions as are necessary to expedite
the completion of and to cause the Arbiter to expedite its assignment.
If the amount owed by a contesting party is reduced by more than 10%
or the amount owed to a contesting party is increased by more than 10% then
the non-contesting party will pay the costs and expenses of the Arbiter,
otherwise the contesting party will pay the costs and expenses of the Arbiter.
5.2 CONFIDENTIAL INFORMATION.
(a) Except as specifically authorized by this agreement,
each of the parties must, for the term of this agreement and 3 years after
the date of termination of this agreement, keep confidential, not disclose to
others and use only for the purposes authorized in this agreement, all
Confidential Information disclosed by the other party to the party in
connection with this agreement, except that the foregoing obligation will not
apply to the extent that any Confidential Information:
(i) is or becomes, after disclosure to a party, publicly
known by any means other than through unauthorized acts or omissions of
the party or its agents; or
(ii) is disclosed in good faith to a party by a third
party entitled to make the disclosure.
(b) Notwithstanding the foregoing, a party may use, disclose or
authorize the disclosure of Confidential Information that it receives that:
(i) has been published or is in the public domain, or
that subsequently comes into the public domain, through no fault of the
receiving party;
(ii) prior to the effective date of this agreement was
properly within the legitimate possession of the receiving party, or
subsequent to the effective date of this agreement, is lawfully received
from a third party having rights to publicly disseminate the Confidential
Information without any restriction and without notice to the recipient
of any restriction against its further disclosure;
(iii) is independently developed by the receiving party
through persons or entities who have not had, either directly or
indirectly, access to or knowledge of the Confidential Information;
(iv) is disclosed to a third parry consistent with the
terms of the written approval of the party originally disclosing the
information;
(v) is required by the receiving party to be produced
under order of a court of competent jurisdiction or other similar
requirements of a governmental agency, and the Confidential Information
will otherwise continue to be Confidential Information required to be
held confidential for purposes of this agreement;
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(vi) is required by the receiving party to be disclosed
by applicable law or a stock exchange or association on which the
receiving party's securities (or those of its Related Parties) are or may
become listed; or
(vii) is disclosed by the receiving party to a financial
institution or accredited investor (as that term is defined in Rule
501(a) under the Securities Act of 1933) that is considering providing
financing to the receiving party and which financial institution or
accredited investor has agreed to keep the Confidential Information
confidential in accordance with an agreement at least as restrictive as
this Section 5.
(c) The party making a disclosure under Sections 5.2(b)(v),
5.2(b)(vii) or 5.2(b)(vii) must inform the non-disclosing party as promptly
as is reasonably necessary to enable the non-disclosing party to take action
to, and use the disclosing party's reasonable best efforts to, limit the
disclosure and maintain confidentiality to the extent practicable.
(d) Manager will not, except when serving in the capacity of
Manager under this agreement, use any Confidential Information of any kind
that it receives under or in connection with this agreement. For example, if
Manager operates a wireless company in a different licensed area, Manager may
not use any of the Confidential Information received under or in connection
with this agreement in operating its other wireless business.
6. INDEMNIFICATION
6.1 INDEMNIFICATION BY SPRINT SPECTRUM. Sprint Spectrum agrees to
indemnify, defend and hold harmless Manager, its directors, managers,
officers and employees from and against any and all claims, demands, causes
of action, losses, actions, damages, liability and expense, including costs
and reasonable attorneys' fees, against Manager, its directors, managers,
officers and employees arising from or relating to the violation by Sprint
Spectrum, its directors, officers, employees, contractors, subcontractors,
agents or representatives of any law, regulation or ordinance applicable to
Sprint Spectrum in its performance of the Selected Services, or by Sprint
Spectrum's, or its directors', officers', employees', contractors',
subcontractors', agents' or representatives' breach of any representation,
warranty or covenant contained in this agreement, except where and to the
extent the claim, demand, cause of action, loss, action, damage, liability
and expense results from the negligence or willful misconduct of Manager, its
directors, managers, officers, employees, agents or representatives. Sprint
Spectrum's indemnification obligations under this Section 6.1 do not apply to
any third party vendors that provide services (including Selected Services)
directly to Manager or Manager's Related Parties under a separate agreement.
6.2 INDEMNIFICATION BY MANAGER. Manager agrees to indemnify,
defend and hold harmless Sprint Spectrum, its directors, officers and
employees from and against any and all claims, demands, causes of action,
losses, actions, damages, liability and expense, including costs and
reasonable attorneys' fees, against Sprint Spectrum, its directors, officers
and employees arising from or relating to Manager's, or its directors',
managers', officers', employees', contractors', subcontractors', agents' or
representatives' violation of any law, regulation or ordinance applicable to
Manager, or by Manager's, or its directors', managers',
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officers', employees', contractors', subcontractors', agents' or
representatives' breach of any representation, warranty or covenant contained
in this agreement. Manager's ownership of the Operating Assets or the
operation of the Service Area Network, except where and to the extent the
claim, demand, cause of action, loss, action, damage, liability and expense
results from the negligence or willful misconduct of Sprint Spectrum, its
directors, officers, employees, contractors, subcontractors, agents or
representatives.
6.3 PROCEDURE.
6.3.1 NOTICE. Any party being indemnified ("INDEMNITEE") will
give the party making the indemnification ("INDEMNITOR") written notice as
soon as practicable but no later than 5 Business Days after the party becomes
aware of the facts, conditions or events that give rise to the claim for
indemnification if:
(a) any claim or demand is made or liability is asserted
against Indemnitee; or
(b) any suit, action, or administrative or legal proceeding
is instituted or commenced in which Indemnitee is involved or is named as a
defendant either individually or with others.
Failure to give notice as described in this Section 6.3.1 does not
modify the indemnification obligations of this provision, except if
Indemnitor is harmed by failure to provide timely notice to Indemnitor, then
Indemnitor does not have to indemnify Indemnitee for the harm caused by
failure to give the timely notice.
6.3.2 DEFENSE BY INDEMNITOR. If within 30 days after giving
notice Indemnitee receives written notice from Indemnitor stating that
Indemnitor disputes or intends to defend against the claim, demand,
liability, suit, action or proceeding, then Indemnitor will have the right to
select counsel of its choice and to dispute or defend against the claim,
demand, liability, suit, action or procedding.
Indemnitee will fully cooperate with Indemnitor in the dispute or
defense so long as Indemnitor is conducting the dispute or defense diligently
and in good faith. Indemnitor is not permitted to settle the dispute or
claim without prior written approval of Indemnitee, which approval shall not
be unreasonably withheld. Even though Indemnitor selects counsel of its
choice, Indemnitee has the right to retain additional representation by
counsel of its choice to participate in the defense at Indemnitee's sole cost
and expense.
6.3.3 DEFENSE BY INDEMNITEE. If no notice of intent to
dispute or defend is received by Indemnitee within the 30-day period, or if a
diligent and good faith defense is not or ceases to be conducted, Indemnitee
has the right to dispute and defense against the claim, demand or other
liability at the sole cost and expense of Indemnitor and to settle the claim,
demand or other liability, and in either event to be indemnified as provided
in this section 6. Indemnitee is not permitted to settle the dispute or claim
without the prior written approval of Indemnitor, which approval will not be
unreasonably withheld.
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6.3.4 COSTS. Indemnitor's indemnity obligation includes
reasonable attorneys' fees, investigation costs, and all other reasonable
costs and expenses incurred by Indemnitee from the first notice that any
claim or demand has been made or may be made, and is not limited in any way
by any limitation on the amount or type of damages, compensation, or benefits
payable under applicable workers' compensation acts, disability benefit acts,
or other employee benefit acts.
7. DISPUTE RESOULUTION
7.1 NEGOTIATION. The parties will attempt in good faith to
resolve any dispute arising out of or relating to this agreement promptly by
negotiation between or among representatives who have authority to settle the
controversy. Either party may escalate a dispute not resolved in the normal
course of business to the appropriate (as determined by the party) officers
of the parties by providing written notice to the other party.
Within 10 Business Days after delivery of the notice, the appropriate
officers of each party will meet at a mutually acceptable time and place, and
thereafter as often as they deem reasonably necessary, to exchange relevant
information and to attempt to resolve the dispute.
Either party may elect, by giving written notice to the other party,
to escalate any dispute arising out of or relating to the determination of
fees that is not resolved in the normal course of business or by the audit
process set forth in Sections 5.1.2 and 5.1.3, first to the appropriate
financial or accounting officers to be designated by each party. The
designated officers will meet in the manner described in the preceding
paragraph. If the matter has not been resolved by the designated officers
within 30 days after the notifying party's notice, either party may elect to
escalate the dispute to the appropriate (as determined by the party) officers
in accordance with the prior paragraphs of this Section 7.1.
7.2 UNABLE TO RESOLVE. If a dispute has not been resolved within
60 days after the notifying party's notice, the parties will continue to
operate under this agreement and sue the other party for damages or seek
other appropriate remedies as provided in this agreement, except neither
party may bring a suit for damages based on an event that occurs during the
first two years of this agreement.
7.3 ATTORNEYS AND INTENT. If an officer intends to be accompanied
at a meeting by an attorney, the other party's officer will be given at least
3 Business Days prior notice of the intention and may also be accompanied by
an attorney. All negotiations under this Section 7 are confidential and will
be treated as compromise and settlement negotiations for purposes of the
Federal Rules of Civil Procedure and state rules of evidence and civil
procedure.
8. REPRESENTATIONS AND WARRANTIES
Each party for itself makes the following representations and
warranties to the other party:
<PAGE>
8.1 DUE INCORPORATION OR FORMATION; AUTHORIZATION OF AGREEMENTS.
The party is either a corporation, limited liability company, or limited
partnership duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization. Manager is qualified to do
business and in good standing in every jurisdiction in which the Service Area
is located. The party has the full power and authority to execute and deliver
this agreement and to perform its obligations under this agreement.
8.2 VALID AND BINDING OBLIGATION. This agreement constitutes the
valid and binding obligation of the party, enforceable in accordance with its
terms, except as may be limited by principles of equity or by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally.
8.3 NO CONFLICT; NO DEFAULT. Neither the execution, delivery and
performance of this agreement nor the consummation by the party of the
transactions contemplated in this agreement will conflict with, violate or
result in a breach of (a) any law, regulation, order, writ, injunction,
decree, determination or award of any governmental authority or any
arbitrator, applicable to such party, or (b) any term, condition or provision
of the articles of incorporation, certificate of limited partnership,
certificate of organization, bylaws, partnership agreement or limited
liability company agreement (or other governing documents) of such party or
of any material agreement or instrument to which such party is or may be
bound or to which any of its material properties or assets is subject.
8.4 LITIGATION. No action, suit, proceeding or investigation is
pending or, to the knowledge of the party, threatened against or affecting
the party or any of its properties, assets or businesses in any court or
before or by any governmental agency that could, if adversely determined,
reasonably be expected to have a material adverse effect on the party's
ability to perform its obligations under this agreement. The party has not
received any currently effective notice of any default that could reasonably
be expected to result in a breach of the preceding sentence.
9. GENERAL PROVISIONS
9.1 NOTICES. Any notice, payment, demand, or communication
required or permitted to be given by any provision of this agreement must be
in writing and mailed (certified or registered mail, postage prepaid, return
receipt requested), sent by hand or overnight courier, or sent by facsimile
(with acknowledgment received and a copy sent by overnight courier), charges
prepaid and addressed described on the Notice Address Schedule attached to
the Master Signature Page, or to any other address or number as the person or
entity may from rime to time specify by written notice to the other parties.
All notices and other communications given to a party in accordance
with the provisions of this agreement will be deemed to have been given when
received.
9.2 CONSTRUCTION. This agreement will be construed simply
according to its fair meaning and not strictly for or against either party.
<PAGE>
9.3 HEADINGS. The table of contents, section and other headings
contained in this agreement are for reference purposes only and are not
intended to describe, interpret, define, limit or expand the scope, extent or
intent of this agreement.
9.4 FURTHER ACTION. Each party agrees to perform all further acts
and execute, acknowledge, and deliver any documents that may be reasonably
necessary, appropriate, or desirable to carry out the intent and purposes of
this agreement.
9.5 SPECIFIC PERFORMANCE. Each party agrees with the other party
that the party would be irreparably damaged if any of the provisions of this
agreement were not performed in accordance with their specific terms and that
monetary damages alone would not provide an adequate remedy. Accordingly, in
addition to any other remedy to which the non-breaching party may be
entitled, at law or in equity, the non-breaching party will be entitled to
injunctive relief to prevent breaches of this agreement and specifically to
enforce the terms and provisions of this agreement.
9.6 ENTIRE AGREEMENT; AMENDMENTS. The provisions of this agreement
and the Management Agreement (if Sprint Spectrum is a party to that
agreement) (including the exhibits to those agreements) set forth the entire
agreement and understanding between the parties as to the subject matter of
this agreement and supersede all prior agreements, oral or written, and other
communications between the parties relating to the subject matter of this
agreement. Except for Sprint Spectrum's right to amend the Available Services
and the fees charged for such services as shown on EXHIBIT 2.1.1, and
Manager's right to amend the Selected Services listed on EXHIBIT 2.1.2, this
agreement may be modified or amended only by a written amendment signed by
persons or entities authorized to bind each party.
9.7 LIMITATION ON RIGHTS OF OTHERS. Nothing in this agreement,
whether express or implied, will be construed to give any person or entity
other than the parties any legal or equitable right, remedy or claim under or
in respect of this agreement.
9.8 WAIVERS; REMEDIES. The observance of any term of this
agreement may be waived (whether generally or in a particular instance arid
either retroactively or prospectively) by the party entitled to enforce the
term, but any waiver is effective only if in a writing signed by the party
against which the waiver is to be asserted. Except as otherwise provided in
this agreement, no failure or delay of either party in exercising any power
or right under this agreement will operate as a waiver of the power or right,
nor will any single or partial exercise of any right or power preclude any
other or further exercise of the right or power or the exercise of any other
right or power.
Sprint Spectrum is not in breach of any covenant in this agreement, if
failure of such party to comply with such covenant or Sprint Spectrum's
non-compliance with the covenant results primarily from:
(i) any FCC order or any other injunction issued by any
governmental authority impeding the ability to comply with the covenant;
<PAGE>
(ii) the failure of any governmental authority to grant
any consent, approval, waiver, or authorization or any delay on the part
of any governmental authority in granting any consent, approval, waiver
or authorization;
(iii) the failure of any vendor to deliver in a timely
manner any equipment or service; or
(iv) any act of God, act of war or insurrection, riot,
fire, accident, explosion, labor unrest, strike, civil unrest, work
stoppage, condemnation or any similar cause or event not reasonably
within the control of Sprint Spectrum.
9.9 WAIVER OF JURY TRIAL. EACH PARTY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
9.10 BINDING EFFECT. Except as otherwise provided in this
agreement, this agreement is binding upon and inures to the benefit of the
parties and their respective and permitted successors, transferees, and
assigns, including any permitted successor, transferee or assignee of the
Management Agreement. The parties intend that this agreement bind only the
party signing this agreement and that the agreement is not binding on the
Related Parties of a party unless the agreement provides that Related Parties
are bound.
9.11 GOVERNING LAW. The internal laws of the State of Missouri
(without regard to principles of conflicts of law) govern the validity of
this agreement, the construction of its terms, and the interpretation of the
rights and duties of the parties.
9.12 SEVERABILITY. The parties intend every provision of this
agreement to be severable. If any provision of this agreement is held to be
illegal, invalid, or unenforceable for any reason, the parties intend that a
court enforce the provision to the maximum extent permissible so as to effect
the intent of the parties (including the enforcement of the remaining
provisions). If necessary to effect the intent of the parties, the parties
will negotiate in good faith to amend this agreement to replace the parties.
9.13 LIMITATION OF LIABILITY. NO PARTY WILL BE LIABLE TO THE OTHER
PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE
DAMAGES, OR LOSS OF PROFITS, ARISING FROM THE RELATIONSHIP OF THE PARTIES OR
THE CONDUCT OF BUSINESS UNDER, OR BREACH OF, THIS AGREEMENT, EXCEPT WHERE
SUCH DAMAGES OR LOSS OF PROFITS ARE CLAIMED BY OR AWARDED TO A THIRD PARTY IN
A CLAIM OR ACTION AGAINST WHICH A PARTY TO THIS AGREEMENT HAS A SPECIFIC
OBLIGATION TO INDEMNIFY ANOTHER PARTY TO THIS AGREEMENT.
9.14 NO ASSIGNMENT; EXCEPTIONS. This agreement may only be assigned
in conjunction with and to the same party or parties to whom the Management
Agreement has been validly assigned under the Management Agreement's terms
and conditions.
<PAGE>
9.15 DISCLAIMER OF AGENCY. Neither party by this agreement makes
the other party a legal representative or agent of the party, nor does either
party have the right to obligate the other party in any manner, except if the
other party expressly permits the obligation by the party or except for
provisions in this agreement expressly authorizing one party to obligate the
other.
9.16 INDEPENDENT CONTRACTORS. The parties do not intend to create
any partnership, joint venture or other profit-sharing arrangement,
landlord-tenant or lessor-lessee relationship, employer-employee
relationship, or any other relationship other than that expressly provided in
this agreement. Neither party to this agreement has any fiduciary duty to the
other party.
9.17 EXPENSE. Each party bears the expense of complying with this
agreement except as otherwise expressly provided in this agreement.
9.18 GENERAL TERMS.
(a) This agreement, including the attached Schedule of
Definitions, is to be interpreted in accordance with the following rules of
construction:
(i) The definitions in this agreement apply equally to
both the singular and plural forms of the terms defined unless the
context otherwise requires;
(ii) The words "include," "includes" and "including" are
deemed to be followed by the phrase "without limitation";
(iii) All references in this agreement to Sections and
Exhibits are references to Sections of, and Exhibits to, this agreement,
unless otherwise specified; and
(iv) All references to any agreement or other instrument
or statute or regulation are to it as amended and supplemented from time
to time (and, in the case of a statute or regulation, to any
corresponding provisions of successor statutes or regulations), unless
the context otherwise requires.
(b) Any reference in this agreement to a "day" or number of
"days" (without the explicit qualification of "BUSINESS") is a reference to a
calendar day or number of calendar days. If any action or notice is to be
taken or given on or by a particular calendar day, and the calendar day is
not a Business Day, then the action or notice may be taken or given on the
next Business Day.
9.19 CONFLICTS WITH MANAGEMENT AGREEMENT. The provisions of the
Management Agreement govern over those of this Services Agreement if the
provisions contained in this agreement conflict with analogous provisions in
the Management Agreement.
9.20 MASTER SIGNATURE PAGE. Each party agrees that it will execute
the Master Signature Page that evidences such party's agreement to execute,
become a party to and be bound by this agreement, which document is
incorporated herein by this reference.
<PAGE>
EXHIBIT 2.1.1
AVAILABLE SERVICES AND FEES SCHEDULE
`98/99
<TABLE>
<CAPTION>
AVAILABLE SERVICES OPTION #1 OPTION # 2 OPTION #3 PRICE DRIVER
------------------------------------ -------------- -------------- ---------------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Billing S S M *** ***
Customer Care S S M *** ***
Activation S S M *** ***
Credit Checks S S M *** ***
Handset Logistics S S S-Note 1 *** ***
Remote Switching S S M ***
NOCC S S S-Note 2 *** ***
HLR S S M *** ***
Voice Mail S S M *** ***
Prepaid Services S S M *** ***
Directory Assistance V V M *** ***
Operator Services V V M *** ***
Long Distance V V V ***
Roaming Fees S S S ***
Roaming Clearinghouse Fees S S S *** ***
Interconnect Fees S S S-Note 3 *** ***
LIDB & CANM S S M ***
Inter Service Area Fees S S S *** ***
Network Certification S S S ***
</TABLE>
S = Sprint PCS Provided
M = Manager Provided
V = Vendor Provided (through Sprint PCS arrangements)
Note 1 Handset logistics services will be Selected Services for national
retail distribution and inbound telesales channels.
Note 2 NOCC connectivity required to support Sprint PCS FCC and FAA
obligations will be a Selected Service under any of the options
outlined above. The fee for FCC and FAA required NOCC connectivity
is TBD and may be less than the standard NOCC Price.
Note 3 Unless Manager arranges directly per section 1.4.
***Confidential portions omitted and filed separately with the Commission.
<PAGE>
EXHIBIT 2.1.2
DESIGNATION OF SELECTED SERVICES
Each party to this agreement must initial one of the following options
for designation of Selected Services. The options below reference those options
outlined in Exhibit 2.1.1.
______/_________ Option 1 - Sprint PCS Provided
______/_________ Option 2 - Sprint PCS Provided but Manager provides
switching
______/_________ Option 3 - Manager provides all services (exceptions
noted in Exhibit 2.1.1)
